Duty Duty Duty
Last month Richard Posner said something similar to what Stanley Fish said, but Posner said it much more clearly.
For as a practical matter, chief executive officers do not enjoy freedom of speech. A CEO is the fiduciary of his organization, and his duty is to speak publicly only in ways that are helpful to the organization. Not that he should lie; but he must avoid discussing matters as to which his honestly stated views would harm the organization. (Judges also lack complete freedom of speech; as I mentioned in our introductory blog posting, I am not permitted to comment publicly on any pending or impending court case.) Summers must think that his remarks did harm the university, as otherwise he would not have apologized—for he apologized not for what he said, but for saying it.
That’s a bit different from what Fish said – especially in the part about ‘As a faculty member you should not give your president high marks because’ etcetera, which seems to assume that faculty members are going to give a university president ‘marks’ on exactly the same basis that a search committee is. But why would they do that? And is there any reason to think they would do that? Posner doesn’t make that bizarre assumption.
A university president might make provocative remarks because he wanted to change his university in some way, for example by encouraging greater intellectual diversity, or because he wanted to signal strength, independence, intransigence, or other qualities that he thought would increase his authority, or even because he wanted to intimidate certain faculty by seeming to be a “wild man.” But that explanation is not available to Summers, because of the apology.
Fish pretty much overlooked that possibility – that the wild man act could have been part of Summers’ perceived ‘job.’ Anyway, the CEO problem remains. It’s quite interesting. It’s similar to that much-repeated truism, that a corporation’s only responsibility is to maximise shareholders’ profits – a truism that has some very worrying implications for everyone other than that corporations’ shareholders (and even for them if they work for the corporation, or consume its products, or breathe the air in its vicinity). I didn’t really know that CEOs were explicitly required to ‘avoid discussing matters as to which his honestly stated views would harm the organization.’ I suppose I’ve always assumed they would be highly likely to avoid doing that, on account of wanting to maximise their own profits and all, but I didn’t think of it as being their duty. Duty. Hmm – I bet it’s not their duty in a sense that Kant would accept. But Posner isn’t Kant. But still – there is some ambiguity or vagueness hovering around all this, isn’t there? Even in Posner’s version. Clearly that avoidance can be seen as the CEO’s duty to certain people – shareholders, for instance. But can it be seen as the CEO’s duty, full stop? I wouldn’t have thought so. The CEO has duties in capacities other than the CEO capacity. As a citizen, for instance – or as a decent human being. Depending on what the organization is up to, the CEO might have a duty precisely to discuss matters on which her honestly stated views would harm the organization. A civic duty, as opposed to a fiduciary duty.
Whereas it’s another matter with the duty of a judge not to comment on pending cases. I have no problem with that (big of me, isn’t it) (never mind that, I’m just trying to figure this stuff out, here). But for one thing that’s a much more limited gag, and for another thing, it lacks the whole profit-motive, conflict of interest aspect. In short, the idea that CEOs have a duty to talk carefully seems to translate the interest of a small group into a general duty. Or to translate ‘duty’ into ‘what your employers want you to do’ – which can be what duty means, to be sure. ‘Here are your duties in this job.’ But it can also mean something much more general, and binding, and morally-based. Deontological doesn’t refer to employer expectations, surely?
Then again I suppose Posner could just be doing his ‘seeing everything from the point of view of an economist’ act. Or I could just be completely clueless. Bringing the organization into disrepute, I am.
The CEO’s duty to act in the interest of the shareholders is a legal obligation, not a moral one, and hence is constrained by the law. Steve Ballmer (CEO of Microsoft) doesn’t have a moral or legal obligation to take out a contract on Steve Jobs’ life – even though that might work out well for Microsoft if it could be successfully pulled off without being traced back to Ballmer.
Actually, though, it isn’t completely constrained by what the law says is illegal. Unfortunately.
If a law mandates a piddling little fine for polluting a river, and it’s cheaper for a company to go on polluting and pay the fine than to clean up their act, then shareholders might well expect the company to go on polluting. Then of course you have the “obligation” to try and avoid detection when you commit corporate crimes, and the “obligation” for large corporate interests to try to buy laws that work in their (i.e. their shareholders’) favour. I’m not sure whether those would be classified as a legal obligation, or more of a gangster-style “obligation”.
Remember the guy that got sacked from Waterstones not too long ago? None of have freedom of speech without consequences.
“The CEO has duties in capacities other than the CEO capacity. As a citizen, for instance – or as a decent human being. Depending on what the organization is up to, the CEO might have a duty precisely to discuss matters on which her honestly stated views would harm the organization. A civic duty, as opposed to a fiduciary duty.”
I don’t think anyone here is talking about a moral duty qua CEO, rather a quasi-contractual obligation to the company, of the ‘you must do this or we’ll sack you’ variety. Which is why i found your previous post a bit baffling.
Except that that’s not what they say. Neither Fish nor Posner limits it that way. Fish, especially, says no one should ‘charge’ Summers with anything except not doing his job. But why should the world at large care whether Summers did what his bosses want him to do? And why should the world at large shut up about everything else?
Yes, I do remember the Waterstone’s guy, who was fired because of something he wrote in his own blog on his own time. Waterstone’s hardly did its corporate image much good with that little piece of spite.
I’m not making any claim that we have free speech without consequences. I’m just wondering why Fish is claiming that job performance is the only relevant category here.
Here’s a few assorted thoughts on this and the previous topic.
OB,
II think you’re reading more into Posner’s comments than is actually there. From the excerpt it seems that Posner’s argument is more of an all things being equal argument than an unequivocal assertion. If that’s what he means then he’s saying somethng far different from the views you are attributing to him.
Also I hought a corporate CEO has an obligation to act within the law. He can’t pollute no matter how unreasonable the regulations might be. As for paying workers as little as possible etc., if there’s a free market it’s in your interests to make the wages competitive. Otherwise you won’t get anyone good, and those you do get won’t stay. If industry is socialized and there’s no free market, the stiuation isn’t as rosy for the workers because there’s only one employer. who can pay whatever it wants.
As for hurting Harvard,I don’t see how anything that Summers could have said on the subject would hurt Harvard. We have to define what we’re talking about when we say “hurt “. Summers’ comments certainly don’t affect the day to day education the students are getting. If some facuty members are bothered by it, then how does that hurt Harvard? To me it shows that there’s at least one person in authority in Harvard who isn’t about to toe the party line. If you mean hurt Harvard financially then I don’t see that as part of Posner or Fish’s comments. So I have no idea what anyone who says the comments hurt Harvard might mean. What are the relevant “interests of the enterprise” when the enterprise is Harvard?
Summers’ apologies don’t mean that he saw the comments as hurting Harvard. They could mean that he had to do some internal fence mending. Maybe he just didn’t want the aggravation.
Oh my god! We’re caught between Richard Posner, Stanley Fish and Larry Summers. What a nightmare! Gimme some of that old time religion anyday!
As an employee of a research company, I am bound by a fairly draconian non-disclosure agreement; I am also bound by contractual obligations not to bring my employers’ company (ooh, what a revealing expression I chose there!) into disrepute or to do anything which might harm the financial or business viability of the company (I can’t remember the exact phraseology).
To me, such points are irrelevant in this instance – it seems that no one (unless I missed it) has raised the point that a University SHOULD NOT be run on the same principles as a corporation. Universities should be centres for excellence in thought; they should encourage freedom of expression; and they should foster critical thinking.
To my mind any valid objections to what Summers had to say MUST be based on the quality of the points themselves. If what he said was factually wrong or badly supported then he failed to maintain the academic probity which was his responsibility. Simply causing offence? No charge admissible. Bringing the University into disrepute? Well, if that’s for a lack of academic rigour then fair enough. But for offending sensibilities? Fuck that!!
Is Summers not an administrative head of the University, and as such comparable to a CEO, rather than purely an academic?
Over here I don’t think a vice-chancellor could get away with using ‘academic freedom of expression’ to get away with ‘bringing the University into disrepute’ or whatever legalistic clause is in his contract.
snicker
Yeah it is kind of a nightmare, isn’t it.
Allan,
“From the excerpt it seems that Posner’s argument is more of an all things being equal argument than an unequivocal assertion. If that’s what he means then he’s saying somethng far different from the views you are attributing to him.”
Yes but again, that’s not what he said. He didn’t say ‘all things being equal.’ He did restrict what he said to CEOs, which is more of a restriction than what Fish said. But he didn’t restrict it otherwise. I really don’t know whether that’s an oversight, or he assumed it was obvious, or he’s being tricky.
“He can’t pollute no matter how unreasonable the regulations might be.”
Well but that depends on what you mean by ‘can’. If you mean not allowed to, or not supposed to, true. But Robin’s right – if the fines are low enough, and they often are, they can just be seen as a ‘cost of doing business’ (and often are), which is still cheaper than non-pollution. So in that sense a CEO can indeed pollute, and does.
And Walmart does get away with ripping off its workers, as news stories have been reporting lately. That’s illegal – Walmart ‘can’t’ do that. But it can, and it does.
That kind of thing happens.
“it seems that no one (unless I missed it) has raised the point that a University SHOULD NOT be run on the same principles as a corporation”
Well that’s part of the point I’m raising, although by implication rather than explicitly. Fish seems to be claiming that a University should be run on the same principles as a corporation, and I’m suggesting 1) that it shouldn’t and 2) that as far as the larger world is concerned, neither should a corporation. That is, the rest of us are under no obligation whatsoever to defer to the corporation’s expectations of its CEO. Fish seems to be claiming that we are – which surely is absurd.
Nightmare? More like a 3 ring circus if you ask me.
Sorry OB you haven’t convinced me that Posner at least wasn’t speaking on an all things being equal basis. Maybe it was an oversight that he didn’t say it in those words,, but given the context it’s understandable that he wouldn’t be precise in putting in all the qualifications he probably intended.
I still don’t understand why these people just assume that Summers said something that hurt Harvard. Displeasing a vocal academic elite is not the same thing as disserving the university. I think everyone who has been following this has the sense that what’s really going on here is payback for moves that are contrary to the agendas of Summers’ critics, and perhaps a warning of what’ s to come if he keeps going the way he has.
“Sorry OB you haven’t convinced me that Posner at least wasn’t speaking on an all things being equal basis.”
Sorry Allan but I wasn’t trying to convince you of that, nor did I say I was. You’re reading carelessly. I was simply pointing out that it wasn’t entirely clear what Posner did mean, and that what he said is open to interpretation. The point is not Posner’s intention, the point is what is on the page. Your claim seems to be that it’s perfectly obvious exactly what Posner meant. My claim is that it isn’t. My claim is not about what basis Posner was speaking on.
Stanley Fish – I can’t figure that guy out. He sometimes says sensible things, only to reverse himself later on and say something utterly silly. I listened to an audio interview with him a while back, in which he seemed to say that he really does think that some literature deserves to be considered great, only to start talking like a standard deconstructionist again minutes later.
Fish is known for a couple of books about Milton, in which he argues (somewhat plausibly) that Milton’s Satan character in “Paradise Lost” is meant to “seduce us with sin.” That is, Satan says things that are actually evil, and that he knows to be evil, but are exciting and crowd-pleasing enough that the evil goes unnoticed. I sometimes think that Fish has cast himself as a version of Milton’s Satan, and says things he knows to be bunk just for the joy of leading the flock astray.
Phil
I know, I have the exact same problem. He oscillates from silly to sensible like a yo-yo and leaves me hopelessly confused.
I’ve been meaning to read Surprised by Sin for years. Haven’t done it yet though.