The first man and the company man: The common good, transcendence, and mediating institutions

American Business Law Journal

Volumn 36, Issue 3, 1999, Pages 391-435

  Fort, Timothy L ^a  

^a NONE

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EID: 17444448852     PISSN: 00027766     EISSN: None     Source Type: Journal    
DOI: 10.1111/j.1744-1714.1999.tb01020.x     Document Type: Article

References (258)

1. ALBERT CAMUS, THE FIRST MAN 193 (David Hapgood trans. 1995). The word anxiety" was written by the author at the top of the manuscript as an alternative for the word "dread," as contained in this quotation.. Id. at viii (Editor's Note).
2. ALBERT CAMUS, THE FIRST MAN 193 (David Hapgood trans. 1995). The word anxiety" was written by the author at the top of the manuscript as an alternative for the word "dread," as contained in this quotation.. Id. at viii (Editor's Note).
3. ANTHONY SAMPSON, COMPANY MAN: THE RISE AND FALL OF CORPORATE LIFE 226 (1995) (quoting Charles M. Albrecht, who led a consulting team of "employee transition" experts in the downsizing at IBM).
4. Id.
5. This journal has published several articles on the common good and its relation to the individual. Many of these deal with issues of property rights, such as Caryn L. Beck-Dudley & James E. Macdonald, Lucas v. South Carolina Costal Council: Takings, and the Search for the Common Good, 33 AM. BUS. L. J. 153 (1995); Michael K. Braswell & Stephen L. Poe, Private Property vs. Federal Wetlands Regulation: Should Private Landowners Bear the Cost of Wetlands Protection?, 33 AM. BUS. L. J. 179 (1995); Frank A. Vickory & Barry A. Diskin, Advances in Private Property Protection Rights: The States in the Vanguard, 34 AM. BUS. L. J. 483 (1996). Commercial speech also lends itself to this kind of analysis; see Arlen W. Langvardt & Eric L. Richards, The Death of Posadas and the Birth of Change in Commercial Speech Doctrine: Implications of 44 Liquormart?, 34 AM. BUS. L. J. 483 (1997); O. Lee Reed, Is Commercial Speech Really Less Valuable Than Political Speech? On Replacing Values and Categories in First Amendment Jurisprudence, 34 AM. BUS. L. J. 1 (1996).
6. This journal has published several articles on the common good and its relation to the individual. Many of these deal with issues of property rights, such as Caryn L. Beck-Dudley & James E. Macdonald, Lucas v. South Carolina Costal Council: Takings, and the Search for the Common Good, 33 AM. BUS. L. J. 153 (1995); Michael K. Braswell & Stephen L. Poe, Private Property vs. Federal Wetlands Regulation: Should Private Landowners Bear the Cost of Wetlands Protection?, 33 AM. BUS. L. J. 179 (1995); Frank A. Vickory & Barry A. Diskin, Advances in Private Property Protection Rights: The States in the Vanguard, 34 AM. BUS. L. J. 483 (1996). Commercial speech also lends itself to this kind of analysis; see Arlen W. Langvardt & Eric L. Richards, The Death of Posadas and the Birth of Change in Commercial Speech Doctrine: Implications of 44 Liquormart?, 34 AM. BUS. L. J. 483 (1997); O. Lee Reed, Is Commercial Speech Really Less Valuable Than Political Speech? On Replacing Values and Categories in First Amendment Jurisprudence, 34 AM. BUS. L. J. 1 (1996).
7. This journal has published several articles on the common good and its relation to the individual. Many of these deal with issues of property rights, such as Caryn L. Beck-Dudley & James E. Macdonald, Lucas v. South Carolina Costal Council: Takings, and the Search for the Common Good, 33 AM. BUS. L. J. 153 (1995); Michael K. Braswell & Stephen L. Poe, Private Property vs. Federal Wetlands Regulation: Should Private Landowners Bear the Cost of Wetlands Protection?, 33 AM. BUS. L. J. 179 (1995); Frank A. Vickory & Barry A. Diskin, Advances in Private Property Protection Rights: The States in the Vanguard, 34 AM. BUS. L. J. 483 (1996). Commercial speech also lends itself to this kind of analysis; see Arlen W. Langvardt & Eric L. Richards, The Death of Posadas and the Birth of Change in Commercial Speech Doctrine: Implications of 44 Liquormart?, 34 AM. BUS. L. J. 483 (1997); O. Lee Reed, Is Commercial Speech Really Less Valuable Than Political Speech? On Replacing Values and Categories in First Amendment Jurisprudence, 34 AM. BUS. L. J. 1 (1996).
8. This journal has published several articles on the common good and its relation to the individual. Many of these deal with issues of property rights, such as Caryn L. Beck-Dudley & James E. Macdonald, Lucas v. South Carolina Costal Council: Takings, and the Search for the Common Good, 33 AM. BUS. L. J. 153 (1995); Michael K. Braswell & Stephen L. Poe, Private Property vs. Federal Wetlands Regulation: Should Private Landowners Bear the Cost of Wetlands Protection?, 33 AM. BUS. L. J. 179 (1995); Frank A. Vickory & Barry A. Diskin, Advances in Private Property Protection Rights: The States in the Vanguard, 34 AM. BUS. L. J. 483 (1996). Commercial speech also lends itself to this kind of analysis; see Arlen W. Langvardt & Eric L. Richards, The Death of Posadas and the Birth of Change in Commercial Speech Doctrine: Implications of 44 Liquormart?, 34 AM. BUS. L. J. 483 (1997); O. Lee Reed, Is Commercial Speech Really Less Valuable Than Political Speech? On Replacing Values and Categories in First Amendment Jurisprudence, 34 AM. BUS. L. J. 1 (1996).
9. This journal has published several articles on the common good and its relation to the individual. Many of these deal with issues of property rights, such as Caryn L. Beck-Dudley & James E. Macdonald, Lucas v. South Carolina Costal Council: Takings, and the Search for the Common Good, 33 AM. BUS. L. J. 153 (1995); Michael K. Braswell & Stephen L. Poe, Private Property vs. Federal Wetlands Regulation: Should Private Landowners Bear the Cost of Wetlands Protection?, 33 AM. BUS. L. J. 179 (1995); Frank A. Vickory & Barry A. Diskin, Advances in Private Property Protection Rights: The States in the Vanguard, 34 AM. BUS. L. J. 483 (1996). Commercial speech also lends itself to this kind of analysis; see Arlen W. Langvardt & Eric L. Richards, The Death of Posadas and the Birth of Change in Commercial Speech Doctrine: Implications of 44 Liquormart?, 34 AM. BUS. L. J. 483 (1997); O. Lee Reed, Is Commercial Speech Really Less Valuable Than Political Speech? On Replacing Values and Categories in First Amendment Jurisprudence, 34 AM. BUS. L. J. 1 (1996).
10. See generally Cass R. Sunstein, Beyond the Republican Revival, 97 YALE L.J. 1539 (1988); see also Frank Michelman, Law's Republic, 97 YALE L.J. 1493 (1988); for historical descriptions of this revival, see generally Gordon Wood, Classical Republicanism and the American Revolution, 66 CHI.-KENT L. REV. 13 (1990); GORDON WOOD, THE CREATION OF THE AMERICAN REPUBLIC: 1776-1787 (1969); STEPHEN B. PRESSER, THE ORIGINAL MISUNDERSTANDING: THE ENGLISH, THE AMERICANS, AND THE DIALECTIC OF FEDERALIST JURISPRUDENCE (1991) (hereinafter PRESSER (1991)); STEPHEN B. PRESSER, RECAPTURING THE CONSTITUTION: RACE, RELIGION, AND ABORTION RECONSIDERED (1994) (hereinafter PRESSER (1994)); DANIEL A. FARBER & SUZANNA SHERRY, A HISTORY OF THE AMERICAN CONSTITUTION (1990).
11. See generally Cass R. Sunstein, Beyond the Republican Revival, 97 YALE L.J. 1539 (1988); see also Frank Michelman, Law's Republic, 97 YALE L.J. 1493 (1988); for historical descriptions of this revival, see generally Gordon Wood, Classical Republicanism and the American Revolution, 66 CHI.-KENT L. REV. 13 (1990); GORDON WOOD, THE CREATION OF THE AMERICAN REPUBLIC: 1776-1787 (1969); STEPHEN B. PRESSER, THE ORIGINAL MISUNDERSTANDING: THE ENGLISH, THE AMERICANS, AND THE DIALECTIC OF FEDERALIST JURISPRUDENCE (1991) (hereinafter PRESSER (1991)); STEPHEN B. PRESSER, RECAPTURING THE CONSTITUTION: RACE, RELIGION, AND ABORTION RECONSIDERED (1994) (hereinafter PRESSER (1994)); DANIEL A. FARBER & SUZANNA SHERRY, A HISTORY OF THE AMERICAN CONSTITUTION (1990).
12. See generally Cass R. Sunstein, Beyond the Republican Revival, 97 YALE L.J. 1539 (1988); see also Frank Michelman, Law's Republic, 97 YALE L.J. 1493 (1988); for historical descriptions of this revival, see generally Gordon Wood, Classical Republicanism and the American Revolution, 66 CHI.-KENT L. REV. 13 (1990); GORDON WOOD, THE CREATION OF THE AMERICAN REPUBLIC: 1776-1787 (1969); STEPHEN B. PRESSER, THE ORIGINAL MISUNDERSTANDING: THE ENGLISH, THE AMERICANS, AND THE DIALECTIC OF FEDERALIST JURISPRUDENCE (1991) (hereinafter PRESSER (1991)); STEPHEN B. PRESSER, RECAPTURING THE CONSTITUTION: RACE, RELIGION, AND ABORTION RECONSIDERED (1994) (hereinafter PRESSER (1994)); DANIEL A. FARBER & SUZANNA SHERRY, A HISTORY OF THE AMERICAN CONSTITUTION (1990).
13. See generally Cass R. Sunstein, Beyond the Republican Revival, 97 YALE L.J. 1539 (1988); see also Frank Michelman, Law's Republic, 97 YALE L.J. 1493 (1988); for historical descriptions of this revival, see generally Gordon Wood, Classical Republicanism and the American Revolution, 66 CHI.-KENT L. REV. 13 (1990); GORDON WOOD, THE CREATION OF THE AMERICAN REPUBLIC: 1776-1787 (1969); STEPHEN B. PRESSER, THE ORIGINAL MISUNDERSTANDING: THE ENGLISH, THE AMERICANS, AND THE DIALECTIC OF FEDERALIST JURISPRUDENCE (1991) (hereinafter PRESSER (1991)); STEPHEN B. PRESSER, RECAPTURING THE CONSTITUTION: RACE, RELIGION, AND ABORTION RECONSIDERED (1994) (hereinafter PRESSER (1994)); DANIEL A. FARBER & SUZANNA SHERRY, A HISTORY OF THE AMERICAN CONSTITUTION (1990).
14. See generally Cass R. Sunstein, Beyond the Republican Revival, 97 YALE L.J. 1539 (1988); see also Frank Michelman, Law's Republic, 97 YALE L.J. 1493 (1988); for historical descriptions of this revival, see generally Gordon Wood, Classical Republicanism and the American Revolution, 66 CHI.-KENT L. REV. 13 (1990); GORDON WOOD, THE CREATION OF THE AMERICAN REPUBLIC: 1776-1787 (1969); STEPHEN B. PRESSER, THE ORIGINAL MISUNDERSTANDING: THE ENGLISH, THE AMERICANS, AND THE DIALECTIC OF FEDERALIST JURISPRUDENCE (1991) (hereinafter PRESSER (1991)); STEPHEN B. PRESSER, RECAPTURING THE CONSTITUTION: RACE, RELIGION, AND ABORTION RECONSIDERED (1994) (hereinafter PRESSER (1994)); DANIEL A. FARBER & SUZANNA SHERRY, A HISTORY OF THE AMERICAN CONSTITUTION (1990).
15. See generally Cass R. Sunstein, Beyond the Republican Revival, 97 YALE L.J. 1539 (1988); see also Frank Michelman, Law's Republic, 97 YALE L.J. 1493 (1988); for historical descriptions of this revival, see generally Gordon Wood, Classical Republicanism and the American Revolution, 66 CHI.-KENT L. REV. 13 (1990); GORDON WOOD, THE CREATION OF THE AMERICAN REPUBLIC: 1776-1787 (1969); STEPHEN B. PRESSER, THE ORIGINAL MISUNDERSTANDING: THE ENGLISH, THE AMERICANS, AND THE DIALECTIC OF FEDERALIST JURISPRUDENCE (1991) (hereinafter PRESSER (1991)); STEPHEN B. PRESSER, RECAPTURING THE CONSTITUTION: RACE, RELIGION, AND ABORTION RECONSIDERED (1994) (hereinafter PRESSER (1994)); DANIEL A. FARBER & SUZANNA SHERRY, A HISTORY OF THE AMERICAN CONSTITUTION (1990).
16. See generally Cass R. Sunstein, Beyond the Republican Revival, 97 YALE L.J. 1539 (1988); see also Frank Michelman, Law's Republic, 97 YALE L.J. 1493 (1988); for historical descriptions of this revival, see generally Gordon Wood, Classical Republicanism and the American Revolution, 66 CHI.-KENT L. REV. 13 (1990); GORDON WOOD, THE CREATION OF THE AMERICAN REPUBLIC: 1776-1787 (1969); STEPHEN B. PRESSER, THE ORIGINAL MISUNDERSTANDING: THE ENGLISH, THE AMERICANS, AND THE DIALECTIC OF FEDERALIST JURISPRUDENCE (1991) (hereinafter PRESSER (1991)); STEPHEN B. PRESSER, RECAPTURING THE CONSTITUTION: RACE, RELIGION, AND ABORTION RECONSIDERED (1994) (hereinafter PRESSER (1994)); DANIEL A. FARBER & SUZANNA SHERRY, A HISTORY OF THE AMERICAN CONSTITUTION (1990).
17. It is important to note that neither Camus nor Sampson leaves us with a fully alienated person. They each seek ways to provide a sense of hope. The purpose of their comments here is to diagnose the problem they confronted, not to debate the solutions they offered. The discussion of those solutions, with which I have some strong affinities, is beyond the scope of this particular article.
18. AMITAI ETZIONI, THE NEW GOLDEN RULE: COMMUNITY AND MORALITY IN A DEMOCRATIC SOCIETY (1996). For other commentary on communitarianism, see PHILIP SELZNIK, THE MORAL COMMONWEALTH (1994); FRANCIS FUKUYAMA, TRUST: THE SOCIAL VIRTUES AND THE CREATION OF PROSPERITY (1995); PAUL RICOUER, ONESELF AS ANOTHER (1992).
19. AMITAI ETZIONI, THE NEW GOLDEN RULE: COMMUNITY AND MORALITY IN A DEMOCRATIC SOCIETY (1996). For other commentary on communitarianism, see PHILIP SELZNIK, THE MORAL COMMONWEALTH (1994); FRANCIS FUKUYAMA, TRUST: THE SOCIAL VIRTUES AND THE CREATION OF PROSPERITY (1995); PAUL RICOUER, ONESELF AS ANOTHER (1992).
20. AMITAI ETZIONI, THE NEW GOLDEN RULE: COMMUNITY AND MORALITY IN A DEMOCRATIC SOCIETY (1996). For other commentary on communitarianism, see PHILIP SELZNIK, THE MORAL COMMONWEALTH (1994); FRANCIS FUKUYAMA, TRUST: THE SOCIAL VIRTUES AND THE CREATION OF PROSPERITY (1995); PAUL RICOUER, ONESELF AS ANOTHER (1992).
21. AMITAI ETZIONI, THE NEW GOLDEN RULE: COMMUNITY AND MORALITY IN A DEMOCRATIC SOCIETY (1996). For other commentary on communitarianism, see PHILIP SELZNIK, THE MORAL COMMONWEALTH (1994); FRANCIS FUKUYAMA, TRUST: THE SOCIAL VIRTUES AND THE CREATION OF PROSPERITY (1995); PAUL RICOUER, ONESELF AS ANOTHER (1992).
22. ETZIONI, supra note 7, at xviii.
23. EMILE DURKHEIM, THE ELEMENTARY STRUCTURES OF RELIGIOUS LIFE 191 (Karen E. Fields trans,. 1995).
24. Id.
25. Id.
26. See, e.g., F. A. HAYEK, THE FATAL CONCEIT (1988).
27. DURKHEIM, supra note 9, at 192.
28. The Judeo-Christian name for the Almighty.
29. The powerful God in Hinduism.
30. The Moslem name for God.
31. Many so-called "primitive faiths" would identify God or Gods as Nature broadly speaking. See, e.g., PETER PARIS, THE SPIRITUALITY OF AFRICAN PEOPLES: A SEARCH FOR A COMMON DISCOURSE (1995): VINE DELORIA, GOD IS RED: A NATIVE VIEW OF RELIGION (1994); SCOTT CUNNINGHAM, HAWAIIAN RELIGION & MAGIC (1994). Such was also the case in the earliest stages of our own Western tradition. Werner Jaeger describes Hesiod's approach in the Theogony as follows: [I]n his history of the Dynasties of the Gods, Hesiod writes as a constructive theologian, and gives an intelligible explanation of the development of the world, in which ethical forces take their place beside the telluric and atmospheric forces of nature. That is to say, he is not content to show the relationships of the various divinities to whom men prayed and sacrificed, and to use the traditional data of contemporary religion. He chooses rather to weld the facts of religion in the widest sense - the facts of cult, myth, and psychological experience - into a history, wrought by reason and imagination together, of the origins of the world and the beginnings of human life. And so he describes every active force as divine power - an attitude appropriate to that early period in the history of thought. WERNER JAEGER, 1 PAIDEIA: THE IDEALS OF GREEK CULTURE 65 (Gilbert Highet trans., 1965). My thanks to Clyde Stoltenberg for pointing out this connection.
32. Many so-called "primitive faiths" would identify God or Gods as Nature broadly speaking. See, e.g., PETER PARIS, THE SPIRITUALITY OF AFRICAN PEOPLES: A SEARCH FOR A COMMON DISCOURSE (1995): VINE DELORIA, GOD IS RED: A NATIVE VIEW OF RELIGION (1994); SCOTT CUNNINGHAM, HAWAIIAN RELIGION & MAGIC (1994). Such was also the case in the earliest stages of our own Western tradition. Werner Jaeger describes Hesiod's approach in the Theogony as follows: [I]n his history of the Dynasties of the Gods, Hesiod writes as a constructive theologian, and gives an intelligible explanation of the development of the world, in which ethical forces take their place beside the telluric and atmospheric forces of nature. That is to say, he is not content to show the relationships of the various divinities to whom men prayed and sacrificed, and to use the traditional data of contemporary religion. He chooses rather to weld the facts of religion in the widest sense - the facts of cult, myth, and psychological experience - into a history, wrought by reason and imagination together, of the origins of the world and the beginnings of human life. And so he describes every active force as divine power - an attitude appropriate to that early period in the history of thought. WERNER JAEGER, 1 PAIDEIA: THE IDEALS OF GREEK CULTURE 65 (Gilbert Highet trans., 1965). My thanks to Clyde Stoltenberg for pointing out this connection.
33. Many so-called "primitive faiths" would identify God or Gods as Nature broadly speaking. See, e.g., PETER PARIS, THE SPIRITUALITY OF AFRICAN PEOPLES: A SEARCH FOR A COMMON DISCOURSE (1995): VINE DELORIA, GOD IS RED: A NATIVE VIEW OF RELIGION (1994); SCOTT CUNNINGHAM, HAWAIIAN RELIGION & MAGIC (1994). Such was also the case in the earliest stages of our own Western tradition. Werner Jaeger describes Hesiod's approach in the Theogony as follows: [I]n his history of the Dynasties of the Gods, Hesiod writes as a constructive theologian, and gives an intelligible explanation of the development of the world, in which ethical forces take their place beside the telluric and atmospheric forces of nature. That is to say, he is not content to show the relationships of the various divinities to whom men prayed and sacrificed, and to use the traditional data of contemporary religion. He chooses rather to weld the facts of religion in the widest sense - the facts of cult, myth, and psychological experience - into a history, wrought by reason and imagination together, of the origins of the world and the beginnings of human life. And so he describes every active force as divine power - an attitude appropriate to that early period in the history of thought. WERNER JAEGER, 1 PAIDEIA: THE IDEALS OF GREEK CULTURE 65 (Gilbert Highet trans., 1965). My thanks to Clyde Stoltenberg for pointing out this connection.
34. Many so-called "primitive faiths" would identify God or Gods as Nature broadly speaking. See, e.g., PETER PARIS, THE SPIRITUALITY OF AFRICAN PEOPLES: A SEARCH FOR A COMMON DISCOURSE (1995): VINE DELORIA, GOD IS RED: A NATIVE VIEW OF RELIGION (1994); SCOTT CUNNINGHAM, HAWAIIAN RELIGION & MAGIC (1994). Such was also the case in the earliest stages of our own Western tradition. Werner Jaeger describes Hesiod's approach in the Theogony as follows: [I]n his history of the Dynasties of the Gods, Hesiod writes as a constructive theologian, and gives an intelligible explanation of the development of the world, in which ethical forces take their place beside the telluric and atmospheric forces of nature. That is to say, he is not content to show the relationships of the various divinities to whom men prayed and sacrificed, and to use the traditional data of contemporary religion. He chooses rather to weld the facts of religion in the widest sense - the facts of cult, myth, and psychological experience - into a history, wrought by reason and imagination together, of the origins of the world and the beginnings of human life. And so he describes every active force as divine power - an attitude appropriate to that early period in the history of thought. WERNER JAEGER, 1 PAIDEIA: THE IDEALS OF GREEK CULTURE 65 (Gilbert Highet trans., 1965). My thanks to Clyde Stoltenberg for pointing out this connection.
35. DURKHEIM, supra note 9, at 192.
36. Id.
37. Id. Obviously, this is not to argue that moral duties are the only way to create kinship.
38. PETER L. BERGER & RICHARD JOHN NEUHAUS, TO EMPOWER PEOPLE: THE ROLE OF MEDIATING STRUCTURE IN PUBLIC POLICY (1977).
39. Id. at 2.
40. See id. at 2.
41. RICHARD JOHN NEUHAUS, DOING WELL & DOING GOOD: THE CHALLENGE TO THE CHRISTIAN CAPITALIST 240 (1992).
42. BERGER & NEUHAUS, supra note 21, at 3.
43. See, e.g., ROBERT BORK, THE TEMPTING OF AMERICA (1990) for a more complete description of judicial restraint and originalism. Bork, of course, was a central intellectual figure in advocating for this philosophy and his nomination to the Supreme Court demonstrated the stakes of his methodology.
44. See WOOD, supra note 5 and the other figures cited therein for this proposition.
45. Michelman, supra note 5, at 1507.
46. Michelman seems to value his dialogical structure as a judicial, not a popular enterprise. He gives a minor role to people who un-self consciously always participate in achieving consensus through debate as part of everyday life, but a big role to the courts. By doing so, he may energize the courts, but the general population's development of citizenship is not likely to occur. See Kathryn Abrams, Law's Republicanism, 97 YALE L.J. 1591, 1596 (1988).
47. Michelman, supra note 5, at 1504-07.
48. Id. at 1513.
49. Id. at 1502, 1526-27.
50. See generally Sunstein, supra note 5.
51. Id. at 1564.
52. Id. at 1564-65.
53. Id. at 1541.
54. Id. at 1544.
55. Id. at 1549.
56. Id. at 1550-51.
57. Id. at 1552.
58. Id. at 1552.
59. Id. at 1552, 1576-77.
60. Id. at 1554.
61. Id. at 1554.
62. Id. at 1554.
63. Id. at 1555.
64. Id. at 1567.
65. Id. at 1550-58.
66. Id. at 1567.
67. Id. at 1567.
68. Id. at 1567.
69. Id. at 1567-69.
70. See generally Jonathan R. Macey, The Missing Element in the Republican Revival, 97 YALE L.J. 1673 (1988).
71. Id. at 1679.
72. Id. at 1683.
73. Richard A. Epstein, Modern Republicanism - Or the Flight From Substance, 97 YALE L.J. 1633 (1988).
74. See, e.g., Timothy L. Fort, The Spirituality of Solidarity and Total Quality Management, 13 J. BUS. & PROF. ETHICS 3 (1995).
75. Cf. JOHN HOWARD YODER, THE POLITICS OF JESUS 243-44 (1972). Yoder makes the argument about the status of opponents in relation to war. Both Yoder and the republicans, however, recognize the inherent status of others as ends themselves.
76. See CHARLES TAYLOR, MULTICULTURALISM AND "THE POLITICS OF RECOGNITION" 59 (1992). Taylor argues that liberalism's rights protection can be ensured within a Quebec-styled government whose "common good" has a very specific cultural content.
77. See Sunstein, supra note 59, at 1555.
78. See Jurgen Habermas, A Review of Gadamer's "Truth and Method" in THE HERMENEUTIC TRADITION: FROM AST TO RICOUER 254 (Ormiston & Schrift eds., 1990) Habermas describes depth-hermeneutic as follows: Depth-hermeneutic understanding requires therefore systematic pre-understanding that extends onto language in general, whereas hermeneutical understanding always proceeds from a pre-understanding that is shaped by tradition and which forms and changes itself within linguistic communication.
79. Id. at 239.
80. One may argue whether philosophy is better positioned to make such arguments. I think it is not (at least in any exclusive sense), but regardless of the settlement of that issue, the kinds of questions raised by these fields of inquiry are critical to the efficacy of republicanism.
81. See Kathleen M. Sullivan, God as a Lobby: The Culture of Disbelief: How American Law and Politics Trivialize Religious Devotion, 61 U. CHI. L. REV. 1655, 1669 (1994) (book review).
82. See generally William Marshall, The Other Side of Religion, 44 HASTINGS L. J. 843 (1993).
83. See JOHN RAWLS, POLITICAL LIBERALISM 8 (1993).
84. See PROCEEDINGS AND REPORT OF THE COMMISSIONERS FOR THE UNIVERSITY OF VIRGINIA, in MANUAL OF THE BOARD OF VISITORS OF THE UNIVERSITY OF VIRGINIA (1975).
85. Cf. ALASDAIR MACINTYRE, AFTER VIRTUE (1981). If one relies on narratives, one must take into account the realities that people bring religious understanding into their notions of what the good is; religion and narrative are usually bound together.
86. See generally Derrick Bell & Preeta Bansal, The Republican Revival and Racial Politics, 97 YALE L.J. 1609 (1988).
87. Id. at 1612.
88. Id. at 1617.
89. This is, of course, the position Lincoln took against Stephen Douglas. As Lincoln biographer Carl Sandburg wrote: A powerful fragment of America breathed in Douglas' saying at Quincy: "Let each State mind its own business and let its neighbors alone! . . . If we stand by that principle, then Mr. Lincoln will find that this republic can exist forever divided into free and slave States. . . Stand by that great principle and we can go on as we have done, increasing in wealth, in population, in power, and in all the elements of greatness, until we shall be the admiration and terror of the world . . . until we make this continent one ocean-bound people." CARL SANDBURG, ABRAHAM LINCOLN: THE PRAIRIE YEARS AND THE WAR YEARS 129 (1970). Sandburg quotes Lincoln's ultimate response to Douglas: "That is the issue that will continue in this country when these poor tongues of Judge Douglas and myself shall be silent. It is the eternal struggle between these two principles . . . . The one is the common right of humanity and the other is the divine right of kings. It is the same . . . spirit that says, 'You work and toil and earn bread, and I'll eat it.' No matter what shape it comes, whether from the mouth of a king who seeks to bestride the people of his own nation and live by the fruit of their labor, or from one race of men as an apology for enslaving another race, it is the same tyrannical principle." Id.
90. Marshall, supra note 65. See also infra notes 158-59 and accompanying discussion. I leave to the side for now the issue of the equivalency of oppression and marginalization. Suffice it to say that marginalization creates a path for oppression.
91. Habermas, supra note 61.
92. MICHAEL J. PERRY, LOVE & POWER: THE ROLE OF RELIGION & MORALITY IN AMERICAN POLITICS 8-16 (1991). Perry argues against a "neutral" version of political dialogue because in so arguing, those who do have religious beliefs are excluded from participating and are thereby marginalized.
93. ALASDAIR MACINTYRE, THREE RIVAL VERSIONS OF MORAL ENQUIRY: ENCYCLOPEDIA, GENEALOGY, & TRADITION (1990). The theme of a continued discussion with one's ancestors is a dominating feature of this, and most other of, MacIntyre's work.
94. Id. at 127-48. Cf. Russell Hittinger, Natural Law & Virtue: Theories at Cross Purposes, in NATURAL LAW THEORY: CONTEMPORARY ESSAYS (Robert P. George ed., 1994). Hittinger critiques MacIntyre's association of natural law and virtue.
95. Id. at 127-48. Cf. Russell Hittinger, Natural Law & Virtue: Theories at Cross Purposes, in NATURAL LAW THEORY: CONTEMPORARY ESSAYS (Robert P. George ed., 1994). Hittinger critiques MacIntyre's association of natural law and virtue.
96. See also RICHARD SENNETT, THE CORROSION OF CHARACTER: THE PERSONAL CONSEQUENCES OF WORK IN THE NEW CAPITALISM (1998). Sennett makes a similar critique, but focuses more tightly on the superficial nature of work tools such as "teams."
97. ROBERT JACKALL, MORAL MAZES: THE WORLD OF CORPORATE MANAGERS 75-100, 192 (1988).
98. Sunstein, supra note 5, at 1572.
99. Id. at 1574, 1578.
100. Jonathan R. Macey, Packaged Preferences & the Institutional Transformation of Interests, 61 U. CHI. L. REV. 1443, 1475 (1994).
101. Abrams, supra note 29, at 1604-05.
102. Id. at 1604, 1615.
103. Paul Brest, Further Beyond the Republican Revival: Toward Radical Republicanism, 97 YALE L. J. 1623, 1624, 1628-29 (1988).
104. Id. at 1624, citing Pitkin, Justice: On relating Private and Public, 9 POL. THEORY 327, 347 (1981), quoting J. TUSSMAN, OBLIGATION AND THE BODY POLITIC 78-81 (1960) (footnotes omitted).
105. Id. at 1624, citing Pitkin, Justice: On relating Private and Public, 9 POL. THEORY 327, 347 (1981), quoting J. TUSSMAN, OBLIGATION AND THE BODY POLITIC 78-81 (1960) (footnotes omitted).
106. Id. at 1624, citing Pitkin, Justice: On relating Private and Public, 9 POL. THEORY 327, 347 (1981), quoting J. TUSSMAN, OBLIGATION AND THE BODY POLITIC 78-81 (1960) (footnotes omitted).
107. Id. at 1629.
108. Id. at 1626, 1631. The subject of corporation-as-mediating institution is one I focus on in a variety of business ethics writing. Such material is beyond the scope of this paper, but is ultimately relevant to both republican thought and church-state jurisprudence.
109. See, e.g., Timothy L. Fort, Business as Mediating Institution, 6 BUS. ETHICS Q. 149 (1996).
110. Bell & Bansal, supra note 69, at 1610-12.
111. ETZIONI, supra note 7, at 96.
112. ETZIONI, supra, note 7, at xviii.
113. Id. at 75.
114. Id. at 16.
115. Michael Keeley, Community, The Joyful Sound, 6 BUS. ETHICS Q. 549 (1996).
116. For a more complete review of Etzioni and his book, see Timothy L. Fort, On Golden Rules, Balancing Acts, and Finding the Right Size, 8 BUS. ETHICS Q. 346 (1998). The following discussion draws significantly from that review.
117. ETZIONI, supra note 7, at 127.
118. Id.
119. DEREK L. PHILLIPS, LOOKING BACKWARD: A CRITICAL APPRAISAL OF COMMUNITARIAN THOUGHT 195 (1993).
120. Amy Gutmann, Communitarian Critics of Liberalism, 14 PHIL. & PUB. AFF. 319 (1985).
121. ETZIONI, supra note 7, at 128.
122. Id.
123. Id. at xix-xx.
124. Id. at xviii.
125. Id. at 127.
126. Id. at 200-08.
127. ROBIN DUNBAR, GROOMING, GOSSIP, AND THE EVOLUTION OF LANGUAGE 69 (1996).
128. ROBERT WRIGHT, THE MORAL ANIMAL: THE NEW SCIENCE OF EVOLUTIONARY PSYCHOLOGY 38 (1994).
129. Id. at 38-39.
130. See, e.g., JAMES Q. WILSON, THE MORAL SENSE 41-49 (1993); JULIAN JAYNES, THE ORIGIN OF CONSCIOUSNESS AND THE BREAKDOWN OF THE BICAMERAL MIND 129 (1976); J. BRONOWSKI, THE ASCENT OF MAN 45 (1973); COLIN TURNBULL, THE FOREST PEOPLE: A STUDY OF THE PYGMIES OF THE CONGO 37 (1962).
131. See, e.g., JAMES Q. WILSON, THE MORAL SENSE 41-49 (1993); JULIAN JAYNES, THE ORIGIN OF CONSCIOUSNESS AND THE BREAKDOWN OF THE BICAMERAL MIND 129 (1976); J. BRONOWSKI, THE ASCENT OF MAN 45 (1973); COLIN TURNBULL, THE FOREST PEOPLE: A STUDY OF THE PYGMIES OF THE CONGO 37 (1962).
132. See, e.g., JAMES Q. WILSON, THE MORAL SENSE 41-49 (1993); JULIAN JAYNES, THE ORIGIN OF CONSCIOUSNESS AND THE BREAKDOWN OF THE BICAMERAL MIND 129 (1976); J. BRONOWSKI, THE ASCENT OF MAN 45 (1973); COLIN TURNBULL, THE FOREST PEOPLE: A STUDY OF THE PYGMIES OF THE CONGO 37 (1962).
133. See, e.g., JAMES Q. WILSON, THE MORAL SENSE 41-49 (1993); JULIAN JAYNES, THE ORIGIN OF CONSCIOUSNESS AND THE BREAKDOWN OF THE BICAMERAL MIND 129 (1976); J. BRONOWSKI, THE ASCENT OF MAN 45 (1973); COLIN TURNBULL, THE FOREST PEOPLE: A STUDY OF THE PYGMIES OF THE CONGO 37 (1962).
134. See BERGER & NEUHAUS, supra note 21.
135. ETZIONI, supra note 7, at 176.
136. Etzioni is fond of the term "moral voice" and devotes a chapter to it by name. See id. at 123-64.
137. Id. at xviii.
138. JEFFREY WATTLES, THE GOLDEN RULE 33 (1996).
139. 2 Samuel 12:1-7.
140. DURKHEIM, supra note 9.
141. FYODOR DOSTOEVKSY, THE BROTHER KARAMAZOV (Richard Preveart & Larissa Volokhonsky trans., 1990).
142. Id. at 69.
143. Id. at 246-64.
144. Id. at 249.
145. Id. at 249-62.
146. Marshall, supra note 65, at 851.
147. DOSTOEVKSY, supra note 117, at 262.
148. Id. at 260.
149. Several authors have detailed the history of religion in the United States. See RICHARD JOHN NEUHAUS, THE NAKED PUBLIC SQUARE: RELIGION AND DEMOCRACY IN AMERICA (1984); ROBERT BELLAH ET AL., HABITS OF THE HEART: INDIVIDUALISM AND COMMITMENT IN AMERICAN LIFE (1985). See also SYDNEY AHLSTROM, A RELIGIOUS HISTORY OF THE AMERICAN PEOPLE, (1972); CATHERINE ALBANESE, AMERICA RELIGIONS AND RELIGION (1981); EDWIN SCOTT GAUSTAD, A RELIGIOUS HISTORY OF AMERICA (1966); MARTIN E. MARTY, A NATION OF BEHAVERS (1976).
150. Several authors have detailed the history of religion in the United States. See RICHARD JOHN NEUHAUS, THE NAKED PUBLIC SQUARE: RELIGION AND DEMOCRACY IN AMERICA (1984); ROBERT BELLAH ET AL., HABITS OF THE HEART: INDIVIDUALISM AND COMMITMENT IN AMERICAN LIFE (1985). See also SYDNEY AHLSTROM, A RELIGIOUS HISTORY OF THE AMERICAN PEOPLE, (1972); CATHERINE ALBANESE, AMERICA RELIGIONS AND RELIGION (1981); EDWIN SCOTT GAUSTAD, A RELIGIOUS HISTORY OF AMERICA (1966); MARTIN E. MARTY, A NATION OF BEHAVERS (1976).
151. Several authors have detailed the history of religion in the United States. See RICHARD JOHN NEUHAUS, THE NAKED PUBLIC SQUARE: RELIGION AND DEMOCRACY IN AMERICA (1984); ROBERT BELLAH ET AL., HABITS OF THE HEART: INDIVIDUALISM AND COMMITMENT IN AMERICAN LIFE (1985). See also SYDNEY AHLSTROM, A RELIGIOUS HISTORY OF THE AMERICAN PEOPLE, (1972); CATHERINE ALBANESE, AMERICA RELIGIONS AND RELIGION (1981); EDWIN SCOTT GAUSTAD, A RELIGIOUS HISTORY OF AMERICA (1966); MARTIN E. MARTY, A NATION OF BEHAVERS (1976).
152. Several authors have detailed the history of religion in the United States. See RICHARD JOHN NEUHAUS, THE NAKED PUBLIC SQUARE: RELIGION AND DEMOCRACY IN AMERICA (1984); ROBERT BELLAH ET AL., HABITS OF THE HEART: INDIVIDUALISM AND COMMITMENT IN AMERICAN LIFE (1985). See also SYDNEY AHLSTROM, A RELIGIOUS HISTORY OF THE AMERICAN PEOPLE, (1972); CATHERINE ALBANESE, AMERICA RELIGIONS AND RELIGION (1981); EDWIN SCOTT GAUSTAD, A RELIGIOUS HISTORY OF AMERICA (1966); MARTIN E. MARTY, A NATION OF BEHAVERS (1976).
153. Several authors have detailed the history of religion in the United States. See RICHARD JOHN NEUHAUS, THE NAKED PUBLIC SQUARE: RELIGION AND DEMOCRACY IN AMERICA (1984); ROBERT BELLAH ET AL., HABITS OF THE HEART: INDIVIDUALISM AND COMMITMENT IN AMERICAN LIFE (1985). See also SYDNEY AHLSTROM, A RELIGIOUS HISTORY OF THE AMERICAN PEOPLE, (1972); CATHERINE ALBANESE, AMERICA RELIGIONS AND RELIGION (1981); EDWIN SCOTT GAUSTAD, A RELIGIOUS HISTORY OF AMERICA (1966); MARTIN E. MARTY, A NATION OF BEHAVERS (1976).
154. Several authors have detailed the history of religion in the United States. See RICHARD JOHN NEUHAUS, THE NAKED PUBLIC SQUARE: RELIGION AND DEMOCRACY IN AMERICA (1984); ROBERT BELLAH ET AL., HABITS OF THE HEART: INDIVIDUALISM AND COMMITMENT IN AMERICAN LIFE (1985). See also SYDNEY AHLSTROM, A RELIGIOUS HISTORY OF THE AMERICAN PEOPLE, (1972); CATHERINE ALBANESE, AMERICA RELIGIONS AND RELIGION (1981); EDWIN SCOTT GAUSTAD, A RELIGIOUS HISTORY OF AMERICA (1966); MARTIN E. MARTY, A NATION OF BEHAVERS (1976).
155. See TIMOTHY L. FORT, LAW AND RELIGION (1985) for an expanded exposition of this topic.
156. See generally PERRY MILLER, ERRAND INTO THE WILDERNESS (1956).
157. A. JAMES REICHLEY, RELIGION IN AMERICAN PUBLIC LIFE 94-95 (1985).
158. Id. at 101.
159. Id. at 103.
160. Id. at 104.
161. Id. at 93.
162. Id. at 104.
163. See FORT, supra note 126, for an extended discussion of the theological underpinnings of colonial and post-Constitutional law in Connecticut, including that of Swift.
164. See also HAROLD BERMAN, THE INTERACTION OF LAW & RELIGION (1974) for an extended discussion of this topic in the United States generally.
165. ZEPHANIAH SWIFT, DIGEST OF LAWS OF THE STATE OF CONNECTICUT IN TWO VOLUMES 10 (1822).
166. REICHLEY, supra note 128, at 105.
167. See generally RICHARD MCBRIEN, CAESAR'S COIN: RELIGION AND POLITICS IN AMERICA (1987). McBrien describes public religion as a religion which transcends denominational boundaries to assume a public character. Id. at 12.
168. Id. at 12.
169. See generally PRESSER (1991), supra note 5.
170. Id. at 18-19.
171. Id. at 37-46.
172. Id. at 37-46.
173. Id. at 37-46.
174. See LAWRENCE FRIEDMAN, A HISTORY OF AMERICAN LAW (1973); MORTON J. HORWITZ, THE TRANSFORMATION OF AMERICAN LAW, 1780-1860 (1977). See also my criticism of these (other) economic historians in FORT, supra note 126, at 45-68.
175. See LAWRENCE FRIEDMAN, A HISTORY OF AMERICAN LAW (1973); MORTON J. HORWITZ, THE TRANSFORMATION OF AMERICAN LAW, 1780-1860 (1977). See also my criticism of these (other) economic historians in FORT, supra note 126, at 45-68.
176. See LAWRENCE FRIEDMAN, A HISTORY OF AMERICAN LAW (1973); MORTON J. HORWITZ, THE TRANSFORMATION OF AMERICAN LAW, 1780-1860 (1977). See also my criticism of these (other) economic historians in FORT, supra note 126, at 45-68.
177. FARBER & SHERRY, supra note 5, at 16.
178. WOOD, supra note 5, at 114-15.
179. Human nature left to pursue its own aims without a sense of community good, breeds an amorality that ultimately undermines the basis for democracy and freedom. Freedom and self-interest may legitimately allow for individual self-determination, but only if that self-determination is directed toward the common good. F.A. Hayek made a similar argument out of a free-market perspective. Hayek argues that morality occurs because of the interaction among individuals who wish to trade. In order to trade, they must arrange some sense of moral order so that the trading partner can be trusted. Those trading patterns lead to a community of trading that, it is hoped, expands continually. It creates orders of "spontaneous creation." But, continuation of spontaneous ordering requires a notion of community solidarity so that the individual does not unfairly profit from the vulnerability of others within the community. This loyalty, along with virtues of promise-keeping, truth-telling, production of quality products and services, efficiency, savings, and equality of opportunity are what make possible the pursuit of self-interest and the continued development of society. HAYEK, supra note 16, at 38-70. Hayek clearly sides in favor of integrity virtues over communal virtues, but it is hard to see how they do not ultimately go together. Although he is agnostic, Hayek endorses the actions of religions because they represent the wisdom of inherited learning that is wiser than individual rationality. Id. at 135-40.
180. ALEXIS DE TOQUEVILLE, 2 DEMOCRACY IN AMERICA 105-06 (1945). Of course, one could argue that aristocracy simply hides the dominations that compel individuals to serve the common good. Aristocracy can prevent the asking of questions that reveal the implicit dominations of those who are not in the ruling class.
181. And it remains relevant today as indicated by his last phrase of the above quote, which sounds as if it could come from Camus' First Man.
182. DE TOQUEVILLE, supra note 148, at 50-51.
183. DE TOQUEVILLE, supra note 148, at 23.
184. Id. at 131.
185. Id. at 50-51.
186. See generally Deborah A. Ballam, The Evolution of Government-Business Relationship in the United States: Colonial Times to Present, 31 AM. BUS. L. J. 553 (1994). Ballam argues that government never fully allowed a laissez-faire business climate but would often support particular business activity.
187. See, e.g., ROSEMARY RADFORD RUETHER, GAIA & GOD: AN ECOFEMINIST THEOLOGY OF EARTH HEALING (1992).
188. See, e.g., GUSTAVO GUTERRIEZ, A THEOLOGY OF LIBERATION: HISTORY, POLITICS AND SALVATION (1992).
189. See NATHAN O. HATCH, THE DEMOCRATIZATION OF CHRISTIANITY IN AMERICA (1989).
190. See generally SIDNEY E. MEAD, THE LIVELY EXPERIMENT: THE SHAPING OF CHRISTIANITY IN AMERICA (1963).
191. In the contemporary U.S., that is a difficult distinction to grasp. We tend to think that we choose our religious belief, but religious belief can simply be a part of one's unchosen identity. Native Americans, for instance, argue for the preservation of sacred grounds not because they choose to believe that such grounds are sacred and/or meaningful, but because they are sacred prior to any choice having been made. See, e.g., Lyng v. Northwest Indian Cemetery Protective Ass'n, 485 U.S. 439 (1988).
192. Mead argues that another factor in this forfeiture is the ceding of the religious to the scientific, particularly in the battle over evolution. The survival of the fittest mentality fostered by capitalism became the target not only of Karl Marx, but of the Social Gospel movement in America. Keeping in mind that central to the social-gospel movement was reaction against the individualism of pietistic revivalism, the identification of Protestant Christianity with economic laissez faire and the exploitation of natural and human resources characteristic of industrial capitalism, we can understand why the movement tended to swing to the opposite extremes of substituting social concern for individual Christian experience of identifying the gospel with current schemes for constructing society; of judging the work of the church on the basis of its effectiveness in furthering social reform; of substituting sociology for theology. MEAD, supra note 158, at 177, 182-83.
193. MEAD, supra note 158, at 103-33. Mead is quite explicit in recognizing the church's surrender of education: [T]he state in its public-education system is and always has been teaching religion. It does so because the well-being of the nation and the state demands this foundation of shared beliefs. In other words, the public schools in the United States took over one of the basic responsibilities that traditionally was always assumed by an established church. In this sense the public school system of the United States is its established church. But the situation in America is such that none of the many religious sects can admit without jeopardizing its (sic) existence that the religion taught in the schools (or taught by any other sect for that matter) is "true" in the sense that it can legitimately claim supreme allegiance. This serves to accentuate the dichotomy between the religion of the nation inculcated by the state through the public schools, and the religion of the denominations taught in the free churches. In this context one can understand why it is that the religion of many Americans is democracy - why their real faith is the "democratic faith" - the religion of the public schools. Such understanding enables one to see religious freedom and separation of church and state in a new light. MEAD, supra note 158, at 68.
194. MEAD, supra note 158, at 136-37.
195. See MICHAEL J. PERRY, LOVE AND POWER: THE ROLE OF RELIGION AND MORALITY IN AMERICAN POLITICS 77 (1991).
196. See, e.g., Thomas Nagel, Moral Conflict and Political Legitimacy, 16 PHIL. & PUB. AFF. 215, 232 (1987).
197. See generally CATHERINE ALBANESE, AMERICA, RELIGIONS AND RELIGION (1992).
198. See, e.g., Lemon v. Kurtzman, 403 U.S. 602 (1971). Lemon, of course, has been under attack for years, but has not yet been explicitly overruled.
199. Rather than being religiously-grounded, values must be neutrally grounded. Kathleen Sullivan demonstrates the contemporary strictness of this reinterpretation (that remains very persuasive in political/legal circles) of U.S. history when she writes: "The correct baseline, then is not unfettered religious liberty, but rather religious liberty as it is consistent with the establishment of secular public moral order." Kathleen M. Sullivan, Religion and Liberal Democracy, 59 U. CHI. L. REV. 195, 198 (1992).
200. MEAD, supra note 158, at 138.
201. This of course also led to the development of labor unions which organized to provide protection for workers from employers. Thus, while I think philanthropy gets a bad rap from moralists as only being "conscience money," neither can philanthropy be the entirety of a culture's limitation of self-interest.
202. There is a consensus from legal historians such as J. Willard Hurst that the religiously grounded "just price" of the colonial era was replaced in the nineteenth century by a will theory of contracts in which the price was simply a matter of the negotiated wills of the contract participants. J. WILLARD HURST, LAW AND THE CONDITIONS OF FREEDOM IN THE NINETEENTH CENTURY UNITED STATES (1968).
203. The U.S. experience with corporate law confirms de Toqueville's fear. As legal historian and corporate theorist Stephen Presser has shown, the public nature of corporations, in terms of being chartered by legislative act and for the public good (such as municipalities, bridges, and ferries), was undermined by the Jacksonian demand to open the corporate privilege to the common person. Conjoined with this development was the faith in laissez-faire capitalism so that corporate life contained no incentive to pursue the common good. Stephen B. Presser, Thwarting the Killing of the Corporation: Limited Liability, Democracy and Economics, 87 Nw. U. L. REV. 148 (1991).
204. ROBERT WUTHNOW, GOD AND MAMMON IN AMERICA (1994).
205. Id. at 6.
206. Id. at 77.
207. Id. at 84.
208. Id. at 91.
209. Id. at 91.
210. Id. at 92.
211. Id. at 92.
212. See Fort, supra note 88, for a fuller discussion of this topic. This subsection is abstracted from that article.
213. ROBERT A. NISBET, THE QUEST FOR COMMUNITY: A STUDY IN THE ETHICS OF ORDER AND FREEDOM 89-109 (1990).
214. Id. at 91-92, 105-06.
215. Id. at 134-35.
216. Id. at 116-35.
217. Id. at 179-81.
218. See, e.g., JOHN HAUGHEY, THE HOLY USE OF MONEY 3-6 (1986). Haughey writes that the spiritual weakness of Solomnic Israel lay in its reliance upon the King and his bureaucracy to respond to the needs of others.
219. See generally Pitkin, supra note 86.
220. Brest, supra note 85.
221. WRIGHT, supra note 107, at 38.
222. Id. at 38-39.
223. See JAYNES, supra note 109, at 129.
224. Gary Stix describes Dunbar's findings as follows: In humans, Dunbar found the size of the neocortex predicts [optimal populations of] groups of about 150 people. This number happens to conform to the approximate number of the clan within hunter-gatherer societies; the company unit within the military; and the aggregate of employees within a business that can be managed without an elaborate bureaucracy. The figure of 150, Dunbar writes, represents the maximum number of individuals with whom "we can have a genuinely social relationship. . . ." Gary Stix, Different Strokes, SCI. AM., Nov. 1996, at 36 (reviewing DUNBAR, supra note 106).
225. BERGER & NEUHAUS, supra note 21.
226. DE TOQUEVILLE, supra note 148, at 114.
227. CHARLES TAYLOR, MULTICULTURALISM AND "THE POLITICS OF MEANING" 34-35 (1992).
228. See Fort, supra note 88, at 151-53, for a fuller description of this in terms of psychological theory.
229. See generally Macey, supra note 82.
230. Macey, supra note 82, at 1443.
231. Id. at 1445.
232. Id. at 1445.
233. Id. at 1447.
234. Id. at 1448.
235. Id. at 1451.
236. Id. at 1452.
237. Id. at 1457.
238. Id. at 1461-63.
239. Id. at 1463.
240. Id. at 1463.
241. Id. at 1471.
242. Id. at 1472.
243. STANLEY HAUERWAS, THE PEACEABLE KINGDOM: A PRIMER IN CHRISTIAN ETHICS 30-34 (1983).
244. Madison argued that religiously based duties are "precedent both in order of time and degree of obligation, to the claims of Civil Society." James Madison, Memorial and Remonstrance Against Religious Assessments, cited in Michael W. McConnell, Religious Participation in Public Programs, 59 U. CHI. L. REV. 115, 173 (1992).
245. SAMPSON, supra note 2.
246. Id.
247. RONALD TAKAKI, A DIFFERENT MIRROR: A HISTORY OF MULTICULTURAL AMERICA (1993).
248. Brest, supra note 85.
249. Fort, supra note 88; Timothy L. Fort, The Corporation as Mediating Institution: An Efficacious Synthesis of Stakeholder Theory & Corporate Constituency Statutes, 73 NOTRE DAME L. REV. 173 (1997); Timothy L. Fort, Goldilocks and Business Ethics: A Paradigm That Fits "Just Right," 23 J. CORP. LAW 245 (1998).
250. Fort, supra note 88; Timothy L. Fort, The Corporation as Mediating Institution: An Efficacious Synthesis of Stakeholder Theory & Corporate Constituency Statutes, 73 NOTRE DAME L. REV. 173 (1997); Timothy L. Fort, Goldilocks and Business Ethics: A Paradigm That Fits "Just Right," 23 J. CORP. LAW 245 (1998).
251. Fort, supra note 88; Timothy L. Fort, The Corporation as Mediating Institution: An Efficacious Synthesis of Stakeholder Theory & Corporate Constituency Statutes, 73 NOTRE DAME L. REV. 173 (1997); Timothy L. Fort, Goldilocks and Business Ethics: A Paradigm That Fits "Just Right," 23 J. CORP. LAW 245 (1998).
252. Fort, supra note 88, at 155.
253. Id. at 156.
254. JULIET SCHOR, THE OVERWORKED AMERICAN: THE UNEXPECTED DECLINE OF LEISURE 45-48 (1992).
255. Fort, supra note 88, at 156.
256. See generally supra note 218.
257. See, e.g., TOM CHAPPELL, THE SOUL OF A BUSINESS: MANAGING FOR PROFIT AND THE COMMON GOOD (1993).
258. See, e.g., CHARLES HAMPDEN-TURNER, CREATING CORPORATE CULTURE: FROM DISCORD TO HARMONY (1990).