¹ Ronald M. Green, “Business Ethics as a Postmodern Phenomenon,” Business Ethics Quarterly, Vol. 3 (1993), pp. 219–25.

² Id. Whether Green should be tagged as an “agent provocateur,” a serious proponent of postmodernism, an intellectually curious philosopher, or a “reluctant draftee” of the editorial board, is not clear. After all, Green has taken controversial positions before. See, e.g., Ronald Green, “When is ‘Everybody’s Doing It’ a Moral Justification?” Business Ethics Quarterly, Vol. 1 (1991), pp. 75–88.

³ It should be noted that the word postmodern has no single, precise meaning. The idea is clearly relational in nature and takes its cue from architecture. It is widely understood as a reaction, and a challenge, to “modern” architecture which is characterized by functional design, i.e., function serves as the central organizing principle. The postmodernist challenge juxtaposed modern with traditional or even ancient design (Victorian, classical, Ionic). The refusal to give place or priority to a single organizing principle and its rejection of privilege or transcendence in any form is a hallmark of postmodern architecture. In art, literature, linguistics, law, and philosophy, postmodernism has followed a similar route—a challenge to “totalizing” forms, designs, narratives, and a refusal to give pre-emptive value or priority to any principle, concept, framework, or structure. In this regard, postmodernism is said to be “anti-foundationalist.” Charles Jencks, The Language Of Post-Modern Architecture (1977); Roy Boyne & Ali Rattansi, eds., “The Theory and Politics of Postmodernism,” in Postmodernism and Society Vol. 1 (1990), pp. 9–10.

⁴ G. Bennington trans., The Postmodern Condition (1984). According to Lyotard, the major theories or narratives that have dominated social and moral experience have disappeared or have been rejected because of their lack of explanatory power. By “grand narratives” or “meta-narratives, “Lyotard identifies foundational principles upon which a culture, tradition, belief, art form, or discipline is anchored. The disappearance of such narratives has left society “decentered” (literally without a core or center) and under the liberating influence of “otherness,” that is, local, interlocking “language games” which have replaced overall structures.

The phrase “language game” is a way of saying that the same words carry different meanings because they are open to various uses, interpretations and significations in different contexts, e.g. art, religion, science, ethics, politics, law. Words do not serve as names of objective properties. In the context of a language game, the meaning of a word is determined by its use. Ludwig Wittgenstein, Philosophical Investigations (Blackwell trans. 1976). Meaning is not something transferred as a previously existing entity; it arises in a collision of words. Ferdinand de Saussure, Lectures On General Linguistics (Payot trans. 1979).

⁵ Green, supra n. 1, at 223.

⁶ Id. (emphasis mine).

⁷ Clarence C. Walton, “Business and Postmodernism: A Dangerous Dalliance,” Business Ethics Quarterly, Vol. 3 (1993), pp. 285–305; Dale Jamieson, “The Poverty of Postsmod-ernism,” University of Colorado Law Review, Vol. 62 (1991), pp. 577–95.

⁸ Anthony E. Cook, “Foreword: Towards a Postmodern Ethics of Service,” Georgia Law Review, Vol. 81 (1993), pp. 2457–74. “Because the primary source of knowledge is the lived experience of ethical encounter, postmodernism’s theory of knowledge, its understanding of normative guidance, and its manner of extrapolation from the particular to the general constitutes serious departures from mainstream approaches.” Id. at 2458.

⁹ Walton, supra n. 7, at 290. Jameison, supra n. 7, documents the same problem in his critique of Thomas’ case for the postmodernist principle of tolerance. Richard Thomas, “Milton and Mass Culture: Toward a Postmodernist Theory of Tolerance,” University of Colorado Law Review, Vol. 62 (1991). Examining the case of Salman Rushdie, which Thomas cites as a clear act of domination and thus a failure of tolerance, Jameison writes that

Where Thomas sees domination the imam nay see defense against blasphemy. One of the constant struggles of social life is over how to describe and characterize actions. Often, the evaluation of an action seems just to fall out of the description. But it is a tenet of postmodernism that there is no principled way of settling such disputes about description and characterization.

Even if the imam accepts Thomas’ description he may still resist changing the behavior that is in question. He can agree that the suppression of The Satanic Verses is an act of domination, but deny the evaluation that may be thought to follow naturally. He can say that in this case the act of domination is good and necessary. A postmodernist should not be surprised that agreement about description may fail to produce agreement about behavior. Jameison, supra n. 7, at 591.

This passage gives a clear illustration of a “language game.” The cultural norm in one society, e.g., free speech and press, may be taken for something quite sinister (blasphemy) in another. Words describing a particular behavior, e.g., the imam’s search for Salman Rushdie, may be seen by one culture as “domination,” by another as a legitimate effort to bring a criminal to justice.

¹⁰ See Robert Kane, Through the Moral Maze: Searching for Ethical Absolutes in a Pluralistic Society (1993) for an argument to this effect.

¹¹ See supra n. 3.

¹² Habermas, for example, defines postmodernism negatively, in stark contrast to the modernism that he advances and that postmodernists reject. Habermas embraces “the project of modernity formulated in the 18th century by the philosophers of the Enlightenment [that] consisted in their efforts to develop objective science, universal morality and law, and autonomous art according to their inner logic ….” Habermas, “Modernity—An Incomplete Project,” in H. Foster, ed., The Anti-Aesthetic: Essays on Postmodern Culture, Vol. 9 (1983). See also Alex Callinicos, “Reactionary Postmodernism?,” In Postmodernism and Society, supra n. 3, at 97, 97–100, and Anthony Carty, “Introduction: Post-Modern Law,” in Anthony Carty ed., Post-Modern Law: Enlightenment, Revolution and the Death of Man, Vol. 1 (1990). Rather than a rejection of the values of the enlightenment, one writer sees postmodernism as an on-going reevaluation of the good and bad of the Enlightenment project: “The Enlightenment sought to free humanity from the chains of unthinking tradition and religious bigotry. It sought to master the world through science and … to understand and to recast society in rational and scientific terms …. Two centuries later, humanity is imprisoned by new chains that the Enlightenment forged for us. These are the chains created by science, technology, and rationality, which in the course of liberating us subjected us to new forms of control, bureaucracy, mediazation, suburbanization, and surveillance. We still need liberation J. M. Balkin, “What is a Postmodern Constitutionalism?,” Michigan Law Review, 1966, 1988–89, Vol. 90(1992).

¹³ See, e.g., Pierre Gassendi’s challenge of Descartes’ second proof (Is Cogito independent of any more ultimate truth?), and the widely criticized Third Proof of God, i.e., the Cartesian Circle, inT. Z. Lavin, From Socrates to Sartre: The Philosophic Quest, Vol. 98 (1984), p. 108.

¹⁴ Fredric Jameson, “Postmodernism and Consumer Society,” in Postmodernism and Its Discontents (E. Kaplan ed. 1988). Jameson characterizes postmodernism cynically as “the logic of the culture of late capitalism.” Id. at 13. Jameson sees postmodern art, architecture, poetry and other such creative endeavors as reflections of the underlying social structure. These cultural artifacts juxtapose heterogeneous elements without “privileging” or assigning higher-lower value to any of them, and without endorsing the author’s or artist’s vision with any greater dignity than that of the consumer, the critic, the garbage man. See also Fredric Jameson, Postmodernism (1990).

The philosophical hermeneutics of Hans-Georg Gadamer seem to capture an inevitable descent into relativism. See generally Hans-georg Gadamer, Truth and Method (Weinsheimer & Marshall trans., 2d rev. ed. 1989). It is argued that Gadamer fails to provide any critical standards for evaluating different interpretations of the same text. Postmodern rejection of the “view from nowhere,” then, initiates a “race to the bottom” and culminates with the equally problematic “view from everywhere.” Stephen M. Feldman, “The Persistence of Power and the Struggle for Dialogic Standards in Postmodern Constitutional Jurisprudence: Michelman, Habermas, and Civic Republicanism,” Georgia Law Journal, Vol. 81 (1993), pp. 2243, 2251. See also E. D. Hirsch, Validity in Interpretation (1967), pp. 41–44; Joel C. Weinsheimer, Gadamers Hermeneutics: A Reading of Truth and Method (1985), pp. 40–59; Richard J. Bernstein, “From Hermeneutics to Praxis,” in Philosophical Profiles: Essays in a Pragmatic Mode, vol. 58 (1986), p. 94; Michael Moore, “The Interpretive Turn in Modern Theory: A Turn for the Worse?,” Stanford Law Review, Vol. 41 (1989), pp. 871, 924–27.

¹⁵ Walton, supra n. 7, at 300.

¹⁶ Alasdair Maclntyre would not willingly be counted among the postmoderns, but, given the breath of postmodernism, postmodern relativism in one of its iterations is arguably consistent with Maclntyre’s view that within traditions, cultures, and communities there are rational grounds for justice and for the other virtues as well. After Virtue (2nd ed., 1984), pp. 256–63.

¹⁷ Supra n. 11 and accompanying text.

¹⁸ Green, supra n. 1, at 223.

¹⁹ Of course, one cannot entirely escape the impression that Green is simply playing the role of “devil’s advocate” in this essay. He does not specifically endorse the kind of radical relativism that I have attributed to him in this passage. To escape just such an indictment, evidently, he closes his essay with the following: “A final word. To characterize business ethics as postmodern is not to agree with every claim made by postmodern theorists. I for one disagree with the anti-foundationalism of some postmodern ethicists.” Supra n. 1, at 224. This indicates to me that Green identifies with what I call the “weaker” reading of his work.

²⁰ Jamieson, supra n. 7, at 581.

²¹ Walton, supra n. 7, at 297–98.

²² Frederick G. Lawrence, trans., Jurgen Habermas, The Philosophical Discourse of Modernity: Twelve Lectures (1987). See also, Peter Dews, ed., Jurgen Habermas: Autonomy and Solidarity (1986), and Jurgen Habermas, “Philosophy as Stand-in and Interpreter,” in Baynes, Bohman, and McCarthy, eds., After Philosophy: End or Transformation? (1986).

²³ See Walter Stace, “Ethical Relativity and Ethical Absolutism,” in Donaldson and Werhane, eds., Business Ethics (1981), for the “green swan” argument, i.e., the argument resting on the negative proposition that although no absolute foundation for morality (green swan) has been found so far, that is not conclusive evidence that an objective basis will not be found tomorrow.

²⁴ Green acknowledges this problem in a joke opening his paper: “What do you get when you cross a deconstructionist with a mafioso?” “An offer you can’t understand.” Supra n. 1, at 219.

²⁵ ”Aristotle: A Pre-Modern Post-Modern? Implications for Business Ethics,” Business Ethics Quarterly, Vol. 3 (1993), pp. 227–49.

²⁶ Id. at 228.

²⁷ Nichomachean Ethics, 1094b12–27.

²⁸ Supra n. 28, at 238.

²⁹ Id.

³⁰ It is probably more accurate to say that the postmodern self is an empty vessel once it has been properly deconstructed, i.e., liberated from its biases, its notions of privilege, its blindnesses, and comparable assorted frailties and failures. See, e.g., Pierre Schlag, “Fish v. Zapp: The Case of the Relatively Autonomous Self,” Georgia Law Journal, Vol. 76 (1988), p. 37; Pierre Schlag, “The Problem of Subject,” Texas Law Review, Vol. 1627 (1991), p. 69; Steve Winter, “Contingency and Community in Normative Practice,” University of Pennsylvania Law Review, Vol. 963 (1991), p. 139; Martha Minow, “Identities,” Yale Journal of Law and Humanities, Vol. 3 (1991), p. 97; Marie Ashe, “Bad Mothers,” “Good Lawyers,” and “Legal Ethics,” Georgia Law Journal, Vol. 2533 (1993), p. 81.

³¹ Barnes Boyle, “Is Subjectivity Possible: The Post-Modern Subject in Legal Theory, University of Colorado Law Review, Vol. 489 (1991), p. 62. The author is particularly critical of John Rawls. In Boyle’s view, given the stripped-down, basic, “Chevette-like” model of the “self posited by Rawls, scarcely any outcome other than the one projected by Rawls is conceivable. Id. at 506–9. See also Alasdair Macintyre, Whose Justice? Which Rationality? (1988), p. 337.

³² Martha C. Nussbaum, “Non-Relative Virtues: An Aristotelian Approach,” Midwest Studies In Philosophy, Vol. XIII (1988), pp. 32, 35.

³³ Perhaps this emphasis on ordinary opinion and common sense is one reason that Aristotelian writers are generally so much easier to read than postmodern writers.

³⁴ Supra n. 35, at 33–34.

³⁵ Nichomachean Ethics, 1098a20–26.

³⁶ This is even more true today than in the early years of U.S. history when state legislatures were required to consider individually each petition for incorporation. Corporations did not dominate the economic scene during this early period and were normally established as vehicles for such projects as the construction of roads and canals. Municipalities and religious institutions could also be established in the corporate form. Today, the process of incorporation is essentially pro forma. In states that have adopted the Revised Model Business Corporation Act, the “articles” or “certificate” of incorporation need only contain the corporate name, the number of authorized shares, the address and name of the registered office and agent, and the name of each incorporator. Other information may be included, but need not be. See, Robert A. Prentice, Law of Business Organizations and Securities Regulation, 148 at n. 14(1987).

³⁷ Trustees of Dartmouth College v. Woodward, 4 Wheaton 518 (1819) (“A corporation is an artificial being, invisible, intangible, and existing only in contemplation of law. Being the mere creature of law, it possesses only those properties which the charter of creation confers upon it, either expressly, or as incidental to its very existence. These are such as are supposed best calculated to effect the object for which it was created.”).

³⁸ Santa Clara County v. Southern Pacific R. Co., 118 U.S. 394, 396 (1886)(granting corporations the protections of persons under the equal protection clause of the Fourteenth Amendment); Minneapolis & St. L. R. Co. v. Beckwith, 129 U.S. 26, 28 (1889)(extending to corporations the protections accorded to persons under the due process clause of the Fourteenth Amendment). See also, Robert A. Prentice, “Consolidated Edison and Bellotti: First Amendment Protection of Corporate Political Speech,” Tulsa Law Journal, Vol. 16 (1989), p. 599; Bill Shaw, “Corporate Speech in the Marketplace of Ideas,” Journal of Corporate Law, Vol. 7 (1982), p. 265.

³⁹ The concept of self as a social construct is essentially a “given” in postmodern literature—a “stock” postmodern character. For a vivid portrait of a fully blown social composition, a “bad mother,” see Ashe, supra n. 33, at 2559–60.

⁴⁰ ”Radical” would indeed overstate the case if one thinks in political or ideological terms alone, but if one designates as “traditional” those corporations that operate exclusively in terms of maximizing shareholder return, then one can give place to a whole spectrum of corporate radicals who profess to be guided primarily by consumer (and for the postmoderns, “other”) well being. These firms “walk the walk” as well as “talk the talk.” The Johnson & Johnson Tylenol case is one good example.

⁴¹ The concept of wealth maximization has by no means deserted the field. In fact it is urged prominently and with great force by such articulate voices as Nobel Laureate Milton Friedman, Capitalism and Freedom (1962), and U.S. Circuit Court of Appeals Judge Richard A. Posner, Economic Analysis of Law (3nd. ed. 1986).

⁴² See, supra n. 41.

⁴³ R. Edward Freeman, Strategic Management: A Stakeholder Approach (1984); Kenneth E. Goodpaster, “Business Ethics and Stakeholder Analysis,” Business Ethics Quarterly, Vol. 2, (1992), pp. 53–73.

⁴⁴ Though it is not exactly a vehicle for social change, Unocal Corporation v. Mesa Petroleum Co., 493 A.2d 946 (1985), permits the board of directors to consider “other corporate constituencies” in defending against hostile takeovers. See also, Paramount Communications, Inc. v. Time, inc., 571 A.2d 1140 (1989). Both cases are at some remove from Dodge v. Ford Motor Co., 170 N.W. 668 (1919), which required the corporation to pay “a very large sum of money to shareholders” out of its cash surplus on hand 1 August 1919 of $30,000,000. This order vindicated the petition of the Dodge brothers and flew in the face of Henry Ford’s avowed policy “to employ still more men, to spread the benefits of this industrial system to the greatest possible number to help them build up their lives and homes.”

⁴⁵ ”Harleys are postmodern.” This bumper sticker or, if you prefer, lapel pin insight documents the existence of a firm that, according to received economic wisdom, should no longer exist. Conversation with Professor David Boje, Loyola Marymount University, 14 February 1994.

⁴⁶ See, supra n. 35, at 33–34.

⁴⁷ Daryl Koehn, “Re-thinking the Responsibility of International Corporations: A Response to Donaldson,” Business Ethics Quarterly, Vol. 3 (1993), pp. 177–83.

⁴⁸ An on-going, and quite possibly interminable, exchange between proponents of modernism (in this case liberal political theorists) and its assorted postmodern and other critics revolves in part around the charge that its critics cannot articulate, except in the most amorphous terms, a conception of self and community that can adequately protect the individual rights and freedoms associated with liberal societies. “Communitarians … want us to live in Salem, but not believe in witches.” Amy Gutmann, “Communitarian Critics of Liberalism,” Philosophy And Public Affairs, Vol. 14 (1985), p. 319. Responses to these attacks are notably lacking in specifics and are, for the most part, limited to questioning “the use of liberal rights to shield a private sphere at the expense of public life and shared relationships in other communities.” Patrick Neal & David Paris, “Liberalism and the Communitarian Critique,” Canadian Journal of Political Science, XXIII:3 (1990), pp. 419, 435.

⁴⁹ The notion of happiness, or eudaimonia, begins for Aristotle with the opinion of his contemporaries who, like himself, were shaped by the culture, traditions, myths, beliefs of the time. It was understood that a certain amount of material goods was necessary to give one the degree of freedom or leisure that was needed to develop the intellectual and moral virtues. Good luck, good health and the good fortune to live in a city with good laws (Athens was apparently singular in this regard) were other important components of happiness. But, only the foolish would attempt to render a verdict on the happiness of a person during his or her lifetime. Such matters could only be judged in retrospect, that is, when all the evidence was in.

The late twentieth century observer, i.e., the postmodern who seeks “otherness” or “lived experiences” as the basis for normative judgments, will see little diversity but will find concreteness in Aristotle’s vision of the good. It is likely, however, that there were marked differences between the historical Athens and the one that emerged from Aristotle’s pen. If that is true, it supplies some evidence that virtue ethics, even in this Athenian crucible, was not inherently incompatible with otherness nor incapable of responding to it. Twentieth century Aristotelian John Finnis enumerates components of the good that are surely compatible with Aristotle’s, e.g., life, play, knowledge, practical rationality, aesthetic experience, friendship, religion. In his view these goods are self-evident, they are not reducible to one another, they are of equal weight (no hierarchy), and they are capable of almost endless combination and permutation. Insofar as he makes no representation that the list is exhaustive, nor hierarchical, he makes ample room for the non-totalizing preference of postmoderns, and for their regard for “otherness” as well. John Finnis, Natural Law and Natural Rights (1980), pp. 87–97. In contrast to Finnis’ “top down” approach to virtue ethics, Martha Nussbaum engages in a complementary, but “bottom-up,” endeavor when she identifies certain features of our common humanity: mortality, the body, pleasure/pain, cognitive capability, practical reason, early infant development, affiliation, humor. These are not pretended to be seen as uninterpreted experiences, but there is much relatedness and overlap among cultures. They supply a basis for further work on the human good. “There is no Archimedean point here, and no pure access to unsullied ‘nature’ …. There is just human life as it is lived.” Nussbaum would acknowledge that a totalizing vision, if indeed such a thing is possible, is a long way from being articulated. “[L]ife as it is lived,” however, surely answers to the postmodern call. Nussbaum, supra n. 35, at 48–49.

⁵⁰ This is not a claim that accountants have an exclusive grip on these virtues. Integrity, independence, and honesty are traits of character that are valued throughtout the business community. At the same time, it is not difficult to imagine that the measure of independence appropriate for an accountant auditing the books of a client is different from that which would be appropriate for an accountant who was a member of a management team developing marketing strategy for a new product.

⁵¹ Technical skill (techne) is distinguished from virtue (arete), but the two are related in the following way. The possession of a particular skill, art, or craft enables a person to produce a certain thing, e.g., a product or service. Total command of these skills would equip an accountant for a drug cartel to “cook the books,” and, in a comparable way, would equip other professionals to advance evil or harmful purposes. One would not say that these professionals embodied the characteristics of virtuous practioners. In fact, just the opposite would be true. Skillful accountants engaged in illegal activities manifest the characteristic of vice, not virtue. Virtue gives purpose and direction to technical skill; as has been related, virtue is the stable inclination or propensity to excel in endeavors that foster the “good.”

⁵² In the medical profession, departure from or rejection of the Hippocratic metanarrative (“Above all, do no harm.”), traditionally regarded as the singular most valuable statement of medical ethics, may be more individually, professionally, and socially agonizing than in other professions. Abortion and euthanasia do seem to defy that credo, opening the possibility of a “decentered” solution. Since harm will inevitably follow from the application or the denial of certain medical procedures, a decentered approach turns to the voices of “others” as a means of resolving the dilemma. Turning to the voices of others does not resolve the dilemma to everyone’s satisfaction, but, as the postmodern/Aristotelian argument runs, it works “as well as the nature of the subject matter permits.”

The metanarrative of the law—the blindfolded goddest of justice measuring innocence and guilt without regard to person, rank, or creed—seems never to have had the grip on the legal profession as the Oath of Hippocrates has had on medicine. Even the dullest of us can see that the poor and disenfranchised, the stranger and the alien, have never been accorded justice commensurate with that of the privileged. In a postmodern sense, the legal profession has come to accept as a norm the ironic juxtaposition of “official blindness” to race, gender, and socio-economic status and the wide-eyed cynicism that this blindness is a facade. Perhaps this cynical, postmodern norm accounts in part for the loss of esteem the legal profession has suffered in the eyes of the public.

⁵³ See Bowen H. McCoy, “The Parable of the Sadhu,” Harvard Business Review (September-October 1983), pp. 103–8.

⁵⁴ See Robert Jackal, Moral Mazes (1988). Professor Jackal’s work is sociological, not one of normative ethics. Over a period of years he examined in depth selected firms in oligopolistic industries and observed that a strong code of personal values can be a real obstacle to “fast trackers.” Managers who reached senior status in the corporate heirarchy, Jackal noted, linked their success to some combination of the following key factors: (1) Appearance—Dress for success. (2) Self control—Never ‘lose it’ in public. (3) Perception as a team player—Don’t express strong moral or political qualms. (4) Style—Slick presentations characterized by a witty, ubane, and friendly demeanor. (5) Patron power—To advance, one must have a well-placed mentor, rabbi, godfather. This summation of his key factors was based on his original work and on a journal article which he published subsequently. See, Robert Jackal, “Moral Mazes: Bureaucracy and Managerial Work,” Harvard Business Review (November-December 1989), pp. 3–24. See also, Michael Metzger & Michael Phillips, “Moral Mazes,” American Business Law Journal, Vol. 28 (1991), pp. 328–45.

⁵⁵ See supra n. 51.

⁵⁶ 0ther efforts, specifically those by Finnis (top down) and Nussbaum (bottom up), have been detailed at supra, n. 51.

⁵⁷ Nichomachean Ethics, 1094b12–14.

⁵⁸ Justice between or among friends is arguably a superfluous consideration in that friendship (or, specifically, the virtue of friendliness) seems to occupy all the ground that, in more distant relationships such as those with strangers, evokes the virtue of justice or the excellence of making judgments based on relevant considerations.

⁵⁹ These and other virtues, particularly those that might be appropriately called “business virtues,” are discussed in detail in Robert Solomon, Excellence and Ethics (1992). See also, Robert Solomon, “Corporate Roles, Personal Virtues: An Aristotelian Approach to Business Ethics,” Business Ethics Quarterly, Vol. 2 (1992), pp. 317–39.