The question here is whether it is possible to speak of responsible corporations or whether a responsible corporation is in fact a contradiction in terms. Obviously the responsibility in question is not the responsibility assumed by all corporate leaders with regard to the success and the continuity of the business entrusted to them. This responsibility is clearly defined, even in legal terms, and if seriously violated usually leads to formal proceedings in a court of law. This is a private responsibility, because the standard against which it is measured is the welfare and the continuity of a private enterprise. This is not the responsibility I want to speak about.
What I want to talk about is the responsibility towards the public. The public is also called "res publica", the public matters. The res publica finds expression in the republican idea whereby citizens jointly decide about matters in the public sphere, based on the principle of one person, one vote. Historically, this idea came to fruition in the form and on the level of the nation-state. But the res publica has long since expanded beyond the bounds of the nation-state. The European Union is part of the res publica, the international organizations are res publica, the UN is part of it and ultimately the total of all treaties under international law between nation-states are also part of the res publica. Responsibility to the public is a responsibility to the whole of this broadly understood res publica.
Res publica, the "public matters" or simply the "public" always includes all people and regulates matters of concern to everyone. But what is at stake is not merely one's being concerned but one's being subjected to the law. The res publica generates law, it generates a legal order and the individual is subject to this order. The individual is bound to follow the rules of the law. The French call the person who is subjected to the law the "subjet" . "Sub-jekt" translated to German means one is sub-jected as an individual. Before the French Revolution individuals were sub-jected to the king, after the revolution to the republic, the res publica. In German, the individual in this capacity is often called a "Rechtsperson" (a legal entity). A "Rechtsperson" (legal entity) is the bearer of rights and duties defined by the legal order. The right to participate in the design of the legal order complements this subjectedness, and in this capacity the French refer to the individual as "le citoyen" , the citizen. The term citizenship, like the French Citoyenneté, means the condition of taking responsibility for state and society . (1) Citizenship means defining the rules of the res publica, whether indirectly, through representative democracy – i.e. through elections of legislating parliaments – or through direct democracy in the form of referendums.
So then the individual has two roles, independent of each other, as the person subjected to the law and as the co-author of laws, as "subject" and "citizen". The two roles are interdependent from each other. But today stil things are far from beeing perfect: With regard to the citizenship-status – the co-authorship of the res publica – restrictions still apply on the level of the nation-state, because participation depends on formal citizenship. This is a result of the fact that the republican idea, 200 years ago, was first articulated on the level of the nation state. In the context of the European Union these restrictions on the participation of individuals are slowly being overcome. As for the subject-status – well foreigners have the same duties towards the law as people with formal citizenship and, with the exception of political rights, they even have the same rights. A person need not be a citizen to insist that her human rights be respected. It is precisely in the realm of human rights that we can see how the res publica clearly exceeds the bounds of the nation state. World War II showed that the human rights guarantees of national constitutions may collapse if power falls into the wrong hands. Post-war human rights guarantees were therefore moved to the level of international law. Moreover, international protective mechanisms now guarantee that an individual can take recourse if a state violates his or her human rights. This too happens in the context of the res publica. And of course we should not forget that in many parts of the world the res publica is still far from working to everyone's satisfaction. Nevertheless – and occasional setbacks notwithstanding – the idea is spreading and catching on.
Using the example of human rights I will now briefly describe two different concepts that can be used to implement these rights. I call them the concept of obligations and the concept of responsibility.
Under a concept of obligations in the realm of human rights there are not only human rights but human obligations as well. Human rights are rights of freedom from the state, they guarantee to the individual that his / her physical integrity and other freedoms are not compromised. Every human being is entitled before the state to demand and sue for his rights. What if it is my neighbor, though, and not the state, who behaves in ways that violate my human dignity? Under the concept of obligations the answer to this question is found in the direct relationship between me and my neighbor. My neighbor has the moral obligation to behave in ways that respect my human dignity. And since it is in my own best interest to preserve this state of affairs, I in turn will behave in ways that protect his human dignity. Each of us, in other words, is driven by self-interest to respect the human dignity of our neighbors because in doing so we protect our own human rights. In this concept, the understanding of freedom is based on the idea of the virtuous citizen. Today this idea of freedom is also called a communitarian understanding of freedom. It is based on the idea that individuals form voluntary communities based on mutual respect and that the different communities that share a given space also respect each other. In this concept obligations can be described as the imperative to respect the dignity of the other people in the community as well as the dignity of the other communities in the area.
The concept of responsibility is based on a different consideration. The point of departure is the same: what happens, if it is not the state but my neighbor who behaves in ways that violate my human dignity? Only this time the answer is not limited to the relationship between me and my neighbor. The answer considers not only my position as a legal entity (Rechtsperson) but also my position as a citizen. As a citizen, I and all others who value their freedom make sure that the legal order prevents my neighbor from acting in a way that infringes on my human dignity. Of course I am a Rechtsperson or legal entity just like my neighbor and therefore I have to follow these rules as well. But I don't mind at all because the concept of obligation would have obliged me to behave in exactly the same way – although for moral instead of legal reasons. Under the concept of responsibility my welfare does not depend on the moral qualities of my neighbor and that is a great advantage. My human dignity and my freedom are safe as long as my neighbor follows the rule of law. Of course that goes for me too. I don't need to be a particularly moral person, I just have to follow the rule of law. The concept of responsibility does not appeal to our virtues.
Allow me a short remark in parentheses: there exists between the two concepts a difference of enforcement. Under the rule of law force is an option whereas a moral obligation cannot be mandated by force. However, the different perspectives engendered by these two concepts owe far less to differences of enforcement than they do to the idea of freedom underlying each concept. I have no interest in preaching morals to my neighbor. I find that embarrassing and not very creative. And who's to say that my neighbor will even listen.? He will only listen to me if he thinks that I have money or influence and am therefore important. Preaching morals is boring and tiring. It is much more exciting and creative to participate in a public discussion about how to best organize the world. In a recent article for the Neue Zürcher Zeitung, Philippe Mastronardi, professor for public law at the University of St. Gallen, offered a remarkable description of the difference between the two concepts. Although the context was different, his basic idea can easily be applied to the discussion at hand: "Because the attitude of responsibility is much more demanding than that of self-interest, it is not enough to appeal to the individual virtue of solidarity. Responsibility must be organized. The state (I would use the term "res publica" here) is the most important organization of public responsibility. Society and industry need the state, in order to live up to their responsibility." (2)
Before we return to the question I asked at the very beginning, let me briefly compare the two concepts in the light of human rights. The question of human rights, more than anything, makes it very clear why the concept of obligations is ultimately not fit. Before long, the communitarian understanding of freedom based on the voluntary association of individuals and on mutual recognition leads to the exclusion of persons or groups of persons. What about the global citizen, who does not want to be part of any particular community or group? The only entity everyone partakes in – no questions asked – is the res publica, the realm of public matters, and it is a public matter precisely because I don't have justify or explain my affiliation. I don't have to live up to any moral standards, I don't have to take any oaths or pledge any allegiances, I do not have to be accepted or recognized by anyone, I just simply belong. The most important difference between the two concepts is the fact that the concept of obligations does not need the res publica. Citoyenneté / citizenship is given no role to play and instead of invoking the law one appeals to morals. Just how dangerous this is for human rights may be seen today in the softening of the ban on torture for terror suspects. That a considerable part of the American population in all seriousness considers the torture of terror suspects a viable option in the fight against terrorism has to do with the fact that the American nation as perceived by its own population embodies a force of absolute moral goodness. People who threaten this nation with terrorist attacks are therefore so morally debased that they may be stripped of their human dignity.
What conclusions do I draw then, with regard to the two concepts? In areas that demand the equal treatment of all people, the concept of duties, unlike the concept of responsibility, does not guarantee a satisfactory outcome. That includes primarily and above all, the area of human rights, including social rights; it also includes a basic framework of ecologically sustainable conditions and the manner in which other potentially global dangers are handled. All these areas need to be organized through a res publica because
- one, they concern everyone in equal measure (inasmuch as everyone is subjected to the law),
- two, all those concerned should participate directly or indirectly in making the rules
- and three – this is the most important aspect here – everyone has to follow the rules.
Now all of a sudden it is very easy to answer my original question:
If corporations want to strengthen public responsibility through private declarations of responsibility, if they want to "pre-empt" this responsibility and add to it, then this is basically a very positive thing.
If, on the other hand, corporations want to undermine public responsibility through private declarations of responsibility, if private responsibility aims to take the place of public responsibility, then such a declaration is not worth the paper on which it was printed. A document of this type does not merit the qualifier "responsible" because it is simply irresponsible both towards nature and humanity.
It might make sense to design a preamble that functions as a statement of intent (and seal of quality) and could be added to corporate declarations. By adding this preamble to their declarations, corporations would in effect be saying that their goal is to support public responsibility and that they will not in any way attempt to replace or undermine.
1) Erhard Eppler : "Auslaufmodell Staat?" , Frankfurt a.M. 2005, p. 188
2) Neue Zürcher Zeitung, 4. Januar 2006