Revolutionising Corporate Criminal Liability: A New Paradigm through Anthropic Modelling and Cutting-Edge Behavioural Game Theory

The classical and rigorous approach to systems theory is characterised by its shortcomings in the practical and experiential domain. The lack of robust research to support the underlying assumptions of systems theory has led some experts, such as Knudsen, to discredit it. In fact, Adler, du Gay, Morgan, and Reed, who are specialists in the study of organisational functioning, convey that systems theory continues to be considered among the extensive array of theories and theses on organisational analysis due to the fame it gained in the past century, not because there is scientific evidence proving the validity of its premises.

The notion of an organisation as a closed system with a real capacity for self-organisation, self-reproduction, and self-definition (autopoiesis) – completely independent of individuals (their positions, the influences they generate, or the functions they perform being irrelevant) – is one of the most controversial pillars of systems theory. There is no evidence that systemic assumptions rigorously correspond to what actually occurs in organisations of people. Turning to the focus of this blog, this debate becomes particularly relevant in the field of Criminal Law, where, despite the above criticism, systems theory is now being used in some jurisdictions to justify and address criminal punishment against legal entities. For example, the Spanish Supreme Court has adopted systems theory as the Socio-Legal basis to justify the criminal liability of legal entities. The Court used the theory to affirm the existence of an independent crime committed by the legal person (its own structural organisational defect), completely separate from the decisions and behaviours of the members who run the organisation. From this position, the legal entity is punished for its own hypothetical crime (self-responsibility model).

In contrast, countries with more tradition and experience of corporate criminal liability not only ignore systemic conjectures but also refuse the idea of responsibility for their actions or strict self-responsibility as the basis for punishing legal entities. The United States, Austria, France, the United Kingdom, etc., have rejected the idea of liability based on the entity’s independence and have followed models of vicarious corporate criminal liability (or liability of the legal entity based on acts of the natural person). In the vicarious model, the legal person is incapable of acting on its own (legal persons ‘act’ in the real world through the acts of natural persons). The legal person can only be liable for crimes that are – always – carried out by natural persons of the organisation. This is a kind of quasi-objective criminal liability imposed on the legal entity for the offence committed by a natural person within the organisation (a model that is criticised for not taking into account the constraints and the context that exist in a legal entity).

The lack of factually and methodologically validated scientific support for systems theory poses significant risks for the application of criminal law to legal entities. The practical implications of basing criminal liability on a discredited theory are evident in criminal proceedings in Spain, where problems have been observed in determining the ‘non-imputability’ of certain legal entities and in the lack of systemic parameters to address criminal responsibility resulting from mergers and acquisitions.

In reaction to these deficits, I propose to advance research to develop an updated and scientifically based model of criminal liability of legal persons. This approach, which I call the ‘anthropic model’, focuses on the idea that human activity is the main source that should trigger criminal charges against the company. This model recognises that the corporation is not an autonomous system capable of committing crimes by itself; rather, it is the people within the organisation who make decisions and generate influences. From the anthropic model, criminal liability for legal entities is approached by considering human influence in decision-making and the configuration of a corporate context. In this way, the legal entity is seen as a factor that strengthens influences, a central catalyst of constraints, procedures, and joint actions carried out by groups of people seeking to achieve common goals. This is an idea that, since the pioneering work of Mancur Olson, has been known in sociology as the logic of collective action. The importance of an effective governance system that includes a ‘compliance program’ with appropriate mechanisms and controls to prevent crime is emphasised. The guilt of a legal person is observed when there are influences in the organisation that ‘allow’ or facilitate the commission of crimes.

To support the anthropic model, I propose three concepts and scientific theories: neoinstitutionalism, behavioural compliance, and game theory. Neoinstitutionalism focuses on the mutual interaction between individuals and organisations in the study of decision-making processes. Behavioural compliance is based on the influence of behavioural factors in the design of governance systems. Game theory, combined with contributions from the behavioural sciences, offers an advanced tool for understanding strategic decisions and cooperation within organisations. Game theory is currently employed by research agencies to comprehend and even predict preferences and behaviours within groups and strategic frameworks. I consider that their combination, with contributions from behavioural sciences, provides an advanced tool (behavioural game theory), could play a crucial role in clarifying the attribution of corporate criminal liability and the design of corporate compliance programs.

In comparison to systems theory, game theory enjoys solid scientific support. For example, a cast of Nobel laureates have contributed to its refinement, or used game theory as a tool for studying human behaviour in strategic contexts with asymmetrical information flows, which are conditions prevalent in legal entities. Among the most notable aspects of game theory, is its use as a tool for analysing decision-making processes involving various agents or strategic contexts. For example, game theory enabled Elster to explain how order, norms, and institutions emerge spontaneously as a result of the necessary cooperation of individuals. Game theory was also used by Mackaay to present reasons for the compliance/non-compliance of agreements or contracts and the necessary enforcement by authorities. Lastly, McCarthy utilised the theory to provide useful criteria for predicting crime in organised frameworks that take into account key aspects of criminal sociology, and so forth.

Ultimately, my goal is to configure a model of criminal liability for legal entities that incorporates what the social sciences tell us today about decision-making in organisations. The evidence obtained from scientific experimentation, particularly in the field of behavioural compliance, stands out as a valuable tool for designing governance systems that prevent irregularities.