Capitalism: A Crime Story
Harry Glasbeek is a real oddity — a lawyer and professor of corporate law who specializes in exposing the way in which law is manipulated to provide aid and comfort to the dubious manoeuvrings of corporate power. In this short but concise book he moves beyond his earlier critique of the shield provided by corporate personhood to examine the ways in which the spirit of liberal jurisprudence is undermined by the way courts interpret corporate malfeasance. He deals with a range of topics from corporate tax minimizers to the nature of the labour contract and the risk exposure attendant to corporate profit maximization. His central purpose is to reveal the way in which regular corporate activity is treated by government and the courts that undermines the spirit of a liberal jurisprudence based on equality and protecting the autonomy of the individual.
Glasbeek deploys some classic examples of extreme corporate misbehaviour (major oil spills, asbestos exposures, the epipen price hike scandal) to show the ways in which everyday corporate activity commonly exposes workers and communities to a series of harms based on ‘plausible deniability’ by the perpetrators. While the drastic cases have evoked popular outrage and threats of criminal charges Glasbeek clearly illustrates that they are just extreme versions of the legal tilt that favours a mild regulatory framework to police corporate decisions. He makes the irrefutable case that a mild regulatory framework that exempts investors from criminal responsibility undermines the spirit of the law based on liberal assumptions of fairness. He points out that decisions based on profit maximization are commonly made either ignoring risks of spills and other harms or touting them up as ‘acceptable’ based on the arcane calculus of economic advantage. He believes that the assumption that privileges these sorts of investment rights comes from the mythical notion (derived from market ideology) that without allowing space for corporate risktaking that all our economic progress would come under severe threat. The risks of course are strictly reserved for workers and surrounding communities with CEOs and CFOs and big investors staying well clear. That such an undertaking flies in the face of criminal responsibility and equality before the law matters not a jot. This kind of ‘wink and nod’ treatment of corporate malfeasance allows decisionmaking by big business to never seriously consider downstream risks of introductions of new chemicals or hazardous new fracking or mining projects. Public authority enters the picture only in a reactive way when something goes wrong. This usually involves a bit of tut tutting and hand-slapping and sometimes minor penalties seldom involving jail time for the architects of hazardous decisions. Almost none of the bankers responsible for the blatant fraud involved in the 2008 financial collapse ended up behind bars.
Glasbeek’s book should be used is a short primer (its just 111 pages) on legal bias in introductory law school courses across Canada. It is a readable and to-the-point particularly good at dissecting the arguments used to minimize the legal responsibilities of corporations in causing harm to workers and communities. He effectively debunks the notion that corporate investment is an inevitable contribution to public well being. While the book also includes a critique of the way corporate power dominates public decision-making through the use of lobbying and more less palatable forms of intervention Crime Story’s real strength is in debunking the reasoning underlying the notion that corporate activity that violates various human decency and moral norms are in most cases minor inconveniences that are part of the price of doing business.
Glasbeek concludes with recommendations to end the both the weak-kneed system of noncriminal regulation and abolish the shield of corporate personhood that easily-identifiable investors and executives use to evade responsibilities for corporate misbehaviour. Glasbeek has given us a clear and committed perspective on how the legal system loads the dice in favour of capital accumulation undermining the values of fairness and equality on which we are told it is based.
Richard Swift is a coordinating editor for Canadian Dimension and was for more than two decades editor of the New Internationalist. His most recent book is S.O.S.: Alternatives to Capitalism (2014).