Anthony Amatrudo

An intentional basis for corporate personality

This article provides a politico-jurisprudential account of the corporate personality which develops contemporary thinking about collective and shared intentions and their practical applications. It provides a model of corporate personality that is based on recent work by Bratman, Hurley, Raz and Sugden on the issues of shared intentions, interlocking preferences, and other supporting attitudes. The article will additionally detail issues of choice, coercion and will in relation to the work of scholars such as Dworkin and Velleman.

Collective Actions and Goals

This chapter is not so much concerned with group offending or criminal actions, per se. It is nonetheless integral to the book in that it details issues that are new to criminological theory. The issues of decision making, goal setting and intentionality are surely very much in play when we think through such matters as joint criminal enterprise and determining culpability in a criminal case: they ought to be factored in when considering multi-agent criminal activity generally.

Drawing the Strands Together

This book is comprised of three sections: technical and analytical considerations, legal considerations, and reality and sociology. The idea of addressing the topic by means of sections itself is an admission of the complexity of the matters at hand when dealing with social aspects of crime. Technical and analytical considerations are markedly absent in the contemporary criminological literature. It is not uncommon for criminologists to take street gangs, for example, as a given and then to go on and conflate gang membership with criminal activity as though the two are synonymous (Pyrooz et al. 2016, 365–397). This has led to some very bad work, both in the academic and policy arenas, especially in relation to black and working class youth (Smithson et al. 2013). In Chap. 1 we examined the complex determination of collective action and in Chap. 2 we examined collective goal setting and arriving at a common goal, something of vital importance when determining legal responsibility. These are technical considerations but they are crucial to the determination of culpability in group offending cases, especially in the light of the abuses of joint enterprise prosecutions in the UK (Squires 2016). It is important for justice that it is established whether or not individuals are involved in a genuine collective action and the same holds for establishing the goals individuals have in mind. There is a great deal of published work on gangs and other jointly authored crimes, along with organised crime, but this is pretty much cut off from technical discussions about social ontology, and contemporary criminological research overlooks pertinent work in law, philosophy and political theory. What we require is a far more nuanced, and philosophically more rigorous, account of persons and the groups they belong to in the context of intentional action, goal setting and responsibility. The street gang itself is over-determined in a great deal of the criminological literature, often without much evidence for this over-determination. Moreover, this over-determination is often accompanied by what can only be termed “sensationalist” writing, one might even say it amounts to a reactionary moral panic (Harding 2014). It is important when we assess the nature of groups that we meticulously work through the relationships to establish the nature of individual and collective actions and the nature of any collective goals. Criminology must relate, and fairly immediately, to the criminal law. Criminologists are centrally concerned with criminals, not with youths or gangs, per se. Criminality must be established: it cannot be assumed. Hitherto, criminologists have taken groups as straightforward associations and neglected the technical, and problematic, issues of how intention and action structures membership and action. They also tend to overlook the fleeting nature of many groups, notably street gangs, and overstate the continuity of group membership over time. It is a legacy of the history of sociological writing that interactionism remains hugely influential, especially in relation to the understanding of street gangs. This is not altogether a bad thing, but interactionism tends to argue that it is primarily through interaction that persons, and groups of people, define their context and go on to assign meanings. This approach allows for a great deal of social change and it obviously prioritises the role of culture, but it also tends to work with a sense that there is an underlying stability to the person. In other words, though the meanings and the contexts fluctuate, the person doing the changing is largely unexamined. We also note how interactionists conceive of groups as essentially defined by the nature of their interactions, and not the nature of their intentions. This is a very unsophisticated approach existentially. It completely ignores work by philosophers, such as Bratman (1999) and Gilbert (2000), and, in terms of contemporary political theory, List and Petit (2011) with their emphasis upon the role of social ontology, collective action and goal setting. In general, the treatment of the street gang, for example, tends to overplay its homogeneity, understanding it as a super-individual. This also understates how individuals are themselves understandable, in many ways, as mini-associations. In neglecting intentionality, there is a tendency to somewhat conflate, or put on the same ontological footing, armed robbers with their loose bonds and heightened sense of intention with street gangs who may well have tight social bonds but who also exhibit a diminished sense of intention. Interactionism ascribes intentionality all too easily and they over-determine the ontological status of groups. Personal identity is based on the psychological connectedness between intentional episodes or person-stages (Parfit 1984). A continuous person is an association between intentions, desires and beliefs at different points in time. Criminology needs to think more in terms of coming up with a form of explanation better able to differentiate action and intentional states: thereby, saying something meaningful about the criminal responsibility of individuals and groups.

Organisations and Their Enterprise in UK Criminal Law and in International Law

The determination of responsibility, vis-a-vis the individual and the corporate body is, of its nature, a tricky matter simply because groups are made up of collections of individual members, however fleetingly. How then might a corporate body be said to have intention or any sort of agency, qua corporate body? There are questions of responsibility to be settled and the determination must fall somewhere, so we need a theoretical approach that is both plausible and practicable in the large number of cases where this determination of responsibility, vis-a-vis the individual and the corporate body, is in question. In the technical section of this book, Chaps. 1 and 2, we looked primarily at analytical tools for determining collective action as it relates to some, fairly, standard cases of joint agency. However, whilst an analytical approach is one I hold to it is, perhaps, not as practically useful as an approach which looks more towards sociological insights, meaning empirically observable ones rather than philosophical ones. Here, I have in mind thinking about these questions in the context of, if you like, a more organisational framework. By focusing upon the nature of a social organisation, network even, it will be possible to look at interactions between persons and thereby attribute responsibility in terms of the organisational framework, or structure. The sort of sociological questions I have in mind here are along the lines of (1) what do we know about the functioning, or operation, of the organisation in question and (2) what is the role of individuals within the organisation? This sort of model was, of course, used in the prosecution of Nazi war criminals after the Second World War utilising the Nuremberg Protocols. It has also been extensively used in the prosecution of organised crime and prosecution of white-collar crime, notably in the world of banking. It does, though, still prioritise the culpability of individuals, observed in terms of their role in the organisation, rather than organisations, per se: though the criminal organisation nonetheless remains a possibility it is generally understood as being constituted by freely-acting agents. Of course, we might reason that an organisation, qua organisation, acting purposively and for legal purposes can be said to possess criminal responsibility and therefore liability. What is altogether unavoidable here at the outset is the realisation that such matters are as much determined by philosophical and sociological reflection than they are simply in terms of the criminal law. The allocation of responsibility in such matters, where individual agency operates within an organisational framework, will always be complex. One thinks here of the response of the many senior Nazis who did not so much deny their guilt as deny the appropriateness of the charges put before them. In the context of them operating within a complex operational, military command, structure they argued that they were only, themselves, responsible for their small role in the overall process of annihilation (Earl 2013a). When faced with charges of mass murder they tended to reply: “Im sinne der Anklage nicht Schuldig” (In the sense of the accusation, not guilty). Eichmann famously claiming only to have organised the trains to Auschwitz and not the extermination of people upon disembarkation and therefore the charges put to him were mistaken in law. Did these Nazis believe in their limited liability defence? Whilst rejecting, based on a multitude of documentary and testimonial evidence, the defence Eichmann, and others, mounted of their role in the Holocaust we must nonetheless be alive to the issue of attributing too much responsibility to persons within an organisational structure. The over-attribution of responsibility to an individual is a major concern for justice; but one that a more sociological approach can readily accommodate with reference to the operation of the organisation in question (Earl 2013b).

The Central Problem of Collective Action

The basic issue this book seeks to address is the knotty problem of what exactly collective action is. In this regard it is more ambitious and more broadly focused than is typical for a work focused upon Criminology. The job of this chapter is to move the existing criminological settlement around gangs, and joint enterprise, towards a more technical concentration upon the nature of individual action and its relationship with joint action. In doing this I largely follow the line I originally set out in my earlier article (Amatrudo 2016). My view is that it is a more straightforward task to seek to apportion criminal responsibility technically than to use the current, overly simplified and culturally reductive, accounts. This more technical approach makes the allocation of culpability surer. The argument will be that the law ought to be focused upon the wilful actions of individuals acting either alone or in a group. Individuals commit crimes, though they often do so with others. Culpability can only reside with individuals and their individual actions and with groups that are comprised of individuals. Culpability is only incidentally a structural matter. Whilst robbers, street gang members, war criminals, drug dealers and the like may form a group, what really matters are the individual actions of actors even where there is agreement about the intentional status of the group. The individual who stabs with a knife is always more culpable than the person who looked on. Furthermore, serious consideration needs to be afforded to goal setting, intentionality and deliberation when considering the criminal action of criminal actors; more so than the role of culture. When such technical matters are marginalised, the legitimacy of the outcome becomes inadequate, as is seen in the rise of joint enterprise prosecutions since the 1980s in the UK (Williams and Clarke 2016). Our aim will be to better understand the actions, deliberations and goals of individuals, and of groups, simply because these individuals are held responsible for their actions. Accordingly, we must deconstruct the blase arguments often advanced concerning joint criminal activity in order to weigh more carefully the elements that make it up. We can all agree that it is certainly possible for individuals to act with a common purpose: whilst also understanding that such a claim is a very complicated, and multi-faceted, determination to make.

Mobs, Masses and Treating People as Groups

One area that certainly concerns the way individuals are treated as primarily part of a group is that of the demonstration. Individuals on a march, or at a protest, are generally thought of as marchers, or protestors, rather than individuals: at least, they are individuals in the category, or class, of marcher or protestor. No serious attention is paid to the divergent opinions of persons on the same march, or protest, or to considering why, precisely, they came along in the first place. An anti-war march is as likely to consist of pacifists or religiously motivated persons than by members of the radical political left, anarchists or just regular trouble-makers. This lack of specificity is a real concern for anyone attending a march, or demonstration, since they are more likely to be seen as part of the group than as an individual, per se. This has been dealt with extensively by Kistner in relation to South African criminal law in relation to the demonstrations at the Lonmin Platinum mine in Marikana where individual agency was seemingly waived (Kistner 2015). My worry is that the problem of crowds is simply this; that common purpose may be attributed at any moment in the life of a crowd. Our innate capacity to undertake collective action may be fused, by the public authorities, with a mistaken, and over-simplified, version of human intentionality, in terms of what the crowd, qua crowd. The actions of the crowd are deemed unlawful, along with all its constituent members. In this scenario, it will be an uphill battle to distinguish the individual crowd member from the crowd, qua crowd, and problematic in terms of practical policing too (Kistner 2015, 33). Moreover, other than to maintain their own good behaviour what can they do, in the eyes of the law, to differentiate themselves from any violent, or unruly, elements in the crowd, and in any case how might they seek to effect that? There is, at the very least, the suspicion that law-abiding and peaceful persons in a crowd may be taken as fellow travellers in any breach of the peace. These are very serious civil liberty concerns at any time but certainly now with people angry at public sector wage freezes, the state of the National Health Service, student fees and a multitude of other causes when people may very well wish to exercise their lawful right to protest. The right to protest is an important democratic element in our democracy. It is, moreover, a crucial aspect of our right to free speech and well won in earlier days. The prioritising of the group, over and against, the individual may well be understandable, even unavoidable. This is not the point in question. The issue is the right of all persons to be thought of as separate and differentiated persons and to be thought of as such. Morrison makes a very important point about the linkage of freedom of speech and rights of assembly (i.e. demonstrations, marches, meetings and so forth) in his seminal article on assembly in the first half of the twentieth century in America: “The period from 1918 to1927 witnessed the widespread use of membership crime, out of which substantive First Amendment rights emerged. While robust speech right would ultimately result, assembly was most often an issue” (Morrison 2015, 754). In the American example, following the First World War, the growing calls for women’s suffrage, equality between the races and so forth were attacked primarily through the breaking up of assemblies where people came together to exchange views, support one another and advance strategies for political and social change; similar public order strategies have been employed in different places and at different times: all I am doing here is noting the role of assembly in the political discourse of a nation, and its importance at effecting change. Morrison shows how it is often easier for the state to attack an assembly of persons in a public place than to deal with dissent in published form.

The Gang in Criminological Literature

Of all the topics that contemporary Criminology deals with, arguably, the gang is the most researched. Moreover, gangs are considered in a variety of places, such as policing studies, youth work and migration: they are inescapable, being blamed, at various times, for all manner of things from murder and rape to drug dealing and people trafficking. Others still see gangs as a form of resistance, a social movement and helpful ad hoc socialiser of young people (Brotherton 2007). The extent of gangs is perennially disputed in the literature. There are those who see gangs everywhere and others who see the phenomenon as far more restricted. It both rests on whether scholars use a fat or a thin version of the gang in their work (Hallsworth and Young 2008). The phenomenon of gangs itself is hardly helped by there being no agreed working typology. Moreover, as I noted previously “… the polluting influence of funding from the police and a range of government agencies has meant that criminologists have had little incentive to be unduly critical of the basic ontological settlement around gangs” (Amatrudo 2015a, b, 105). There is also the phenomenon of the fetishisation and sexualisation of young, virile male bodies, often black, by, usually, white, middle-class observers, inside and outside of the academy. Many academics and policy makers are all too willing to sensationalise the lives of young people and fit them neatly into a category; the gang as an object to stare at, to study and assess (Panfil 2014; Mayeda et al. 2001). Many scholars are all too willing to go along with the script. This issue of seeing gangs everywhere is a huge concern. At a time of falling crime rates the gang seems to be given greater and greater attention. The issue of joint criminal enterprise is intertwined with the issue of gangs, leading Squires to write of “voodoo criminal liability” concerning the over-criminalisation of young black men in our urban centres with their accompanying over-prosecution and over-incarceration rates (Squires 2016). We must never forget that Stan Cohen’s Folk Devils and Moral Panics was about gangs, mods and rockers. Cohen’s view was that the media’s focus upon mods and rockers made them seem a far bigger problem than they were. So, it has been with a succession of groups over the years since Cohen’s book appeared. It is worth citing, in full, Cohen’s analysis in a passage from the start of the book, which is seminal: “Societies appear to be subject, every now and then, to periods of moral panic. A condition episode, person or group of persons emerges to become defined as a threat to societal values and interests; its nature is presented in a stylized and stereotypical fashion by the mass media; the moral barricades are manned by editors, bishops, politicians and other right-thinking people; socially accredited experts pronounce their diagnoses and solutions; ways of coping are evolved or (more often) resorted to; the condition then disappears, submerges or deteriorates and becomes more visible. Sometimes the object of the panic is quite novel and at other times it is something which has been in existence long enough, but suddenly appears in the limelight. Sometimes the panic passes over and is forgotten except in folklore and collective memory; at other times, it has more serious and long-lasting repercussions and might produce such changes as those in legal and social policy or even in the way the society conceives itself. One of the most recurrent types of moral panic in Britain since the war has been associated with the emergence of various forms of youth culture (originally almost exclusively working class, but often recently middle class or student based) whose behaviour is deviant or delinquent” (Cohen 1973, 9).

Real-Life Cases: War Criminal Prosecutions and the Treatment of Membership of Illegal Organisations

Any work that deals with criminal actions and social situations will have to, at some point, get down to the task of looking at real-world examples. Accordingly, we shall focus on two examples: (1) war crimes, concentrating especially upon crimes of the Nazis, notably the SS-Einsatzgruppen Trial, and (2) membership of illegal, or criminal, organisations, in other words those proscribed by law, but more particularly those organisations which assume responsibility, in group offending cases, where individual responsibility ends. We shall look at terrorist groups and the SS-Einsatzgruppen, by way of an example. The model for these two examples, in terms of collective intentional action, will follow on from Sanchez-Brigado who advanced the following model: a. each conceives of a state of affairs the bringing about of which involves, or is constituted by, the performance of certain actions (and the display of certain attitudes) by all members of the set; b. their conceptions of this state of affairs overlap; c. each intends to perform these actions (and attitudes) as related in the way described to the state of affairs; d. and each executes his or her intention, such that the state of affairs mentioned in (b) obtains (Sanchez-Brigado 2010, 85).

Controlling irregular migration: International human rights standards and the Hungarian legal framework

In the summer of 2015 Hungary constructed a 175 km long barbed-wire fence at its southern border with Serbia. New criminal offences and asylum procedures were introduced that limited access to refugee status determination and ignored agreed EU asylum policy, deterring and de facto preventing asylum seekers from entering Hungarian territory. This paper provides an analysis of these new measures, which criminalized asylum seekers, and the subsequent Hungarian policy in relation to the case law of the European Court of Human Rights – arguing that the Hungarian authorities excessively abused their discretion in implementing these new policies of immigration and border control.

Two Accounts of Censure

I previously juxtaposed the normative from the ideological use of the term censure (Amatrudo 2009). In recent times, the former has been especially associated with von Hirsch (1993) and the latter with Sumner (1994).