A Social Constructionist Approach to Corporate Wrongdoing From Durkheim to Reiman

Contrary to public opinions or ostensible beliefs, the fact remains that crime is derivative.  Specifically, crime is nothing more than a human conception of acts and behaviors which violate particular social and moral norms in ways that can threaten social cohesion and social solidarity.  Crime is not a naturally-occurring phenomenon, such as a tornado or a flowers blooming, and while their may be some genetic factors that predispose certain individuals to commit acts defined as criminal in social contexts, crime is not natural in any sense of the word.  Sociologists and philosophically-oriented researchers and commentators such as Durkheim and Reiman argue that as socially-constructed conceptualizations both crime and the law which seeks to define and regulate crime ought to recognize the derivative nature of these social constructions, the power of human societies to create better and more just social constructions in order to promote a greater type of theoretical consistency, and  contradictions in certain types of social constructions which should be remedied in order to create more morally consistent and just societies.  The criminal laws approach to corporate wrongdoing is one such contradiction more particularly, societies through their definitions of crime have consistently allowed corporations to engage in types of wrongdoing which for individuals engaging in the same type of wrongdoing would be labeled criminal and punished quite severely.  This essay will argue that a social constructionist perspective, as it has evolved from the early work of Durkheim to the contemporary contributions made by Reiman, justifies holding corporations criminally responsible for acts and behaviors in the same way as individuals if the criminal law is to maintain its ethical legitimacy and moral authority.

Sociological Approaches to Crime and Wrongdoing  A Social Construction Approach
As an initial matter, it is useful and perhaps necessary to place Reimans social construction orientation within the larger sociological context within which it originated.  This, in turn, requires a brief understanding of Durkheims groundbreaking sociological approach to crime and punishment.  Most importantly, Durkheim was one of the first scholars to create an analytical framework within which crime and law could be viewed as deriving from sociological factors and from which paradigms such as Reimans social construction could arise and evolve.  Specifically, Durkheim created his sociological approach to deviance and crime by choosing law as an index of the type of solidarity exhibited by a society. Since social solidarity does not lend itself to exact observation, nor indeed to measurement, it is necessary to take an external index which symbolizes it HYPERLINK httpwww.questiaschool.comPM.qstaod95744505(Jones, 1981, p. 1011).

Because desirable conditions such as social solidarity and social cohesion cannot be measured empirically, thus defeating the purpose of objective research and analysis, Durkheim relied on the existence of law as the most objective social manifestation of social norms and moral values.  Deviance and the attribution of culpability, whether in a civil or criminal law context, could thereby be traced to the social and moral values giving rise to particular types of laws and the attendant legal consequences.  Durkheim, in short, defined crime in particular as a type of socially-constructed factual reality and it is based upon this fundamental framework that Reiman explores a variety of contemporary issues and debates related to crime and punishment.  One of Reimans main premises is that one cannot perfectly equate morality and the law more specifically, because law is created or constructed by social forces with a variety of competing interests, there are many circumstances in which law reflects these competing social interests rather than any consistent type of underlying moral universe. Indeed, he argues rather unequivocally, for instance, that it is necessary to distinguish between committing a crime in the legal sense, meaning violating a criminal law, and committing a crime in the moral sense, meaning doing a moral wrong HYPERLINK httpwww.questiaschool.comPM.qstaod5030009749(Reiman, 2007, p. 4).  

Social rules and administrative structures, such as laws and the criminal administrative organizations, are created by a minority rather than a majority and this minority is typically an elite political group.  These elite political groups, whether at the state or federal level, are frequently and disproportionately influenced by individuals and groups which help them to gain their elite political status and to maintain their elite political status through campaign donations and other forms of assistance.  What arises is a social type of obligation to obey the law, in which many injustices occur, but not necessarily a moral obligation to obey the law.  This is ultimately grounded in Reimans firm and persuasively argued conviction that The state of nature is a mental construct, an imaginary place, and the agreement in it is an imaginary agreement. HYPERLINK httpwww.questiaschool.comPM.qstaod5030009749(Reiman, 2007, p. 7).  This divorce of the social reality of crime from morality and justice is clearly illustrated in the case of corporate wrongdoing and the criminal law.

Contemporary Corporate Wrongdoing Illustrated  Ford Pinto Case and Justice
Corporate wrongdoing, whether the result of negligence, reckless disregard, or deliberateness, too frequently occurs and is often treated as a much less serious matter than if it had been the result of an individuals actions or behaviors.  One excellent example, from a comparative perspective, is the infamous case of the Ford Pinto and its exploding year end that resulted in multiple deaths and more injuries.  Briefly speaking, Ford executives recognized that there was a design flaw in the new Pinto model and nevertheless decided to pursue production despite the recognition that this design flaw would likely lead to fatalities and injuries in very specific ways (Vaughan, 1998).  There was civil liability imposed, but Ford executives were exonerated with respect to criminal charges alleging wrongful death.  The question which arises in such circumstances, and which Reiman addresses, is why corporations are not criminally responsible when individuals would most likely be convicted of some degree of murder, sentenced to prison, and treated as socially undesireable criminals for the rest of their lives.  Parents in Florida, for example, were charged and convicted of manslaughter after their young daughter was killed in an automobile crash on the grounds that they failed to comply with the state of Floridas child seat law.  Even a comparative analysis of these respective cases, Ford executives escaping criminal liability and grieving parents being convicted of manslaughter, profoundly illustrates the social injustice of criminal laws designed to prevent death and injury.  The behavior of the Ford executives behavior was more deliberate the parents in Florida because they considered potential deaths as a cost of doing business whereas the parents never contemplated any injury to their child.  And yet, despite these clear moral differences, the wealth Ford Executives were exonerated and the poor parents in Florida were convicted.  This is neither just nor is it ethically defensible.  This disparity in the form of the administration of criminal justice is precisely the type of intellectual hypocrisy that Reiman is criticizing when arguing that as socially-constructed phenomenon criminal laws should adhere to uniform standards of justice and morality.

The main problem, from a social construction perspective, is that There are the unsavory or unethical but not illegal practices that cause harm to many, and there are the white-collar crimes which are either not punished or, if punished, only lightly so (Leighton and Reiman, p. 4).  The implication is that intelligent people and societies cannot rely on law to define morality or justice unless morality and justice are first used to create the law as the type of socially-constructed index which Durkheim hinted at and which, from a sociological perspective, Reiman has refined since Durkheims time.

In the final analysis, there can be no real argument that law is the manifestation of social processes and that is also the result of victories achieved through competitive socioeconomic debates and contests.  There is, despite residual references to medieval notions related to natural laws, nothing natural about crime, punishment, and law.  These are social facts, socially constructed, and morality and justice are too frequently sacrificed or neglected when law is articulated, implemented and enforced.  Corporate wrongdoing, as evidenced in the differential treatment accorded corporations in cases such as Pinto and individuals, demonstrates that Reiman is correct in identifying intellectual and social shortcomings while simultaneously pointing out solutions in the form of constructing laws from the ground-up rather than in the reverse direction which has been the preference of economic and political elites wary of being constrained by law.


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