This article appeared previously Association of Corporate Counsel’s ACC Docket and is published here with permission from the journal.
After giving a business ethics lecture at a university in Rochester, New York, I had the pleasure of speaking with a professor of applied ethics who lectured at the university’s engineering school. During our conversation, I asked the professor whether he thought classical moral philosophy — generally focused on various permutations of the utilitarian and deontological normative theories of ethics — was of any practical use in resolving real-world business issues. His response was as immediate as it was unequivocal: “No.”
The professor explained that his opinion was not solely based on his work with engineering students. He told me about an occasion when a friend sought his assistance with a work-related problem. After describing her ethical dilemma, she asked the professor, “What’s the right thing to do?” In response, the professor proceeded to confidently summarize the principles of the utilitarian and deontological schools of thought that are the product of thousands of years of scholarship by some of the finest minds the world has ever known. After listening with great interest to this impromptu lecture, she said, “So, what you’re telling me is that you really can’t help me at all.” Being an honest man, the professor conceded that she was right.
Anyone familiar with these bulwarks of classical moral philosophy likely is not surprised by the professor’s experience. As well developed as utilitarian and deontological theories might be, most acknowledge that they are, by themselves, imperfect tools for solving real-world ethical issues and often lead to contradictory or absurd conclusions.
Utilitarian theories of normative ethics are premised on the idea that the right thing to do is that which produces the greatest possible balance of good over bad for everyone affected by a particular action. Said another way, the rightness of an act is judged by the net “goodness” of the consequences it brings about. By contrast, deontological moral doctrines — often presented as a foil to utilitarian consequentialism — assert that, to do right, one should conform to moral norms such as laws and commonly recognized duties and ethical standards. Despite their initial appeal to our common-sense notions of right and wrong, the problem with these theories becomes apparent when applied to even routine business problems.
Say, for example, you’re asked to decide how to price a new drug. Applying the utilitarian philosophy, you might conclude that the greatest good would be served if you sold the drug at or below cost — even though you could charge much more and, by not doing so, you may place your firm under severe financial strain. Applying deontological philosophy in the same circumstances, and being mindful of your legal duty of care and loyalty to your shareholders, you might conclude that the right thing to do is to charge a price that has been calculated to maximize profits — even though this may result in the unnecessary suffering and death of millions who cannot afford it.
I concede that my brief recitation of these moral philosophies, as well as the example provided above, does not do justice to what are highly developed and immensely sophisticated schools of thought. But I offer them to illustrate the likely reason why a professor of applied ethics, who teaches such theories, has concluded that they are of little practical use to business professionals who, he concedes, routinely face moral challenges that would cause most “ivory tower” types to break out in hives. The bottom line is that if business professionals were to rely on such pure philosophical theories, they may have a lively internal discussion, but would likely have to flip a coin to decide which one is right.
Given the fact that these theories appear to be unsuited to resolving even garden-variety business issues, I asked the professor why so many business-ethics educational programs continue to teach them. He answered that business ethics is generally taught by the philosophy department and this is what they know how to teach.
I think this state of affairs presents an opportunity for the corporate bar to provide some much-needed assistance. As corporate attorneys, we are called on to help our clients resolve significant and difficult real-world ethical issues on a daily basis. As a consequence, there is, perhaps, no more skilled cadre of professionals better suited to help business professionals learn practical methodologies to reach principled judgments. I don’t think we need to get a doctorate in moral philosophy to do this work. Instead, we could have a positive impact on our leaders’ capacity to make difficult judgment calls by merely teaching them what we already know — how we perform our daily work.
Consider for a moment the benefit that might be derived from teaching our business colleagues the basic approach that was drilled into us in law school and the skills we have honed on the job. Rather than being constrained by pure philosophical doctrines, we have the benefit of having been trained to discern and recommend principled options to our clients by understanding the facts and applicable rules and by considering the consequences. This approach is a pragmatic blend of utilitarian and deontological principles that is not constrained by ideology or paralyzed by the notion that there is only one “right thing to do” in any particular circumstance. Instead, we succeed by helping our clients find a range of “right things” for them to choose from when exercising their reasoned business judgment. So instead of just doing our work and providing advice, perhaps our clients might best be served if we also invested our time in filling the gap left by moral philosophers and business schools to teach our colleagues how to engage in the same kind of dispassionate, careful analysis that we all take for granted.
Maybe the professor and I are missing the boat and classical moral philosophy holds the key to making sound, ethical business decisions. But, when I teach ethics to business professionals, I think it best to abandon the purity of the philosophy classroom and, instead, provide practical tools that have been highly developed in an institution that, at its best, serves as the conscience of the modern corporation — the corporate law department.