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The framework of any country’s legal system relies heavily on the concept of holding parties accountable for wrongdoing. When promises are broken, it is reasonable to expect an apology from the transgressor and redress for the victim. This moral obligation is known as a directed duty, which seems simple until it is viewed through the lens of the law. How, for example, does directed duty work in the case of a company that has done something wrong? In an interview with Knowledge@Wharton, Julian Jonker, a Wharton legal studies and business ethics professor, discusses his latest research on this concept and how it applies to individuals and corporations.
An edited transcript of the conversation follows.
Knowledge@Wharton: What is a directed duty?
Julian Jonker: Directed duties are things that come up in our ordinary moral life. They also come up in the law, particularly in private law areas such as contract and tort.
It’s probably best to start with an example from ordinary moral life. Consider the kind of promise that I imagine the musician Jay-Z entered into with Beyoncé when they got married. I take it that part of that marriage arrangement was a promise by Jay-Z to be faithful to Beyoncé. We think in our ordinary moral lives that one has a duty to keep the promises that one makes. If Jay-Z makes such a promise, then he has a duty to keep it. He has a duty to be faithful to Beyoncé. If he breaks that duty, then he does wrong. That duty is a directed duty, which means it’s not just the case that he must keep his promise; he owes it to someone in particular. What is more, if he breaks that promise, then he doesn’t just do wrong, but he also wrongs someone in particular. He wrongs Beyoncé.
Directed duties are not things that we ordinarily talk about. That’s a term of art. But we do talk about owing it to each other to do certain things, and we do talk about wronging each other. We also talk about rights. Rights and directed duties are importantly connected. If you buy Beyoncé’s latest album, which I can recommend to you because it’s very good, then you have a right to listen to that album. I shouldn’t interfere with that right. I have a duty not to interfere with your right. I don’t just do wrong if I violate that duty, but I wrong you in particular. So, directed duties have this relational aspect to them. The philosophical puzzle is: Why do we think duties have that aspect?
“We think in our ordinary moral lives that one has a duty to keep the promises that one makes.”
Knowledge@Wharton: How does this play out in the context of the law?
Jonker: In contract law, much like in the case of promising, we think of the parties in a contract as having rights and duties in terms of that contract. Those duties are directed because there are correlative rights. This is something that legal scholars have thought about for more than a century, beginning with a scholar by the name of Wesley Newcomb Hohfeld.
Once again, if you have a right and a contract against me, then I not only have a correlative duty, I have a correlative directed duty. I owe that duty to you. Contract law is made up of directed duties and rights. Tort law and parts of property law are the same. I think private law is distinct in that it is made up of such directed duties.
That’s in contrast to criminal law, where we think of ourselves as having duties that, if they are owed to anyone at all, are really owed to the community, the state. One way in which that contract manifests is that private law is thought of as being about the relations between private individuals, and it allows individuals to hold each other accountable. Whereas in criminal law, it’s really up to the state to enforce the law. It’s that distinction between being accountable to each other, or having relationships with each other, that plays out in private law.
Knowledge@Wharton: What are some of your key findings about directed duties?
Jonker: The philosophical questions about directed duties are: Can we make sense of them? Can we make them intelligible to ourselves? Can we defend them? In what way is our system of morality or our legal system distinctive because these are directed duties?
I think there is some scope for reasonable difference in moral cultures. If you go back to ancient China, the Confucians never talk about directed duties. In fact, they never talk about duties. I don’t think the philosophical task is to show that our talk about directed duties is the only way of having a moral culture, but we do want to make sense of it. We want to make it so that we can defend the fact that we have such a culture. And that means showing what difference having directed duties makes in our lives and showing what is important about that difference. What would we lose if we stopped talking in this way — if we stopped talking about wronging each other or owing it to each other to do things?
I propose a theory of directed duties that attempts to answer those sorts of questions. I call this sometimes the repair theory and sometimes the recognition theory. I call it the repair theory because I think it’s important to connect directed duties with our practice of holding each other accountable. We spoke a little bit about that in the legal context.
“The requirements of morality are not laws written on stone tablets.”
In the moral context, which is where my focus has been, holding each other accountable takes place through a sequence of responses that we’re perfectly familiar with from our everyday life. Let’s go back to our case of Jay-Z and Beyoncé. If Jay-Z breaks his promise, then it’s perfectly reasonable for Beyoncé to blame him, to be angry with him and to seek apology from him. We think it’s appropriate for that blame to find apology as its response. If the apology is sincere and genuine, then it might be the case that Beyoncé decides to forgive Jay-Z. Those exchanges, that practice of responses, is what I call the practice of accountability.
In order to understand what is distinctive about directed duties, we have to see them as located in that practice of accountability. A practice of accountability has a very special structure. If someone wrongs another, we think that the person who has been wronged is the person who gets to blame them. And we think it is the person who is wronged to whom apology must be made and to whom redress must be made. It is the person who has been wronged who has the power to forgive the transgressor.
Going back to our example, if Jay-Z breaks his promise that he owes to Beyoncé, then it is Beyoncé and not some member of the public who gets to forgive Jay-Z. It is Beyoncé to whom Jay-Z must apologize and make redress. Accountability has that structure, and that’s really what’s distinctive about directed duties. Once we understand that structure, we begin to get a little bit more insight into what it is for a duty to be directed.
Knowledge@Wharton: How can understanding directed duties and having some knowledge about this impact our actions or influence our relationships?
Jonker: In order to answer that question, I should say one more thing about the repair theory or the recognition theory, as I sometimes call it. In order to explain the structure of our practice of accountability — to explain the existence of directed duties — we need to notice that each of us has an interest in recognition. By that, I mean each of us has an interest in the rest of our interests being acknowledged or recognized by others. We think of people wronging us not just because we think they set our interests back, but also because we think that they act in a way that doesn’t acknowledge the interests that they set back. We each want to be recognized by others, so morality is much about the relationship of recognition that we stand in with others. I think this can help each of us as moral agents if we begin to recognize that the requirements of morality are not laws written on stone tablets. They’re not commands given down by the state. But they really are constituent components of this relationship of recognition that we stand in.
I think this repair or recognition theory can help to make us at home in our moral understanding and help us to see the point of our moral talk. But I think it can also affect substantive questions about what we ought to do. Moral philosophers often have told us to pay attention to the interests of others when the interests of others are really about, say, the material well-being of other people. But we need to notice that people care not just about the things that they have, not just about their bodies and their well-being and so on. People care about how others think about them. People care about others’ attitudes towards them. As a moral agent, it’s important for me to recognize others. It’s important for me to see that they have interests to which I should be sensitive and also to see that they care that I am sensitive to those interests. There are moments where I should signal that I’m sensitive to those interests.
That fact about morality can begin to explain to us some of the features of many of the wrongs that we are so worried about today — things like discrimination, insults, hate speech and so on. Many of those sorts of wrongs are really centered on this interest in recognition that I think is a central component of our moral lives.
“As a moral agent, it’s important for me to recognize others…. There are moments where I should signal that I’m sensitive to [their] interests.”
Knowledge@Wharton: Jay-Z may owe his primary apology to Beyoncé, but his fans might think he owes them an apology. Or her fans might think he owes them an apology. In a different context, when a company or a CEO does wrong, customers might feel like they are owed an apology. How does that come into play here?
Jonker: That’s a great question. In the case of Jay-Z and Beyoncé, I think it’s possible that Jay-Z owes further duties to other people. But I think primarily he owes a duty to Beyoncé. We could get into the details of promising, but the explanation for that is going to be that it is Beyoncé’s interest in being able to rely on his conduct that really grounds the duty to keep his promise. That is why he owes it to Beyoncé. It’s her interest that is defended by that duty.
But we can think about, say, a president who cheats on his wife and thinks it’s necessary to apologize not just to his wife but also to the general public. I think we can see that there’s an interest of the general public in the fidelity or good character of someone in office. That would explain why a president owes a duty like that not just to his wife but also to members of the public.
I think something like that may very well be the case in the business context, and it’s going to depend on a number of circumstances. It’s going to depend on the nature of the company. It’s going to depend on who we think its stakeholders really are. This raises really deep questions about business ethics. Who do we think are the people who have a moral stake in the conduct of business?
We can think of certain environmental cases where a company’s recklessness puts at risk people who are not its customers but are within the environment of its operations. I think there are interests at stake that ground duties of the company towards the general public. An answer here is going to depend on the circumstances of the case. But my hope is that this repair theory gives us a framework in which to answer that kind of question.
Knowledge@Wharton: What are companies doing to perhaps engender these feelings from some customers that the company owes them something? Other customers or other constituents, in the case of a politician, might feel they aren’t owed anything.
Jonker: There’s a question here about which relationships are significant ones for morality. We have all sorts of relationships with each other, not least familial relationships, romantic relationships and so on. I think morality actually has its roots in those sorts of relationships. But we now live in a society in which we have much extended relationships. I think relationships of exchange are fairly natural relationships. Morality does concern those sorts of relationships. We have extended supply chains, for example, and it’s not clear whether a supplier should be responsible to an end consumer or to other intermediaries along the chain. Our actions tend to have consequences for third parties, consequences that are often unforeseeable. This gives rise to significant questions in the history of tort law and in contract law and in product liability doctrine about exactly when should we see there being a relationship.
I’m not able to give a detailed answer that will set out all the cases here. It’s going to depend on the circumstances. But I think what we have here is a framework. Once we notice that, we need to look at the structure of our practice of accountability and see how interests in recognition really ground the structure of that practice. We begin to get a framework for seeing other relationships that we care about.
“Our actions tend to have consequences for third parties, consequences that are often unforeseeable.”
One other way in which I think this theory — and directed duties in general — is important for business ethics is the question about whether corporations and other organizations are moral agents. This is a much debated question in recent times. One way in which the question comes up, as it did in recent Supreme Court cases, is whether a corporation is the kind of thing that can have rights. My theory contributes to that discussion because to have a right is to be owed a directed duty. Remember, the legal theorist Hohfeld said, “These things are correlative.” If a company is to be able to have rights, it must be capable of being owed duties. The repair theory says that a company must be a participant in the practice of accountability, and it must have an interest in recognition. At least, it must be capable of having an interest in recognition for it to make sense to owe duties to a company. That’s a contribution to that debate; it doesn’t settle the debate. There are difficult questions about how the interests of individuals and individuals as participants in our practices of accountability interact with these questions about organizations.
Knowledge@Wharton: What’s next for your research?
Jonker: I’ve just begun a project on the nature of promising. My claim here is that promising is a kind of joint activity, and this philosophical account of promising can shed light on contract law doctrine.
Think again of our original example: Jay-Z and Beyoncé. Most philosophers think that the nature of the duty to keep one’s promise is grounded in some way in the capacity of Jay-Z or the autonomy or the authority of Jay-Z. Other philosophers think that the nature of the promissory duty is grounded in Beyoncé’s interest in reliance or assurance. I think both of those kinds of philosophy have important insights into the nature of promising. But I think it’s been neglected that, in order to really account for the shape, the contours of our promissory obligation, we need to notice that promisor and promisee — Jay-Z and Beyoncé — are really involved in a joint activity. That there’s a joint commitment that they enter into when one makes a promise to another. That can explain why there are certain norms of fairness that enter into our promissory obligations.
It’s not just the case that Jay-Z must keep his promise to Beyoncé, but Beyoncé mustn’t make it the case that it’s impossible for Jay-Z to keep his promise. Or it might be the case that Beyoncé needs to do certain things in order to make it easier for him to keep his promise. In order to account for that, we really need to begin to see promising as a joint activity. Once we do that, I think we begin to see that there’s an important connection between promising and contract law. One of the things that theorists of contract law have long struggled to explain is why the notion of good faith has such a prominent place in our contract law. I think this account of promising can begin to give an account of that.