Tuesday, July 29, 2014

Efficient breach of public law: Civil society v corporate polluters

In the world of environmental regulation, any time a polluter can pay a fine smaller than the amount of profit taken by violating the law, that is termed an "efficient breach of public law" (McBride, 2012). It essentially means that BP can pay for killing vast stretches of the Gulf of Mexico, but if the payouts are less than the income from selling the oil from those wells, they will rationally choose to continue to pollute.

This is because corporations are coldly rational immoral "people," not "people" who share a social contract that would act in a decent fashion. The larger and more lucrative a corporation, in general, the greater the tendency to make efficient breaches of public law. Indeed, on back in 1897 in the Harvard Law Review, US Supreme Court Associate Justice Oliver Wendell Holmes, Jr. wrote (apropos of, but not contemplating, the Citizens United travesty of the Roberts court more than a century later): 
If you want to know the law and nothing else, you must look at it as a bad man, who cares only for the material consequences which such knowledge enables him to predict, not as a good one, who finds his reasons for conduct, whether inside the law or outside of it, in the vaguer sanctions of conscience (qtd. in McBride, 2012, p. 406)
From the standpoint of strategic nonviolence, each movement and every potential nonviolent resister shares the same calculus, with one screamingly key difference; movements and individuals are expected to consider morals and ethics ahead of everything else, and generally, we do. We are better, in general, than corporations. That's saying little, of course, if we look to the behavior of giant energy companies, huge mining corporations, or sadly, even the companies that make shoes. 

What sort of calculations, then, are required to pit civil society against a corporate malefactor who is endangering the environment, public health, or creating other social ills? That is a major, complex consideration, of course, but a list of select factors to include in those calculations might help strategists think about it: 
  • What are the strengths or potential strengths of the movement?
  • What the strengths and weaknesses of the offending corporation?
  • What numbers of participants are available to offer nonviolent opposition, even resistance, to the corporate polluter?
  • What is the potential for growth in those numbers?
  • What is the commitment of those who are seriously involved?
  • Are there ways to help strengthen that level of commitment?
  • Is there a social map of participants, of organizational partners, of collaborators in multiprongs of the campaign?
  • Are there lawyers and paralegals available to help with either the defense of resisters or a civil action directed at halting the corporate pollution?
  • Can elements of the government be recruited to take some of the burden?
There are many more pieces of this puzzle, of course, and taking cues from three general sources can help. 

First, what similar or analogous struggles have occurred that might have lessons to offer? Every campaign needs historians to excavate the records for lessons of value.

Second, are there allies who can offer advice and support?

Three, after learning as much as possible, engage creativity. Keeping the lessons learned from others in mind, how can the current movement adapt and synthesize principles, strategies, and tactics in unique response to unique situations? 

These are separate strands and are all important. With an ahistorical approach, really clumsy efforts can result that are embarrassing to watch. Without allies, a movement can sputter along for a long and ineffectual start. And without fresh consideration of all the possibilities, innovation doesn't occur. 

Pitting civil society against corporations is a combination of brute force and finesse, people power and knowledge-sharing versus money and smart strategic preparation of participants versus a phalanx of lawyers and public relations propaganda professionals. Metaphorically, the hired guns against the indigenous guerrilla, but civil society warriors use nonviolence and can seriously outflank corporadoes who cannot match the passion and commitment of a dedicated mass of participants. 

Gandhi, coming from a culture rooted in a combination of religious beliefs in either reincarnation or paradise for martyrs, could speak freely about courage to risk death and willingness to do so. Many lessons from Gandhi are seriously helpful; that one is seriously unhelpful in modern strategic nonviolent resistance unless there is serious, credible, existential threat that makes risks of nonviolence seem relatively easy to choose. The Gazan who contemplates the risks of nonviolent resistance versus sitting it out on the sidelines--when there are no sidelines--could be moved to action by an effective Palestinian Gandhi right now. But this is relatively rare; most of our nonviolent struggles are serious, but the consequences are usually incarceration, not death, and when people have a fair amount to lose, they cannot be expected to come out in numbers to pay the ultimate price. So keeping your people as safe as possible is a far wiser approach, and rhetoric which doesn't include grand promises to willingly die for your cause is a better recruitment strategy, wouldn't you agree?

The bottom line is the bottom line for corporations, usually. Unlike people, and unlike governments led by people, corporations will cave when costs are too high. Thus the "vaguer sanctions of conscience" can triumph, if the movement strategists are successful at what they should do.

Reference List

McBride, Cody. 2012. "Making Pollution Inefficient Through Empowerment." Ecology Law Quarterly 39, no. 2: 405-438. Academic Search Premier, EBSCOhost (accessed July 29, 2014).

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