Abstract
This paper argues that economic agents, including corporations, have the duty to further justice, not just a duty merely to comply with laws and do their share. The duty to further justice is the requirement to assist in the establishment of just arrangements when they do not exist in society. The paper is grounded in liberal theory and draws heavily on one liberal theorist, Kant. We show that the duty to further justice must be interpreted as a duty of virtue that is owed. This means that the duty is not enforceable but that violating this duty is still wrong and not merely non-virtuous. Our analysis has consequences for the morality of commercial life. It is often suggested that the morality of the market is a special, restricted morality that is leaner than the morality that agents must acknowledge outside the market. If our analysis is correct, the duty to further justice cannot be exempted from market morality, even if it is agreed that this must be leaner than the morality outside commercial life. Our analysis also has direct consequences for John Ruggie’s view on the responsibilities of (internationally operating) businesses. Ruggie has never explicitly acknowledged a duty on the part of business enterprises to further justice. If our analysis is correct, his view is contradictory in that it presupposes the normative validity of free market enterprise yet shrinks from taking into account the conditions of its possibility.
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Notes
Please note that we are not saying that the government necessarily caused a public problem. It has a role to play in amending it.
Even if we grant that “taking into account” may mean that they only have to take limited action in some situations.
In today’s markets the principal agent is the corporation. This brings up whether we have reason to treat the corporation as a moral agent. This issue divides those reflecting on moral issues in today’s market (Dubbink and Smith 2011). Yet, we should also not overlook the areas of consensus. On one hand, many hold that corporations can be moral agents of some kind while on the other hardly anyone insists that corporations can be moral agents in the same way that human beings can be moral agents. In this paper it is assumed that human beings living in modern societies can and should treat corporations as the sort of entity that can take into account moral principles in their decision- making processes. At least in that sense we can interpret them as moral agents. As regards substance, we hold that corporations must take into account all the principles that human beings must acknowledge as duties. Since it will be shown that the duty to further justice holds for human beings, it also holds for corporations.
As the possibility of corporate moral agency is one of the important divisive elements among those reflecting on moral issues in commercial life today, we cannot solve it here. We can only spell out our assumptions. Still, it makes sense to briefly argue for the reasonableness of our assumptions. Our first argument is technically speaking, a negative one. We call attention to the fact that Ruggie clearly has no problem with treating corporations as moral agents. In his view corporations are the sort of entity that – formally speaking – can acknowledge “human rights”. In so far as we are focusing our argument on a dispute with Ruggie, the issue can be side-lined as Ruggie also holds that corporations can be considered moral agents.
Our positive argument for the claim that the corporation can be treated as a moral agent tries to strike a balance between those who insist that only humans can be considered moral agents and those insisting that corporations fulfill all the conditions for moral agency. Our argument distinguishes between the issue of whether the corporation fulfills the technical requirements for being treated as a moral agent and the moral argument that actually gives us reason to consider them as moral agents, given the technical possibility of doing so. As regards the technical side of the argument we follow authors such as Donaldson (1982) and French (1992). They have made convincing arguments for the claim that corporations do fulfill the technical requirements for being considered the type of agents that can take into account in their decision-making processes the very same principles that necessitate human beings as moral duties. As regards the moral side, we argue that there are good moral and political reasons for human beings in modern societies to treat corporations as moral agents. Some of these reasons relate to the sheer political necessity of having to treat corporations as agents that can voluntarily comply with the basic moral principles needed to constitute societal order. If corporations cannot be moral agents in this minimum sense, we must do away with either free markets or the corporate form (Dubbink and Smith 2011). Yet, our most important reason for willing to treat corporation as a moral agent is that by its nature, the corporation is a kind of entity that can only act if represented by a human being (Coleman 1982). As human beings have a duty to become moral creatures, corporations must fulfill certain conditions. One of these conditions is that the comparation must acknowledge all of the same principles that human agents must acknowledge as duties. Otherwise, human agents would lose their sense of moral agency while working in a corporation.
Despite the brevity of our argument, we hope to have shown that there are good reasons to accept our assumptions. As we see it, that is all we must do, given the fact that we cannot solve the perennial issue here and now.
One last remark: it is sometimes suggested that we can sideline the perennial issue in papers not specifically meant to deal with it by speaking of the moral duties of managers instead of the duties of the corporation. Since managers are human beings, the metaphysical problems that emerge as soon as we speak of the moral responsibility of the corporation seem to wither away with this shift in focus (See: Hsieh 2011). This shift has its limits. Firstly, when Ruggie, the OECD or the public in general talk about the responsibilities of business, they are primarily talking of the moral responsibilities of the firm, not the moral duties of their managers. Secondly, a manager is a person acting in a specific role. It is characteristic of acting in a role that the agent must primarily orientate him self on the specific morality of that role. Hence, the shift in focus only begs the question whether the manager as manager must acknowledge moral duties (or a specific moral duty). The answer to that question depends on an analysis of the moral duties of the corporation. (We are not implying that human beings must stop being persons when they take on a role. We are contending that personal morality only comes in on a meta level, for example when asking oneself whether one can accept the role and how one will carry out the role).
Technically speaking Ruggie distinguishes legal norms and social norms. (2009: 13; see also 2010: 12). He does not explicitly talk about moral norms. However, it seems that Ruggie interprets “social norms” in a way that equals or includes moral norms. This happens for example when he refers to the U.N charters for a list of human rights that corporations must take into account.
One reason to believe that Ruggie aligns with minimum market view is that he makes the very distinction between “respecting rights” and “constituting and protecting rights” so important. Another reason is his insistence that “companies cannot be held responsible for the human rights impacts … (in) … cases in which they were not a causal agent” (2008: 19). A further reason is his insistence that corporate human rights responsibilities should not be determined by a company’s capacity (Ruggie 2010: 14). Ruggie argues that the latter is especially important when governments fail structurally. There is a clear risk that corrupt governments may find it all too convenient when publicly pressured companies take over governmental responsibilities (idem).
Besides, when trying to make improvements on other aspects of the institutional arrangement, the state usually has some role to play. For example, because the improvement requires additional legal changes.
It may even be true that some of the societies that are often suggested to be relatively well organized actually fare less well than expected. For example, Baumol (1975) has argued that politics in the USA is infected by lobbying to a degree that structurally impairs its law-giving potential.
What is more, Ruggie’s notion of respect definitely includes the first component and may very well also include the second. It does not include the third component.
To clarify this, we can make a comparison with the duty not to be cruel to animals. Many societies acknowledge this duty which is oriented towards animals as beneficiaries. However, this duty is not necessarily grounded in our moral relation to animals. It is (often) grounded in the duties we have towards ourselves and/or our status as moral creature. (E.g., a person should not be cruel to animals because they dehumanize themselves by that kind of behavior.)
This may seem quite obvious but western political philosophy is drenched in “institutional fix” thinking. There is a strong belief that institutions will realize the good society despite human beings being evil. Take for example a core slogan behind the market itself: “private vice, public benefit”. This is sometimes explained as meaning that our institutions are so perfect that they will secure a good outcome even if all agents act fully in their own interest, without any regard to duty.
Of course, this is not to say that moral agents must make the furthering of justice their sole end in life. We are now in the process of grounding the duty to further justice. We are not yet dealing with the details of its application.
Even if the content of its requirements is situation specific. We must always do our duty but what this implies depends on circumstances. There are some principles that generally hold (e.g., “do not kill”) but any principle can be trumped under certain circumstances (e.g.. “do not kill” can sometimes be trumped by the duty to defend your own life.
It may seem odd to assert that human beings must attain freedom, since it is often said that Kant considers human beings as creatures that cannot but consider themselves to be free. However, it must be realized that in Kantian moral philosophy most of the core concepts can be dually interpreted. They can refer to an ability (a potentiality) and a realization (actuality). Every human being is moral and free in the sense that each has the possibility and ability to become moral and free. As regards morality and freedom (autonomy) as conditions to be realized, every human being is – or at least should be – caught up in an endless process of making progression, even if some are more successful than others. Seen in this perspective, self-perfection can be understood as the duty to realize our potentiality. External freedom is part of what it means to be free and also a condition of the possibility of internal freedom.
Interview Jan van Wijngaarden, Dutch Ministry of Economic Affairs, 22nd January 2013.
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Acknowledgments
I like to thank Jeff Frooman, Donald Loose, Jeffery Smith, Bert van de Ven and Ruud Welten for their valuable comments on earlier drafts of this paper.
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Dubbink, W. A Moral Grounding of the Duty to Further Justice in Commercial Life. Ethic Theory Moral Prac 18, 27–45 (2015). https://doi.org/10.1007/s10677-014-9504-1
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DOI: https://doi.org/10.1007/s10677-014-9504-1