Meeting needs and business obligations: An argument for the libertarian skeptic

In this paper I argue that if we are to have any defensible property rights at all, we must recognize a fundamental commitment to helping those in need. The argument has significant implications for all who claim defensible property rights. In this paper I concentrate on some of the implications this argument has for redefining business obligations. In particular, I show why those who typically would be quite resistant to the idea that businesses have any obligations to assist others in need must acknowledge this fundamental obligation. I also suggest how this argument contributes to our understanding of the normative basis of Stakeholder Theory. Gillian Brock is a Lecturer at the University of Auckland, New Zealand where she teaches courses in Business Ethics (amongst other courses). She completed her Ph.D. in Philosophy. Her dissertation, On the Moral Importance of Needs, explores the role human needs can play in moral and political theory. Some of her other articles have appeared (or are forthcoming) in journals such as Ethics, Analysis and Dialogue: Canadian Philosophical Review.     

Corporate property rights

Corporate property rights present an interesting challenge to the liberal conception of property rights, for it is unclear that the self-respect of individuals is promoted by the existence of a system of property rights for corporations. I argue that it is difficult even to identify who the individuals are who are the owners of large corporations, and why these individuals should be given the same claims, protections and immunities as other property rights holders since the liabilities of corporate property rights holders are not the same as of those, for instance, who own their own homes. In this paper I first try to understand who it is who owns the large corporation. Secondly, I show that the limited liability of these corporate property owners makes the justification of corporate property rights quite difficult, from the classical liberal perspective. I end with a few brief remarks on changes in legal policy which would be consistent with my arguments on the nature and justification of corporate property rights. Larry May is Associate Professor of Philosophy at Purdue University. He was awarded with the Exxon Education Foundation Grant during the Summer of 1982. His most important publications are Vicarious Agency and Corporate Responsibility (Philosophical Studies 43, pp. 69–82, 1983), On Conscience (American Philosophical Quarterly 20, pp. 57–67, 1983), Professional Actions and the Liabilities of Professional Associations (Business and Professional Ethics Journal 2, pp. 1–14, Fall 1982), and Sexual Harassment (Social Theory and Practice 6, pp. 249–280, 1980).     

The moral responsibilities of stockholders

This paper attempts to address the question of the ethical obligations of stockholders. Having presumed a rather narrow conception of the nature of property, and citing the limitations on stockholders rights and/or power, some have suggested that stockholders have no significant moral responsibilities. Others say that stockholders have moral responsibilities which they derive from the fact that the shareholders of a corporation are the legal owners of it. This article first of all, contests the view that stockholders have no responsibilities regarding the moral or immoral activities of the corporation in which they invest. It will be maintained, however, that while stockholders have moral responsibilities to monitor corporate decisions and perhaps, to actively try to influence the corporation to act morally, such ethical obligations cannot be derived solely from the stockholders' legal ownership of the corporation. The true ground of the moral obligations of stockholders is a social/political one and one which embraces a broadened conception of the nature of property. Richard J. Klonoski is Assistant Professor of Philosophy at the University of Scranton. His most important publications are: Being and Time Said All at Once: An Analysis of Section 42, Tulane Studies in Philosophy: The Thought of Martin Heidegger 32; and Setting and Characterization in Plato's Euthyphro, Dialogos 19.     

The Abandoned Stakeholders: Pharmaceutical Companies and Research Participants

Most discussions concerned with advancing the just and ethical treatment of research participants in developing countries have revolved around the moral principle of autonomy and the legal doctrine of informed consent (O’Neill 2002). However, if emerging ethical concerns are to be addressed effectively, the discussion needs to expand into the domain of business ethics where arguments addressing issues such as fair/appropriate compensation, entitlement, and corporate obligations to stakeholders are commonplace. The argument I present in this paper will conclude that emerging ethical considerations regarding the treatment of research participants in developing countries have evolved well beyond the scope of the principle of informed consent and that in order to resolve these concerns more appropriately and effectively, the new default or status quo should be to consider research participants as stakeholders of the sponsoring pharmaceutical company, even after the clinical trial is completed. This conclusion is significant because although it is fair to assume that, at some point in the timeline, most stakeholder theorists already do consider research participants stakeholders of the pharmaceutical company sponsoring the trial, the completion date of the clinical trial usually signifies and marks the termination of their stakeholder status and thus any consideration of what is owed further to the research participant.     

Understanding Social Welfare Capitalism,Private Property,and the Government’s Duty to Create a Sustainable Environment

No one would deny that sustainability is necessary for individual, business, and national survival. How this goal is to be accomplished is a matter of great debate. In this article I will show that the United States and other developed countries have a duty to create sustainable cities, even if that is against a notion of private property rights considered as an absolute. Through eminent domain and regulation, developed countries can fulfill their obligations to current and future generations. To do so, the governments must reject perfectly competitive free market capitalism and the absolute right to private property, and more fully adopt social welfare capitalism as their economic system. The result will be a sustainable society that balances democracy, individual rights and individual flourishing with the community’s flourishing.     

Two ethical issues in mergers and acquisitions

With the recent rash of mergers and friendly and unfriendly takeovers, two important issues have not received sufficient attention as questionable ethical practices. One has to do with the rights of employees affected in mergers and acquisitions and the second concerns the responsibilities of shareholders during these activities. Although employees are drastically affected by a merger or an acquisition because in almost every case a number of jobs are shifted or even eliminated, employees at all levels are usually the last to find out about a merger transaction and have no part in the takeover decision. Second, if shareholders are the fiduciary beneficiaries of mergers and acquisitions, then it would appear that they have some responsibilities or obligations attached to these benefits, but little is said about such responsibilities. In this essay I shall analyze these two ethical issues, and at the end of the paper I shall suggest how they are related. Patricia H. Werhane is Professor of Philosophy at Loyola University of Chicago. She is one of the founding members of the Society for Business Ethics. Her publications include Philosophical Issues in Art, Ethical Issues in Business, coedited with Tom Donaldson, Persons, Rights and Corporations, Philosophical Issues in Human Rights, edited with D. Ozar and A. R. Gini.     

Libertarian Theories of the Corporate and Global Capitalism

Libertarian theories of the normative core of the corporation hold in common the view that is the responsibility of publicity held corporations to return profits to shareholders within the bounds of certain moral side-constraints. Side-constraints may be either weak (grounded in the rules of the game) or strong (grounded in rights). This essay considers libertarian arguments regarding the normative core of the corporation in the context of global capitalism and in the light of actual corporate behavior. First, it is argued the weak side-constraints view is conceptually incoherent when applied in a global context. Second, it is argued that proponents of the libertarian strong side-constraints view lack an adequate theory of rights. Third, both the weak side-constraints view and the strong side-constraints view are shown to be unsatisfactory insofar as they fail to adequately address the coercive power of corporations. The main conclusion of this essay is that a viable libertarian theory of the corporation has yet to be articulated.     

Non-Libertarianism and Shareholder Theory: A Reply to Schaefer

Libertarianism and the shareholder model of corporate responsibility have long been thought of as natural bedfellows. In a recent contribution to the Journal of Business Ethics, Brian Schaefer goes so far as to suggest that a proponent of shareholder theory cannot coherently and consistently embrace any moral position other than philosophical libertarianism. The view that managers have a fiduciary obligation to advance the interests of shareholders exclusively is depicted as fundamentally incompatible with the acknowledgement of natural positive duties – duties to aid others that have not been acquired by some prior commitment or transaction. I argue that Schaefer is mistaken. Positive duties are incompatible with the shareholder model only if we must contribute to their fulfilment in the corporate context; only if we have some reason to think that it is not possible or not permissible to discharge these obligations entirely in our private lives or through our various other roles and capacities. But we have no good reason to accept this. I argue that individuals are presumptively free to decide how and when to discharge their positive duties, and that buying shares does not cause this presumption to lapse. Hence a non-libertarian moral theory can be held without incoherence by a proponent of the shareholder model.     

应该从理论上否定"原罪"概念

本文认为,民间资本、私营经济并无“原罪”。否定“原罪”概念,有三个理由。第一,马克思借用神学概念提出“原罪”,带有否定资本的意思,认为资本一出生就有罪,这不仅与其所说的资本主义生产方式在历史上起的进步作用及生产力标准相矛盾,而且从根本上否定了劳动可以进行积累,合法经营可以致富,与实际情况不符。在一个半世纪之后的今天,资本仍有活力,还能在一定范围内调整生产关系。第二,“原罪”概念是不确定的,不能成为法律用语。把利润等同于“原罪”,认为利润获得者就有“原罪”,是把“原罪”概念泛化了,使之成为一个“莫须有”的罪名。第三,“原罪”是悬在私营业主头上的一把剑,随时可能掉下来。要使民营经济、私营企业健康发展,就是要改善投资环境,落实宪法中保护私有财产的庄严规定。     

Appropriating Resources: Land Claims,Law, and Illicit Business

Business ethicists should examine ethical issues that impinge on the perimeters of their specialized studies (Byrne 2011). This article addresses one peripheral issue that cries out for such consideration: the international resource privilege (IRP). After explaining briefly what the IRP involves I argue that it is unethical and should not be supported in international law. My argument is based on others’ findings as to the consequences of current IRP transactions and of their ethically indefensible historical precedents. In particular I examine arguments from political philosophy for more equitable distribution of resources and appeals to property rights as a means of achieving this; business ethicists’ critiques of contemporary resource appropriations; and legal historians’ accounts of despoliation of aboriginal peoples, especially in what is now the United States, involving acquisition via conquest, asserted jurisdiction, and religious and racial preeminence. I also consider relevant human rights’ standards; supportive views of some theorists, especially early modern realists and current supporters of group rights and multidimensional rectification; some de facto incidences of substantive restitution; and proposals for effecting further rectification.     

中国老年人男性单系继承偏好的影响因素研究

利用2010年中国妇女社会地位调查老年人专项数据,分析在儿女都尽了赡养义务时,老年人的男性单系继承偏好及其影响因素。当代老年人的财产分配意愿正在从传统的男性单系继承转向男女平等继承,但农村、汉族、低教育水平、仍从事有收入性的工作、与子女在经济和照料上交互较多、家庭孩子在4个及以上、愿意和儿子同住,并且认同"养儿防老"观念的老人,仍然在财产分配中存在男性单系继承偏好。本研究建议进一步提升和改善养老文化中的性别平等意识、规范女性的财产获得权益,并拓展"养儿防老"等养老文化观念的内涵,以便进一步扩大养老主体,以实现健康老龄化。     

刑事被追诉人财产权救济制度研究

在权利易受权力侵犯的刑事诉讼场域,建立被追诉人财产权救济制度,是有权利必有救济理论、诉讼主体理论以及人性恶预设理论的必然要求。权利救济内容不完善、救济义务主体不中立以及重要权利救济方式的缺失,是当前我国被追诉人财产权救济制度存在的主要弊端。我国应树立程序正义、救济为民的理念,在刑事诉讼中进一步完善被追诉人财产权救济内容、设置相对中立的被追诉人财产权救济义务主体以及增设财产保护令等。     

中美经贸协议背景下电商知识产权保护优化路径研究

中美经贸协议中约定了我国在"打击网络侵权"和"主要电子商务平台上的侵权"方面的知识产权保护义务与责任,且高于我国现行法律对电商平台知识产权的保护标准。本文在梳理背景并对照分析具体条款的基础上,得出我国的电商立法规范有待完善、行政执法队伍有待扩充的困境。结合国内外电商法律保护需求与规制形势,提出了应从保护标准、处罚标准、行政管制等角度构建电商平台知识产权保护制度优化体系的五点建议,并需注重社会效应与实践效果,引导跨境电商的多方主体积极合作。     

The ethics of rent control

Residential rent control is a contentious issue in many jurisdictions throughout the world. While tenant groups have often argued vociferously in defence of control, landlord groups and the vast majority of economists have been equally vehement in their criticisms. This paper examines some key normative issues involved in rent control. In particular I examine arguments in favor of control based on the alleged unfairness of winfall profits, upon affordability, and finally on the creation of rights to security of tenure. Various objections by libertarian and free market philosophers and economists are examined. I conclude with a somewhat limited defense of rent control as used in specific situations as part of a more comprehensive policy to satisfy the normative demands at the root of tenant pressure for rent control. Ken Hanly is an Associate Professor of Philosophy at Brandon University. His most recent publications are two book reviews in January and March 1990 in Canadian Philosophical Reviews. His research interests include business ethics, moral, and political philosophy.     

中国农村土地产权制度改革方向探讨

产权问题是农村土地制度的核心问题,由于我国没有从根本上解决农村土地产权问题,所有权主体虚置,使用权缺乏自主性、稳定性,收益权被分割,缺乏独享性,转让权不自由,由此引发了困扰"三农"的一系列问题。为解决现行农村土地产权制度存在的问题,文章提出,中国农村土地产权制度改革应多元化,即国家土地的终极所有权、农民土地实际所有权即农村土地私有、农村公共领地的集体所有权。而要实施农村土地产权多元化改革,则必须在明晰农村土地产权的同时赋予产权主体相应的权能,进行土地管理体制改革,使法律与农村土地产权制度相协调,建立相配套的其他制度或机制。     

国际法中的全人类共同利益

在经济全球化条件下,国际社会中产生了全人类共同利益。主要表现在：人类共同继承财产的确立;全球生态环境保护;打击国际犯罪和国际人权保护。针对这些问题,国际法已经作出了一定程度的调整,且仍在不断发展中。全人类共同利益的确立,一定程度上改变了国家观察问题的出发点和国际合作的方式,并形成了一定程度的“全球意识”,国家的国际法义务由消极的“不作为”向积极的“作为”发展。     

Assets,Attributes and Ownership

The notion of full asset ownership is important in economics, for example, in recent work on the boundaries of the firm. Much of this work has been taken up with the issue why it matters who owns an asset. However, recognizing that assets have multiple attributes, and that these may be subject to capture in a world of positive measurement and enforcement costs, implies that the notion of full asset ownership is problematic. New property rights theorists sidestep these issues by implicitly assuming that residual rights of control are perfectly enforced (i.e. full asset ownership obtains). We discuss the notion of property rights and ownership in a setting characterized by positive costs of enforcement, and suggest that in such a setting, the new property rights model is a part of a more overarching perspective, which also includes older contributions to property rights economics.     

论有限责任公司夫妻股权的法律结构：基于信托的视角

有限责任公司夫妻股权具有夫妻财产和公司股权的双重团体结构，二者的“嵌套”引起解释论矛盾，合理的解决路径是将股东身份和股权利益进行分离。信托结构是理解夫妻股权关系的一个可行的样本。夫妻股权结构基本符合财产独立性和信义义务等信托的形式要求，且二者均具有区隔财产管理与家庭生活、分离财产管理意志、提高财产利用效率、降低交易成本的功能。根据与信托的类比解释，登记于夫妻一方名下的股权，登记方的单方处分为有效处分，但处分结果受信义义务的制约。在离婚财产分割中，夫妻双方可就有限责任公司股权达成信托式协议，并通过无表决权股或设立股权信托的方式处理股权。在股权继承中，在世配偶成为有限责任公司股东需经其他股东过半数同意，若其他股东不同意，需在无表决股权、股权信托、股权收购中选择其一以保障在世配偶的权利。     

论“中国原材料出口限制措施案”中GATT1994第20条的可适用性

2011年7月,中国原材料出口限制措施案的专家组报告公布。专家组通过分析《加入议定书》第11.3条的字面意思、《工作组报告》和WTO协定中的有关条款,认定GATT第20条不能作为中国违反第11.3条的抗辩理由。相较之前的案件,本案专家组的分析更加细致,考虑更加全面,但仍存在令人质疑的问题,特别是在条约解释技巧方面,专家组过分强调字面解释,对《加入议定书》中的"超WTO义务"解释过于严苛、机械。中国政府应当据理力争,要求上诉机构以"善意解释原则"为指导,综合运用系统解释、目的和宗旨解释方法,对成员方间不平衡的权利义务关系进行二次校正。