Good engineers need good laws - Taylor & Francis Online

European Journal of Engineering Education Vol. 30, No. 1, March 2005, 21–36

Good engineers need good laws H. ZANDVOORT* Delft University of Technology, The Netherlands (Received 25 November 2003; accepted 6 March 2004) In this paper, a critical analysis is presented of aspects of contemporary legal systems, from the perspective of engineers who desire to perform their profession in an ethical or socially responsible way, or who wish to contribute positively, through their professional work, to human well-being. It is argued that such aspirations are at present obstructed or impaired by certain aspects of contemporary legislation. Three such aspects are analysed, that is, the legal stipulations governing (1) secrecy, (2) liability and (3) responsibility of and within hierarchical organizations. Indications are given of the directions in which these areas of law may be changed to enable and safeguard ethical and socially responsible conduct of engineers. Implications are drawn for the engineering curriculum and for the community of engineers.

1.

Introduction and overview

I start from the assumption that engineers, both individually and collectively, aim to contribute positively to human well-being through their professional work and/or that they want to perform their professional activities in an ethical or socially responsible way.1 It is a matter of fact that many engineers, both as individuals and as groups, have expressed that this is indeed what they aim for. At the level of the community of engineers, such aspirations are expressed in the professional codes of ethics that have been formulated by many professional organizations of engineers throughout the world. In this paper, certain legal obstacles are addressed that come in the way of engineers who want to live up to such aspirations. It is assessed how the relevant aspects of legislation may be brought more in harmony with the demands of socially responsible and ethical conduct than is presently the case. I start with an aspect of current legislation that is relatively well known to engineers, namely the fact that actual law is in general hostile towards ‘whistleblowers’: persons who in the service of public interest disclose information concerning their organization to the public, without the consent of their superiors. I shall argue that there is a conflict between the legally defined rights and duties of engineers and the perceived ethical duty of engineers, stated in many codes of engineering ethics, to inform the public about the risks and (possible) negative effects of the technologies that they are helping to develop, produce or manage (section 2). The remainder of the paper concerns two other areas of legislation *Email: [email protected]

European Journal of Engineering Education ISSN 0304-3797 print/ISSN 1469-5898 online © 2005 Taylor & Francis Ltd http://www.tandf.co.uk/journals DOI: 10.1080/03043790410001711252

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that, in a more indirect but no less pervasive way, in their present form lead to diffculties for engineers who aim at ethical and socially responsible conduct. The legislation regarding liability for (potentially) harmful activities is dealt with in section 3. The relevant area of law is called tort law in the Anglo-Saxon legal tradition. The topic of section 4 is an analysis of how the responsibility of hierarchical organizations, which are treated in the law as fictitious or so-called legal persons, is regulated, and how this responsibility is apportioned within such organizations. I shall not merely pin down the problematic aspects of these legal issues, I shall also indicate the direction in which current law should be changed to reduce the frictions for engineers desiring to perform their professional work in an ethical, socially responsible way. Section 5 states the conclusions. The paper has important implications for the engineering curricula and for the community of engineers. Section 6 draws up these implications.2 The topic of this paper is the ethical and socially responsible conduct of engineers. However, the relevance of the considerations presented is broader than this, as these considerations pertain more generally to the ethical aspects of the functioning of (people in) hierarchical organizations that through their activities may negatively affect others outside those organizations.

2. The duty to inform and the right to be informed 2.1 The duty to inform Engineers who want to perform their work in accordance with the codes of conduct framed by their professional societies are met with severe legal obstacles. The general picture has been documented extensively in the literature on engineering ethics (e.g. Unger 1994). Further references to this literature are provided in Zandvoort et al. (2000). One particular obstacle relates to the following obligation, described in some form or another in many codes of engineering ethics:3 Engineers shall inform the public of the possible consequences of their work (principle 1).

An employee who wants to live up to principle 1 is risking conflict, both with his employer and with the law. The following examples from Dutch law make this clear. Similar conflicts arise in other legal systems. Labour contract law forbids employees to disclose facts concerning their employer’s business that the employees ‘ought to keep secret’. Violation is a legal ground for dismissal. The law does not specify the information that should be kept secret (a connection with, for example, codes of ethics, is completely absent). Hence, in the case of a lawsuit the judge must decide on the interpretation and application of the law. In cases such as these, judges weigh the different values and interests that are involved. In practice, they tend to weigh business interests heavily against the values that the codes of conduct aim to protect. This can be explained from the fact that, as a rule, only interests are taken into account that can be associated with a clear financial valuation. The penal code prohibits the disclosure of business information on which secrecy was imposed. It is true that, at least in Dutch law, there is a provision that he/she who ‘could assume in good faith that the general interest required disclosure’ will not be punished, but this statement is not further specified in the code, and judicial decisions show that it offers very little solace for employees who want to live up to principle 1. As a consequence, persons living up to principle 1 risk grave personal diffculties and disadvantages (which are described, for example, in Unger (1994)).

Good engineers need good laws

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The right to be informed

The principle expressed above is not a value in itself, but stands in the service of the following: Everyone should be informed of risks created by others that may affect him or her (principle 2).

Due to the conflict described above, living up to principle 1 will often require martyr-like properties. Given that such properties are scarce, society is ill advised to rely on principle 1 for the protection or implementation of principle 2, as long as the conflicts between principle 1 and the legal system continue to exist. Hence, if obeying principle 1 is considered important (because principle 2 is considered important), then the legal system should be adapted so as to make obeying this aspect of the codes of ethics practically feasible. Western constitutions do not explicitly recognize principle 2, and the contemporary legal systems do not support principle 2. As an example, take the situation with respect to public administration. In the Netherlands, the availability to the public of information used in the public administration processes is governed by the Wet Openbaarheid Bestuur (Law [concerning] Open Government). Important elements of this law and its application are that: (i) information is provided only upon request; (ii) in many cases requests can be and are refused because the information requested falls under exclusion clauses; and (iii) if answers to requests are vague, incomplete, or not given at all, there are few possibilities to respond. Because of these elements, the Wet Openbaarheid Bestuur may in practice severely conflict with principle 2. Probably the right to be informed about risks caused by others was not of practical importance at the time the western constitutions were framed, but two centuries of technological development have brought us to an entirely different situation. The constitutional freedom of speech and expression might, to a degree, stand in the service of principle 2, but as the examples show, this freedom is essentially limited for employees. 2.3

Restricted liberty or the right to be safeguarded

The right to be informed is not an isolated principle, it is closely connected to an even more fundamental ethical principle with a long history. This principle is sometimes referred to as the ‘no harm’ principle or autonomy principle, but here it will be called the principle of restricted liberty: Everyone is free to do what he or she pleases as long as he or she does not harm others (principle 3a).

This principle is contained as article 4 in the Déclaration des droits de l’homme et du citoyen du 26 août 1789 of the French Revolution. The principle was defended by J. S. Mill in his essay On Liberty of 1859. Van Velsen (2000, 2003) provides a contemporary account of the principle, in conjunction with the reciprocity principle which is complementary to it, and which will be discussed in section 3.4 later. An equivalent formulation of the restricted liberty principle is the right to be safeguarded (Van Velsen 2000, 2003): Everyone has the right not to be affected by any consequence of avoidable activities of other people (principle 3b).

An implication is that actions are right if and only if: either there are no (possible) consequences for others; or those who will experience the (possible) consequences have consented after having been fully informed. Hence, principle 2 can be seen as standing in the service of principle 3a. I shall come back to certain other implications of principle 3a in section 3.

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2.4 Duty to inform versus secrecy The adjustments of the legal system that are required to safeguard the right to be informed and to vindicate the duty to inform discussed above are not simple and will not easily be accomplished, as these adjustments may affect other legal rights, such as the right to protection of business secrets. Actual technological developments very often proceed under conditions of secrecy. This certainly holds for the private sector but it may occur as well in the public sector. In the private sector this secrecy is motivated by general considerations of business strategy in a situation of competition and free markets, and by considerations relating to patenting. In the public sector, considerations of public safety are sometimes put forward to defend secrecy. I shall not go deeply into the secrecy issue here.4 It should be pointed out that the principle of restricted liberty discussed in section 2.3 requires (and justifies) only the right to be informed about activities that may possibly harm others. In principle, this leaves room for secrecy of research and development in the pre-market stage of a product, but it cannot justify all forms of secrecy in the pre-market stage. Think of the development of genetically modified organisms, and the environmental and other risks these may embody once they have been engineered (they may escape from the laboratory, be stolen by criminals, etc.). If there are such risks already in the stage of research and development, the ‘duty to inform’ requires that these be made known to those who are subjected to the risks. It is not a simple issue to determine what forms a possible risk for others and what does not, and hence what should be communicated and what should not. However, without communication there can be no informed consent. As will be seen in section 3, this implies that liability should be unconditional for risks that were considered not substantial and for that reason were not communicated, but that nonetheless materialize.

2.5 Whistle-blowing and the duty to inform Whistle-blowing is in one respect merely a symptom of fundamental problems with present day organizations. The requirements imposed on organizations and on the people working in these organizations should be such that whistle-blowing either is not necessary, or else takes the form of a normal and legitimate aspect of the job. Many of the ethical codes for engineers suggest that the duty to inform the public about possible risks is a normal duty for an engineer. This is rightly so in view of the principles put forward above. At the same time, living up to such a duty in actual reality often requires abnormal actions that, if not plainly illegitimate, are almost always extremely disadvantageous to the actor. Something similar holds for many others working in hierarchical organizations, both private and public. Given the overwhelming role played by these organizations in contemporary society, the persisting existence of such fundamental inconsistencies may be extremely harmful and dangerous to society at large. In section 3 it will be argued that the introduction of unconditional liability for technologyproducing organizations may diminish certain ethical problems of engineering and technology, but will not in itself completely solve all ethical problems. In view of the ethical principles put forward here, this is mainly because of the fact that the (possible) consequences of technology are often irreversible. Take technological risks as an example. If such risks materialize, the effects usually are irreversible (e.g. deaths, environmental damage, etc.). Owing to this irreversibility, more openness and transparency of organizations having such a serious impact on the world outside is essential if we want them to function better than they do right now, and if we want to prevent still greater problems in the future. In order to accomplish this openness and transparency, these organizations and their employees should be given a duty to inform, as was discussed earlier.


3. 3.1

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Responsible conduct and liability Responsible conduct of engineers and of corporations

Most codes of ethics state that, in addition to the duty to inform the public discussed above, engineers also carry responsibility for the safety, health and well-being of the public as well as for the environment and sustainability. I shall now show how the current regulations regarding legal liability are hampering engineers who wish to take such responsibilities seriously. The discussion concerning liability will focus on duties regarding the environment, sustainability and technological risks. Other parts of the discussion, notably regarding prisoner’s dilemmas and their solutions, are more general. Engineers almost always work as employees within a hierarchical organization. This does not merely curtail their freedom of speech as was described in the previous section, it also limits their autonomy in their professional activities. In a hierarchical organization an employee, as subordinate, essentially executes assignments received from his or her superiors. The employee has only a limited influence on the assignment and on the constraints under which the assignment must be completed: the amount of time available, the resources that may be used, etc. The superiors are also the ones who determine whether or not an assignment has been properly executed. Conflict situations can easily arise for engineers during the course of their professional practice in which, essentially, they have to choose between loyalties to someone higher up or to the work organization on the one hand and ethical principles, such as professional codes of ethics, on the other hand. In such conflict situations, opting for ethical principles will usually be disadvantageous to the individual in question. In view of the above, the focus of analysis will be shifted in the present section from individual engineers to the organizations in which they are employed. The idea underlying this shift is this. Engineers would face fewer ethical problems during the performance of their professional tasks if the demands regarding ethical and socially responsible conduct that are imposed upon the organizations in which the engineers work were in harmony with the demands placed upon the engineers. The shift in focus is also consistent with the fact, to be discussed in section 4, that present law generally holds corporations rather than individuals inside the corporations responsible and liable for the activities. I shall first consider corporate codes of ethics as a possible vehicle for accomplishing ethical or socially responsible behaviour of corporations, and I shall conclude that such codes have flaws that make them not very suitable for that goal (section 3.2). One important shortcoming is that such codes are ill suited as solutions of so-called prisoner’s dilemmas, and I shall argue that a legal system is more apt for accomplishing such solutions (section 3.3). This leads back to the question of how the actual legal system can be altered to enhance and safeguard the ethical and socially responsible conduct of corporations. Section 3.4 argues that as far as the responsible management of the environment, technological risks and sustainability is concerned, strict liability should hold, rather than the conditional and non-consensual liability that characterizes current legal systems (section 3.5). This section ends with conclusions concerning the relation between ethical aspects of the profession of engineers and liability (section 3.6).

3.2

Corporate codes of conduct and their weaknesses

There has been a discussion on the social responsibility of corporations for several years. Many companies have responded by formulating corporate codes of conduct or company codes. These are self-imposed guidelines regarding the ethical and socially responsible conduct of the company, which will be observed beyond existing laws, during the performance of all business

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activities. Melrose-Woodman and Kverndal (1976) provided an early discussion of corporate social responsibility and company codes. The existence of such codes acknowledges that current laws are insuffcient or inadequate for promoting or safeguarding socially responsible conduct of corporations. However, such codes display a number of problems and shortcomings that lead to the conclusion that the codes cannot suffciently compensate for the inadequacies of the law to foster responsible conduct. These problems and shortcomings of company codes are discussed below. Company codes are often vague. Because of this they can come to mean little or nothing in practice. Often systematic and independent fulfilment checks are lacking. This amplifies the first problem. There are usually no sanctions for violations other than those issuing from poorly understood self-interests, such as when a company is ‘punished’ by a consumer ban because the consumers disapprove of certain company activities. Besides, a company which adopts a stricter code than its competitors, or which interprets a communal code more strictly than another company in its branch, may thereby impose upon itself a competitive disadvantage. (This is an example of a prisoner’s dilemma situation which will be discussed in the next section.) Company codes often stem from deals made with a limited number of affected parties. It frequently occurs that parliaments are not, or are improperly involved in, making such deals. From the perspective of rational collective decision-making, such deals run the risk of not being optimal. It should be noted that even if decisions about company codes are made in parliaments, there may remain problems from the point of view of the theory of collective decision-making. This is so for two reasons. (1) Usually, the activities or the consequences ensuing from the activities for which company codes are drawn up are usually not restricted to the territory of a given nation state. (2) Even for activities that are bounded by the borders of nation states, the fact that the parliaments of such states usually take decisions with majority rule (rather than with consensus) causes ethical diffculties. For an exposition of these diffculties, the reader is referred to Mueller (1989). There is no external control of the way in which the company code is internally enforced and settled. Modern enterprises have been called states within the state. The mores that apply within a company to its employees do not necessarily need to coincide with the rules that apply to civilians within a constitutional state. There is generally much freedom for superiors to decide and act internally in the way that they consider fitting (‘at will’). Employees who breach company codes might be unjustly punished (to make a good impression upon the outside world) but they also might be unjustly spared or rewarded (for instance because the codebreaking activities contribute positively to the earnings). The principles of the constitutional state, such as the ‘due process’ principle, are in other words not guaranteed in full within a work organization such as a corporation. The focus of the next subsection will be on one shortcoming of corporate codes of conduct in particular, namely that they are ill-suited to solving so-called prisoner’s dilemmas. It will be explained that in many situations where the issue of socially responsible behaviour is at stake, we are dealing with prisoner’s dilemma situations. In that connection, we shall introduce the concept of a (non-arbitrary, objective) solution to a prisoner’s dilemma.

3.3 Socially responsible conduct, prisoner’s dilemmas and law Presuming that goals such as sustainability, the controlling of technological risks and the respecting of human rights are important goals of the people that make up society, then activities may only be termed socially responsible if they contribute to bringing these goals


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closer or, at least, if they do not jeopardize these goals or take them further away. In actual fact, many activities do not seem to contribute to these goals but rather seem to jeopardize them or take them further away. The non-sustainable nature of many activities that actually take place in society is a major example. Therefore, many activities that actually occur on a large scale in society would seem to be socially irresponsible conduct. This may appear to be a self-contradictory statement, given the meaning we gave above to ‘socially responsible activities’, but the statement is perfectly consistent and, moreover, most likely true. In order to understand this, it should be noticed that for many activities the following hold: Everyone would be better off, at least in the long run, if all actors were to place certain restrictions on their actions. And: For each actor separately it holds that the imposing of these self-limitations is disadvantageous compared with those who do not subject themselves to the same limitations. Moreover, the contribution to the total negative effect of one or several non-conformers is negligible.

The dilemmas issuing from such situations are known as prisoner’s dilemmas. Such dilemmas have been studied extensively in a specialized branch of social sciences known as game theory. Game theory has been described as the mathematical analysis of strategic human interaction and it can be used to model situations where the decisions and actions of two or more actors jointly determine the outcomes. Introductions to game theory are provided by Luce and Raiffa (1957), Thomas (1984) and McLean (1987, chapter 7). For a prisoner’s dilemma, an objective, non-arbitrary definition may be given of the idea of socially responsible (or socially beneficial) conduct. The example of whether one should decline from walking on the grass in a public park can make this clear. For an individual it may be attractive to walk on the grass as he or she may get more pleasure from that, and his or her footprints will not significantly affect the grass. However, if every user of the park follows suit, the grass will be ruined and all will be worse off than when the park was unspoiled and no one walked on the grass. Thus, socially responsible conduct in this case involves not walking on the grass, since if everyone observes this restriction on his or her behaviour, the outcomes for each will be better than when no one observed the restriction. At the same time, the structure of the situation is such that many will be tempted to walk on the grass nevertheless, such that the final result may for all be worse than it would be if all did not walk on the grass (i.e. behaved socially responsibly). A somewhat more detailed example of a prisoner’s dilemma situation is this. A community of farmers has common grazing land where every farmer is allowed to let his sheep graze. Each farmer wants to improve his personal standard of living and puts as many sheep as possible out to graze. Above a certain limit, for every extra sheep there will be less grass, therefore the yield per sheep lowers. Ultimately even the total yield will decrease: the grass disappears and the sheep die. Everyone would hence benefit from a ‘grazing quota’ (dividing up the pasture is another possibility). However, agreements on that do not develop spontaneously. For each separate farmer it is disadvantageous to invest time in that or to limit himself on the number of sheep placed in the meadow when all the others are putting all their energy into expanding their flocks. The downfall of every farmer thus seems to be unavoidable. Prisoner’s dilemmas seem to be commonplace in modern technological society. Thus, human-mediated production of CO2 and its impact upon the climate may very well have the structure of a prisoner’s dilemma situation. Other possible examples of prisoner’s dilemmas are the situations in which individual engineers or companies find themselves in relation to socially responsible behaviour. All these examples may very well share the basic traits of a prisoner’s dilemma situation introduced above: all individuals may be convinced of the positive effects for all if each would constrain his or her behaviour, but as it is advantageous for each individual not to constrain his or her behaviour, the socially optimal outcome does not come about.

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In the case of a prisoner’s dilemma situation, it is possible to formulate rules that lead to outcomes that for each individually are better than would be the case in the absence of these rules. (As explained earlier, these rules may for that reason be associated with socially responsible or socially beneficial behaviour.) This makes it possible to introduce the unambiguous concept of a solution to a prisoner’s dilemma, a solution being an agreement among all involved to observe those socially beneficial rules. Prisoner’s dilemmas may, in other words, be solved by introducing collectively approved rules and by appointing an umpire who is given a mandate to check that these rules are abided by and to impose sanctions when they are violated. In the case of the grazing commons these rules may relate to grazing quotas but also to introducing individual ownership. Solutions to prisoner’s dilemmas thus understood have been implemented by human societies for at least 4000 years in various fields of human activity, namely by introducing suitable legal systems. The following should be added to this, however. From the perspective of the present analysis, a certain law can only be called a solution to a prisoner’s dilemma if there is consensus on that law (including the sanctions associated with its violation) among all who are subjected to it. See Mueller (1989, chapter 2) for a more detailed discussion of governments and laws as solutions to prisoner’s dilemmas.

3.4 Ethics and strict liability The mere existence of company codes implies an acknowledgement that the current legal systems are inadequate or insuffcient for governing the ethical and social conduct of corporations. Our analysis of these company codes has shown that these codes cannot repair the inadequacy or insuffciency of the legal system. An analysis of prisoner’s dilemma situations showed that, instead, proper solutions to the problem of safeguarding socially responsible conduct requires a proper legal system. We shall now ask how the existing legal systems should be altered to solve existing prisoner dilemma situations relating to sustainability and technological risks. For this, a consideration of liability is crucial. Liability is a legal concretization of responsibility. If the law holds a person liable for certain actions or behaviour, then that person can be forced to repair or to compensate for damage caused. I shall introduce a concept of strict liability in this section that is defined as follows. Liability is strict when one is liable for the possible consequences of his or her actions unless those who may suffer these consequences have given their informed consent. This consent might be given by means of a general rule specifying what is and is not acceptable, to which all who may suffer the consequences of the behaviour in question have agreed. Such a general rule could be a law to which everyone agrees. Otherwise, the consent might be given from case to case. This definition of strict liability is inspired by the right to be safeguarded, discussed in section 2.3. This right implies that the only acceptable actions are those that either have no possible consequences for others or have the informed consent of those who may experience the possible consequences. However, this principle does not specify what should be done when it is violated. Hence, another principle is required that deals with violation of the right to be safeguarded. A principle that does exactly this is the reciprocity principle as formulated by Van Velsen (2000, 2003):

He who violates a right of another one will be reacted to in a reciprocal way. That means that somebody who infringes a certain right of another will himself lose that same right insofar as that is necessary (and no more than that) in order to correct the original violation or to compensate for it and in order to, if necessary, prevent further infringement (principle 4).


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According to principle 4, anyone who does not respect another person’s right to be safeguarded and who thereby causes another person damage loses his own right to be safeguarded, in the sense that he may be forced to repair or compensate the damage. Hence, principle 4 implies strict liability. Strict liability may not be merely valued because it is a consequence of ethical principles, but it also has a quality of promoting prudence, and therefore promoting sustainability and responsible control of risks. This is the subject of the next subsection.

3.5 Liability in the legal systems The contemporary legal systems deviate from strict liability as defined above in two important respects. Firstly, the relevant laws, such as the laws governing new technological activities, often do not have the consent of all who may experience the possible consequences. Secondly, violation of the laws does not always lead to the obligation to repair or compensate, as this obligation is subjected to conditions of various form. In other words: actual liability often is both non-consensual and conditional. These are related points. The willingness to give one’s consent to certain activities, such as the introduction of genetically engineered organisms, will increase as repair of or compensation for damage, if any, is better guaranteed. One important conditional aspect of actual liability law relates to the doctrine of ‘no liability without fault’, also termed ‘fault liability’. According to this doctrine, a person may be held liable for unlawfully caused damage only if he exerted insuffcient care (i.e. was ‘at fault’) while performing the damage-causing activity. Another important condition to liability flows from the limited liability of corporations to be discussed in section 4. Even product liability, although often quoted as a deviation from the doctrine of ‘fault liability’, in essential respects remains conditional. Thus, product liability under Dutch law, which is subjected to the relevant directive of the European Union, holds the producer liable for damage caused by a defect in its product, unless ‘it was not possible to discover the existence of the fault, given the state of scientific and technological knowledge at the time the product was brought in circulation’; in that case the producer is not liable. In an innovative technological society governed by conditional liability, more and more activities come into being with risks or side effects for which the actors are not held liable. Usually, the advantages of new technological activities and possibilities are clear from the outset, whereas important harmful effects become manifest only later. Damages remain with affected non-actors, although they could not influence the development and production of the technologies in question. Consider biotechnology. Genetically engineered organisms are being introduced on a large scale. Who will repair or compensate if the negative effects materialize that opponents are warning against, or that are yet unforeseen? An idea concerning the answer may be gathered by considering current practices relating to such diverse cases as oil pollution, veterinary diseases such as mad cow disease and foot and mouth disease, and accidents with hazardous materials. These practices show that, if damage is restored at all, very often the general taxpayer is forced to contribute to that restoration, regardless of whether he or she contributed to the original activity causing the damage. Legal history shows that, until into the 19th century, private law was, more than now, based on strict liability (see van Dunné (1993) and Horwitz (1977), among other sources). This holds for both aspects distinguished above. Thus, more so than at present, there was consensus on the then existing legal rules, such as in the domains of property and contract, and violations were met with liability that was subject to much fewer conditions than at present. ‘Fault liability’ only emerged in the course of the 19th century. At that time, the limited liability of corporations was still a marginal phenomenon. The 19th and 20th centuries subsequently

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saw the spread of non-consensual law in areas such as tort, expropriation and corporate law, together with the introduction of conditional liability such as fault and limited liability. These transformations were driven by the desire to promote technological development (Horwitz 1977, 1992, Zweigert and Kötz 1987: 688). As the harmful side-effects may at that time have been (considered as) relatively unimportant, these transformations may have seemed acceptable then, but after more than a century under their regime this is different. This is notwithstanding the fact that in some domains, such as products liability, the 20th century has witnessed partial moves towards stricter liability. To conclude, conditional liability, introduced in the 19th century and persisting in our time, is an important cause of the present situation of non-sustainability and uncontrolled risks. In contrast, non-conditional liability promotes prudence, and hence promotes sustainability and control of risks. It may thus be preferred not merely on abstract grounds of ethics and justice, but also from considerations of responsible management and control of technology. It was stated earlier that corporations are in a prisoner’s dilemma situation with respect to aspects such as sustainability and risks of technology. As long as this situation continues, organizations that live up to codes of conduct are risking competitive disadvantages. Although this may explain why some business organizations have reservations regarding the introduction of codes of conduct, it must be stressed that the main problem of such organizations is not the existence of boundary conditions to their activities (such as liability), but rather the existence of boundary conditions that are non-uniform. Only the latter create inequalities with respect to competition.

3.6 Conditional liability and ethical problems of engineers If restricted liberty and reciprocity (principles 3a/3b and 4 from sections 2.3 and 3.4) are accepted, then the ethical problems of engineers can be solved completely, and reduced to ‘ordinary’ problems of decision-making, only if their activities have the informed consent of all who may possibly be affected. At present, for many activities this consent has not actually been given and it is an open question for which activities, and under which restrictions and conditions (such as liability), this consent is actually obtainable. At least it can be said that unconditional liability (i.e. liability that is not subjected to conditions such as fault and limited liability of corporations) should pertain to activities not having the informed consent of all possibly affected. Unconditional liability for corporations would not solve all the ethical problems facing engineers, because many possible consequences of actual engineering activities cannot be (completely) repaired or compensated for. If complete repair were always possible, then unconditional liability would solve all ethical problems of engineers, provided that there is warranty that the corporation has suffcient means available to repair or compensate for the largest possible damage. Even in a world where not all possible consequences from engineering activities can be repaired and where consent to such activities is not an explicit requirement, the ethical problems of engineering would be reduced enormously if liability were made less conditional than it is now. This is not just because victims would at least be compensated for irreversible damage resulting from activities not having their consent. It is also because, related to this, many potentially harmful activities would probably be more acceptable to those who are exposed to the possible consequences than is currently the case. This is why the introduction of unconditional liability for corporations would bring the interests of the latter more in agreement with the ethical codes for the engineers who are employed by those corporations.


4. 4.1

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Responsibility of and within organizations Formulation of the problem

The above considerations regarding liability for potentially harmful activities do not merely pertain to corporations as artificial legal persons. More precisely, they pertain to all free and autonomous actors. Hence, they should be applied directly to engineers if they can be considered free. At present the latter is not a truthful assumption. For as has been seen, labour contract law makes them agents, essentially taking orders from their employer. Consistent with this, the law of corporations holds the corporation (as legal person) responsible (and liable) for whatever its employees, including engineers, do or fail to do in the course of their work. Exceptions occur only when employees are grossly negligent or deliberately cause damage. Hence, although it is consistent to extend the analysis of liability to individual engineers, it does require drastic changes in the laws governing responsibility in organizations. This is the topic of this section. In the organizational context in which most engineers work, the actual responsibility of an individual specialist is both limited and vague. Many important decisions are taken at levels up the hierarchy, and it is unclear for which aspects engineers are responsible, and what that responsibility comes down to. This is the problem I want to address below. The problem is not unique to engineers. Rather, it occurs in all contemporary hierarchical organizations, technological and non-technological, private and public. Hence the present section is relevant for all individuals working in all organizations that through their activities may harm persons outside. At issue is how the responsibility for such harm should be divided among the persons inside the organization, that is, who should be responsible (and liable) for what. The core problem is that many contribute to a single outcome, i.e. an accident or an amount of environmental pollution, while it is not so clear who contributed what. This situation was baptized ‘the problem of many hands’ by Thompson; see on this Bovens (1998, chapter 4).

4.2

Hierarchical organizations and limited liability

With few or no exceptions, both government and business organizations are characterized by a hierarchical structure of command and control. This structure is the legally embedded answer to the problem of many hands inherited from history. J. S. Mill, living on the eve of the 20th century, the age of organizations, had remarked that ‘It should be apparent to all the world who did everything, and through whose default anything was left undone. Responsibility is null when nobody knows who is responsible. Nor, even when real, can it be divided without being weakened’. W. Wilson, writing in the USA in 1925, believed that for governmental organizations, the solution was to be found in hierarchical responsibility. He argued that ‘There is no danger in power if only it be not irresponsible. If it be divided, dealt out in shares to many, it is obscured; and if obscured it is made irresponsible’. So the idea was to make the highest in the hierarchy responsible and to require strict loyalty of all others in the organization to this one person, either directly or indirectly by adding hierarchical layers. Similar ideas were put forward in Europe by Max Weber. For more on these historical views on allocating responsibility in organizations, see Bovens (1998, chapters 6 and 9). The hierarchical mode of allocating responsibility in an organization has been implemented for government organizations, being the type of organizations that authors such as Wilson and Weber were primarily considering. It has also become the dominant form of private commercial organizations. This was coupled to the juridical construct of legal persons, being the entities

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that ‘by default’, that is, in the absence of grossly negligent or reckless behaviour of persons in the organization, are held legally responsible and liable for the acts of the (persons in the) organization. Subsequent history has shown that this particular solution to the problem of many hands in organizations is far from flawless. As far as government organizations are concerned, serious flaws came to the fore during World War II. The lessons from Nazi Germany have not led to significant adjustment of the legal principles upon which hierarchical organizations operate. (The experiences with Nazi Germany, however, were a major drive behind the introduction of an article in the Dutch law on higher education, requiring that universities and higher vocational institutions shall prepare their students for socially responsible conduct.) The following is restricted to private corporations. One of the issues here is that their liability has been limited. This means that the liability of the corporation (a legal person) is transferred to the shareholders only up to the (nominal) value of their shares. For civil damages or criminal sanctions extending beyond that they are not liable. The transition from unlimited liability to limited liability of corporations took place roughly in the second half of the 19th century. See the various contributions in Orhnial (1982) and also Horwitz (1992, chapter 3). This, together with the introduction of ‘no liability without fault’ which was discussed in section 3.5, can in large part explain how and why the technological society arrived at its present situation.

4.3 Non-hierarchical organizations and shares of responsibility In the following I shall assume that the practice of treating business organizations as legal persons will be continued in future legislation. By virtue of the right to be safeguarded and the reciprocity principle, these legal persons should carry unlimited liability, and should be subjected to the general principles and consequences of strict liability described in section 3. This means that for all activities of corporations the informed consent must have been obtained of all who may possibly be hurt. As was explained above, it may be necessary to accept provisions and conditions of various sorts in order to obtain this consent, such as safety regulations and unconditional liability, possibly including requirements of ‘evidence of financial responsibility’, i.e. warranties that financial means for repair of possible damage are available. The requirement of consent would hold for all corporations, irrespective of their internal structure, but hierarchical organizations may have more diffculty in obtaining the required consent than non-hierarchical organizations operating on the basis of individual responsibility and freedom. Hence, under the conditions specified, the present hierarchical organizations might disappear, to be replaced by or transformed into non-hierarchical organizations. The latter organizations might perhaps operate on the basis of ‘shares of responsibility’ for their activities in the following way. Suppose an organization is allowed to perform a certain activity under the condition of the availability of an amount X of evidence of financial responsibility. This amount may be divided into shares and allotted on the basis of free will to persons inside the organization (the present employees and directors) and outside (e.g. the present shareholders or guarantors). If the employees (such as engineers) are suffciently free, they will accept such shares only if they consider that the conditions and resources allotted to their task are adequate, and if they feel suffciently compensated (in the form of wages and/or shares in profits) for the work done and for their share in the risks of the operations. The willingness of persons outside the organization (having no direct control) to take shares will increase with the willingness of insiders to participate. It may be expected that it will be easier for a non-hierarchical organization A to provide a certain amount X of evidence of financial


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responsibility than it is for a hierarchical organization B. In addition, the public might agree with less strict safety regulations to be imposed upon A. For the public might have more faith in A, for the same reason that external shareholders might have more confidence in A. The ideas expressed above are not at all new. A similar idea underlies the historical legal form known as the Commenda or the Societas Maris (see Perrott 1982). This legal form developed from the partnership, where the one partner, the commendator, provided the capital in the form of money or goods, and the other partner, the tractator, did or supervised the actual work (e.g. merchandizing goods with a ship). The liability of the commendator was limited to his investment, whereas the tractator, whose share in the profit was 25%, had unlimited liability. Having its origin in Italy five centuries or so ago, the Commenda lives on more or less unchanged in its modern guises. These are known in France, Germany and the Netherlands as Société en Commandite, Kommandit-gesellschaft and Commanditaire Vennootschap, respectively. According to Perrott (1982), the Commenda must be regarded as one of the most successful and popular forms of business association ever devised, but in the last 100 years or so its importance has diminished greatly, because of the rise of the corporation with limited liability, described above.

4.4

Illustration: the Challenger launch decision

Aspects of what has been pointed out may be illustrated by the 1986 Challenger Space Shuttle accident and the decisions that led to it (see Vaughan 1996). A teleconference was held the day preceding the launch, involving functionaries of NASA and the contractor Morton Thiokol, who provided the solid rocket boosters (SRBs). The topic of the teleconference was a technical problem with the rubber O-rings of the SRBs, in combination with the low temperatures that were expected for the next day and that might aggravate the technical problem. During the teleconference, the management of the contractor had essentially two options. It could either recommend to launch, or recommend not to launch, the latter amounting to a veto against the launch. Given their legal position as agents of Morton Thiokol, and given the insights of the theory of decision-making under uncertainty (see, e.g. Lindley 1985, French 1986), the task of Morton Thiokol’s management was to assess for both options the possible consequences including their probabilities, to assess the (positive or negative) value of these possible consequences for Morton Thiokol, and to select that option of which the expected value (the sum over all possible consequences of the products probability times valuation, also called expected utility) is highest. Looking at available accounts of the teleconference, it may be that this is what they tried to do. This implies that the outcome depended, among other things, upon the liability consequences for Morton Thiokol in the case of a crash. In reality, there was a contractual fine in dollars in case of a crash, which, however, may have been relatively insignificant as compared with other possible consequences for Morton Thiokol in that case. The outcome might also have been different if the managers and or the engineers had held ‘shares of responsibility’ of the type described above. If both the engineers and the managers had held shares of responsibility for the same activity, i.e. the launch of the Space Shuttle, then the only rule of internal decision-making acceptable to all would probably have been consensus, or, what amounts to the same, right of veto for all. This may be compared with the level of organizations, rather than the level of individuals making up the organizations. There, right of veto is often actually the case. Thus, in the Space Shuttle case, the contractors of particular parts of the Space Shuttle, of which Morton Thiokol was just one, all had a veto right on the launching decision.

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More can and should be said about the possible internal structure of non-hierarchical organizations with external effects. I hope to have shown here at least that the issue deserves the attention of all who are concerned with the ethical aspects of engineering and technology.

5.

Conclusions

In this paper, I have attempted to identify a number of aspects of the contemporary legal systems that may obstruct or impair the ethical or socially responsible conduct of engineers. I have also sketched the directions in which the current legislation may be altered to make it more consistent with demands that may be derived from certain important ethical principles, and to make it less diffcult for engineers to perform their tasks in an ethical and socially responsible way and to live up to the spirit of engineering codes of ethics. Much if not all of the analysis can be extended to all employees of all hierarchical organizations which may negatively affect others outside those organizations. The legal changes that are called for according to the above analysis are far-reaching and cannot be accomplished overnight. This holds for all three legal topics discussed here: the right to be informed versus secrecy; liability for potentially harmful effects; and responsibility and liability of and in organizations. The required changes involve at least the following areas of law: laws governing secrecy, the right to be informed and the duty to inform; labour contract law; liability law; corporate law; and legislation regarding legal persons in general. In view of the far-reaching nature of the required changes, it should be noted that a large number of relatively minor steps may add up to significant changes, provided that the steps add up. The implementation of these changes would help enormously to diminish or solve the ethical problems of engineers and of technology. It would help to diminish the amount of conflict in the totality of ethical and legal requirements that are imposed upon engineers. It would lead to more agreement about technological activities, among both actors and those subjected to the consequences, than at present is the case. It would promote sustainable development, and would lead to more responsible control and management of the technological risks that threaten the continued existence of contemporary society. For these reasons, the issues discussed in this paper deserve the critical attention of all who are involved in engineering and technology.

6.

Implications for the engineering curricula and for the community of engineers

6.1 Implications for the engineering curricula Future engineers should be provided with the basic knowledge and insight that is required to assess the actual and possible role of law as regards the ethical and social aspects of technology and engineering during their study. Both as civilians with (passive and active) political rights and duties, and as future engineers who are expected by the public to exercise their professional functions in ethical and socially responsible ways, they should be enabled to form sound opinions on proposed or desirable legal changes. Here, ‘sound’ is meant in the sense of consistent with the existing relevant knowledge and insight. This educational goal requires that systematic attention be given in the engineering curricula to the critical study of the functions and presuppositions of the legal system, including ethical foundations and including a critical assessment of how well the actual legal systems perform their functions.


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For this critical study, it is very helpful and perhaps necessary to have a basic knowledge of concepts and results of certain ‘mathematical’ areas in the social sciences such as game theory and decision theory. Two illustrations of this have been given in this contribution. In section 3.3 problems of socially responsible conduct were described as having the structure of a prisoner’s dilemma, and it was indicated that such problems can be solved in an objective, unambiguous way by introducing a legal system. In section 4.4 it was indicated (but not fully explained) that the theory of decision-making under uncertainty is relevant for critically analysing decision-making in organizations and the resulting behaviour of legal persons. Another area of knowledge that is very relevant for the teaching goal formulated above is public choice. This area studies actual and possible procedures for collective (political) decision-making. An overview of the main results is provided in Mueller (1989). The present contribution has touched on the issue of public choice, namely when the requirement of informed consent was stated for activities with potentially harmful consequences (sections 2.3 and 3.4). This requirement is analogical to the unanimity rule of collective decisionmaking studied in public choice. Speaking generally, a critical analysis of the prevailing systems and procedures of collective decision-making, which are in large part determined by (constitutional) law, is called for by the educational goal formulated above. The above is a rough and qualitative indication of the subject matter that should be included in the engineering curricula in virtue of the analysis presented in the paper. This in itself does not answer more specific issues such as the amount of time (or credit points) that should be allotted, the availability of study/teaching material, the appropriate teaching methods, the recruitment and training of teachers, and integration with other elements of the curriculum. 6.2 Implications for the community of engineers The organizations of the engineering profession should play a critical role in informing public opinion and in relevant political discussions, aimed at pinning down inadequacies in the current legal and political systems and promoting those legal changes that are called for to diminish the ethical and social problems of technology, and to improve the general conditions that should safeguard that the consequences of technology are beneficial to humanity. The professional organizations should also stimulate critical discussion among their members on these issues to provide for the internal basis for this. Of course, the knowledge that was identified above as relevant for the engineering curriculum is also relevant here.

Notes 1. I presume that, for the context of this paper at least, the terms ‘ethical conduct’and ‘socially responsible conduct’ by and large refer to the same thing. But in case some readers might not agree, I shall use the expression ‘ethical and socially responsible conduct’ throughout the paper. An explanation of what may be meant by socially responsible conduct will be provided in section 3.3. 2. An earlier version of the present article was presented to the 2003 SEFIAnnual Conference, Porto, 7–10 September 2003. Aspects of the issues dealt with were previously discussed in Zandvoort (2000a–c). 3. See van de Poel (2004) for an overview of the contents of a number of ethical codes for engineers. 4. Elsewhere (Zandvoort 2004) I have discussed this issue in the context of an ongoing discussion concerning the risks of modern scientific and technological developments and concerning relinquishment.

References Bovens, M., The Quest for Responsibility. Accountability and Citizenship in Complex Organisations, 1998 (Cambridge University Press: Cambridge).

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Dunné, J.M. van, Verbintenissenrecht, Deel 2, Tweede Herziene Druk, 1993 (Kluwer: Deventer). French, S., Decision Theory. An Introduction to the Mathematics of Rationality, 1986 (Ellis Horwood Limited/John Wiley & Sons: Chichester and New York). Horwitz, M.J., The Transformation of American Law 1780–1860, 1977 (Harvard University Press: Cambridge, MA). Horwitz, M.J., The Transformation of American Law 1870–1960, 1992 (Oxford University Press: New York and Oxford). Lindley, D.V., Making Decisions (2nd edn), 1985 (Wiley: Chichester). Luce, R.D. and Raiffa, H., Games and Decisions, 1957 (John Wiley: New York). McLean, I., Public Choice, An Introduction, 1987 (Basil Blackwell: Oxford and New York). Melrose-Woodman, J. and Kverndal, I., Towards social responsibility. Company codes of ethics and practice. Management Survey Report No. 28, British Institute of Management, 1976. Mueller, D.C., Public Choice II, 1989 (Cambridge University Press: Cambridge). Orhnial, T. (Editor), Limited Liability and the Corporation, 1982 (Croon Helm: London/Canberra). Perrott, D.L., Changes in attitude to limited liability – the European experience. In Limited Liability and the Corporation, 1982, edited by T. Orhnial (Croon Helm: London/Canberra), chapter 5. Poel, I.R. van de, Professional codes and moral problems in the professional practice of engineers. In Ethics and Engineering. Reader, edited by H. Zandvoort, I.R. Van de Poel, M. Brumsen and S. Roeser, pp. 19–39, 2004 (Delft: Delft University of Technology, Faculty of Technology, Policy and Management). Thomas, L.C., Games, Theory and Applications, 1984 (Ellis Horwood: Chichester). Unger, S.H., Controlling Technology. Ethics and the Responsible Engineer, (2nd edn), 1994 (John Wiley & Sons: New York). Vaughan, D., The Challenger Launch Decision: Risky Technology, Culture, and Deviance at NASA, 1996 (Chicago). Velsen, J.F.C. van, Relativity, universality and peaceful coexistence. Archiv für Rechts- und Sozialphilosophie, 2000, 86, 88–108. Velsen, J.F.C. van, The law of logic, 2003, Available online at http://www.lawoflogic.net/ Zandvoort, H., Controlling technology through law: the role of legal liability. Preprints of 7th IFAC Symposium on Automated Systems Based on Human Skill. Joint Design of Technology and Organisation, Aachen, VDI/VDEGesellschaft Mess- und Automatisierungstechnik, 2000a, 15–17 June, pp. 247–250. Zandvoort, H., Codes of conduct, the law, and technological design and development. In The Empirical Turn in the Philosophy of Technology edited by P. Kroes and A. Meijers, pp. 193–205, 2000b (Elsevier Science: Amsterdam). Zandvoort, H., Self determination, strict liability, and ethical problems in engineering. In The Empirical Turn in the Philosophy of Technology edited by P. Kroes and A. Meijers, pp. 219–243, 2000c (Elsevier Science: Amsterdam). Zandvoort, H., Knowledge, risk, and liability. Analysis of a discussion continuing within science and technology. In Cognitive Structures in Scientific Inquiry. Essays in Debate with Theo Kuipers, volume 2, edited by R. Festa, A. Aliseda and J. Peijnenburg, 2004 (Rodopi: Amsterdam), in press. Zandvoort, H., Van de Poel, I. and Brumsen, M., Ethics in the engineering curricula: topics, trends, and challenges for the future. Eur. J. Eng. Educ., 2000, 25, 291–302. Zweigert, K. and Kötz, H., An Introduction to Comparative Law (2nd edn), 1987 (Clarendon Press: Oxford).

About the author Henk Zandvoort (1951) is an associate professor for ethics and technology at Delft University of Technology. He did his first degree in chemistry (specialization physical chemistry) and a later degree in philosophy (specialization philosophy of science). His dissertation Models of Scientific Development and the Case of Nuclear Magnetic Resonance was published in 1986. Between 1986 and 1997 his main assignment was at the Dutch Ministry of Education and Sciences, where he had various functions as a civil servant in the area of higher education and university research. He has been associated with Delft University of Technology since 1991.