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Reimagining the Law

Published online by Cambridge University Press:  23 January 2015

Jeffrey Nesteruk
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Abstract:

Legal issues have long been a prominent part of the discourse of business ethics. This widespread attention to legal questions within business ethics arises primarily because specific legal issues are as a practical matter often intertwined with prominent ethical issues occurring in the workplace. Many of the central issues of business ethics—issues such as whistle blowing, insider trading, and workplace privacy—have significant legal dimensions.

But this widespread attention to specific legal issues obscures a more significant deficiency within business ethics. This deficiency relates to the consideration of law at a much more fundamental level. Business ethics lacks any developed awareness of the images of law within its discourse.

Unlike jurisprudence, the field of business ethics has little in the way of fully developed models or concepts of law. Rather, our understanding of the law here exists more at the level of images—general, unreflected-upon depictions of the law, determinate in some aspects, indeterminate in others.

Such images are epistemologically potent, containing unexamined assumptions and exerting an often unrecognized influence over the development of our knowledge. As such, they deserve our attention, especially within a newly evolving field such as business ethics. Of particular importance to business ethics is how such images portray the relation of law to ethics.

Type
Articles
Information
Business Ethics Quarterly , Volume 9 , Issue 4 , October 1999 , pp. 603 - 617
Copyright
Copyright © Society for Business Ethics 1999

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References

Notes

I would like to thank the participants in the Hurst Seminar at the University of Florida and the Business Law Lecture Series at the University of Michigan who provided insightful responses to presentations of earlier versions of this article. I would also like to thank Professor Kenneth Schneyer for his thoughtful reading of an earlier version of this article.

1 The evidence for this lack of developed awareness lies in the paucity of articles in business ethics examining the general relationship of law and ethics. Indeed, significant articles in this category are almost nonexistent. Recent work by Thomas Dunfee and Lynn Sharp Paine underscores the need for business ethics to attend more carefully to the general relationship of law and ethics in the business environment. See Thomas W. Dunfee, “On the Synergistic, Interdependent Relation of Business Ethics and Law,” American Business Law Journal 34 (1996): 317; Lynn Sharp Paine, “Law, Ethics, and Managerial Judgment,” Journal of Legal Studies Education 12 (1994): 15.

2 For a leading example of this development, see Frank H. Easterbrooke and Daniel R. Fischel, The Economic Structure of Corporate Law (Cambridge: Harvard University Press, 1991).

3 As many will recognize, this analysis of the practically engaged subject is drawn from the work of Martin Heidegger, or speaking more precisely, from my interpretation of his work. For those who wish to explore this dimension of Heidegger’s thought more fully, see Martin Heidegger, Being and Time, trans. John Macquarrie and Edward Robinson (San Francisco: Harper San Francisco, 1962) pp. 91–148.

4 ”Use-object” is my term for what has been translated in Heidegger’s work as “equipment.” “We shall call those entities which we encounter in concern, ‘equipment’.” Ibid., p. 97.

5 As Heidegger puts it, “Equipment is essentially ‘something in-order-to’ . . . A totality of equipment is constituted by various ways of the ‘in-order-to’, such as serviceability, conduciveness, usability, manipulability.” Ibid.

6 Heidegger uses a similar example. “Equipment—in accordance with it equipmentality— always is in terms of . . . its belonging to other equipment: ink-stand, pen, ink, paper, blotting pad, table, lamp, furniture, windows, doors, room.” Ibid.

7 In Heidegger’s words: “But the totality of involvements itself goes back ultimately to a ‘toward-which’ in which there is no further involvement.” Ibid., p. 116.

8 Ronald Dworkin, Taking Rights Seriously (Cambridge: Harvard University Press, 1977), p. 24.

9 Stanley Fish, Doing What Comes Naturally: Change, Rhetoric, and the Practice of Theory in Literary and Legal Studies (Durham: Duke University Press, 1989), p. 124.

10 Robert C. Solomon, Ethics and Excellence: Cooperation and Integrity in Business (New York: Oxford University Press, 1992), p. 63. Solomon’s portrayal of the law as having this after-the-fact character raises an important issue for business ethicists: How to approach the practical ethical challenges corporate managers encounter when rules of law do not fit current business practices. The difficulty with Solomon’s portrayal of law, however, lies in the way it introduces a bias into how business ethicists address this important issue. His portrayal of law assumes any eventual harmonizing of legal rules and business practices will proceed from changes in the law. But the alternative possibility—that legal rules will alter the nature of business practices—should be part of how business ethicists proceed with their analysis in this area. It might be argued, for instance, that the Foreign Corrupt Practices Act is altering the bribery practices of U. S. firms and others in the international business environment.

11 In speaking of “ethical norms” here, I do not wish to introduce a radical division between moral and prudential prescriptions. Such a decision, in my view, ignores the way in which morality is embedded in individual well-being.

12 Edwin M. Hartman, “The Commons and the Moral Organization,” Business Ethics Quarterly 4 (1994): 253, 257–58.

13 Edwin M. Hartman, Organizational Ethics and the Good Life (New York: Oxford University Press, 1996), p. 170.

14 Richard T. DeGeorge, Competing with Integrity in International Business (New York: Oxford University Press, 1993), p. 26.

15 Ibid.

16 Ibid., p. 195.

17 James Boyd White, Justice as Translation (Chicago: University of Chicago Press, 1990), p. 23.

18 Charles Taylor has put this point well. “If we are partly constituted by our self-understanding, and this in turn can be very different according to various languages which articulate for us a background of distinctions of worth, then language does not only serve to depict ourselves and our world, it also helps constitute our lives.” Charles Taylor, Human Agency and Language: Philosophical Papers 1 (New York: Cambridge University Press, 1985), pp. 9–10.

19 James Boyd White, Heracles’ Bow: Essays on the Rhetoric and Poetics of the Law (Madison: University of Wisconsin Press, 1985), p. xii.

20 Ibid., p. xi.

21 Ibid.

22 Ibid.

23 Ibid., p. 35.

24 Ibid., p. 41.

25 Ibid.

26 White, Justice as Translation , p. 23.

27 See Jeffrey Nesteruk, “The Moral Dynamics of Law in Business,” American Business Law Journal 34 (1996): 133; idem, “Law, Virtue, and the Corporation,” American Business Law Journal 33 (1996): 473; idem, “Law and the Virtues: Developing a Legal Theory for Business Ethics,” Business Ethics Quarterly 5 (1995): 361.

28 C. Edward Weber, Stories of Virtue in Business (Lanham: University Press of America, 1995).

29 Ibid., p. 154.

30 Ibid.

31 Ibid., p. 36.

32 Ibid., p. 37.

33 Ibid. The CFO’s interpretation here is, of course, governed in part by IRS rules, but only in part. The CFO’s interpretation is also an expression of his own agency. His very characterization of the property tax rules as “uncertain” is itself a choice. The IRS rules themselves do not declare their own uncertainty.

34 In pointing to the different possibilities inhering in this moral conversation, I do not mean to suggest a particular result. Rather, my aim is to bring into view how the law contributes to such conversations, influencing their character and development.

35 Marleen A. O’Connor, “How Should We Talk About Fiduciary Duty? Directors’ Conflict-of-Interest Transactions and the ALI’s Principles of Corporate Governance,” George Washington Law Review 61 (1993): 954, 963.

36 Marleen A. O’Connor, “Promoting Economic Justice in Plant Closings: Exploring the Fiduciary/Contract Law Distinction to Enforce Implicit Employment Agreements,” in Progressive Corporate Law, ed. Lawrence Mitchell (Boulder: Westview Press, 1995), pp. 219, 234.

37 Weber, Stories of Virtue in Business, p. 28.

38 Ibid.