Ethical Imagination, Regulatory Innovation & Responsible Management

1. Ethical Imagination, Regulatory Innovation & Responsible Management IMBA UCL 08/12/07 Laurent Ledoux

2. Contents 1 Ethical Imagination: when managers must choose between « right » & « right » 2 Regulatory Innovation: when a multitude of actors interact to enforce CSR

3. 4 case studies to help us reflect on ethical dilemmas How do you lead the launch of a product you know will be extremely controversial? Edouard Sakiz To distribute the abortion pill? What should you do if a single parent on your staff is falling behind in his or her work? Peter Adario To dismiss Kathryn McNeil? How should you respond if you are offered an opportunity at work solely because of your race or gender? Steve Lewis To attend St Louis meeting? What should you do if the expected cost of legal claims from a potentially lethal product is less than the cost of retrieving that product from the market and fix it? Carlos Pinto To retrieve & fix the cars? Source: Badaracco (1997); adapted by Ledoux

4. Commonalities & divergences between the 4 case studies Decision’s impact Cas pratiques Lessons Who is the organisation? Edouard Sakiz To distribute the abortion pill? Ethical decisions form, reveal & test the self (John Dewey) “Right” vs. “Right” (ethical dilemma) Who are we? Peter Adario To dismiss Kathryn McNeil? Do you think you can govern innocently, without dirtying your hands? (Jean-Paul Sartre) Complexity Who am I? Steve Lewis To attend St Louis meeting? “Right” vs. “Wrong” (moral choice) Carlos Pinto To retrieve & fix the cars? Source: Badaracco (1997); adapted by Ledoux

5. Variations on the word « Ethics » « Ethos » in Greek: custom, habit, way of behaving in an environment The primary meaning of «Ethos» or «Ethics»* has therefore to do with: making your way, positioning yourself in an environment An ethos is the doctrine of a particular art of living the best possible life and the means to pursue this aim (i.e. to live happily or to search for truth) (Marcel Conche, philosopher) Ethics is a human activity. The purpose of ethics is not to make people ethical; it is to help people make better decisions (Marvin Brown, author & ethics consultant) * Note the varied use of the word in different languages

6. Love ? Religion Law « Universalisable » Universal morality Relative Collective moralities Politics Possible definition of « Morality » Current most common morals Universal human rights & duties A morality is a set of duties and imperatives (positive or negatives) that a society or a community gives to itself and which enjoins its members to conform their behaviour, «freely» & in an «unselfish» way, to certain values enabling to distinguish right & wrong.

7. Potential sources to support ethical decision-making Corporate credos & Mission statements Legal duties Moral or ethical principles Heuristics («sleep-test» rules)

8. Questions to think «individual» dilemmas – Steve Lewis’ case “How do my feelings and intuition define, for me, the ethical dilemma?” (To respect oneself or to be loyal – loyal to whom?) “Which of the values that are in conflict are most deeply rooted in my life and in my community?” (To consider the dilemma as his parents’ son) Who am I? “Become who you are” (Friedrich Nietzsche) “What combination of expediency and shrewdness, coupled with imagination & boldness, will move me closer to my personal goals?” (To go to St Louis but to participate to the presentation) “Looking to the future, what is my way (not the way of others)?” (To become partner in an investment bank) Source: Badaracco (1997); adapted by Ledoux

9. A framework for ethical theories Individual processes Adaptability & responsiveness Virtue Ethics Development Ethics Principles “Doing right” Results “Doing good” Deontological Ethics Teleological Ethics Institutional structure Fixity & consistency Source: Fisher & Lovell (2003); adapted by Ledoux

10. 12 tests filter to validate or reject a decision Ask yourself these questions concerning the decision you wish to take +/- Veto Trigger Legal duties 1. Legalist test. Is my decision in accordance with the law? Corporate credos & mission statements 2. Organisational test. Is my decision in accordance with my organisation’s rules of conduct or ethics Heuristics 3. Hedonistic or intuitive test. Does my decision correspond with my gut feeling and my values? Does it make me feel good? Respect of ethical principles Virtue ethics 4. Light-of-day test. Would I feel good or bad if others (friends, family, colleagues) were to know of my decision and action? 5. Virtuousmeantest. Does my decision add to, or detract from, the creation of a good life by finding a balance between justice, care and other virtues? Deontological ethics 6. Veil of ignorance/Golden Rule. If I were to take the place of one of those affected by my decision and plan would I regard the act positively or negatively? 7. Universality test. Would it be a good thing or a bad thing if my decision and plan were to become a universal principle applicable to all in similar situations, even to myself? Development ethics 8. The communitarian test. Would my action and plan help or hinder individuals and communities to develop ethically? 9. Self-interest test. Do the decision and plan meet or defeat my own best interests and values? Teleological ethics 10. Consequential test. Are the anticipated consequences of my decision and plan positive or negative? 11. Utilitarian test. Are the anticipated consequences of my decision and plan positive or negative for the greatest number? 12. The discourse test. Have the debates about my decision and plan been well or badly conducted? Have the appropriate people been involved?

11. If you know it’s wrong, don’t do it! If you’re not sure, ask. Keep asking until you get an answer. The Texas Instrument Ethics Quick Test(2001) • Is the action legal? • Does it comply with TI values? • If you do it, will you feel bad? • How will it look in the newspaper?

12. Questions to think «internal» dilemmas – Peter Adario’s case “What are the other strong, persuasive, competing interpretations of the situation or problem that I hope to use as a defining moment for my org.?” (To understand that, for Walters, the basic ethical issue was irresponsibility: McNeil’s for not pulling her weight & his for not taking action) “What is the cash value of this situation and of my ideas for the people whose support I need?” (Refine his message and shape it to the psychological & political context in which he was working, in terms of raising productivity or improving recruiting) Who are we ? “Truth happens to an idea. Its verity is in fact an event, an idea” (William James) “Have I orchestrated a process that can make the values I care about become the truth of my organization?” (After hiring McNeil, to start quickly to let her & her work known to his bosses & to campaign for a more family-friendly workplace) “Am I playing to win?” (To take swift actions to counter Walters: While Adario was out of the office, she worked with one of the bosses to swiftly resolve McNeil’s issue) Source: Badaracco (1997); adapted by Ledoux

13. Elements of ethical complexity in organization Intensity of problem felt by the employee Intensity of problem felt by the employee Organisational values / Strength of practices Organisational values / Strength of practices Support of others Support of others Layer 2 Societal values Personal values Personal values Personal autonomy Societal values Layer 1 Personal autonomy Source: Lovell (2002)

14. Categorisation of possible kinds of reactions and behaviour to an ethical issue Ethical puzzle Acting to resolve the issue on the basis that they have the correct or best solution (utility). Ethical problem Clarifying how the conflicts between different values would lead to different actions. Acting upon one’s best judgement (moral judgement). Developing principles Achieving the common good Ethical convention Seeking advice on what is acceptable & applying norms and Conventions (fairness) Ethical relativism Maintaining discussion about the issue rather than seeking closure on it (relationships) Dialectic of ethical purpose The obligation of duty Ethical awareness Asserting & acting upon one’s values; Expressing surprise that others may see things diff. (dignity) Ethical cynicism Withdrawing from any action or decision but sniping from the sidelines at others’ action (facadism) Self-consciousness Ethical neutrality Ignoring problem & keeping quiet (inaction) Ethical negotiation Seeking out other’ views and supporting the wishes of the most powerful (bending rules) Personal certainty, fixed priorities and values Personal aporia, shifting priorities and values Degree of ethical integrity Source: Fisher and Rice (1999)

15. Actions open to an employee, when discovering wrongdoing, according to his ethical horizon Ethical horizon Loyalty Integrity Society as a whole Degree of sacrifice of self for other’s benefit Anonymous whistleblowing Public whistleblowing Degree of sacrifice to show membership and commitment Civil associations to which I adhere Maintaining silence/lying Offering to help management find a way to make things right or Public whistleblowing My organisation Degree of sacrifice acting as a scapegoat Maintaining silence/lying Trying to persuade the organisation to reveal its wrongdoing and to put things right Self Degree of sacrifice to maintain or increase personal benefit or stratus Protect self by lying/seeking personal advantage or Refusing to be bought off by the organisation Keeping silent (inaction is believed not to damage integrity) or Resigning (when the organisation will not take the right action)

16. Questions to think «societal» ethical dilemmas – Edouard Sakiz’ case “Have I thought creatively & imagina- tively about my organization’s role in society & its relationship to its stakeholders?” (To orchestrate a public debate among the different stakeholders) “Have I done all I can to secure my position and the strength & stability of my organization?” (To refrain to take decisions that could expose directly The organization or to confront the BoA’s president) Who is the organisation? “Ethics result from the inescapable tension between Virtue & Virtu” (Aristote & Machiavel) “Have you done all you can to strike a balance, both morally & practically?” (To market the new drug without endangering the organization) “Should I play the lion or the fox?” (To organize and support a vote that will trigger a massive counter-reaction from other actors) Source: Badaracco (1997); adapted by Ledoux

17. The 4 orders & the tensions between the individual and the group * Synthesis based on the texts from André Comte-Sponville, Marcel Conche & François Jourde Ethical order Good vs. Bad (Self, subjective or relative Will) Ascending hierarchy for individuals completes limits Moral order Right vs. Wrong (Universal or universalisable duties) limits Juridical & political order Legal vs. Illegal Descending hierarchy for groups limits Economic, technical & scientific order Possible vs. Impossible (Natural and rational Law)

18. The 4 orders & types of responsibility Circumstantial judgement (Phronesis) «Balanced» ethical responsibility Promise, guarantee & arbitrage Responsible for the «future» 4 Ethical order Good vs. Bad completes limits Unlimited moral responsibility Irreversibility, unpredictability & anonymity Responsiblefor others 3 Moral order Right vs. Wrong Rationality + Respect limits Dilemma Limited juridical responsibility 2 Compensation duty Responsible for the effects Political & juridical order Legal vs. Illegal limits 1 Eco., technical & scientific order Possible vs. Impossible (Natural and rational Laws) Rationality

19. A sequence of questions for guiding ethical judgement • Critical self-evaluation • Proposed decision pass 12 filter tests? • Confidence of decision’s LT strength & validity? • Acceptable exceptions/modification to my/our decision? • Risks & consequences of misunderstandings reg. the decision? Testing the decision Articulating intention & process • Intention • Loyalty to whom first? • Prioritary objective/intention? • In line with probable results? • Process • Process to let my/our value emerge? • Strategy to let my/our vision of reality prevail? • Creative vision of my/our role? Lion or fox? Clarifying the situation «What is the ethical issue to be considered» • Imagination • How did I/we get there (history)? • Other ways to look at it? • Which ways are (not) ethically helpful? • Casuistry • Dist. facts from value judg. & beliefs? • Case’s particularities? • Diff. betw. particular & general case? • Dialogue • Stakeholders’ views & prioritary needs? • Issues between stakeh. to be solved? • My/our position’s stabibility & strength? If tests are negative

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21. Contents 1 Ethical Imagination: when managers must choose between « right » & « right » 2 Regulatory Innovation: when a multitude of actors interact to enforce CSR

22. CSR – Abundance of concepts Deontologies Company philosophies Code of ethics Sustainable development Business Ethics CSR Company codes Corporate citizenship Authentifications Citizenship actions Labels Societal performance

23. Pragmatic & little theorised Responsive & fragmented 3 levels of commitment 1. Governance ethics Strategic manifestation: CSR 2. Deontological ethics 3. Valuesethics Dialog & questioning Contextual & in action CSR – Static definitions Economic ethics “Part of ethics which deals with behaviours and institutions of this sphere, i. e., of the entirety of exchange activities of goods and services and of production related to this exchange.” (French Penal Code – 1994) Business ethics Corporate ethics “Presents itself as responsibility ethics (not only of conviction), organised as a doctrine which guides activities and behaviour at work” (Fabienne Cardot)

24. The three dimensions of CSR Social Economic Environmental CSR – Static definitions Corporate Social Responsibility The entirety of obligations legally required or voluntarily assumed by an enterprise to pass as an imitable model of good citizenship within a given field (Jean Pasquero) • Multiple expectations: « societal » • Assimilation to sustainable development • Embryonic evaluations • Global performance = addition of the 3 results • Ambiguity of the 3P: Profit or Prosperity? • Confusion: sustainabie development of the society or of the company? Fair Sustainable Livable Viable

25. Key questions about CSR • Motivation • In whose interest & why? • For Share- or Stakeholders? • Marketing opportunism or moral duty? • Power locus • Who drives CSR? • Internally: managers or «corporates»? • Externally: Govs, NGOs or corporates? You can’t properly think about «Motivation» & «Power locus» without understanding the CSR «Dynamic» • Dynamic • How did/does CSR evolve? • Concept’s evolution so far? • Today’s logic in a globalized economy?

26. Dynamic – How has the CSR concept evolved so far? Content richness of the CSR concept 8 components of CSR nowadays Evolution so far? Citizen participation Proactive «engagement» Performance reporting Triple balance sheet Ethical rectitude Codes of conduct Social responsiveness « Societal management » system Environmental nuisance limit Priority given to the environment Sollicitude Employees’ needs Philanthropy Grants & corporate patronage Efficient management (Technical skills) Time Classical eco. (18th century) Traditional eco. (19th c.) 1960’s 1970’s 1990’s Beg. of 20th c. Beg. of 21th c. Source : Jean Pasquero (2005), adapted by Ledoux

27. Dynamic – How CSR is evolving in today’s globalized economy? Transfer of States’ duties to corporates “Coherency” of the coregulation system Evolution today? Effectively Empowerment of 3rd parties by States & Judges Proliferation through reputation & transparency Highly stylised process*: in reality these trends overlap each other Regulatory innovation process Hard 2003 Nike vs. Kasky Consumers’ CSR concerns legally recognized Growth of surveillance & social controls’ web Voluntary adoption of codes of conducts 2001 Global Compact corporates become world citizens Politization of comsumption Corporates’ emancipation from states «Formally» but self-fulfilling prophecy Soft Time * Source: “Responsabilité sociale des entreprises et co-régulation”, by Berns & al, 2007

28. Dynamic – Proliferation through reputation & transparency Reputation – Law: differences in action mode & “regulatory” effects? Law Reputation • Immediate & discontinued • Slow & constant (omnipresent) Evolutionary character of transparency • Externally defined • Interiorized & reflexive • Black or white • Grey (richer modulation) • Concern for single, egal, actors • Concern for global tendencies Current normativity results of a hybrid of law & reputation, of regulation & auto-regulation, in constant evolution New is that this hybrid is considered to be able to develop itself as autonomous & self-sufficient

29. Dynamic – Logical process Integrating CSR «instruments» in 4 logical process steps? • 2. Implementation • Generic mecanisms for SRM • SA 8000 & ISO Norms; OHSAS 18001; ILO-OSH 2001 (security & health at work); EMAS • Specific mecanisms for SRM • 1. Norms definition & adoption • Definition • Global Compact ; OCDE’s principles; ILO’s trilateral declaration; Global Sullivan Principles; Caux Round table; AI’s principles on Human Rights for businesses; Ethical Trading initiative’s Code of conduct • Adoption • Codes (individual, sectorial,…) • Contracts between businesses • Public tenders & subsidies (laws & contracts) • Corporate Governance principles • Legal & administrative rules • Social dialogue • 3. Communication (transparency) • Audit • AA 1000 Insurance Standard; ISAE 3000 • Non Financial Report • Political auditions & public debates • 4. Controls & sanctions • Unfair practices & publicity • Contractual responsibility • Labels (public & private) & boycotts • Investment policies & financial institutions • Ethical funds; Stock indexes; Equator Principles Source: “Responsabilité sociale des entreprises et co-régulation”, by Berns & al, 2007

30. Motivation – In whose interest do managers go CSR? To whom are executive managers accountable? «Contractual» vision «Symbolic» vision «Social» responsability «Economic» responsibility «Societal» responsability (Towards institutionalisation) Society Stakeholders Shareholders Is this the right distinction? Is the distinction between private & public interests so clear?

31. Motivation – In whose interest do managers go CSR? Friedman’s model Are Sternberg’s friedmanian «Just Business»’ principles just? Distributive justice Ordinary decency Manager’s sole objective “To maximize long term owner value*” • Minimal necessary values to ensure the organization’s LT survival: • Honesty • Fairness • No coercion or phys. violence • Respect of laws Rewards should be accorded in proportion to the value of agents’ contribution to furthering the organization’s objectives * Sum of discounted cash-flows

32. Motivation – In whose interest do managers go CSR? Berns’ analysis Is the stark distinction between politics and economy founded? Risk this new relationship takes the form of an absorption of the social in the economic Is CSR anything else that the growing realization that we need to develop a new relationship with our environment, made of restraint & moderation? Politics Economy ? Should externalities still be viewed as «external» factors? More than ever, value creation of companies is growingly dependent on the captation of positive externalities (university’s proximity, development of new communication channels,…) and avoidance of negative externalities (pollution, violence,…) Are we rediscovering the old idea that «interest» could act as an effiicient substitute to ext. constraint? See Montesquieu or Smith. Through the ages, we have gone back and forth on this relationship (eg. autonomy of politics in the Aristotelian model) Source: “Responsabilité sociale des entreprises et co-régulation”, by Berns & al, 2007

33. Average MVA/Year (all) Average MVA/Year (with Code of conduct) Average MVA/Year (no Code of conduct) Motivation – Marketing opportunism or moral obligation? Does Ethics pay? 35 ROCE by year for 42 major UK quoted companies 30 Is ROCE a pertinent KPI? In the new system of coregulation, risk mitigation is the biggest driver % ROCE 25 20 15 1997 1998 1999 2000 2001 Source: Webley and More, 2003

34. Motivation – Marketing opportunism or moral obligation? Ethique ou «Etiquettes»? What is the trigger/driver? 4 Through own Will? Ethical order Good vs. Bad completes limits Through the new system of «coregulation»? A growing «soft law» enforced in a «control» society by a multitude of actors in a continuous, innovative power struggle… 3 Through moral obligation? Moral order Right vs. Wrong Or rather limits 2 Through legal obligation? Political & juridical order Legal vs. Illegal limits «One can rarely be moral alone» 1 Through marketing opportunism? Eco., technical & scientific order Possible vs. Impossible (Natural and rational Laws)

35. Business ethics CSR Power locus – Internally, who is responsible? Companies or individuals? Companies Individuals The coregulation system redefines, volens nolens, the definition of what companies are, through the rights & responsibilities that are gradually attributed to them & without necessarily recognizing that they have a soul or moral intentions

36. 1 Economic, technical and scientific order Possible vs. Impossible (Natural and rational Laws) Power locus – Externally, where should the common interest be defined? Privatisation of common interest? Globalisation & deregulation Lower risk acceptance & corporate legitimacy Govs & Civil Society Companies This dichotomy doesn’t help to realize the growing porosity between politics & economy (see Berns) 2 Political & juridical order Legal vs. Illegal limits

37. Final thoughts – Main facets of the coregulation system “Intellectual bricolage” From voluntary social responsibility to legally binding responsibility? Started outside the laws, caught back by “soft” laws now; To understand it, one needs to get rid of old concepts of state sovereignty, legal order and norms pyramid; Porosity of Politics & economy based on a self-limitation of governments • Open, normative power game • All shots allowed? • Hard & soft laws become instruments towards • the realization of the objectives of a multitude of players • but need inevitably to agree on certain rules • and to allow a third party to «institutionalize» the game • (hence the quasi-legal appeal of Global Compact) Coregulation System Evolving hybrid of regulation & autoregulation, of Law & reputation • Not ethically, • nor democratically elaborated • Legitimate? • CSR growth does not require corp. to have a soul or moral • intentions; Habermas: sous-institutionalization ofglobal laws; • Decoupling between law and political institutions Less ambitious but more tangible? Do not replace int’l conventions or formal concertation but ensure effective application on the field; Pragmatic actors more used to action than diplomacy Hypocrisy or alternative to bottlenecks of int’l society? Source: “Responsabilité sociale des entreprises et co-régulation”, by Berns & al, 2007

38. Final thoughts – Where do we go? Are ethics or corporates instrumentalized? Protestant ethos Progressist ethos Consumerist capitalism* Birth of modern Capitalism Expansion of industrial Capitalism Promotion of infantilist* ethos Time ? • Probably both… • CSR is not Ethics: does it «mask» bigger issues? • But corporates do not control the CSR dynamic • (corporates are also «instrumentalized») According to Benjamin Barber in «Consumed: How Markets Corrupt Children, Infantilize Adults, and Swallow Citizens Whole», 2007; See also Anne Salmon’s analysis in « Ethique et ordre économique : une entreprise de séduction », 2002

39. Bibliographie • Defining moments, Joseph L. Badaracco, jr, Harvard Business School Press, 1997 • La responsabilité sociale de l’entreprise comme objet des sciences de gestion, Jean Pasquero dans Responsabilité sociale et environnementale de l’entreprise, sous la dir. de Marie-France B.-Turcotte et Anne Salmon, Presses de l’Université du Québec, 2005 • La société malade la gestion, Vincent de Gauléjac, Seuil, 2005 • Le capitalisme est-il moral, André Comte-Sponville, Albin Michel, 2004 • Ethique et ordre économique: une entreprise de séduction, CNRS Editions, 2002 • Le fondement de la morale, Marcel Conche, PUF, 1993 • Rethinking business ethics – A pragmatic approach, Sandra Rosenthal & Rogene Buchholz, Oxford Press, 2000 • Introduction aux “Pensées” de Marc Auréle, Pierre Hadot, Le livre de Poche, 1997 • Respect in a world of inequality, Richard Sennett, Norton Press, 2004 • Business Ethics & Values, Colin Fischer & Alan Lovell, FT Prentice Hall, 2003 • Working ethics, Marvin Brown, Jossey-Bass, 1990 • Responsabilité sociale de l’entreprise : Faut-il enchaîner Prométhée ?, Philippe de Woot, Economica, 2005

40. Bibliographie • What’s a business for?, Charles Handy, HBR, december 2002 • Can a corporation have a conscience?; Kenneth Goodpaster & John Mathews, January 1982 • Does business ethics pay?, S. Webley & E. More, London IBE, 2003 • Managing messy moral matters, C.M. Fischer & C. Rice, in Strategic Human Resources, J. Leopold, L. Harris & T.J. Watson, 1999 • The vulnerability of autonomy that denies the exercise of moral agency, Alan Lovell, in Business Ethics: a European review, 2002 • Responsabilité sociale des entreprises et co-régulation, T. Berns, P.F. Docquir, B. Frydman, L. Hennebel & G. Lewkowicz, Bruylant 2007