To the familiar jibe that business ethics is an oxymoron

Transcription

1 Business and Society Review 105: Contract Theory And Business Ethics: A Review of Ties That Bind JOHN R. BOATRIGHT To the familiar jibe that business ethics is an oxymoron might be added another incongruous juxtaposition, that of business ethics theory. The contradictory flavor of this phrase is not due to a low estimate of the moral tone of business but to skepticism about the practicality of ethical theory. How can any theory of ethics that is rigorous enough to pass muster with picky philosophers possibly give guidance to busy, hardheaded business managers? This challenge is faced squarely by Thomas Donaldson and Thomas W. Dunfee in their book, Ties That Bind: A Social Contracts Approach to Business Ethics. 1 For moral philosophers, Donaldson and Dunfee offer a grand theory, called Integrative Social Contracts Theory, or ISCT for short, which follows in the contract tradition of Hobbes, Locke, and, more recently, John Rawls. However, ISCT does not consist solely of general, ideal principles that result from most contract approaches, but includes specific agreements made in actual communities. The concreteness of their theory enables the two authors to provide managers with useful tools for ethical decision making in cases of conflicting standards. Ties That Bind is an important contribution to both moral philosophy and the field of management that amply illustrates how ethical theory can yield practical business results. The theory is also intended to guide business ethics research, and the authors themselves apply ISCT to the problem of providing a normative John R. Boatright is the Raymond C. Baumhart, S.J. Professor of Business Ethics at Loyola University Chicago Center for Business Ethics at Bentley College. Published by Blackwell Publishers, 350 Main Street, Malden, MA 02148, USA, and 108 Cowley Road, Oxford OX4 1JF, UK.

2 JOHN R. BOATRIGHT 453 foundation for stakeholder theories of the corporation. Donaldson and Dunfee may not succeed entirely in this ambitious effort, but their book convincingly demonstrates that business ethics theory need not be an oxymoron. AN OUTLINE OF THE THEORY Integrative Social Contracts Theory is constructed from three major building blocks. At the highest level of abstraction are hypernorms, which are fundamental ethical principles that are universally recognized. Hypernorms are not like Rawls s principles of justice, which are derived from a hypothetical contract. 2 Rather, they are principles that make contracting possible and set limits on possible contracts. Donaldson and Dunfee note the similarity of hypernorms to the thin morality that Michael Walzer finds expressed in different ways by people the world over. 3 The principles of this thin morality are not constructed in Rawls s sense by finding the ground of all our common moral judgments. 4 They are discovered to exist, if indeed they exist at all, merely by looking for congruence in the principles that are commonly recognized. The second building block is a macrosocial contract. This hypothetical construct is similar to Rawls s choice in the original position but with less stringent conditions on the contractors. The macrosocial contract represents the agreements that would be made by rational contractors who are aware of their limitations as economic actors and want to provide a moral framework for productive economic activity. The macrosocial contract serves little purpose in ISCT except to justify microsocial contracts, which constitute the third building block. Within the limits imposed by hypernorms, the members of each community are permitted by the hypothetical macrosocial contract to form actual localized microcontracts. More precisely, Donaldson and Dunfee assume that in forming the macrosocial contract, the contractors would allow a moral free space within which it is morally permissible for communities to create ethical norms for their own members. The main function of the macrosocial contract in ISCT is to establish the justifying conditions for the creation of the norms by means of microsocial contracts. Chief among these conditions are the restrictions that

3 454 BUSINESS AND SOCIETY REVIEW norms must be grounded in genuine consent and be consistent with hypernorms. At the heart of ISCT are the legitimate norms of microsocial contracts. These are the moral guideposts that Donaldson and Dunfee propose for practical business decision making. In general, the norms of a community are discoverable by observing the attitudes and behaviors of its members. A norm is authentic when observation of the people s attitudes and behaviors shows the norms to be accepted by a substantial majority of the community. Authentic norms are not obligatory, however, unless they are also legitimate, which is to say that they are consistent with hypernorms. Legitimate norms thus have empirical and normative content. They must, in fact, be accepted by a community in a microsocial contract, and they must be formed within the moral free space provided by the macrosocial contract and be consistent with hypernorms. Legitimate norms are incomplete as guides to practical decision making because of the possibility of multiple communities with conflicting norms. Not only may the norms of any given community be inconsistent, but decision makers may be members of different communities with incompatible norms and may act in ways that are contrary to the norms of other communities that are affected. Donaldson and Dunfee meet this problem with priority rules for choosing among competing legitimate norms. The justification of these rules is left rather vague. On the one hand, the authors admit that rational contractors could not reasonably anticipate all conflicts and devise priority rules for them. On the other, they justify their proposed rules on the grounds of being consistent with the macrosocial contract. Obviously, priority rules cannot be created by microsocial contracts because they are needed to decide among the norms created by such contracts. As a result, priority rules have a shadowy existence somewhere between macrosocial and microsocial contracts. HYPERNORMS: CONSTRAINTS OR IDEALS? In Ties That Bind, Integrative Social Contracts Theory is not presented as a complete ethical theory. In particular, Donaldson and Dunfee deliberately decline to offer a justification for hypernorms. This decision to remain agnostic about the ultimate ground for

4 JOHN R. BOATRIGHT 455 hypernoms frees the authors from a daunting task of justifying a thin theory, which is of interest primarily to philosophers, and allows them to focus on the content of the thick morality that is more relevant to business managers. As a result, ISCT is, in the authors view, independent of the truth of any particular traditional ethical theory. 5 This agnostic approach assumes that the readers of Ties That Bind will admit that hypernorms exist in some sense and that these readers will largely agree on a list of hypernorms. Hypernorms may be justified in different ways by traditional ethical theories, but the particulars of any possible justification are irrelevant to the role of hypernorms in ISCT. The situation might be compared to that a mathematician who assumes an unproven but true theorem as part of a proof. The proof yields a true conclusion, no matter how the theorem itself is finally proven. Similarly, the acceptance of ISCT requires only that we be able to discover hypernorms, without regard for how they might be justified. This process of discovery can be done empirically by finding patterns of congruence in the religious, cultural, and philosophical beliefs of people around the world. This method of proceeding might be workable in practice, but not as a matter of theory. The nub of the problem is the extent to which hypernorms entail specific obligations that must be recognized in all communities. Hypernorms function in ISCT primarily as constraints on the agreements that may be made in both the macrosocial contract and individual microsocial contracts. The suggestion is that anything that is not forbidden is permitted. As a result, hypernorms appear to play little if any role in actually creating microsocial contractual norms. However, many of the hypernorms that Donaldson and Dunfee cite have substantial normative content that goes beyond mere constraints on contracting. A respect for human dignity, for example, could be understood to entail numerous obligations about the treatment of individuals. More importantly, this hypernorm could also serve as an ideal by which the norms of specific communities are judged. These norms can be evaluated not merely to determine whether they are consistent with hypernorms but to gauge the extent to which they embody hypernorms. Put simply, hypernorms are not necessarily all or nothing tests that microsocial contractual norms pass or

5 456 BUSINESS AND SOCIETY REVIEW fail. They could also serve as general principles or ideals that we can strive to achieve and that can be realized more or less completely. Donaldson and Dunfee might well reply that hypernorms constitute a minimal morality or a thin theory in Walzer s sense, which does constitute merely a constraint. If so, then they cannot be agnostic about the justification of hypernorms, and ISCT is not independent of the truth of any particular traditional ethical theory. The reason for this is that we need some ethical theory in order to know specifically what hypernorms entail. Depending on how hypernorms are ultimately justified, they are merely minimal contraints or more substantial ideals. The point is that we cannot know which is the case without having some ethical theory that justifies hypernorms. Hypernorms, unlike microsocial contractual norms, are not wholly empirical; their existence does not depend merely on observing people s attitudes and behaviors. Hypernorms must have some justifying ground if they are to legitimize microsocial contractual norms and make them obligatory. Consequently, Donaldson and Dunfee must assume that hypernorms have some supporting ethical theory. About this they cannot be agnostic. The key point is that different justifying theories profoundly affect the content of hypernorms. Thus, their situation is not like that of a mathematician who uses an unproven but true theorem in a proof, because in this case we need the proof of the theorem in order to know exactly what it means. METHOD IN ETHICS: RAWLS VS. WALZER The social contracts approach of Ties That Bind draws on two threads in contemporary ethical theory. The hypothetical macrosocial contract owes much to Rawls s A Theory of Justice, whereas actual microsocial contracts resemble the thick moralities that Michael Walzer describes in Spheres of Justice. Unfortunately, the methods of these two distinguished theorists are incompatible, with the result that Donaldson and Dunfee are left in an untenable no man s land between them. One virtue of ISCT, in the authors view, is that it avoids the view from nowhere, which, in the case of Rawls, produces abstract universal principles with uncertain practical applications. Walzer s theory, on the other hand, is a radical view

6 JOHN R. BOATRIGHT 457 from somewhere, in which there are only concrete, particular moralities of specific communities. ISCT is a view from nowhere and somewhere at the same time, which is a difficult trick to pull off. The distinction between the views from nowhere and somewhere is expressed by Walzer as follows: One way to begin the philosophical enterprise perhaps the original way is to walk out of the cave, leave the city, climb the mountain, fashion for oneself...anobjective universal standpoint. Then one describes the terrain of everyday life from far away, so that it loses its particular contours and takes on a general shape. But I mean to stand in the cave, in the city, on the ground. Another way of doing philosophy is to interpret to one s fellow citizens the world of meanings that we share. 6 If one takes the former course, that is the view from nowhere, and seeks objective universal principles, it is still possible to make specific judgments, albeit with some uncertainty. The standard model of applied ethics holds that general principles, such as those expressed by utilitarianism or Kantianism or Rawls s theory of justice, can be combined with appropriate empirical premises to yield supported conclusions about concrete situations. 7 This method allows for the possibility that particular communities might develop different norms, which are still justified by the same universal, objective principles. Donaldson and Dunfee reject this method and opt for something like Walzer s second approach. They propose to leave the mountain top and go down to the city, in which the members of specific communities use their moral free space to develop norms through microsocial contracts. It is these microsocial contractual norms or thick moralities that ISCT would have us apply to particular cases rather than the general principles of a thin theory. In Walzer s theory, the proper method of ethics is the interpretation of the shared meanings in a community. These two methods have much in common, but they differ in this important respect: For Walzer, there is no general framework of principles, such as hypernorms, to provide a critical standpoint. This lack of independent ground for appraising community standards has led Walzer s critics to charge him with relativism. 8 If the norms of a community sanction slavery, for example, then there is nothing beyond these norms, in Walzer s theory, to serve as a basis for criticism.

7 458 BUSINESS AND SOCIETY REVIEW ISCT avoids the charge of relativism by introducing hypernorms. Slavery is not justified in any community because it violates a hypernorm, with the result that the norms of a slave community do not have legitimacy. Hypernorms thus provide the critical standpoint that Walzer s theory appears to lack. However, this response solves one problem only by creating another. By invoking hypernorms, Donaldson and Dunfee leave the city and start climbing the mountain. Once embarked on this journey, they face the question of whether hypernorms have been correctly identified and their implications have been correctly assessed. 9 Expressed differently, the problem is how we can determine whether the norms of a community are legitimate. This is not a simple matter of checking them against a list of hypernorms to get a yes or no answer. At a minimum, we need to draw out as fully as possible the implications of hypernorms for the conduct of any given community. Only after doing this can we know the boundaries of the moral free space in which the members of the comunity are justified in creating microsocial contractual norms. However, this task is the same as applying ethical theory in the standard model, which takes the view from nowhere. That is, determining the legitimacy of community norms necessarily involves applying universal, objective principles, in the form of hypernorms, to specific situations. Donaldson and Dunfee introduce microsocial contractual norms in an attempt to avoid the absolutism of the view from nowhere. However, fearing the relativism of an extreme particularism, which affects Walzer s theory, they retreat back to the safety of universal hypernorms. Although hypernorms bear some similarity to Walzer s thin morality, the universally accepted beliefs in Walzer s thin morality do not impose constraints on the thick morality of individual communities. Indeed, the content of a thin morality plays no formal role in Walzer s theory. However, in order for hypernorms to play their assigned role in ISCT, they must have some ground, and until we know what that ground is, we cannot know whether Donaldson and Dunfee have successfully negotiated between the absolutism of Rawls and a Walzerian relativism. 10

8 JOHN R. BOATRIGHT 459 ISCT AND MORAL REASONING ISCT offers a practical method to guide business managers through the maze of conflicting community norms. Indeed, a proverbial visitor from outer space, who is able to observe people s attitudes and behaviors and apply a few simple priority rules, could make ethical decisions according to this theory. This ease of application is both a strength and a weakness of ISCT. It is a strength because business managers now have a tool for making quick, reliable decisions. The weakness is that the method is at best a surrogate for ethical decision making. Applying ISCT might yield correct decisions, but it neither provides nor requires an understanding of the reasons for this correctness. It gives us no insight in moral reasoning. The practical method in ISCT is most useful in situations where the norms of different communities give definite but conflicting results. However, some of the most difficult moral questions arise when the norms of one s own communities are not sufficiently developed to provide adequate guidance. The problem is compounded when a decision affects two or more communities, each of which lacks well-developed norms. In such situations, we may need to engage in moral reasoning in order to create new norms or to modify and expand old ones. ISCT enables a decision maker to choose a course of action that reflects existing norms, but it provides few resources for participating in the process of norm development. Donaldson and Dunfee could modify ISCT so as to provide an account of moral reasoning. Moral reasoning, on their view, cannot be a matter of applying general ethical principles, such as hypernorms, to specific situations. However, many theorists reject this model of applied ethics. In Walzer s theory, moral reasoning is a matter of interpreting the shared meanings of a community. Albert Jonsen and Stephen Toulmin describe moral reasoning as a process of triangulating between similar cases. 11 One can imagine a picture of moral reasoning in ISCT in which members of a community negotiate their microsocial contracts by appealing to existing norms and building them into a coherent whole, much in the way that Ronald Dworkin describes judicial reasoning. 12 The details are unimportant here. The critical point is that a fully adequate account of moral reasoning in ISCT would be different from the procedure described in Ties That Bind and would be far more

9 460 BUSINESS AND SOCIETY REVIEW complex and difficult. Certainly, it could not be performed by the proverbial visitor from outer space. THE BINDING FORCE OF COMMUNITY NORMS Perhaps the most puzzling feature of ISCT, as it is presented in Ties That Bind, is the obligation of community members to follow microsocial contractual norms. Donaldson and Dunfee state unequivocally: So long as one is a member of a community, one has an ethical obligation to abide by the extant authentic norms that are recognized as proper in the attitudes and behaviors of a clear majority of the membership. 13 First, they surely mean legitimate norms and not merely authentic norms. Otherwise the norms of a slaveholding community would be morally binding on all its members. 14 That aside, the binding force of community norms is merely assumed in the book; one looks in vain for any discernible argument. Perhaps the authors think the point too obvious to need support, but some justification is surely in order. For starters, people are members of many different communities, each with its own norms, and so one could have conflicting ethical obligations. Consider, for example, the situation of a Catholic who works with Planned Parenthood. Would she be obligated to both oppose and support a right to abortion? Could she be so obligated? More to the point, is it necessary for a Catholic to acknowledge the morally binding force of the church s prohibition of abortion, along with all other teachings, as long as one is a member of that community? 15 The stipulation in ISCT that authentic norms need only the approval of a clear or substantial majority ensures that some community members do not agree with any given norm. Why is anyone obligated to observe norms of which they disapprove? Donaldson and Dunfee appear to locate the source of obligation in the hypothetical macrosocial contract rather than in actual microsocial contracts. The latter could not provide a basis for the binding force of its own norms for the simple reason that not everyone consents to the terms of each microsocial contract. An argument is suggested in the authors discussion of moral free space, where they again assert an obligation to obey community norms.

10 JOHN R. BOATRIGHT 461 They continue: There cannot be a requirement that each person must consent to a legitimate norm in order for it to constitute an obligation. Such a requirement would invite ethical anarchy. 16 Roughly, then, the argument seems to be that hypothetical macrosocial contractors would recognize not only the need to allow moral free space for communities to develop their own norms but also the necessity for these norms to be morally binding on all members. That is, an obligation to observe the norms of one s community is a necessary condition for the existence of moral free space. The logic is simple: If rational contractors would consent to A, and B is a necessary condition for A, then they would also consent to B. Impeccable logic is of little value, however, if one or both of the premises is false, which is the case with this argument. In essence, Donaldson and Dunfee are proposing a doctrine of majoritarianism in ethics that is similar to its use in political theory. In Locke s version, individuals in the state of nature would find it mutually advantageous to agree to be bound by the will of the majority within the limits imposed by natural rights. Hypernorms function like Lockean rights by providing protection against a tyrannical or morally corrupt majority. There are several points of difference, however, between the argument for majoritarianism in political theory and the argument in ISCT. First, the need for morally binding rules in a state is not shared by all communities. That is, anarchy would result if the rules of a state were not morally binding on all members, but the case is less compelling for more informal communities. Second, the political argument for majoritarianism requires more procedural safeguards that Donaldson and Dunfee provide in Ties That Bind. The authors stipulate the rights of exit and voice, but majoritarianism in political theory is also buttressed by extensive conditions for participation in decision making and by structural safeguards for minorities. The most important point of difference is that in a democracy, the only rules that are binding on citizens are those that are promulgated in an authoritative manner. It is not the will of the majority that is obligatory but that will expressed in law. The problem with ISCT is that the norms of a community are any and all standards that are reflected in the attitudes and behaviors of a majority of members. In a corporation with a dress code, for example, certain dress is obligatory; but in the absence of a code, the attitudes and

11 462 BUSINESS AND SOCIETY REVIEW behaviors of a majority of employees may indicate a norm. Is that norm binding, then, on all employees, as though there were a written code? The problem can be expressed differently by arguing that the parties to the macrosocial contract might agree to the morally binding force of all norms that are necessary for the existence of a community, which is to say to prevent anarchy. However, it is implausible to hold that the same contractors would agree to be bound by just any norms that were held by a majority of community members. This problem could me handled in several ways, none of them very satisfactory. For example, ISCT could be amended so that legitimate norms are those promulgated in an authoritative manner. However, this condition would limit the definition of a community, since many groups lack a procedure for establishing norms. In addition, it would conflict with the identification of norms by observing people s attitudes and behaviors, which may be in conflict with official norms. 17 At bottom, the problem is the lack of a distinction between ethical norms and mere custom or mores. The unanswered question is whether Donaldson and Dunfee can make such a distinction in a way that is compatible with the empirical character of microsocial contractual norms. ISCT AND STAKEHOLDER THEORY In the concluding chapter of Ties That Bind, Donaldson and Dunfee boldly declare that ISCT provides a normative foundation for stakeholder theories of the corporation. This claim should raise hope among stakeholder advocates and provoke fear in those who question the whole movement. Their discussion, however, is unlikely to satisfy or dissuade either camp. The idea that corporations have obligations to stakeholders, such as employees, customers, suppliers, and communities, is uncontroversial until one specifies those obligations and clarifies the manager s role. Donaldson and Dunfee note that there are many expressions of this view; hence the stress on stakeholder theories in the plural. In particular, stakeholder management can be justified as an effective means for achieving other ends, such as shareholder wealth, or as an end in itself. It is this latter

12 JOHN R. BOATRIGHT 463 approach which the authors describe as normative rather than instrumental that stands most in need of a normative foundation. In the business ethics literature, normative stakeholder theory has been presented as an alternative to a stockholder-centered conception of the corporation. On this view, managers have an obligation to serve the interests of all those who have a stake in the corporation and not the interests of shareholders alone. ISCT provides many resources for resolving some problems in formulating both instrumental and normative stakeholder theory, such as identifying stakeholders and assessing their claims. However, on the critical question, Should a corporation be run in the interests of stockholders or all stakeholders? ISCT does not provide a definitive resolution. The approach of ISCT to this debate is to hold that within the limits imposed by hypernorms, communities have moral free space within which to create economic organizations that are consistent with legitimate community norms. These norms will almost certainly specify numerous obligations to all corporate constituencies, including fair treatment of employees, customers, suppliers, and other stakeholder groups. However, countries with different cultural, social, political, legal, and historical traditions will evolve different forms of economic organizations. Moreover, a single country, such as the United States, provides for a wide variety of forms of economic organization, including sole proprietorships, limited partnerships, nonprofit corporations, and for-profit corporations that are owned by employees, customers, and other groups. All forms of economic organization would be justified in ISCT unless they violate some hypernorm or conflict with the microsocial contractual norms of the relevant community. The dominant form of economic organization in the United States is the investor-owned corporation in which managers have a fiduciary duty to maximize shareholder wealth. Insofar as ISCT serves as a normative foundation for a stakeholder-centered conception of the corporation, then the theory must provide some critique of the rival stockholder view. However, Donaldson and Dunfee concede that some countries might evolve norms that support a form of economic organization that serves shareholder interests alone. 18 Their only criticism is the observation that the legitimate norms of the United States recognize certain obligations to stakeholders. 19 The

13 464 BUSINESS AND SOCIETY REVIEW suggestion is that only stakeholder theory is consistent with American microsocial contractual norms. This is a difficult claim to evaluate. On the one hand, the idea that managers have a right, indeed an obligation, to pursue shareholder wealth by dismissing employees or endangering consumers or polluting the environment is unacceptable. Some corporate behavior clearly violates legitimate norms, as well as, on occasion, hypernorms. On the other hand, the conception of the corporation as a nexus of contracts among its various constituencies which underlies the argument for stockholder rights would seem to be a form of microsocial contracting that fits right in with ISCT. On the nexus-of-contracts view, the obligations of managers consist in fulfilling the terms of all the contracts that they form. According to this argument, shareholders contract for exclusive control of the corporation and a claim on profits, while all other constituencies contract for a different set of rights and benefits that better serve their interests. A nexus-of-contracts stockholder view can be reconciled with ISCT by making a simple distinction. Stakeholder theorists, including Donaldson and Dunfee, might be understood as making an inference from the premise that corporations ought to serve the interests of all stakeholders to the conclusion that managers ought to run a corporation in the interests of all stakeholders. The premise is a statement of the ends to be served that reflects the norms of society. The conclusion, however, is a choice of the means to achieve this end. The underlying assumption is that the end of serving all stakeholders is best achieved by placing responsibility on corporate managers. The alternative is to design a system of corporate governance in which, if each party fulfills its contractual role, the interests of all stakeholders are served. On this approach, the responsibility for ensuring that corporations achieve the agreed-upon end is placed not upon the managers of corporations but on the whole of society in the design of its economic institutions. Both means are equally compatible with the norms of the United States at the present time, and, as Ian Maitland has argued, 20 the choice between them is primarily an empirical matter of determining which is more effective. The arguments for both the stockholder and stakeholder theories depend, then, on further empirical premises.

14 JOHN R. BOATRIGHT 465 Thus, Donaldson and Dunfee have provided helpful resources for developing a stakeholder theory of the corporation, but they do not provide a normative foundation that demonstrates its superiority over the rival stockholder theory unless more argument is forthcoming. CONCLUSION Although business ethics theory is not necessarily an oxymoron, the task is not easy. Any ethical theory must be developed in great detail in order to withstand critical scrutiny. Most of the difficulties with ISCT, as it is presented in Ties That Bind, are sins of omission that call for clarification and elaboration. Donaldson and Dunfee have produced an impressive work of theory, as well as a useful management guide, but much remains to be done. In the meantime, we can be thankful for their contribution to the business ethics literature. NOTES 1. Thomas Donaldson and Thomas W. Dunfee, Ties That Bind: A Social Contracts Approach to Business Ethics (Boston: Harvard Business School Press, 1999). 2. John Rawls, A Theory of Justice (Cambridge: Harvard University Press, 1971). 3. Michael Walzer, Spheres of Justice (New York: Basic Books, 1983). See also, Michael Walzer, Thick and Thin: Moral Argument at Home and Abroad (Notre Dame: University of Notre Dame Press, 1994). 4. John Rawls, Kantian Constructivism in Moral Theory, Journal of Philosophy 77 (1980), Ties That Bind, Spheres of Justice, xiv. 7. See, for example, Tom L. Beauchamp and James F. Childress, Principles of Biomedical Ethics, 4th ed. (New York: Oxford University Press, 1994). 8. Joshua Cohen, Review of Spheres of Justice, Journal of Philosophy 83 (1986), ; Ronald Dworkin, A Matter of Principle (Cambridge: Harvard University Press, 1985).

15 466 BUSINESS AND SOCIETY REVIEW 9. This dilemma of choosing between relativism and uncertainty is similar to a criticism, called the communitarian dilemma, that Cohen makes against Walzer. See Cohen, Review of Spheres of Justice, Supporters of Walzer have suggested ways in which he could avoid relativism by developing a critical standpoint from within the thick morality of a community. See, for example, Georgia Warnke, Social Interpretation and Political Theory: Walzer and His Critics, The Philosophical Forum 21 ( ), Donaldson and Dunfee could do the same by showing how hypernorms could be grounded within the norms of microsocial contracts. 11. Albert S. Jonsen and Stephen Toulmin, The Abuse of Casuistry (Berkeley and Los Angeles: University of California Press, 1988), 35. See also Stephen Toulmin, The Tyranny of Principles, Hastings Center Report 11, (1981), Ronald Dworkin, Law s Empire (Cambridge: Harvard University Press, 1986). 13. Ties That Bind, Donaldson and Dunfee later acknowledge that norms must also be legitimate to create obligations. Ties That Bind, Donaldson and Dunfee consider this possibility when they argue that a dissenting member may still recognize an obligation to follow norms because they have been generated in an authoritative manner. Ties That Bind, 39. However, a dissenting member may also refuse to recognize the norm, despite the origin. 16. Ties That Bind, For example, surveys reveal that American Catholics generally practice and approve of birth control despite Church teachings to the contrary. Similarly, the official don t ask, don t tell policy of the U.S. armed forces seems to be contradicted by the attitudes and behaviors of service members. 18. Ties That Bind, Ties that Bind, Ian Maitland, The Morality of the Corporation: An Empirical or Normative Disagreement? Business Ethics Quarterly 4 (1994),