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paster and Holloran (1994)
as both impractical and potentially unwise.
Freeman (1994) took a different approach, suggesting that the stakeholder
paradox was fundamentally linked to the separation thesis—a conceptual artifactthat both presupposes and reinforces the divisions between ethics andbusiness. He also claimed that the mere existence of fiduciary duties owed toshareholders are theoretically irrelevant to the normative justification of stakeholdertheory since such duties themselves must be morally defended and do notgive managers license to violate normative ethics in their interactions with nonstockholders(see also Jones, 1995). Donaldson and Preston (1995) go even furtherby suggesting that the legislation of protections to other groups implies that thebroader norms of ethical behavior are consistent with stakeholder philosophy.
Not all behavior, however, that might be defensible as consistent with normativeethics will always prevail in a court of law, the arena m which legal rightsare established and applied. Consequently, directors and managers might rightlyconcern themselves with their legal as well as their ethical position in relating tovarious stakeholder groups. As this paper will make clear, however, they havelittle to fear. An examination of the origin and meaning of fiduciary responsibility
shows that this duty does httle to threaten managers who set out toimplementstakeholder-oriented policies.
Th^ Asvmmetry of Legal Relationships within the Corporate "Web"
Courts did not historically encumber corporate management with a fiduciaryduty toward company stockholders in order to privilege shareholders vis-a-visother stakeholder groups. Rather, it was designed to prevent self-dealing on thepart of directors and top management that feii short of criminal behavior such asembezzlement (Brudney. 1985: Clark, 1985). Traditionally, this meant preventmg
276 BUSINESS ETHICS QUARTERLY
business decisions, typically involving expenditures, that were made primarilybecause they personally benefited top managers or their friends (Berle and Means,1933), while more recent charges of malfeasance tend to focus on managerial
entrenchment as much as enrichment.
When conflict of interest is not at issue, no case law or corporate statute
argues that management's fiduciary duty should be equated with a right of stockholders
to oversee managerial decision making (Brudney, 1985; Mitchell, 1992).
If business ethicists seem to implicitly assume otherwise, the source of this misconception
is not hard to deduce. Stakeholder theory is, at least in part, a response
to neo-classical theories of the firm that impose an empirically false symmetry
of legal relationships among corporate constituencies. By assuming that there
might be some truth to such legal chimeras as "nexus of contracts" and "agency
theory," stakeholder theorists would reasonably counter that these legal relationships
are inadequate to support a stakeholder approach to business
management. If stakeholder theorists erred, it was in assuming that these hypothesized
relationships had some basis in law.
Corporations are not, in any meaningful legal sense, nexi of contracts, nor
are directors agents of stockholders. To take the second point first, "agency"'
(Clark. 1985) is a highly specific two-way reiationship in which the principai
can direct or override the agent and the agent can, under highiy restricted circurris