Philosophy

Zurich Open Repository and Archive University of Zurich Main Library Strickhofstrasse 39 CH-8057 Zurich www.zora.uzh.ch Year: 1994 Moral Judgments as Descriptions of Institutional Facts Ferber, Rafael Abstract: It deals with the question of what a moral judgment is. On the one hand, a satisfactory theory of moral judgments must take into account the descriptive character of moral judgments and the realistic language of morals. On the other hand, it must also meet the non-descriptive character of moral judgments that consists in the recommending or condemning element and in the fact that normative statements are derived from moral judgments. However, cognitivism and emotivism or "normativism" are contradictory theories: If moral judgments are descriptive, it is not possible to deduce norms from them. But if one can deduce norms from moral judgments, they are not descriptive. As a solution to this problem, the paper suggests that moral judgments represent institutional facts; the corresponding theory is moral institutionalism. A moral institutional fact – "an act X is Y", Y" means "morally right" or "morally false" – is a hybrid of descriptive and prescriptive elements: It is stating a fact in descriptive language ("is") and at the same time, it is short for the prescriptive constitutive rule "X is Y according to the moral rules of the language community C". Institutional facts contain normative presuppositions without letting them appear in their grammatical form. Institutional facts are now (in relation to the language community C) objective and intersubjective and they can be generalized (cognitive aspect), although they cannot be reduced to brute physical or psychological facts, and it is also possible to deduce norms from them because they are built into them. The meta-ethical concept of moral institutionalism, which is evolved further in the paper, preserves the best intentions of emotivism and cognitivism without leading to contradiction. As a by-product, the article shows exactly the error in J. R. Searle's alleged counterexample against the so-called naturalistic fallacy from "is" to "ought". This lies in the normative "are" of the analytic premise or definition in "2a. All promises are [that is ought to be] acts of placing oneself under (undertaking) an obligation to do the thing promised". In "Key concepts in philosophy", institutionalism is explained further (p.184-191) and confined to what Hegel has called "Sittlichkeit" that is customary morality in in distinction to the "morality" of my personal consciousness (p.212-213): http://www.zora.uzh.ch/102314/ Posted at the Zurich Open Repository and Archive, University of Zurich ZORA URL: https://doi.org/10.5167/uzh-98246 Originally published at: Ferber, Rafael (1994). Moral Judgments as Descriptions of Institutional Facts. In: Meggle, Georg; Wessels, Ulla. Analyomen 1, Proceedings of the 1st Conference "Perspectives in Analytical Philosophy". Berlin: Walter de Gruyter, 719-729.


Philosophy

Vol.:(0123456789) Journal of Business Ethics (2019) 154:955–966 https://doi.org/10.1007/s10551-018-3892-4 ORIGINAL PAPER Corporate Essence and Identity in Criminal Law Mihailis E. Diamantis1 Received: 1 February 2017 / Accepted: 21 April 2018 © The Author(s) 2018, corrected publication 2021 Abstract How can we know whether we are punishing the same corporation that committed some past crime? Though central to corporate criminal justice, legal theorists and philosophers have yet to address the basic question of how corporate identity persists through time. Simple cases, where crime and punishment are close in time and the corporation has changed little, can mislead us into thinking an answer is always easy to come by. The issue becomes more complicated when corporate criminals undergo any number of transformations-rebranding, spinning-off a division, merging, changing ownership, changing management, swapping lines of business, etc. These changes are common among all corporations, including those trying to conceal or limit liability for past crimes. This article takes a first step toward developing a workable and philosophically satisfying theory of corporate personal identity and discusses its prospects for fulfilling the retributive, rehabilitative, and deterrent purposes of criminal law. Keywords Personal identity * Corporate crime * Successor liability "It is more profitable for thee that one of thy members should perish. . . ." (Matthew 5:29). Introduction Imagine for a moment that we lived in a world where people were much more. . . fluid. In it, criminals desperate to confound justice would have some strategies available. One option in this fantasy world would be for criminals to divide themselves into two separate people, only one of whom would inherit the criminal taint. Another would be to use the latest technology to alter their personality, perhaps removing any trace of criminal disposition. Or, if neither of those options were satisfactory, a criminal might instead find an innocent person and, with or without consent, fuse with them to form a single, morally ambiguous composite. Sci-fi authors and philosophers can take their time deciding who, if anyone, we should punish after these changes. The fluid world, if it ever arrives for human beings, is far off. Business scholars do not have that luxury (Heenan 2004, p. 100). The "identity principle" is the basic tenet of criminal justice that whoever did the crime (and only that person) should do the time. Anything else would entail some form of vicarious liability-punishing A for the crimes of B-which would be anathema the most basic values of due process.1 For individual criminals, the identity principle is pretty straightforward to put into effect. DNA, facial features, fingerprints, social networks, social security numbers, and the like uniquely pick out human beings from birth to grave. But identity is not such a simple matter for corporate people. The sorts of transformations that for individuals are limited to science fiction and philosophers' thought experiments-fissions, fusions, transplants (Parfit 1971, pp. 1–5)-are daily life for corporations-spin-offs, mergers, acquisitions- especially those trying to manage their liabilities (Solomon 2013). Intuitions about how identity works can start to break down when these processes are in play. But we cannot simply shrug our shoulders at the novelty of such cases. Criminal justice requires us to have a defensible theory of corporate personal identity so we can consistently judge whether * Mihailis E. Diamantis firstname.lastname@example.com 1 College of Law, Department of Philosophy, University of Iowa, Iowa City, IA, USA 1 While there may appear to be exceptions-e.g. parents responsible for the crimes of their children, co-conspirators and accomplices responsible for each other's crimes-these are not true cases of vicarious liability. Though the harmful result (the crime of the child, conspirator, or accomplice) is necessary for liability, so is the criminal act or omission of the defendant (failure to supervise, criminal agreement, criminal encouragement). The defendants in these cases stand trial for their own failings. M. E. Diamantis 1 3 956 the corporation we punish today is the one that committed the crime in the past.2 It is surprising, then, that theorists in philosophy, law, and business have had relatively little to say about the matter (Rovane 1998, pp. 135–208). This article takes some first steps to fill the gap.3 It may seem like a fool's errand. Any theory of corporate identity should cohere with our intuitions; at bottom, we have nothing else to rely on (Killoren 2010, pp. 1–35; Shaw 1980, p. 134). But in the absence of robust, welldefined intuitions about complex cases of corporate identity, what could we use to build the theory? This article seeks to systematize and extend a theory premised on the rough intuitions that we do have about simpler cases of corporate identity. It starts with the philosophy of identity. Though philosophers have yet to talk about corporate personal identity, they have done a good deal to map out the conceptual space for thinking about the identity of various kinds of entities across radical transformations. With the framework from philosophy in hand, the article turns to the most recent data in cognitive science about how people intuitively trace the identity of groups across time. From these data, the contours of a theory of collective identity emerges, according to which collective identity fixes to normatively salient features of the collective. The article then extends and operationalizes this implicit theory for the case of corporate crime, drawing on a wide range of literature in compliance, organizational science, management, and marketing. According to the resulting theory-Criminal Essence Theory-a present-day corporation is identical to a past corporate criminal if (and only if) it retains whatever organizational shortcoming led the past corporation to commit the crime in question. The article closes by discussing how the theory fares with respect to the diverse purposes of criminal law. Brief Note on Method By attempting to engage both philosophers and legal academics, this article inhabits an awkward methodological space. Members of the two groups often have very different perspectives on corporate personhood. This has obvious implications for trying to develop a theory of corporate personal identity. In line with long-standing common law jurisprudence, lawyers tend to think of corporate personhood as a legal fiction (Dewey 1926, pp. 655–673; Laufer 1994, p. 650). They think that for pragmatic reasons we pretend that corporations are persons-who can own property, sue, and be sued, etc.-though they really are not. Among philosophers, the issue of corporate personhood is a more open and contestable question of metaphysics. Many philosophers think that, at least so far as moral personality is concerned, complex corporations often have it (Pettit 2007). Both groups, the philosophers and the lawyers, should agree that we need a theory of corporate personal identity if we are to hold corporations criminally liable. It is an unshakeable commitment of our criminal and moral law that the innocent should not suffer punishment. Some theorists see it as one of the distinctive features of criminal liability, as opposed to other sorts of legal liability.4 Respecting this maxim requires that we have some framework for assessing which present-day defendants are identical to those who committed past misdeeds. Lawyers and philosophers, however, will assess potential frameworks by different metrics. Lawyers, thinking that corporations are only fictional people, will be more open to a range of possibilities, and will try to identify the framework that best fulfills the purposes of corporate criminal law, e.g., crime prevention. Those philosophers who think corporations really do have moral personhood will want to find the correct framework, that which truly tracks the persistence of corporate moral personhood. Fortunately, as I argue below, these two perspectives converge. The theory of corporate identity that best promotes the various goals of corporate criminal law is the same theory that best coheres with our other commitments about the nature of corporate personal identity. The different camps will likely find themselves engaged by different parts of the article. In particular, as I develop and evaluate my theory of corporate identity, philosophers who reify corporate personhood will probably find that the "Cognitive Science of Corporate Identity" and "Retribution" sections speak most to them. Lawyers may prefer to skip to the positive statement of my view in the "Criminal Essence Theory" section and the discussion of how it engages corporate incentive structures (the "Rehabilitation" and "Deterrence" sections). Those who, like myself, work at the intersection of law and philosophy, will, I hope, find themselves engaged by it all. Though I try to steer a metaphysically non-committal course so far as corporate personhood is concerned, I will not be metaphysically neutral about everything having to do with corporations. In particular, I will help myself to the fact 3 The article develops a theory of corporate identity for criminal law only. A different theory of corporate identity may be appropriate in other contexts. 4 One could deny that corporations should be held criminally liable. Perhaps civil, administrative, or some other means of enforcement would be more effective. I have discussed this possibility extensively elsewhere (Diamantis 2016). Here, I rest content setting it aside because corporate criminal liability is an entrenched and politically bulletproof feature of legal landscape (Baer 2012, p. 612). 2 This article focuses only on the punitive aspects of criminal punishment. Restitution of victims, also available in criminal law, see, e.g., Mandatory Victims Restitution Act, 18 U.S.C. § 3663A, requires a different approach. Corporate Essence and Identity in Criminal Law 1 3 957 that, even if they are not persons, corporations can be causally efficacious, particularly as concerns how the individual person constituents composing them behave. To deny that organization-level features can influence individual behavior (as described in the "Business Literature on Corporate Criminal Essence" section) would be to reject decades of research and data in organizational psychology and sociology. Doing so would be a mistake, and unnecessary, even for someone inclined to reject corporate personhood. Personhood is not a precondition for causal efficacy. Clarifying the Question: Diachronic Corporate Personal Identity Criminal and moral responsibility presupposes personal identity. John Locke kicked off the modern interest in that premise (Locke 1694), and philosophers have accepted it, in one form or another, ever since (Butler 1763; Reid 1785; Parfit 1971). Personal identity is central to moral responsibility in two respects. The first is "synchronic," which basically refers to identity at a given time-how can we tell which things in the world make up a person, and by extension what the person is responsible for. Philosophical accounts of synchronic identity for natural people cover a broad range (Parfit 1971, pp. 11–12; Carter 1989, pp. 1–14). The question comes up in criminal law for natural people when we have to distinguish causal forces that are identifiable with the agent (e.g., her volitional acts) from those that are not (e.g., intervening acts of others, psychotic episodes, epileptic fits, remote and unforeseeable turns of events). We generally only punish people for the things they, rather than some other external force, did (Lafave and Scott 1986, § 3.2(c)). Synchronic identity issues are common in corporate criminal law as well. There is not much controversy about what makes up a corporation, e.g., a corporate charter, shareholders, directors, and employees. But things can get complicated when we turn to causal forces and want to know when the corporation, as opposed to merely one of its human-sized parts going on a spree of her own, has done something. Academics have had a lot to say on that issue, and criminal courts resolved long ago in favor of the doctrine of respondeat superior.5 Respondeat superior puts some limits on the synchronic identity of corporations-they are identified with their employees (and the things they do) only so long as the employees are working within the scope of their employment and intend to benefit the corporation (O'Sullivan 2016, p. 157). A different sort of personal identity, the topic of this article, is equally important for criminal law-"diachronic" personal identity. Diachronic identity is identity over time (Gallois 2016); in other words, when can you say that a person at one time, and a person at a different time, are one and the same continuous person (French 2016, p. 579). Dystopian sci-fi movies aside,6 in criminal law, we punish someone only after she commits a crime. This immediately raises the diachronic identity question-even if we know who committed the crime and who we are about to punish, how can we be sure they are the same person? We rarely worry about this for individual human defendants since we generally accept that continuity of personhood follows bodily continuity- same fingerprints, same DNA, same face, same person (Olson 1997). Serious concerns about diachronic identity for natural person defendants only arise in rare cases of dissociative identity disorder (Birmingham 1998, pp. 117 − 24; Braude 1996; Hacking 1995; Radden 1996; Wilkes 1981), personality-changing brain trauma (Harlow 1868), and the recesses of philosophical fancy where people's minds and bodies can split and fuse (Parfit 1971). Diachronic identity is equally important, but much harder to conceptualize, when it comes to punishing corporate defendants. While we may question the relevance of philosophers' fission and fusion scenarios for natural persons, the active world of corporate spin-offs, mergers, and acquisitions makes fission and fusion impossible to ignore for corporate persons. The corporate equivalent of splitpersonalities or radical changes in personality are common too, as corporations may have separate lines of business or wholesale changes in management. What is worse is that we do not have the same reservoir of strong intuitions about corporate identity as we do for individual identity. We seem fairly confident about the extremes. If a corporation has undergone few changes since it committed a crime-no major alterations in structure, purpose, employment base, ownership, management, public brand, headquarters, etc.-then whatever corporation currently has those unchanged basic features is the same as the one that committed the crime. At the opposite end of the spectrum, if the corporate criminal has fundamentally altered all these features, it has probably changed its identity, and there may be no present-day corporation it would be appropriate to punish. The trouble is in finding where to draw the line between these poles-how much change, and which changes, can a corporation undergo without changing its identity and shedding its responsibility for past crimes? Is there, as Aristotle would have put it, a clear distinction between "accidental" (non-identity-altering) and "essential" 5 New York Central & Hudson River Railroad Co. v. U.S., 212 U.S. 481 (1909). 6 minority report (Amblin Entertainment and Cruise/Wagner Productions 2002). M. E. Diamantis 1 3 958 (identity-altering) changes? (Matthews 1990, pp. 215–252). Or are there some more complicated interrelationships between changes that, in the right constellations, can result in a change of corporate identity? These are the questions of diachronic personal identity for corporations, and the issues on which this article focuses. Wherever the article refers to corporate "identity" below, it means diachronic personal identity. The article will not attempt to consider every possible change a corporation could undergo. But what it does address-mergers, spinoffs, and changes in ownership, management, and employment-should be enough to set up a framework for thinking about what it does not. There are other forms of legal liability that frequently ignore the identity principle. But in the criminal law, the identity principle is a bedrock commitment. In principle, criminal law could try to abandon the identity principle, at least so far as corporations are concerned. But this would be a dangerous precedent. The various domains of criminal law are not hermetically sealed from each other, and developments in one domain can bleed into others. How we treat corporations in criminal law has implications-if not in theory and policy, in terms of the organic development of criminal law-for how we treat ourselves. In any case, abandoning the identity principle in corporate criminal law would be a solution in search of a problem-as argued below, criminal justice policy favors sticking to the identity principle for corporations. Groundwork for a Theory of Corporate Identity The ancient Greek hero Theseus had a ship (Plutarch, First Century A.D.). After every adventure, Theseus would have his crew inspect the ship and replace any overly worn planks, sails, or riggings. After many years, not a single original splinter, nail, or thread of the original ship remained; everything had been replaced. Did Theseus still have the same ship, or a new one? Would it still be the same ship if Theseus sold it to a merchant who then used it for commerce? Does it matter that one of Theseus' greatest admirers managed to collect each ship part as it was discarded and painstakingly reconstructed "the original ship of Theseus"? This is a famous paradox, and people's intuitions differ about which, if any, of the ships is the same ship Theseus had at the start. The paradox arises because ships are complex entities. Radical alterations (like building them again from new materials) that intuitively would change their identities can occur gradually, and then intuitions weaken. Corporations are similarly complex. Philosophers have grappled with identity paradoxes for millennia. At some point, we may just want to throw up our hands and say, "Who cares? Every interested party knows which ship to board each morning." When it comes to corporate identity, we cannot dismiss the question so easily. For one thing, corporate stakeholders care a lot about whether their corporation is on the hook for some past criminal misconduct. For another, any fair-minded citizen should care that the criminal justice system targets the right defendant. One benefit of identity paradoxes like the Ship of Theseus is that generations of philosophers have developed a framework for thinking about identity across a range of cases. That philosophical work has also provoked some preliminary work in cognitive science about group identity. The approach some philosophers take, and the one adopted here, is to start with simpler cases where we have firmer intuitions about diachronic identity for the type of entity under consideration. From these intuitions, we can try to disentangle an implicit, general theory, which, if fleshed out, may lead to answers in more complex cases. This section begins with some general philosophy of identity. It then turns to recent cognitive science about collective identity and the general theory it implies. Lastly, it draws on scholarship in organizational psychology and business for insights that can help operationalize the general theory as applied to corporations. The Philosophy of Personal Identity Philosophers have developed various conceptual frameworks for identity that can serve as the starting point for the corporate case. Aristotle, for example, distinguished between "accidental" and "essential" traits, where only a change in the latter brings about a change in identity. These concepts offer a helpful way to frame the present inquiry: Which of a corporation's traits are essential, and which are merely accidental? Even with the distinction between accidental and essential traits, there is still something conceptually bizarre about the sorts of merging and spin-off cases that can arise with corporations. Fusion and fission cases (as they are called in the philosophical literature), where entities combine or divide, respectively, raise familiar puzzles in the philosophy of identity. If, after a merger, the successor is identical to one of the its predecessors, what happens to the other predecessor? Surely it is not simply extinguished. Whatever makes the successor corporation identical to one predecessor could make the successor identical to the other predecessor too. But this sounds like it entails a logical contradiction. Identity is a transitive relationship,7 and this network of identity relationships seems to 7 A relationship R is transitive when the following is true: For any objects a, b, and c, if R(a,b) and R(a,c), then R(b,c). Corporate Essence and Identity in Criminal Law 1 3 959 violate transitivity: the two predecessors are identical to the successor, but not identical to each other.8 At this stage, we need an open-ended framework for theorizing identity that can accommodate these sorts of cases without necessitating any particular answer. Philosophers of identity have worried about fission and fusion problems for a long time, initially with respect to objects (Lewis 1971, 1986), and later with respect to natural people (Nagel 1979). Some philosophers think they have found a solution in an approach to identity called "four-dimensionalism." (Parfit 1971; Lewis 1976; Noonan 2003, pp. 139–142). Fourdimensionalism views entities as things extended through time. Accordingly, four-dimensionalists prefer not to talk about the identity of an entity at a single time, but of a thing existing through time. This gives them the resources to accommodate fission and fusion cases. Suppose two entities merge in such a way that they are both seemingly identical to the third composite entity that results. Four-dimensionalists would describe what happened in terms of three entities. The first two are the initial entities, E1 and E2. These each occupy their separate spatiotemporal paths until the moment of merger, after which point their paths overlap. The third entity is the composite, E3, which, according to the four-dimensionalist, existed before the merger, but in two parts as E1 and E2. At the point of merger, the spatiotemporal paths of the two parts of E3 join and E3, thereafter, occupies a single path in space–time.9 Four-dimensionalism does require some mental gymnastics. For example, note that after the merger, there may be three entities inhabiting the same path through space–time: E1, E2, and E3. But this kind of basic accounting is a small cost for having the tools to speak coherently about identity for entities that can merge and split. Cognitive Science of Corporate Identity Embracing a four-dimensionalist framework for thinking about corporate identity is only a start. If we must be open to the possibility that corporations can merge, spin-off, and undergo other transformations while retaining their identity, we must equally entertain the prospect that they can sometimes go through these changes and lose their identity, i.e., become different corporations. To figure out whether a corporation survives these modifications and, in the case of spin-offs, to determine which, if not both, of the resulting corporations it survives as, we need to know what the essential features of a corporation are. Any successor corporation that retains the essential features of a predecessor corporation will be identical to it. How can we determine what are the essential features of a criminal corporation? We really only have two data points available to kick off this sort of inquiry: observation and intuition. We can observe criminal corporations (imaginatively through hypos, if not in fact) as they change various of their features, and gauge our intuitions about when their identity shifts. A theory of corporate identity may be implicit in these data points, or, to the extent our intuitions conflict, reflective equilibrium could help reconcile them (Rawls 1971). Not everyone will agree with this approach. From those who, as fictionalists about corporate moral personality, are feeling baffled right now, I ask for patience. It turns out that the theory of corporate identity that results from this process makes good criminal justice policy, so far as rehabilitation and deterrence are concerned. To those who are realists about corporate moral personality, I humbly submit that I know of no other way forward. Identity is not a directly observable relation, and no available theory of corporate personhood, so far as I am aware, has any answer to the question of diachronic identity. This still leaves the question of whose intuitions we should use. I distrust my own. They have been poisoned by years of work on corporate criminality and my personal investment in the theories I have developed. We could ask other philosophers for their intuitions, but these raise similar concerns. What remains are ordinary folk intuitions. Building a theory off these is particularly attractive in criminal justice. Criminal law is a law for all people, not just for the theorists and philosophers. It largely derives its legitimacy and its efficacy from the legitimacy it is perceived to have (Robinson 2013). This, in turn, depends on how well it coheres with ordinary people's intuitions about desert and responsibility.10 8 A similar problem arises for fission (spin-off) cases. If one of the successors is identical to the predecessor, then whatever makes it identical to the predecessor could make the other successor identical to it too. In that case, the two successors could end up being identical to the predecessor, but not identical to each other. This appears to be another transitivity violation. 9 Four-dimensionalists can also accommodate many variants of the merger scenario above. For example, it may be that one of E1 or E2 ceases to exist, because, e.g. the other's identity absorbs it. In that case story, there are only two entities involved. At the point where the spatiotemporal lines of E1 and E2 meet, only E2 emerges. Or it may be that, rather than merging, a composite entity, E3, splits into two resulting entities, E1 and E2, both of which are identical to it. The four-dimensionalist story in this case is just the reverse of the merger story. The spatiotemporal lines of E1, E2, and E3 overlap until the split, at which point E1 goes one way, E2 another, and E3's spatiotemporal line forks along both trajectories. 10 This is not to say that these intuitions should have carte blanche to shape criminal justice, free from all rational constraints. The common law once subscribed to the bizarre practice of deodand, seeking criminal justice against objects-trees, carts, etc.-involved in the death of a person (Alschuler 1991). That practice eventually succumbed to M. E. Diamantis 1 3 960 Cognitive scientists have some insight into how people intuitively think about diachronic identity generally (Rips et al. 2006). Early data confirm that people really do distinguish between accidental and essential traits (Strohminger and Nichols 2014). There is a pattern to how they make the distinction. The sorts of traits that people judge to be accidental tend to be superficial, while essential traits tend to be deeper and possibly hidden from view (Blok et al. 2001; Hall et al. 2003). This difference is about more than mere location in physical space, inner versus outer. The traits we judge to be essential traits are those hidden features that are causally efficacious in determining how the entity behaves (Rips and Hespos 2015). More recent studies have focused on how normative valence influences our intuitions about whether a trait is essential or accidental. Studies about individual human beings suggest that normative valence plays an important role (Newman et al. 2014, 2015). The newest data extend these results to collective entities too (De Freitas et al. 2016). For example, if a group undergoes a change that causes it to lose its positively valenced traits (e.g., a nation loses its egalitarian policies), then people are likely to judge that it has lost its identity. More importantly for present purposes, cognitive scientists have found that "[i]f an entity is explicitly described as having a bad essence, it will be viewed as losing its identity if it improves" (p. 12).11 Cognitive scientists asked subjects, for example, about variations on a scenario that described a school abandoning its initial mission of teaching Nazi ideology in order to focus on traditional subjects. The studies conclude that subjects are more likely to judge that a collective loses its identity if it undergoes a change that fundamentally alters its negatively valenced traits. Combining the insights about the importance of causal efficacy and normative valence suggests an implicit theory of identity applicable to criminal corporations: The essential trait of a criminal corporation is whatever trait caused it to commit the crime. In the context of a criminal trial, this is likely to be the most salient, normatively valenced, and causally efficacious trait of the corporate defendant. For short, I refer to this trait below as a criminal corporation's "criminal essence." If a criminal corporation retains its criminal essence to the present day, our intuitions should be that the corporation retains its identity. If, however, through some transformative process, the corporation improves upon and eliminates its criminal essence, the data suggest our intuitions will be that whatever corporation emerges is no longer identical to the corporation that committed the crime. Business Literature on Criminal Essence To integrate the insights of cognitive science into a workable theory of corporate identity, we need an understanding of what sorts of ground-level features of a corporation could account for its criminal essence. Business scholars have a lot to say about the organizational causes of corporate misconduct and what changes are more likely, which less, to alter them. Like cognitive scientists studying diachronic identity, business scholars have come to distinguish between superficial corporate elements, such as external branding symbols (Simoes 2005; Perez and del Bosque 2012; Theunissen 2014), and deeper, causally efficacious, intrinsic traits (Balmer 1998; van Reiel and Balmer 1997; Kiriakidou and Millward 2000). This section considers what specifically those intrinsic traits might be. One of the initial premises of systems theory is that "[o] rganizations are systems. . . not just aggregations of individuals" (Fisse and Braithwaite 1988, p. 479; Corneliessen et al. 2007, p. S8). This means that it is often the corporate organization itself, rather than the individuals within it, that is causally effective. Individuals within a corporation adapt to its procedures, rules, and culture once they join it (Coleman 1990, p. 427). As a result, "personnel changes will seldom lead to real changes in the organization's behavior and work processes" (Lederman 2000, p. 688). This is true throughout the corporate hierarchy, from managers to the assembly line (Ermann and Lundman 1996). Of course, this assumes only gradual changes in personnel. Wholesale replacement of large groups of employees may alter causally effective corporate traits, but probably only because the changeover makes changes in other, essential traits possible. As a general rule, though, change in the personnel of a criminal corporation will not reflect a change in its criminal essence. Conversely, if it is the organization rather than the personnel that matters, continuity in personnel need not necessarily entail that a criminal corporation has retained its criminal essence. The same is true of a corporation's shareholders-continuity or change in ownership is not indicative of a change in a corporations' criminal essence. Shareholders do Footnote 10 (continued) the processes of reflective equilibrium and is no longer with us. Had the philosopher kings had their way, deodand may have had a speedier demise, and that would probably have been a good thing. But any interposition between folk intuition and criminal justice that goes beyond speeding the steady course of reflective equilibrium raises a worryingly undemocratic specter-not that of the philosopher king, but that of the philosopher tyrant. 11 To test this effect, scientists presented subjects with one of four scenarios describing a school in Nazi Germany. In two of the scenarios, the school initially shirks traditional academic subjects to focus on Nazi ideology, and, after a turnover in administration, either continues teaching Nazi ideology or switches to teach exclusively academic subjects. In the other two scenarios, the school initially teaches traditional academic subjects and, after the administrative turnover, continues with academic subjects or switches to Nazi ideology. Corporate Essence and Identity in Criminal Law 1 3 961 theoretically have the power to affect the internal operation of a corporation (Alexander and Cohen 2011). For larger corporations, shareholder power in theory rarely reflects power in fact. Shareholders are a dispersed group with divergent interests, making coordination difficult (Stout 2002, p. 1191). Even when coordinated, shareholder power to influence board decisions or composition is limited; their power to influence managers even more so. This is not to deny that shareholders can have an effect, especially large institutional shareholders or shareholders of smaller firms. But, even in these cases, since shareholders are generally not involved in the operation of a corporation, they have little correlation with the causally effective normative traits that define a criminal corporation's essence. If the identities of personnel and shareholders are not reliably correlated with the presence or absence of a corporation's criminal essence, what is? The short answer is, we do not know for sure. But there are some compelling hypotheses available. Corporate culture or ethos is one supra-individual feature that has attracted the attention of academics in business (Corneliessen et al. 2007, o. S7; Melewar and Karaosmanoglu 2006) and law (Bucy 1991, pp. 1099–1100; Fisse 1991; Foerschler 1990, pp. 1300–1302; Moore 1992, pp. 759–760), and policymakers (U.S. Department of Justice 2008, § 9-28.000). The idea here draws on the insight mentioned at the start of this section that organization-level features influence how individuals within a group perform, including whether they commit crimes (Needleman and Needleman 1979). For example, a high-pressure environment oriented toward quotas and production goals with little emphasis on legal or ethical limits can foster malfeasance, even among individuals not otherwise disposed to it (Reckard 2013). Factors that impact a corporation's ethos include its hierarchy, goals and policies, treatment of prior offenses, efforts to educate employees on compliance with the law, and compensation scheme (Bucy 1991, p. 1101). Another trait that understandably receives a lot of attention is a corporation's compliance program (Buell 2011, p. 93). By definition, compliance programs seek to prevent corporations from violating the law (Baer 2009, p. 956; Laufer 1999, p. 1345). Compliance programs are related to, but ultimately different from corporate ethos. They focus on formal operation procedures designed to prevent, detect, and remedy criminal conduct within the corporation. The sorts of techniques currently emphasized in the compliance literature are mostly commonsense: "promulgation of codes of behavior, the institution of training programs, the identification of internal compliance personnel and the creation of procedures and controls to insure company-wide compliance with legal mandates" (Rostain 2008, p. 467). But they need not stop there. Some scholars, including William Laufer, are calling for a more "progressive," data-driven and technically sophisticated approach to compliance (Laufer 2017). While we may not yet know exactly what works and what does not (Laufer and Robertson 1997, pp. 1029–1030), the scientific study of compliance is still in its infancy. There is good reason for optimism that with each passing year, we will know more about what sorts of programs are effective at neutralizing corproate criminogenic traits. Criminal Essence Theory It is time to weave together these threads from philosophy, cognitive science, and organizational psychology. We know from philosophy that we can coherently speak of diachronic corporate personal identity, even in contexts where mergers and spin-offs may seem to lead to transitivity failures. We also know from cognitive science that we intuitively see corporate identity as being tied to causally efficacious, normatively valenced traits. In the context-corporate criminal trials-that trait is whatever feature of the corporation was causally responsible for its criminal conduct; what I call its "criminal essence." It stands to reason that the theory of corporate identity that should cohere best with our intuitions is the "Criminal Essence Theory": A past corporate criminal is identical to, and only to, the present-day corporation or corporations, if any, that retains or retain the same criminal essence. According to the Criminal Essence Theory, if a transformation somehow enables a criminal corporation to shed its criminal essence, the resulting corporation would not be identical to the criminal corporation. Applying the Criminal Essence Theory to determine which, if any, present-day corporation is identical to a past corporate criminal is a two-step process. The factfinders must first determine what trait-whether a poisonous corporate ethos, a gaping compliance deficiency, or something else entirely-was causally responsible for the corporate criminal's misconduct. That is to say, the factfinders must isolate the corporation's criminal essence. Second, the factfinders must determine whether that trait continues in any present-day corporation. If it does, whatever corporation (possibly more than one) has the trait is identical to the criminal corporation (so long as there is causal continuity of the trait from the criminal to the present corporation). If it does not, no presentday corporation is identical to the corporate criminal.12 12 Criminal Essence Theory leaves open the question of what to do if a corporation is charged while it is reforming its criminal essence and before it has finished the job. Any effort to draw a bright conceptual line-when precisely has it reformed enough to become a new corporation-would bump up against familiar problems in the philosophy of vagueness. As will be clearer after the discussion of deterrence drawing the line closer to the start or the end of the process of reform will influence the trade off between fulfilling criminal law's rehabilitative and deterrent purposes. Such line-drawing is beyond the scope of this article. M. E. Diamantis 1 3 962 The test is simple and predictable across a range of cases, so long as the organizational traits that caused the crime are discernable. While a change in personnel will not generally extinguish corporate criminal essence, it may where it causes or is accompanied by modifications in corporate ethos or compliance (assuming one of those was causally responsible for the crime). When a corporate criminal spinsoff a division, it will be identical to whichever of the successors (possibly both) inherits the criminal essence. And when a corporate criminal merges with another corporation, its identity will persist into the successor if the criminal essence survives the merger. But, where the ethos or compliance programs of the counterparty corporation overwhelm and replace that of the corporate criminal, the merger may extinguish the criminal identity.13 Putting the Criminal Essence Theory to Work I developed Criminal Essence Theory in the last two sections to be a theory of identity for criminal corporations that would best cohere with our intuitions. The original motivation for finding a theory, and the reason we should not rest without one, is that criminal justice requires it. Recall that the identity principle prohibits us from punishing a defendant (incorporated or otherwise) for a past crime unless it is the same person who committed it. Now that I have a theory in hand, I should check how well it can fulfill the purposes of criminal law. It would be troubling if it turned out that there were a bad fit between the best theory of corporate criminal identity and these purposes. Fortunately, Criminal Essence Theory is well-positioned to advance the goals of corporate criminal law. Though criminal law has many objectives, its most basic purposes fall into three general categories: retribution, rehabilitation, and deterrence.14 Individual criminal law theorists often have purposes they personally favor, sometimes to the near exclusion of others. (Moore 1987; Huigens 2002, p. 5; Alexander and Cohen 2011, p. 11; Cahill 2011).15 Additionally, I noted above that one's view on the metaphysics of corporate personhood will likely influence which purposes one finds most relevant to corporate criminal law. Those who believe in the moral personality of corporations will want to pay most attention to the next subsection, on retribution. Those who are skeptics will likely be less moved by retributive considerations, and may find the pragmatic arguments on rehabilitation and deterrence more compelling. I will not pick between these purposes. Rather, I will show that the Criminal Essence Theory can advance all three of corporate criminal law's most basic goals. Retribution Retributivists think that punishment should give criminals their just deserts (Moore 1987), and that the justice deserved is proportional to the seriousness of the offense (von Hirsch 1993, pp. 6–19). The most straightforward way to assess Criminal Essence Theory in retributive terms would be to compare it to the right theory of corporate desert. While some philosophers have made heroic efforts to develop such a theory (List and Pettit 2013), no proposal has found general acceptance. In any case, available theories of corporate desert focus on the question of synchronic identity: When do the constituents of a corporation commit a wrong that is attributable to the corporation? They do not answer the diachronic question: Assuming a corporation did something that deserves punishment, how do we tell whether that same corporation is still around to punish today? In the absence of a theory that can help with the diachronic question, I have argued that our best option for vindicating corporate criminal law's retributive goals is to align the law with our intuitions on the matter.16 By design, Criminal Essence Theory incorporates the best data we have about how to achieve the retributive purposes of corporate criminal law. According to the identity principle, we should punish a present-day corporation when and only when it is the same corporation that committed the crime. The Criminal Essence Theory builds on what we know of our intuitions about when a corporation satisfies this condition. Even if Criminal Essence Theory is retributively appropriate within the limited scope of corporate criminal law, we should make sure it does not introduce retributively unacceptable spillover to other areas of law. I see two possible concerns. One is that Criminal Essence Theory will produce different results for corporate defendants than our current criminal law allows for individuals. For example, under Criminal Essence Theory, a criminal corporation could extinguish its criminal liability by removing the organizational vulnerabilities that led it to commit its crime. Individuals do not have this option. This raises the possibility that 13 The Department of Justice has exhibited some interest in implementing such an approach informally. See, e.g., U.S. Department of Justice (2008). Foreign Corrupt Practices Act Review. Available at https:// www. justi ce. gov/ sites/ defau lt/ files/ crimi nalfraud/ legacy/ 2010/ 04/ 11/ 0802. pdf. 14 2016 U.S. Sentencing Guidelines Manuel, § 1A1.2 ("[T]he basic purposes of criminal punishment [are] deterrence, incapacitation, just punishment, and rehabilitation"). 15 model penal code § 1.02(2)(a) (referring to all three purposes). 16 It may strike some readers as odd to talk about retribution where corporations are concerned. But, as I argue elsewhere, there are expressive forms of retributivism that are particularly apt for the corporate context. (Diamantis 2016; Wringe 2016). Corporate Essence and Identity in Criminal Law 1 3 963 Criminal Essence Theory gives corporations the option of a free pass that is unfair vis-à-vis individuals. It is not clear whether this criticism gets off the ground since corporations and individuals are such different types of entities-the first is extremely malleable, the other has familiar biological constraints. But if, as cognitive science seems to suggest, we think about corporate responsibility in ways similar to how we think about individual responsibility, I need a response.17 Though individuals cannot, through reform, escape criminal liability as a matter of law, we do seem to think reform can mitigate their moral responsibility. "I'm a different person now" is a common reply to a moral accusation-"I am no longer the irresponsible youth who would hurt you in that way." What such replies usually mean is that the speaker no longer has whatever motivations or attitudes led to the misconduct. Assuming the speaker can say this credibly, we often think it carries moral weight. Why has this intuition about individual moral responsibility not found its way into the law of individual criminal liability? To some extent, I think it has. This may be part of what is behind statutes of limitations for criminal liability. After a long enough period of time without a recurrence of the same misconduct, the statute of limitations runs and a person becomes immune from prosecution. One intuitive explanation is that as time passes without re-offense, it becomes increasingly likely that an individual who committed a past crime has relevantly different motivations and attitudes, i.e., is a now "different person." There are also epistemological barriers to implementing something like the Criminal Essence Theory for individual criminals. It is very difficult to tell when an individual's motivations and attitudes really have changed. While we can get in and look for changes in the organization-level features that constitute criminal essence for corporations, we do not have the technology to do the same for individuals. We can assess compliance programs and compensation metrics, but know very little about the neurological bases of individual criminal essence. Lacking the necessary neuroscience, the criminal law must turn to less reliable but easier-to-observe indicia of diachronic individual identity, like continuity of physical form and behavior over long periods of time. A second retributive spillover concern arises from the fact that Criminal Essence Theory would allow corporations to escape punishment by reforming themselves. Retributivists often seem to think that, in an ideal world, no crime should go unpunished. If Criminal Essence Theory allows some corporate crimes to go unpunished, that could leave a retributive residue in need of response. Part of the retributive residue may be addressed by convicting and punishing individuals. Though it has not been a focus of this article, I do not mean to suggest that corporate punishment should be the exclusive white-collar remedy. Individuals must face criminal justice as well, regardless of whether the corporations of which they are a part have sufficiently changed their identities to avoid their own punishment. This response can only go so far. There have been cases where a corporation commits a crime even though no individual within it has committed a crime (O'Sullivan 2016, pp. 176–177). In these cases, should the corporation subsequently reform its criminal essence, thereby escaping liability, there would be no suitable object of punishment on the Criminal Essence Theory, corporate or individual. A crime would go totally unpunished. This could initially seem like something that would worry a retributivist, but it must be balanced against another retributive concern-avoiding punishment of innocents.18 Those who ultimately bear the brunt of a corporate sanction are usually innocent corporate stakeholders, like individual shareholders and employees (Alschuler 2009, pp. 1366–1367). That is retributively problematic and something retributivists should want to avoid unless there are compelling justifications. I turn to these now in considering how Criminal Essence Theory advances criminal law's interests in rehabilitation and deterrence. Rehabilitation We hold corporations to account for many of the most common corporate crimes-e.g., securities fraud, anti-competitive practices, environmental violations-because of the negative consequences that conduct has for our economic and social wellbeing. Preventing such crimes is an uncontroversial purpose of corporate criminal law. What may be more controversial is how best to accomplish this. According to rehabilitation theorists, one effective approach is to structure criminal law so that it promotes the reform of criminals. Criminal Essence Theory does just that. While the law could reform criminal corporations after the fact through sentencing (Diamantis 2018), it would be more efficient if the law could encourage corporations to reform their vulnerabilities ex ante. The problem is that corporations have strong incentives not to take the steps necessary to uncover and reform criminal essence. Monitoring and internal investigation raises the probability that vulnerabilities and misconduct will be detected, and, if detected, leaked to authorities. It may be safest for the corporation 17 Thanks to an anonymous Journal of Business Ethics reviewer for pushing me to address this concern. 18 As William Blackstone famously expressed the point, "It is better that ten guilty persons escape than that one innocent suffer." (Blackstone 1769, p. 352). See also, Genesis 18:23–32. M. E. Diamantis 1 3 964 to remain blissfully ignorant. Since corporations cannot fix problems they do not know about, we should expect relatively little self-initiated reform unless the law can overcome these disincentives. Criminal Essence Theory flips these incentives around, giving corporations' strong reasons to detect and remedy any criminal essence they may have. Once the trait is discovered, corporations have a double incentive to fix it-to prevent future misconduct and to nullify their liability for the past misconduct. By remedying its criminal essence, a criminal corporation would, according to the Criminal Essence Theory, change its identity for purposes of criminal law. The resulting corporation, not being identical to the criminal corporation, would emerge free of criminal liabilities. This potential benefit also gives corporations a robust incentive to detect compliance weaknesses in the first place. Once they do, they have taken the first step to eliminating their liability. These incentives to detect and remedy compliance vulnerabilities would persist to the successors of spin-offs and merger scenarios. Any successor corporation that inherits a criminal essence from a predecessor will want to find and fix it. If it fails to do this, it risks facing liability not only for any future violations the criminal essence causes, but also for the past violations the essence generated with the predecessor. This reasoning extends to innocent counterparties in merger and consolidation cases even as the terms of combination are being negotiated. Should they discover a problem, innocent counterparties will want to cover some of the costs of subsequent reform through more favorable terms for the merger or consolidation. Deterrence Another common way of thinking about how to structure the criminal justice system so as to prevent corporate crime is deterrence theory (Huigens 2002, p. 5). According to deterrence theory, the purpose of criminal law should be to threaten sanctions that will disincentivize criminal conduct (Alexander and Cohen 2011, p. 11). Criminal Essence Theory may seem to be weakest with respect to this purpose. Will corporations really be deterred from misconduct if they can commit a crime, reap the benefits, and then insulate themselves from liability by shedding their criminal essence? To some extent, this is less a weakness of the Criminal Essence Theory than a reflection of the basic tension between criminal law's rehabilitative and deterrent purposes (Robinson 2017, pp. 91–92). Fully achieving one can only come at the expense of fully achieving the other. If we punish every criminal violation regardless of efforts at subsequent reform (as would be optimal from the perspective of deterrence), we reduce the incentives criminals have to better themselves. Alternatively, if we allow criminals to reduce their prospective sanction by reforming themselves, we risk diminishing their incentives not to commit crime in the first place. Something like the Criminal Essence Theory holds out the possibility of striking a balance between deterrent and rehabilitative purposes. Under Criminal Essence Theory, crime would still be risky for corporations. If authorities detect misconduct before a criminal corporation reforms its criminal essence-either because the corporation failed to detect it or did not have time to reform-then the corporation would be subject to prosecution and the sanctions that follow. The risk of sanction under Criminal Essence Theory is indeed lower because the corporation may have time to reform before detection. But if the threat of sanction becomes too low for purposes of deterrence, the criminal justice system has the option (at least in theory) of dialing it up by raising the severity of the sentence a corporation will face if successfully prosecuted. So we should still be able to approximate optimal deterrence while adopting Criminal Essence Theory. There is one very aggressive form of corporate gamesmanship that Criminal Essence Theory could incentivize. A corporate mastermind might find some way to induce corporate crime, reap the profits, and then reform the organization immediately after, extinguishing its liability. That seems like a troubling recipe for generating risk-free criminal profits. Fortunately, under Criminal Essence Theory, it would be a rare, oneoff opportunity for corporations. Complete corporate reform is crucial to the success of the gambit. If a corporation truly loses its criminal essence, it will have removed any propensity toward similar misconduct, and along with it the opportunity to benefit from a repeat performance. If whatever trait led the corporation to try to game the criminal justice system remained, the corporation would not have lost its criminal essence and would remain liable for the original crime. The success of the maneuver forecloses the possibility of repeating it. Conclusion According to the Criminal Essence Theory proposed here, a criminal corporation's identity attaches to the organizational trait that led to its misconduct, the corporation's "criminal essence." Should that trait disappear, perhaps because the corporation detected and reformed it, the corporation would emerge for purposes of criminal law with a new identity, free from criminal taint. But so long as the criminal essence remains, regardless of any other transformations the corporation may have undergone, the criminal identity persists. Any present-day corporation that inherits that essence-whether through a spin-off, merger, or just continuous operation- would, under Criminal Essence Theory, be liable for the criminal conduct it caused. Corporate Essence and Identity in Criminal Law 1 3 965 This new approach aligns with folk judgments about corporate identity, so it excels in retributive lights. It also provides strong incentives for criminal corporations to reform their criminal essence, thereby achieving criminal law's rehabilitative goals. While the proposal might weaken the deterrent effects of current corporate criminal law, the loss on this front should be modest. Acknowledgements Many thanks to my industrious research assistants, Gabriel Fox and Curtis Underwood, and to Kiel Brennan-Marquez, John Rudisill, and Steven Weimer for valuable comments. Compliance with Ethical Standards Conflict of interest Mihailis E. Diamantis declares he has no conflict of interest. Open Access This article is licensed under a Creative Commons Attribution 4.0 International License, which permits use, sharing, adaptation, distribution and reproduction in any medium or format, as long as you give appropriate credit to the original author(s) and the source, provide a link to the Creative Commons licence, and indicate if changes were made. The images or other third party material in this article are included in the article's Creative Commons licence, unless indicated otherwise in a credit line to the material. If material is not included in the article's Creative Commons licence and your intended use is not permitted by statutory regulation or exceeds the permitted use, you will need to obtain permission directly from the copyright holder. To view a copy of this licence, visit http:// creat iveco mmons. org/ licen ses/ by/4. 0/. 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From Subjectivity to Objectivity: Bernard Lonergan's Philosophy as a Grounding for Value Sensitive Design

Philosophy

This article explores the potential of Bernard Lonerganâs philosophy of subjectivity as objectivity as a grounding for value sensitive design (VSD) and the design turn in applied ethics. The rapid pace of scientific and technological advancement has created a gap between technical abilities and our moral assessments of those abilities, calling for a reflection on the philosophical tools we have for applying ethics. In particular, applied ethics often presents interconnected problems that require a more general framework for ethical reflection. Lonerganâs philosophy, which emphasizes the importance of selfunderstanding and selfâtranscendence in achieving objectivity, can provide a valuable perspective on VSD and the design turn in applied ethics. The article examines how Lonerganâs philosophy can be applied to VSD and the design turn, and how scientific knowledge can be integrated into an ethics of science without reducing it to an external reflection. By adopting Lonerganâs perspective, we can address the ethical challenges arising from scientific and technological advancements while promoting a more holistic approach to applied ethics.

DOSSIER Steven Umbrello, From Subjectivity to Objectivity 36 STEVEN UMBRELLO FROM SUBJECTIVITY TO OBJECTIVITY: BERNARD LONERGAN'S PHILOSOPHY AS A GROUNDING FOR VALUE SENSITIVE DESIGN 1. Introduction 2. Objectivity 3. VSD and moral commitments 4. Conclusion ABSTRACT: FROM SUBJECTIVITY TO OBJECTIVITY: BERNARD LONERGAN'S PHILOSOPHY AS A GROUNDING FOR VALUE SENSITIVE DESIGN This article explores the potential of Bernard Lonergan's philosophy of subjectivity as objectivity as a grounding for value sensitive design (VSD) and the design turn in applied ethics. The rapid pace of scientific and technological advancement has created a gap between technical abilities and our moral assessments of those abilities, calling for a reflection on the philosophical tools we have for applying ethics. In particular, applied ethics often presents interconnected problems that require a more general framework for ethical reflection. Lonergan's philosophy, which emphasizes the importance of selfunderstanding and self-transcendence in achieving objectivity, can provide a valuable perspective on VSD and the design turn in applied ethics. The article examines how Lonergan's philosophy can be applied to VSD and the design turn, and how scientific knowledge can be integrated into an ethics of science without reducing it to an external reflection. By adopting Lonergan's perspective, we can address the ethical challenges arising from scientific and technological advancements while promoting a more holistic approach to applied ethics. 1. Introduction As ethical issues have changed, applied ethics has taken various "turns". The 1950s saw the emergence of the empirical turn, which emphasized using scientific data to guide moral judgment1. Alongside that, we also witnessed the biomedical turn, which concentrated on ethical issues raised by developments in biotechnology and medicine2. The 1970s saw the emergence of the environmental turn, concentrating on the moral challenges brought on by environmental 1 P. Borry, Schotsmans, K. Dierickx, The origin and emergence of empirical ethics, in G. Widdershoven et al. (eds), Empirical Ethics in Psychiatry, International Perspectives in Philosophy & Psychiatry, Oxford University Press, Oxford 2008. 2 P. Borry, P. Schotsmans, K. Dierickx, The birth of the empirical turn in bioethics, in «Bioethics», 19, 1, 2005, pp. 49-71. S&F_n. 29_2023 37 deterioration and climatic change3, and the 1980s heralded the "animal turn", focusing on questions of how we (should) treat nonhuman animals4. More recently, applied ethics has shifted to a "design turn", which, in light of scientific and technical breakthroughs, highlights the significance of the design process for new technologies, and argues that we ought to be incorporating human values into and throughout that design process in order to support and advance ethical norms5. The design turn further seeks to ensure that the advantages of technological breakthroughs are accessible to all, and it aims to close the gap between technical progress and our moral commitments. One of the most prominent and well-developed approaches for embedding ethics in design is value sensitive design (VSD)6. VSD is a method of developing technology that considers moral principles and ethical ideals throughout the design process of technologies, making sure that they respect human autonomy, uphold our values, and advance welfare. Because VSD acknowledges that technical breakthroughs have broad ethical implications and that design choices have the potential to influence society and people's lives, VSD is essential to the design turn in applied ethics7. VSD seeks to advance more ethical and equitable design and use by incorporating ethical issues into the design process itself. However, both a lack of moral commitments in VSD and the lack of a philosophical grounding for values have raised concerns about the method's effectiveness for addressing these challenges. In this article, I present Bernard Lonergan's philosophy of subjectivity as 3 F. Mathews, Environmental Philosophy, in G. Oppy, N. Trakakis (eds), History of Philosophy in Australia and New Zealand, Springer, Dordrecht 2014. 4 J.B. Callicott, Animal liberation: A triangular affair, in «Environmental ethics», 2, 4, 1980, pp. 311-338. 5 J. van den Hoven, The Design Turn in Applied Ethics, in J. van den Hoven, S. Miller, T. Pogge, (eds.), Designing in Ethics, Cambridge, Cambridge University Press, 2017, p. 11-31. 6 B. Friedman, D.G. Hendry, Value sensitive design: Shaping technology with moral imagination, MA: MIT Press, Cambridge 2019. 7 Ibid. DOSSIER Steven Umbrello, From Subjectivity to Objectivity 38 objectivity as a novel way to understand and ground both VSD and, more broadly, the design turn in applied ethics. Lonergan's philosophy places a strong emphasis on self-awareness and self-transcendence as means for achieving objectivity8. He contends that human subjectivity is an integral component of objectivity, rather than a roadblock to it; we can overcome our biases and arrive at a more impartial perception of reality by becoming aware of who we are and what those biases are9. This offers a useful viewpoint on the ethical issues raised by scientific and technological breakthroughs, which has significant implications for VSD and the design turn in applied ethics. Yet, despite its potential, Lonergan's philosophy has not been properly examined in relation to these domains. By investigating the possibilities of Lonergan's philosophy as a foundation for VSD, this article seeks to close this gap and present a potential principled grounding for the moral commitments that have been argued for in contemporary iterations of VSD.10 The article shows how Lonergan's philosophy may be used to understand the objectivity of moral values and how this may aid us in understanding and grappling with the moral issues brought on by developments in science and technology. 2. Objectivity The foundation of Lonergan's philosophy is the notion that through a process of self-transcendence, humans are capable of knowing objective reality11. According to Lonergan, objectivity is a dynamic and ongoing process of inquiry that is constantly open to modification and improvement rather than a set of unchanging facts that exist independently of human experience, and being "attentive, 8 C. Friel, Faith and Feeling in Lonergan, in «Australian eJournal of Theology», 21, 2013, pp. 139-154. 9 B. Lonergan. Insight: A Study of Human Understanding. Vol. 3. Collected Works of Bernard Lonergan, University of Toronto Press, Toronto 1992. 10 B. Friedman, D.G. Hendry. Value Sensitive Design, cit. 11 M.H. McCarthy. Authenticity as self-transcendence: The enduring insights of Bernard Lonergan, University of Notre Dame Press, Notre Dame 2015. S&F_n. 29_2023 39 intelligent, reasonable, and accountable" is the process by which objective knowledge is attained12. This calls for a readiness to doubt one's presumptions, look for fresh data, and engage with others. The objective philosophy of Lonergan directly affects moral principles as well. He holds that moral principles are not merely cultural norms or subjective beliefs, but rather objective facts that can be learned through the same process of inquiry that produces scientific and factual knowledge13. According to Lonergan, moral principles are rooted in the fact that people are rational beings, and this makes moral ideals discoverable through a process of reflective self-awareness, in which people consider their own behaviors and motivations and work to bring them into coherence with objective ethical standards14. Self-reflection requires the challenging of presumptions, contemplation of different points of view, and conversation with others. In this process, people can learn values like justice and fairness, respect for others' autonomy, and dignity. Lonergan's larger philosophical framework, what he refers to as the "Generalized Empirical Method", provides the intellectual foundation for his notions of dignity, fairness, and respect for autonomy15. This approach is predicated on the notion that people have a natural tendency to want to know and comprehend the world around them, and that knowledge comes from experience. According to Lonergan, our perception of the world is comprised of three fundamental processes: experience, understanding, and judgment.16 12 B. Lonergan, Method in Theology, Darton, Longman, and Todd, London 1973, p. 20. 13 W.E. Conn, Bernard Lonergan on Value, in «The Thomist: A Speculative Quarterly Review», 40, 2, 1976, pp. 243-257. 14 M. Ambrosio, Bernard Lonergan and John Finnis on the Question of Values, Understanding Values, in «Center for Catholic Studies Faculty Seminars and Core Curriculum Seminars», 2, 2013. 15 A. Beards, Generalized Empirical Method, in «The Lonergan Review», 3, 1, 2011, pp. 33-87. 16 J. Dadosky, Lonergan on wisdom, in «Irish theological quarterly», 79, 1, 2014, pp. 45-67. DOSSIER Steven Umbrello, From Subjectivity to Objectivity 40 Experience is the unprocessed information we gather from our interactions with the outside world and our senses. Comprehension is the process of organizing that experience into meaningful patterns and relationships to make sense of it. Making assessments and conclusions based on our perception of the world is an act of judgment. Lonergan believes that the purpose of human inquiry and understanding is not merely to collect information, but rather to reach self-transcendence, or the full realization of one's potential as a human being17. Self-transcendence is the capacity to see beyond our own narrow viewpoint and to acknowledge the inherent dignity of all people. Understanding the connection between objective knowledge and moral ideals can thus be understood using Lonergan's philosophy of "subjectivity as objectivity", which in turn offers a way to anchor moral ideals in objective reality and, by highlighting the significance of self-transcendence, reflective self-awareness, and continuing inquiry, to promote ethical behavior in a world that is increasingly affected by technological breakthroughs. 3. VSD and moral commitments Historically, value sensitive design (VSD) has seen criticism for not rooting its "values" in any moral commitments18. Early VSD literature frequently avoided broader philosophical arguments regarding the nature and justification of specific values, focusing instead on the technical aspects of designing for values19. Due to its lack of philosophical foundations, the process of selecting and ranking values was also somewhat ambiguous and prone to subjectivity. Detractors furthermore suggested that designers could 17 B. Lonergan, Insight, cit. 18 N. Jacobs, A. Huldtgren, Why value sensitive design needs ethical commitments, in «Ethics and information technology», 23, 2021, pp. 23-26. 19 C. A. Le Dantec, E.S. Poole, S.P. Wyche, Values as lived experience: evolving value sensitive design in support of value discovery, in «Proceedings of the SIGCHI conference on human factors in computing systems», Association for Computing Machinery, New York 2009. S&F_n. 29_2023 41 be tempted to give higher priority to values that are more practical or useful for their own interests or the interests of their clients, such as efficiency or profitability, even when these might come into conflict with more general human values like welfare20. Such problems might also be exacerbated if designers are unaware of the moral (or other) underpinnings of the values they have in mind during the design process. In other words, rather than serving to advance and defend moral principles, VSD runs the risk of becoming a vehicle for instrumentalizing them for other ends. This criticism has sparked a renewed interest in the philosophical underpinnings of VSD, and scholars have turned to various ethical theories and frameworks to provide a principled base for the norms VSD seeks to advance21. The early work of Batya Friedman and company, who popularized the idea of value sensitive design in the 1990s, is exemplary of this issue. In their work, they acknowledged the value of moral principles in design, but they did not offer a conceptual framework to support those principles22. Instead, to decide which values should be given priority in a particular design, they used ad hoc techniques like stakeholder consultation and intuition. Similarly, early VSD researchers like Phoebe Sengers and Kirsten Boehner highlighted the need for design to represent societal values but did not clearly outline how such values should be determined and prioritized23. In response to these gaps, recent positions like those of Jeroen van den Hoven and Pieter Vermaas argue for more 20 A. Borning, M. Muller, Next steps for value sensitive design, in «CHI 2012 Proceedings of the SIGCHI conference on human factors in computing systems», Association for Computing Machinery, New York 2012. 21 S. Umbrello, The Ecological Turn in Design: Adopting a Posthumanist Ethics to Inform Value Sensitive Design, in «Philosophies», 6, 2, 2021, p. 29. See also S. Umbrello, Imaginative value sensitive design: Using moral imagination theory to inform responsible technology design, in «Science and Engineering Ethics», 26, 2, pp. 575-595, 2020, pp. 575-595. 22 B. Friedman, Value-sensitive design, in «Interactions», 3, 6, 1996, pp. 1623. 23 P. Sengers, K. Boehner, S. David, J. J. Kaye, Reflective design, in «Proceedings of the 4th decennial conference on Critical computing: between sense and sensibility», Association for Computing Machinery, New York 2005, pp. 49-58. DOSSIER Steven Umbrello, From Subjectivity to Objectivity 42 principled approaches to VSD based on well-established ethical theories like consequentialism, deontology, and virtue ethics24. Yet even these methods have seen criticism for failing to account for the unique cultural and historical contexts in which design is located, and which can (and often do) impact on the values in need of consideration during design. One way or another, VSD needs a foundation for values, and one which is philosophically wellgrounded. Lonergan's philosophy offers one potential framework for comprehending the interplay between subjectivity and objectivity, as well as the significance of moral principles in human flourishing. By anchoring VSD within this framework, designers would be better able to recognize and rank the moral values that are most crucial in a certain design environment while also recognizing the significance of the cultural and historical circumstances that helped form those values. This would make it possible for designers to produce technologies which are more morally sound and responsive to values while also ensuring that their work supports the autonomy and dignity of all those involved. It is also worth highlighting that Lonergan's theory emphasizes the necessity of self-transcendence and the pursuit of the common good, further enhancing its potential as a foundation for VSD. According to Lonergan, people have an inbuilt potential for selftranscenden,ce which enables them to put aside their personal interests and pursue the common good. The idea of the common good recognizes that people are social beings that influence one another via their behaviors. People must cooperate in order to advance justice, fairness, and equality. In the context of VSD, Lonergan's focus on the common good offers an insightful viewpoint on the design process, as VSD aims to foster design practices which result 24 P.E. Vermaas, Y.H. Tan, J. van den Hoven, B. Burgemeestre, J. Hulstijn, Designing for trust: A case of value-sensitive design, in «Knowledge, Technology & Policy», 23, 2010, pp. 491-505. S&F_n. 29_2023 43 in technologies that are considerate of the needs and values of the people who will use them. By putting the common good first, designers may ensure that their creations not only benefit specific users but also improve society as a whole. This is crucial when developing technologies which can have a significant impact across society, such as social media platforms, autonomous vehicles, or automated industrial machinery. Lonergan's philosophy also places a strong emphasis on the value of justice and fairness in interpersonal interactions, maintaining that people are morally required to treat others with justice and fairness. Others' autonomy is to be respected, and individuals are to be treated with respect and decency. With regards to design, this entails creating technologies that respect the autonomy and dignity of the users who will interact with such systems. Most centrally, this means that technologies must not entrench or further discriminatory practices, impair certain users' abilities to control their lives, and users must retain control of their personal information (in addition to other concerns). In a variety of respects, Lonergan's philosophy of objectivity has the power to substantially alter VSD. First of all, it would give a solid foundation for the moral commitments VSD so needs. By looking to Lonergan's philosophy, VSD can draw on a more substantial and principled understanding of morality based on justice, autonomy, and respect for dignity, rather than solely on the arbitrary values and preferences of designers. For instance, in the design of new equipment within the medical domain, a VSD strategy based on Lonergan's philosophy would give equal weight to the autonomy and dignity of healthcare professionals and the safety and well-being of patients. To do this, designers would have to look past their prejudices or preferences and examine the wider ethical consequences of their design choices. Second, this grounding would compel practitioners of VSD to engage in a more thorough and introspective moral deliberation process. DOSSIER Steven Umbrello, From Subjectivity to Objectivity 44 Designers would need to carefully analyze the moral consequences of their work and engage in a process of debate and reflection with stakeholders, including end-users, impacted communities, and ethicists, rather than depending solely on intuition or personal ideals. To ensure that the values and perspectives of all stakeholders are effectively reflected in the design process, this would require VSD practitioners to be more open and accountable in their decision-making. Furthermore, encouraging VSD practitioners to think about the larger social and cultural settings in which their work is located can help them to account for the social and cultural ramifications of their work, as well as the larger economic, political, and historical variables that influence the design process, rather than considering design as a solely technical or instrumental activity. To ensure that the design process is more inclusive and responsive to the needs and values of diverse populations, designers would need to be more thoughtful and critical in their approaches. The three previous points represent a significant departure from how VSD is currently carried out. VSD frequently begins with the identification of stakeholders before attempting to balance their interests in the design of technologies or systems. But according to Lonergan's philosophy of objectivity, we should first have a solid grasp of what is good before designing the systems and technologies that would represent those values. This calls for a more philosophically informed approach, which VSD at the moment lacks, despite Friedman and Hendry's commitment to at least three universal values: human wellbeing, justice, and dignity25. Second, user-centered design, which emphasizes orientation toward the user and the value of user feedback, is frequently used in VSD. This strategy, however, is often individualistic and arbitrary, and may 25 B. Friedman, D.G. Hendry. Value Sensitive Design, cit.; see also S. Umbrello, Combinatory and complementary practices of values and virtues, in «Filosofia», 65, 2020, pp. 107-121. S&F_n. 29_2023 45 not result in the attainment of common goods. In contrast, Lonergan's philosophy of objectivity places a strong emphasis on the necessity of developing technologies and institutions that support a common understanding of what is desirable. Finally, VSD frequently lacks a clearly defined ethical framework, instead often relying on vague utilitarian strategies for balancing the interests of stakeholders. The emphasis on fairness and respect for others' autonomy in Lonergan's philosophy of objectivity, however, can offer a more principled way to reconcile divergent interests. In comparison to current practices in VSD, Lonergan's concept of objectivity thus offers a more philosophically founded, objective, and principled approach to VSD. 4. Conclusions Lonergan's theory of objectivity presents a strong foundation for VSD to ground moral commitments and values, addressing longstanding historical gaps in the theory. By looking to Lonergan's work, VSD could provide more principled strategies for solving societal issues by focusing on the ideals of justice, fairness, respect for autonomy, and human dignity. This would entail a shift in emphasis toward values as the primary organizing factor of VSD, necessitating a deeper understanding of philosophical and ethical ideas. This strategy may have drawbacks, such as requiring designers to have knowledge of Lonergan's philosophy or introducing the danger of forcing a certain ethical framework on the design process. Yet even so, incorporating Lonergan's philosophy into VSD has many advantages, such as a more solid and transparent ethical underpinning for decision-making, a clearer articulation of values and objectives, and a greater potential for social impact. Finally, the potential advantages of incorporating Lonergan's theory of objectivity into VSD may offer designers a chance to DOSSIER Steven Umbrello, From Subjectivity to Objectivity 46 develop more morally and socially responsible approaches to challenging issues. STEVEN UMBRELLO è Ricercatore presso il Centro per le Scienze Religiose Bruno Kessler di Trento email@example.com