The Ethics of Banking: Conclusions from the Financial Crisis (Issues ...

80 5 Ethics of the Market for Corporate Control
identity-democratic model of republicanism, of government and of corporate governance,
by contrast, assumes that the truth-generating element of political and other
governance processes lies precisely in consensus or in Rousseau’s volonté générale.
The identity-philosophical interpretation of democracy as the unity of the governors
and governed, which defines German and continental-European political
philosophy and its understanding of government from Hegel to Habermas, is not
as superior as it likes to suggest. In fact, it is founded on the questionable basic
assumption that, in the same way that Hegel’s absolute subject becomes conscious
of itself as an object, the people or nation becomes objective and conscious of itself
in the subject-object of the state. 13 Out of this putative identity of the subject and
object of power, identity-philosophical thinking concludes that the conscious selfobjectivization
of the people in the state takes place in consensus, that it leads
to the identity of people and state, author of the law and addressee of the law,
and that through this identity, political power is neutralized and translated into
self-government.
Discourse-theoretical theories of corporate governance also transfer this
consensus- and identity-theoretical model of political government onto the firm
and its management, and demand discourse and consensus of the corporation’s
stakeholders as the principle of corporate control. 14
From the standpoint of the general anthropology of human self-interest and our
lack of objectivity towards ourselves, discourse theory stops short of tackling the
complexity that pervades the problems of controlling power. The tendency, observable
in corporatism, to agreements and coalitions among influential interests or
stakeholder groups requires an emphasis on the idea that political and economic
power can be controlled through competition and through extrinsic scrutiny by individuals
or institutions. Hostile takeovers are one of the possible control mechanisms
against false forms of consensus and coalitions between management and stakeholder
groups within the corporation. They should therefore be encouraged rather
than prohibited by the German law on the legal structure of the firm. Greater control
of the management of large German corporations by the threat of takeover
13 Via the transition to people’s sovereignty, it enables the national state of society according
to Habermas to “influence itself” politically. Cf. JÜRGEN HABERMAS: “Die postnationale
Konstellation und die Zukunft der Demokratie”, in: J. HABERMAS: Die postnationale
Konstellation [The Postnational Constellation], Frankfurt am Main (Suhrkamp) 1998, p. 100.
According to K. A. SCHACHTSCHNEIDER: Res publica res populi. Grundlegung einer allgemeinen
Republiklehre. Ein Beitrag zur Freiheits-, Rechts-, und Staatslehre [Groundwork for a general theory
of the republic. A contribution to the theory of liberty, law and statehood], Berlin (Duncker
& Humblot) 1994, p. 4, the republic is founded on a “constitution free of rule or dominion”
(Verfassung der Herrschaftslosigkeit).
14 As argued in papers on discourse-theoretical economic and corporate ethics in the circle of
Horst Steinmann. Cf. ANDREAS GEORG SCHERER: Die Rolle der Multinationalen Unternehmung
im Prozeß der Globalisierung [Role of the multinational corporation in the globalization process],
Heidelberg (Physica-Verlag) 2003 (Ethische Ökonomie. Beiträge zur Wirtschaftsethik und
Wirtschaftskultur, Vol. 7).