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Social Justice and Human Rights
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SHOULD RELIGION-BASED VIEWPOINTS Respect of a civil society widely addressed in religious viewpoints
is the obligation owed to other members of society. The issue of obligations
of private parties has been increasingly debated in the legislative
arena and therefore in the legal literature. This paper explores the
willingness of the legal academy to consider the viewpoints of religious
groups and leaders in public policy debates. The specific context
studied is the debate over corporate social obligations. The findings
of this study are that the legal academy rarely considers the viewpoints
of religious groups and leaders in its public policy debate. This
paper then explores why this is so. The relevance of such viewpoints
is examined as well as the uncertainty generated by United States
Supreme Court opinions interpreting the First Amendment. Neither lack
of relevance nor constitutional uncertainty seems to adequately explain
the legal academy's treatment. A STUDY OF PUBLIC POLICY DEBATE IN THE LEGAL ACADEMY
I decided to undertake a study of the legal literature. My aim was to determine how often the viewpoints of religious groups and leaders appear in the published debates of the legal academy concerning corporate social responsibility. My study sample was all articles published in United States law school journals, other than student-authored pieces, during the five year period September 1995 to August 2000.4 All such articles indexed in the Index to Legal Periodicals during this period under the topic "Corporate Social Responsibility" were examined. Some law journal articles are merely doctrinal. They examine only what the law permits. They are not intended to examine why the law permits what it does or to explore what the law should be. In other words purely doctrinal articles are not intended to discuss justifications for legal doctrine, including possible justifications put forth by religious leaders or groups. Therefore, such articles were excluded from the final sample. This narrowing process provided a study sample of 44 articles which discussed the topic of corporate social responsibility and the possible justifications for recognizing or refusing to recognize such responsibility. Appendix A contains a list of the 44 articles which formed the final sample. These articles forming the final sample are hereafter referred to as the "Articles." Corporate social responsibility is a concept that covers a broad range of topics. The Articles examined issues such as responsibilities to "stakeholders," e.g. employees and local communities in which the corporation operates, responsibilities to the larger society especially in the environmental area, corporate ethical obligations including standards imposed by law and standards contained in model codes of conduct, and corporate philanthropy as a means to respond to social needs. As discussed above, in all Articles in the sample the author had made the decision to examine the justifications for or against permitting or requiring actions by corporations in furtherance of a social obligation. Only three of the 44 Articles in the sample discussed the viewpoints of religious groups or leaders,5 even briefly or in passing. Even this number is an overstatement. One of the three articles was on the topic of corporate philanthropy and the author mentioned the viewpoints of religious groups only in the portion of the article discussing the historical background of charitable giving.6 Thus, only two of the 44 Articles in the sample discussed or otherwise mentioned the viewpoints of religious groups or leaders in the portion of the article exploring possible justifications for corporate social obligations. One of these two articles was written by a professor of philosophy, rather than a legal academic or attorney.7 This leaves only one article in the sample written by a legal academic or other individual with a background in law that discussed or mentioned the viewpoints of religious groups or leaders.8 Interestingly, four additional articles mentioned, in passing, that some viewpoints of corporate actors may be influenced by religious beliefs or values.9 Yet none of these articles provided any examples of particular beliefs or values, none provided any citation to any religious belief or value, and none chose to include such religion-based viewpoints in their discussion of possible justifications for acts of corporate social responsibility. Curiously, thirteen additional articles mentioned moral judgments as a basis for particular corporate social obligations.10 Yet none of the thirteen cited or discussed any religious group or leader as a source of such moral judgments. When citations were provided, they were solely to secular sources. Overall, the findings of this study confirm that the legal academy does not discuss the viewpoints of religious groups or leaders in its debates over justifications for or against legal recognition of corporate social obligations. The published literature discusses many possible justifications for various corporate social obligations, including viewpoints with which the authors disagree. Thus, possible disagreement with the viewpoints of religious groups and leaders or possible failure to find such viewpoints persuasive does not explain the results. It appears such viewpoints are either overlooked or deliberately ignored. I wish to make it clear that I am not pointing the finger at others.
One of the Articles in the sample was my own.11
I had developed the concept of a "social enterprise" which
was first suggested by Robert Dahl, the Yale politician scientist.
In exploring possible justifications for legislatively imposed corporate
social obligations it had not even occurred to me to examine the viewpoints
of religious groups or leaders. YOU SPEAK, BUT DO YOU HAVE SOMETHING TO SAY?
For example, the Document posits that:
The Conference of Bishops also put forth the view that, "...
the measure of our economy is not only what it produces, but also
how it touches human life, whether it protects or undermines the dignity
of the human person, and how it promotes the common good."15 ... [P]rivate ownership ... is an important element in a just economic policy. It enlarges our capacity for creativity and initiative. Small and medium-sized farms, businesses, and entrepreneurial enterprises are among the most creative and efficient sectors of our economy. They should be highly valued by the people of the United States, as are land ownership and home ownership. Widespread distribution of property can help avoid excessive concentration of economic and political power. For these reasons ownership should be made possible for a broad sector of our population.17 In addition, the Document presents a different view of the role of private efforts relative to the role of government. It is a view flowing from the concept of subsidiarity found in Catholic Social Teaching.18 Namely, [G]overnment should undertake only those initiatives which exceed the capacity of individuals or private groups acting independently. Government should not replace or destroy smaller communities and individual initiative. Rather it should help them to contribute more effectively to social well-being and supplement their activity when the demands of justice exceed their capacities.19 This is a view that does not relegate the role of caring for others
to government alone or to government primarily. In addition, government
has another important role to play beyond supplementing private efforts. There are many other specific examples of new ideas or different perspectives contained in the Document, including the concept of private ownership of property being subject to a "social mortgage"21 and the concept that owners of firms are accountable to owners of human capital (workers) or social capital (communities) from which they have benefited.22 As discussed earlier, one need not agree with or endorse these positions in order to discuss them. There were many viewpoints discussed in the Articles in the sample with which the individual authors disagreed. The point is that such viewpoints were discussed as long as they contributed to the debate, while the viewpoints of religious groups or leaders were not. Relevance in public policy debate may also be defined in another
manner. Relevance may be found to exist due to a difference in perspective
which enriches the public policy debate. Relevance may also be found
to exist because a particular view is shared by a large constituency.
Some of the arguments in the Document have also been voiced as part
of the viewpoints of other, secular sources. Yet, the similar arguments
are only parts of a larger perspective. As a whole the viewpoints
found in secular sources are not identical to the viewpoint found
in the Document. Moreover, even as to the arguments that overlap,
and without attempting to uncover who first put forth a particular
viewpoint, relevance in public policy debate is also measured by representation
of a larger constituency. In my study of the corporate social responsibility
literature I found that the mostly widely discussed perspective was
that of Milton Friedman, who stated the view that the sole obligation
of corporate entities was to maximize profits and that any other use
of corporate resources was a waste of corporate assets.23
Why was this source so frequently cited and discussed in the Articles?
I don't think the answer lies in the status Friedman enjoys in
the economic community. I think the answer lies in the belief on the
part of authors of these articles that this was a view shared by others,
i.e. that Friedman was voicing the view of a larger constituency and
that for this reason the viewpoint needed to be considered. Relevance
viewed from this perspective takes on special significance for the
views of religious groups and leaders. Such views similarly reflect
the views of a larger constituency. YOU SPEAK, BUT CAN I LISTEN? A possible explanation for the failure of the legal academy to discuss the views of religious groups or leaders in the debate over corporate social obligations is that it is thought to be constitutionally impermissible to consider such viewpoints when the debate involves possible rules of law. In other words the First Amendment constrains the debate or, perhaps, there is a belief that it does. This explanation is plausible, but it seems to offer an incomplete explanation for the actions of the legal academy. First, the rulings of the United States Supreme Court have generated uncertainty rather than certainty on this question. Commentators universally agree that the First Amendment's right to free speech permits religious groups and leaders to present their views to government decision makers, such as the Congress.24 It would be a hollow right of free speech in the political arena if religious groups and leaders could speak, but decision makers were absolutely forbidden to listen to their positions, i.e. if they were forbidden from basing any decision, even in part, on such views. The Supreme Court has, at times, sustained legislative enactments even if based solely on the viewpoints of religious groups.25 Yet it has also, at times, ruled such enactments unconstitutional when based solely on religious viewpoints.26 Between the extremes of no secular purpose and solely a secular purpose, the Court has suggested a legislative enactment can be sustained if supported by both secular and religious purposes, when purpose is defined as motivation.27 I do not wish to engage in the debate over whether and to what extent religious viewpoints may form the basis for legislative decisions or other rules of law. It is sufficient to say that there is uncertainty. Turning to the viewpoints of constitutional scholars, there is a difference of opinion on the distinct issue of the wisdom of relying on religious viewpoints. Some opine that religious viewpoints should never form the sole basis for legislative decisions.28 Others opine that religious viewpoints should form the basis, in whole or in part, for legislative decisions generally or for some legislative decisions.29 It is possible that this uncertainty generated by the United State
Supreme Court, and this difference of opinion regarding the wisdom
of using or relying on religious viewpoints, explains the decision
of legal academics to almost completely ignore the viewpoints of religious
groups and leaders in their writings. This does not, however, seem
to offer a complete explanation. In other areas of the law uncertainty
or difference of opinion has not stopped all consideration by legal
academics. Moreover, what is troubling is that in the corporate social
responsibility debate what has been silenced is the entire message
based on the source. KILLING THE MESSAGE BECAUSE OF THE MESSENGER
Some principles found in the Conference of Bishops' Document, for example, present religious beliefs. The obligation of all members of society to the poor and vulnerable, for example, was based on the teaching of the Scriptures.30 However, many views and perspectives found in the Document do not present religious beliefs. The difficulty is, of course, in defining what constitutes a "religious" belief. Many participants in the academic debate over the wisdom of introducing "religious" viewpoints in public policy debate have chosen not to define the phrase. Michael Perry has offered a helpful definition, i.e. a "religious" viewpoint is a belief in God or based on God's will.31 The viewpoint becomes non-debatable. It is an article of faith. Applying this definition, there is a great deal contained in the Document that is not presented as being God's will. There is a great deal in the Document that is not an article of faith and instead is a position subject to debate. The role of government versus private parties in meeting social needs, for example, is not founded on the will of God.32 The benefits of creativity and initiative resulting from private ownership and the resulting desire to expand opportunities for private ownership is similarly not presented as God's will.33 Both are possible vehicles or approaches to help realize the goals of the Document. Both are debatable perspectives. Neither is an article of faith. In summary, constitutional uncertainty would not seem to have the power to almost completely foreclose academic consideration of the viewpoints of religious groups and leaders. Moreover, there is no constitutional uncertainty regarding the viewpoints of such sources which are not religious in nature. Yet all such viewpoints have been overlooked or ignored. The most plausible explanation, in whole or in part, for the findings
in this study is another explanation. In the related sphere of the
role of religion in science, the view has been presented that the
prevailing models in the scientific community for the relationship
between religion and science are either a model of conflict or a model
of separation.34
In the former, religion and science are at war, with each trying to
eliminate the other. In the latter there is a wall erected between
science and religion, with neither speaking with or listening to the
other. It seems the legal academy has also chosen to create a wall
of separation. Another model has been suggested for the scientific
community which can prove more useful. It is a model of dialogue.35
In this model we recognize that science, or law, can benefit from
the viewpoints of religious groups or leaders. This is certainly true
when, for example, such groups or leaders are addressing social issues
on the basis of social viewpoints regarding justice. The perspectives
presented are both novel and representative of a broad constituency.
As a result they can enrich the academic and public policy debate. APPENDIX A Articles in the Study Sample Indexed in the Index to Legal Periodicals
under the topic "Corporate Social Responsibility" in Volumes
36, 37, 38, 39. (For the list contact the Vincentian Center for Church
and Society.) 1 _Vincent DiLorenzo
is a Professor of Law at St. John's University. He is a 2000-2002
Senior Fellow of the Vincentian Center for Church and Society at St.
John's University. His teaching and research is concentrated
in the areas of property law, legislation and banking law. His recent
work has focused on development of the Community Reinvestment Act
and Lending Discrimination. Prior to teaching at St. John's University
School of Law, Professor DiLorenzo was an Assistant Professor in the
Department of Legal Studies at The Wharton School, University of Pennsylvania.
He holds a Juris Doctor from Columbia University, School of Law where
he was a Harlan Fiske Stone Scholar and Associate Articles Editor
of the Columbia Journal of Law and Social Problems. This paper
was published in 1 MARGINS 489 – 504 (2001). 2 Community Reinvestment
Act of 1977, 12 U.S.C. § 2901-2908. 3 E.g. H.R.
865, 107th Cong. §101 (2001) (nonbank affiliates of
bank holding companies). 4 This was the five-year
period covered by volumes 35 to 39 of the Index to Legal Periodicals. 5 Edward S. Adams
& Karl D. Knutsen, A Charitable Corporate Giving Justification
For the Socially Responsible Investment of Pension Funds: A Populist
Argument for the Public Use of Private Wealth, 80 Iowa L. Rev.
211 (1995); Timothy L. Fort, Corporate Constituency Statutes:
A Dialectical Interpretation, 15 J.L. & Com. 257 (1995);
Joseph S. Spoerl, The Social Responsibility of Business, 42
Am. J. Juris 277 (1977). 6 Adams', supra
note 4, at 217. 7 Spoerl, supra
note 4, at 277. 8 Fort, supra
note 4, at 270. 9 D. Hess, Social
Reporting: A Reflexive Law Approach to Corporate Social Responsiveness,
25 J. Corp. L. 41 (1999); Timothy L. Fort, The Corporation as Mediating
Institution: An Efficacious Synthesis of Stakeholder Theory and Corporate
Constituency Statues, 73 Notre Dame L. Rev. 173 (1997); Jill E.
Fisch, Questioning Philanthropy From a Corporate Governance Perspective,
41 N.Y.L. Sch. L. Rev. 1091 (1997); Peter D. Hall, Business Giving
and Social Investing in the United States, 1790-1995, 41 N.Y.L.
Sch. L. Rev. 789 (1997). 10 Marianne M.
Jennings & John Entine, Business With a Soul: A Reexamination
of What Counts in Business Ethics, 20 Hamline J. Pub. L. &
Pol'y 1 (1998); Constance E. Bagley & Karen L Page, The
Devil Made Me Do It: Replacing Corporate Director's Veil of Secrecy
with the Mantle of Stewardship, 36 San Diego L. Rev. 897 (1999);
Lewis D. Solomon, Reflections of the Future of Business Organizations,
20 Cardozo L. Rev. 1213 (1999); Thomas W. Dunfee, Corporate Governance
in a Market With Morality, 62 Law & Contemp. Probs. 129 (1999);
D. Hess, Social Reporting: A Reflexive Law Approach to Corporate
Social Responsiveness, 25 J. Corp. L. 41 (1999); W.A. Wines &
M.S. Buchanan & D.J. Smith, The Critical Need for Law Reform
to Regulate the Abusive Practices of Transnational Corporations: The
Illustrative Case of Boise Cascade Corporation in Mexico's Costa
Grande and Elsewhere, 26 Denv. J. Int'l L. & Pol'y
453 (1998); David B. Wilkins, Do Clients Have Ethical Obligations
to Lawyers? Some Lessons From the Diversity Wars, 11 Geo. J. Legal
Ethics 855(1998); Lawrence E. Mitchell, The Human Corporation:
Some Thoughts on Hume, Smith, and Buffet, 19 Cardozo L. Rev. 341
(1997); Timothy L. Fort, The Corporation as Mediating Institution:
An Efficacious Synthesis of Stakeholder Theory and Corporate Constituency
Statutes, 73 Notre Dame L. Rev. 173 (1997); Linda Sugin, Theories
of the Corporation and the Tax Treatment of Corporate Philanthropy,
41 N.Y.L. Sch. L. Rev. 835 (1997); Michelle Sinclair & Joseph
Galaskiewicz, Corporate-Nonprofit Partnerships: Varieties and Covariates,
41 N.Y.L. Sch. L. Rev. 1059 (1997); Jill E. Fisch, Questioning
Philanthropy From a Corporate Governance Perspective, 41 N.Y.L.
Sch. L. Rev. 1091 (1997); Faith S. Kahn, Pandora's Box: Managerial
Discretion and the Problem of Corporate Philanthropy, 44 UCLA
L. Rev. 579 (1997). 11 Vincent M. DiLorenzo,
Equal Economic Opportunity: Corporate Social Responsibility in
the New Millennium, 71 U. Colo. L. Rev. 51 (2000). 12 Economic
Justice For All: Pastoral Letter on Catholic Social Teaching and the
U.S. Economy, in Tenth Anniversary Edition of Economic Justice
For All 13-137 (United States Catholic Conference, Inc. 1997). 13 A Decade
After "Economic Justice For All": Continuing Principles,
Changing Context, New Challenges, in Tenth Anniversary Edition
Of Economic Justice For All 3-12 (United States Catholic Conference,
Inc. 1997). 14 See "A
Decade After ‘Economic Justice for All': Continuing Principles,
Changing Context, New Challenges," Id. at 6. 15 Id. at
4. 16 "Economic
Justice For All," supra note 11, at 53. 17 Id. at
53-4. 18 The term "subsidiarity"
comes from the Latin word for "assistance." It refers to
the way various levels of society should relate to and assist one
another to bring about the best outcomes for all. Thomas Massaro,
Living Justice 128-132 (2000). 19 "Economic
Justice For All," supra note 11 at 56. 20 Id. at
54. 21 Id. at
54. See Massaro, supra note 17, at 137 (holding of property
is conditioned on fulfilling social obligations to others; owners
cannot disregard the needs of the less fortunate, use their property
in ways that harm them, or exclude them from full participation in
society). The Judeo-Christian concept of stewardship is that civil
title to land is not absolute. With title comes a responsibility to
care for the land and use it for the betterment of the owner, the
owner's community, and future generations. Peter W. Salsich,
Jr., Toward a Property Ethic of Stewardship, in Property
and Values: Alternatives to Public And Private Ownership 21-22
(Charles Geisler ed., 2000). 22 Id. at
53. 23 Milton Friedman,
The Social Responsibility of Business is to Increase its Profits,
N.Y. Times Mag. Sept. 13, 1970, at 32. 24 Stephen L. Carter,
The Culture of Disbelief 106 (1993). Among others Professor
Carter discusses the view of Professor Laurence Tribe, who generally
favors a separation of church and state but who noted "The participation
of religious groups in political dialogue has never been constitutional
anathema in the United States ..." Id. at 255. 25 E.g.,
Bowers v. Hardwick, 478 U.S. 186; 106 U.S. Sup. Ct. 2841 (1986). 26 Edwards v. Agiullard,
482 U.S. 578; 107 U.S. Sup. Ct. 2573 (1987). See also
Wallace v. Jaffree, 472 U.S. 38; 105 U.S. Sup. Ct. 2479 (U.S. Sup.
Ct. 1985) 27 See Wallace
at 43. 28 Michael J. Perry,
Religion In Politics 6 (neither citizens nor even legislators
violate the nonestablishment norm by presenting religious arguments
in public political debate, but a political choice would violate the
norm if no plausible secular argument supported it). More recently
Michael Perry has seemingly modified his position. Michael J. Perry,
Why Political Reliance on Religiously Grounded Morality Does Not
Violate The Establishment Clause, 42 Wm & Mary L. Rev. 663-
670-72 (2001). 29 Stephen L. Carter,
The Culture of Disbelief 111-112 (the idea that religious motivation
renders a statute suspect was never anything but a tortured and unsatisfactory
reading of the First Amendment) (1993); Kent Greenawalt, Religious
Convictions and Political Choice 247 (people should not try to
implement positions derived from religious beliefs that are clearly
contrary to positions people would reach based on shared premises
and commonly accessible reasons; it is proper to rely on religious
convictions to define which entities deserve protection and to resolve
difficult questions involving uncertain facts and conflicts of values)
(1988). 30 Supra
note 11 at 16-17. 31 Perry at 31. 32 Supra
notes 17-18. 33 Supra
note 16. 34 See Ian
G. Barbour, Religion And Science: Historical and Contemporary Issues
77-89 (1997). 35 Id. at
90-105.
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