The multiple uncertainties of the corporate criminal law

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Abstract

Corporate criminal law refers to the body of legal norms that imposes criminal liability on the corporation, rather than individual members of the corporation, such as directors, officers, managers or employees. This chapter begins by suggesting that the reach of corporate criminal law has greatly expanded over the last three decades. A second striking feature of recent corporate criminal law is the degree to which the substantive criminal law in this field is often plagued by a lack of legal certainty as to the scope of the offence. Examples of legal “uncertainty” are introduced from securities law and anti-corruption law. The chapter goes on to argue that the legal basis for the new corporate criminal law – the doctrine of corporate legal liability – is similarly characterized by uncertainties of various kinds. The discussion highlights how a concern with legal certainty seems to run up against other policy considerations, notably the pragmatic need to take meaningful action against corporate wrongdoing. The chapter concludes with the suggestion that in the context of contemporary corporate criminal law, the meaning of legal certainty has been transformed from a fundamental principle of criminal justice to one of a number of competing policy considerations that have to be resolved in responding to socially undesirable corporate behavior. The combined effect of this net-widening and legal “uncertainty” has been to greatly increase legal risk for companies and to provide a strong incentive to invest in internal governance mechanisms aimed at social enforcement, i.e. corporate compliance.

Original languageEnglish
Title of host publicationLegal Certainty in a Contemporary Context
Subtitle of host publicationPrivate and Criminal Law Perspectives
PublisherSpringer Singapore
Pages147-168
Number of pages22
ISBN (Electronic)9789811001147
ISBN (Print)9789811001123
DOIs
Publication statusPublished - Jan 1 2016

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All Science Journal Classification (ASJC) codes

  • Social Sciences(all)

Cite this

Fenwick, M. (2016). The multiple uncertainties of the corporate criminal law. In Legal Certainty in a Contemporary Context: Private and Criminal Law Perspectives (pp. 147-168). Springer Singapore. https://doi.org/10.1007/978-981-10-0114-7_9