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Morality, Competition, and the Firm: the Market Failures Approach To Morality, Competition, and the Firm Morality, Competition, and the Firm THE MARKET FAILURES APPROACH TO BUSINESS ETHICS Joseph Heath 1 1 Oxford University Press is a department of the University of Oxford. It furthers the University’s objective of excellence in research, scholarship, and education by publishing worldwide. Oxford New York Auckland Cape Town Dar es Salaam Hong Kong Karachi Kuala Lumpur Madrid Melbourne Mexico City Nairobi New Delhi Shanghai Taipei Toronto With offices in Argentina Austria Brazil Chile Czech Republic France Greece Guatemala Hungary Italy Japan Poland Portugal Singapore South Korea Switzerland Thailand Turkey Ukraine Vietnam Oxford is a registered trademark of Oxford University Press in the UK and certain other countries. Published in the United States of America by Oxford University Press 198 Madison Avenue, New York, NY 10016 © Oxford University Press 2014 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, without the prior permission in writing of Oxford University Press, or as expressly permitted by law, by license, or under terms agreed with the appropriate reproduction rights organization. Inquiries concerning reproduction outside the scope of the above should be sent to the Rights Department, Oxford University Press, at the address above. You must not circulate this work in any other form and you must impose this same condition on any acquirer. Library of Congress Cataloging-in-Publication Data Heath, Joseph, 1967– Morality, competition, and the firm : the market failures approach to business ethics / Joseph Heath. pages cm ISBN 978–0–19–999048–1 (hardback) 1. Business ethics. 2. Profit—Moral and ethical aspects. 3. Competition. 4. Corporations—Moral and ethical aspects. I. Title. HF5387.H435 2014 174′.4—dc23 2013050434 9 8 7 6 5 4 3 2 1 Printed in the United States of America on acid-free paper CONTENTS Acknowledgments vii Introduction 1 PART I } The Corporation and Society 1. A Market Failures Approach to Business Ethics 25 2. Stakeholder Theory, Corporate Governance, and Public Management (with Wayne Norman) 42 3. Business Ethics without Stakeholders 68 4. An Adversarial Ethic for Business: or, When Sun-Tzu Met the Stakeholder 93 5. Business Ethics and the “End of History” in Corporate Law 116 PART II } Cooperation and the Market 6. Contractualism: Micro and Macro 145 7. Efficiency as the Implicit Morality of the Market 173 8. The History of the Invisible Hand 205 9. The Benefits of Cooperation 230 PART III } Extending the Framework 10. The Uses and Abuses of Agency Theory 263 11. Business Ethics and Moral Motivation: A Criminological Perspective 294 12. Business Ethics after Virtue 322 13. Reasonable Restrictions on Underwriting 345 Bibliography 373 Index 395 v ACKNOWLEDGMENTS I owe many thanks to the various people who have played an important role in the development of this project. First of all, the book would never have seen the light of day without the interest, encouragement, support, and oversight of Peter Ohlin at Oxford University Press in New York. Academically, I owe the greatest debt to Wayne Norman, first for convincing me that this was an excit- ing and worthwhile field of study, and second for serving as a collaborator, interlocutor, and source of unflagging enthusiasm over the years. Philosophers are a somewhat truculent lot, and so I have never before had the experience of seeing exactly eye-to-eye with anyone on some complex set of philosophical issues. My exchanges with Wayne over the years have provided welcome relief from the usual solitude of philosophical inquiry. I have learned an enormous amount from John Boatright, who always manages to live up to his reputation as “the smartest guy in the room” (in the non-pejorative sense of the term). My work in this area has also benefited a great deal from conversations over the years with Sareh Pouryousefi, Domi- nic Martin, Idil Boran, Pierre-Yves Néron, Chris MacDonald, and Thorsten Busch. I have benefited from the financial support of the Social Sciences and Humanities Research Council of Canada as well as the Pierre Elliot Trudeau Foundation. Some of these papers have been published previously. I have not made any substantive changes, other than correcting the occasional error, switching all spelling to the American, as well as changing the format of the references in some papers to create a consistent style throughout the book. Special thanks to Jessica Brown for assistance with this task. I was not able to eliminate the occasional repetitions that occur, due to the initially independent publication of the papers, and so the most I can do is apologize and ask for a measure of forbearance on the part of the reader. I would like to thank both the editors and referees of the journals for the work that they put into the improvement of these papers, as well as to the publishers for the permission to reproduce them here. Chapter 1. “A Market Failures Approach to Business Ethics,” in Ber- nard Hodgson, ed., Studies in Economic Ethics and Philosophy, Vol. 9 (Ber- lin: Springer, 2004). Chapter 2. “Stakeholder Theory, Corporate Governance and Public Man- agement,” with Wayne Norman, Journal of Business Ethics, 53 (2004): 247‒265. vii viii { Acknowledgments Chapter 3. “Business Ethics without Stakeholders,” Business Ethics Quar- terly, 16 (2006): 533‒557. I would like to thank Wayne Norman and Alexei Mar- coux for their input and advice with the writing of this paper. Chapter 4. “An Adversarial Ethic for Business: or, When Sun-Tzu met the Stakeholder,” Journal of Business Ethics, 69 (2006): 359‒374. Thanks to the Social Sciences and Humanities Research Council of Canada for financial sup- port in the development of this project. Chapter 5. “Business Ethics and the ‘End of History’ in Corporate Law,” Journal of Business Ethics, 102 (2011): 5‒20. The idea for this paper arose during a discussion with John Boatright. It benefited from subsequent discussion with Margaret Blair, Wayne Norman, Alexei Marcoux, Eric Orts, Alan Strudler, members of the Legal Studies and Business Ethics program at the Wharton School of Business, as well as participants in the Trans-Atlantic Business Eth- ics Conference held at York University. Chapter 6. “Contractualism: Micro and Macro.” This paper was written for the New York University Colloquium in Legal, Social and Political Philosophy, convened by Thomas Nagel and Ronald Dworkin. I benefited from many of the comments made by participants, but especially the careful attention given to it by Professors Nagel and Dworkin. Thanks to Shlomi Segall for comments on the manuscript as well. Chapter 7. “Efficiency as the Implicit Morality of the Market.” This paper revises some material previously published as “Ideal Theory in ann -th Best World: The Case of Pauper Labor,”Journal of Global Ethics, 9 (2013): 159–172. My thanks to Kathryn Walker, Monique Deveaux, and participants in the “Thinking Beyond Distribution” workshop at the University of Toronto Cen- tre for Ethics for valuable comments. This paper was also presented at the Jus- titia Amplificata conference on “Relational Injustice” at Goethe University; my thanks to James Gledhill in particular for the invitation to participate. Thanks to Dominic Martin for comments on the manuscript as well. Chapter 8. “The History of the Invisible Hand.” This paper was presented at the summer school of the Netherlands School for Research in Practical Phi- losophy, organized by Ingrid Robeyns and Rutger Claassen on the theme of “Ethics and Economics.” My thanks to the participants for helpful feedback, as well as to Manuel Wörsdörfer for comments that led to a number of specific improvements. Chapter 9. “The Benefits of Cooperation,” Philosophy and Public Affairs, 34 (2006): 313‒351. I would like to thank Christopher Morris, Thomas Hurka, and Edward McClennen for encouragement at key points in the development of this article. Thanks also to audiences at the Canada School of Public Service, the University of Guelph, and the Université de Montréal, along with the Edi- tors of Philosophy & Public Affairs, for helpful comments. Chapter 10. “The Uses and Abuses of Agency Theory,”Business Ethics Quar- terly, 19 (2009): 497‒528. Acknowledgments } ix Chapter 11. “Business Ethics and Moral Motivation: A Criminological Per- spective,” Journal of Business Ethics, 83 (2008): 595‒614. Chapter 12. “Business Ethics after Virtue.” My thanks to Christine Tappolet for comments and advice on the improvement of this paper. I have also drawn some material from a paper co-authored with Wayne Norman and Jeffrey Moriarty, “Business Ethics and (or as) Political Philosophy,” Business Ethics Quarterly, 10 (2010): 427‒452. Chapter 13. “Reasonable Restrictions on Underwriting,” in Patrick Flana- gan, Patrick Primeaux, and William Ferguson, eds., Research in Ethical Issues in Organizations, Vol. 7 (Amsterdam: Elsevier, 2006). Introduction This volume brings together a series of papers that I have written over the past ten years on the subject of business ethics, along with a few more general pieces that articulate the normative foundations of the project. Together they provide a basic outline of what I refer to as the “market failures” approach to business ethics. It was not my original intention to make a contribution to this particular literature. My objective in this introduction will therefore be to sketch out a bit of the intellectual history that led to the development of the project and to say something about how the various pieces fit together. Along the way, I hope to make clear some of the more general political motivations that inform the market failures approach, since these have occasionally been the subject of misunderstanding. I.1. The Intellectual History of the Project Traditional philosophical business ethics is done within an “applied ethics” paradigm, in which the theorist begins by establishing a commitment to a particular ethical theory, such as Kantianism or virtue theory, then (typically) goes on to discuss some “moral dilemma” that might arise in a business con- text.
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