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Saturday, September 29, 2012

Stewart on a Pragmatic Approach to Corporate Criminal Theory

My friend and former office-mate Jim Stewart has an elegant and very interesting new piece engaging in a pragmatic critique of corporate criminal theory (h/t Larry).  If you have not read Jim's work on corporate war crimes, you should.  Jim writes beautifully and in the new piece, he approaches the difficult subject of legal pragmatism gracefully, extracting a number of "themes" that unite the very different pragmatists and then exploring how those themes might be usefully applied to two specific scenarios in the international corporate criminal area (to the questions of corporate pillage and corporate weapons supply).  Here's a section of the piece I thought nicely put together -- it comes just after Jim has discussed his 5 themes of pragmatism:

Finally, let me qualify the foregoing and situate these principles within criticisms of pragmatism. On the one hand, I remain agnostic about pragmatism as an interpretative technique, and I certainly see enormous value in an ongoing engagement between philosophy and law. I am also almost entirely on board with Henry Smith’s thoughtful argument that “[l]egal pragmatism is best understood as a kind of exhortation about theorizing; its function is not to say things that lawyers and judges do not know, but rather to remind lawyers and judges of what they already believe but often fail to practice."  While I agree that most of the key tenets of pragmatism are just basic features of any defensible theory, I suspect that there is still something unique to the pragmatic method in an area such as corporate criminal theory, where the contingencies are immense and cannot be known ahead of time.  In essence, I believe that at least here, pragmatism has unique value.  Thus, we should embrace a pragmatic theory of corporate criminal liability that circumstance forces upon us. 

Posted by Marc DeGirolami on September 29, 2012 at 07:45 AM | Permalink

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