Kicking Bodies and Damning Souls: The Danger of Harming "Innocent" Individuals While Punishing "Delinquent" States (Essay‪)‬

The problem, with trying to, punish an institution that is judged to be "delinquent--whether a "rogue state," the United Nations, BP, or the United States Army--might be understood as one of responding to an entity that (to invoke Edward, First Baron Thurlow's eighteenth-century account of the corporation) "has no soul to be damned and no body to be kicked." (1) Perhaps this seems a fairly obvious point. After all, even if one can draw some carefully qualified analogies between individual human actors and institutions (as I will attempt to do in the first part of this article), the two types of entity are different in important ways. One might thereby conclude that the corporeal--and, depending on one's beliefs, even the spiritual--nature of individual human beings renders them vulnerable to forms of punitive harm to which institutions, in the sense of formal organizations, are simply impervious. Alternatively, one might counter that such an observation has little relevance when we are talking about "delinquent" institutions in international relations. We do not, one might argue, need to be able to anthropomorphize formal organizations in order to be able to punish them. Indeed, we frequently justify actions toward states, multinational corporations, and intergovernmental organizations--including economic sanctions, boycotts, imposed reparations, fines, "naming and shaming," and even dismantlement--in terms of punishment, and these actions can arguably serve quite successful deterrent, retributive, and even rehabilitative functions. In this article, I want to take a path somewhere between these two responses to the idea of punishing institutions. The distinction between individual human actors and corporations stressed in Baron Thurlow's statement is, indeed, a fairly straightforward one. Nevertheless, it is also a distinction the implications of which are largely ignored when we make calls to punish institutions. This distinction does not preclude the possibility of punishment at the level of the institution, but it does point to significant conceptual and practical complexities in how we can coherently respond to formal organizations that are seen to evade their moral responsibilities in international relations.