Special laws for capitalists
Murder, manslaughter, criminal negligence, assault, sexual assault, theft, fraud are labelled and prosecuted as criminal activities. They are so because they constitute conduct that is abhorrent to any reasonable citizen. They are nasty acts committed with a malicious intention. The perpetrators are to be punished and stigmatized. This will deter them and anyone else from like behaviour. This is why it is so popular with politicians of all stripes to tell their electors that they will commit themselves to tough law and order policies. There is to be zero tolerance for behaviour that will shock any reasonable citizen. But this determination to hunt down repellent harm-doers disappears when those who kill, assault or steal are practising capitalism.
When would-be profiteers, capitalists, set up a business, they make crucial decisions: how much to invest, where to invest, what products and services are to be delivered, what kind of technology/equipment and substances will be needed, what kind of talents the workers should have, how many there should be, how much it all is likely to cost, how large the market for products or services will be, etc. This is called a business plan. It means that business planners are calculating the costs and benefits of their undertaking. They are in an ideal position to determine what the risks to others are—to the workers, to the environment, to the consumers.
Questions
Why, then, are those who mined and processed asbestos for many years, knowing about the health risks this posed, not filling our jails and rotting there as rightfully stigmatized serial killers? Why are those at Union Carbide (as it used to be) who calculatedly put a plant in Bhopal, India, without the safeguards they built into the same plant in the U.S., leading to an explosion that killed and injured 10s of thousands of Indian people, not on death row? Or how about Exxon? In the ‘70s, its scientists reported to their executives that fossil fuels presented a grave danger to the health of the planet and its inhabitants, human and not. The executives told them to keep quiet and set up many foundations that, to this day, are dedicated to convincing politicians to act as climate change deniers. The continuing physical harms to our environments and peoples are assaults on people and our way of living. Exxon calculatedly aggravated these harms. Why are their decision-makers not in jail?
Answer
Because our capitalist political economies are asking us to accept that capitalist activities that repel any reasonable person should be treated as if they were violations of less stigmatizing laws than criminal law. The idea is that their violations should be dealt with as if they were parking violations.
This requires an explanation.
Consider a man at a party who drinks way too much. He gets into his car and, singing to himself while thinking that he is chasing butterflies, kills a pedestrian. Obviously he will be charged with violating our highway traffic laws. Those laws forbid us, under the pain of punishment, not to drive while intoxicated. A conviction under such a law may lead to a fine, a suspension of his licence or even to a prison term. These are serious sanctions but they are not of the same kind as a criminal conviction for homicide. The highway traffic laws are laws governing everyday activities, engaged in by everyone, not just capitalists. They are ways of making us behave safely as our many everyday routines collide with those of others just like us. For instance, parking where other people’s freedom of passage is hindered may be prohibited. This is not a prohibition to avert a crime as much as it is an administrative requirement. Hence, such laws are categorized separately. They are referred-to as regulatory laws. The violation of such a rule does not repel reasonable persons. The punishment therefore does not require that the violator be stigmatized, be denounced as an ugly citizen. But, when that same violation is grossly negligent or reckless and results in serious harm, it is treated differently, it is no longer seen as just a breach of a regulatory law. A reckless person, like our drunk driver, is likely to be charged with having committed a serious crime, most likely manslaughter or criminal negligence, not just a regulatory offence. If convicted criminally, he will not only have to pay money and face jail time, but he also will be labelled a leper by our prestigious judicial system. He will be stigmatized. He will be ostracized.
This driver will not be criminally punished because he intended to hurt a special person or anyone at all. Indeed, that was the last thing on his befuddled mind: he was singing, thinking of butterflies. He will be punished because he did not worry about what might happen if he drank and then got into a car. He was indifferent to the consequences of his actions; he was indifferent to the plight of others he knew might be affected by his decision-making and conduct. This is abhorrent to any reasonable citizen. It deserves a criminal conviction. Now, let us go back to asbestos miners and processors, Bhopal and Exxon: their executives, focussed on profit-maximization, designed their operations knowing, or in position to know, that this would cause grave harms. They took a risk with other people’s lives.
This risk-shifting is the capitalists’ business model. It is, by definition, a criminal model. Like the drunk driver, the asbestos companies, Union Carbide, Exxon did not set out to kill a specific person or anyone else, but they simply did not care whether they did. Worse, the drunk driver did what he did because he was stupid: he did not think. The capitalists’ managers thought it out or could have done so and did not care. This is standard operating procedure for profit-seekers. This should always be criminalized, revealing the evil that inheres in capitalism.
To avoid this possible attack on capitalism, law has worked very hard to make the application of ordinary criminal law a rarity and the application of regulatory laws, like occupational health and safety, environmental and consumer legislation, the norm. Regulatory laws are to be used when profit-seeking businesses breach the existing standards of behaviour. This suggest that capitalists are being controlled and there is no need to treat them as lepers who are to be excluded from society when they make the ‘odd mistake’ and people die. The message is that, for the most part, regulatory laws provide the public with sufficient protection and should satisfy it that justice will be done.
This is not defensible: often the violations are at least as bad as that of the ordinary murderer, assaulter or thief. Take the asbestos story as an example: As early as 1931, the connection between lung diseases and asbestos was known to the industry’s companies. Yet they persisted mining, processing and marketing their poison and still do so in less protected parts of the world. They were, and are, are, at the very least, as indifferent as the drunk, as wilfully heedless of the harm to others as that stupid driver whom we are so very eager to stigmatize, to punish criminally. Yet, the authorities hardly ever turn to criminal law when capitalists, especially large ones, maim, kill, pollute, deliver defective products, and the like. Their calculated chance of being prosecuted criminally for any fatality their profit-seeking causes in Canada is one in a thousand. They are not quaking in their Gucci shoes.
What explains all this is the fact that our political economy is based on capitalism’s logic. This is that wealth for all of is best produced by the private sector and that, therefore, everyone should be grateful when capitalists invest some of their wealth. They are offered incentives, such as cheap water, land, subsidies for transport, relief from some taxes, and, of course, special laws, to coax them into investing. To justify this a capitalist assertion is accepted without challenge. It is that all productive activities entail risk and that, therefore, the materialization of such a risk, even if it was caused by a violation of one of our standards, must be treated as an unfortunate outcome of a benign activity. It should be seen as a regrettable accident or spill and, therefore, not criminal in nature. What is conveniently forgotten that this is a lie. It is fake news. As seen, very often, the capitalist had a chance to predict the harm and decided not to do anything about it when he learned about it.
Worse still: once it is accepted that capitalists are benign investors, it becomes logical when setting standards of behaviour for them (always after a recurrent set of injuries and harms have come to light), they are to be consulted. They are asked whether a regulation might impede their chance of making a profit too much. Law-makers do not meet with known thieves to set the parameters of criminal law. They do precisely this when they set the rules for capitalists. As a corollary, when regulators check a capitalist to see whether it is abiding by this soft set of standards and it is found it is in violation, the first reaction is to chide the violator, rather than punish it. Unlike drunks, capitalists are allowed a defence that they tried to do the best they could, given that they had to be practical and make a profit.
Low standards are set with the capitalists’ help, monitored and enforced with a light hand. Everything possible is done to maintain the myth that capitalists are benign and must be treated as a privileged class.
Carving capitalist profit-seeking out of our criminal law system leads to the horrible repetitive harm-doing by capitalists that everyone knows about. Those injured and killed are not capitalists. For instance, world-wide, 2 million people die because of work ‘accidents’ every year, roughly 6000 per day; there are 270 million injury-causing ‘events and 160 million people suffer occupationally related diseases. The harmed people are rarely capitalists.
This must end.