An Ethical Triad for understanding traditional Chinese culture: Context-First, Interconnectedness, and Awareness—and how they can be used to protect intellectual property

In this chapter we present a framework for helping Western minds access and engage with traditional Chinese ways of thinking and acting about ethics and business. Our primer comprises three interrelated foundational principles—Context-First, Interconnectedness, and Awareness—that we call the Ethical Triad for Understanding Traditional Chinese Culture (see Figure 2.1). After setting forth our framework, we apply it to one of the most vexing ethical issues foreign businesses face in China—the protection of intellectual property (IP). Even though, as we shall see, there is a significant cultural divide in the way China and the West view the law of intellectual property, our Ethical Triad enables effective communication and relationship-building tools for protecting patents, copyrights, trademarks, and other forms of IP.

Context-First

Awareness

Interconnectedness

Figure 2.1 An Ethical Triad for understanding traditional Chinese culture

Context-First vs. Rules-First: fundamental differences in Chinese vs. Western ethical thinking

A critical first step toward “getting inside’’ Chinese thinking and perspectives on ethics and business is to understand a distinction in how different global thought traditions approach ethics from the very outset. There is a fundamentally different approach in China (and much of East Asia) as to what ethics is and how it works than there is in the West. Context—the real-world situation one occupies—plays a larger role in Chinese ethical decisionmaking than in the West.

In much of the West, especially in Western Europe and the United States, ethics is typically presented and perceived as being about universal rules that everyone must follow (Rosemont, 1988, Nisbett, 2003, Shun & Wong, 2004). Such rules are “disinterested” in the sense that they apply to every person in the same way and without personal favoritism (Frankena, 1988). For example, although on very different grounds, both Kantian and Utilitarian frameworks hold that all persons are due the same ethical consideration. Thus, the Western starting point of ethics is: “there are rules of behavior, which apply to everyone, such that we all need to learn and follow them.”^[1]

To be sure, context is relevant as well—one must be able to apply rules of behavior to specific situations in which one finds oneself—but rules come first. Chinese ethics, by contrast, tend to be deeply skeptical of universal or absolute rules that apply to everyone. Instead, Chinese moral reasoning emphasizes particular values such as the closeness of personal relationships, respecting hierarchies, and benevolence toward those with whom one has close relations, as well as the networks of relationships within which those values are applied (Pitta, Fung, & Isberg, 1999).^[2] In other words, disinterestedness, a bedrock principle of Western ethics, is the very opposite of the bedrock principles of personal connections and networks that underlay traditional Chinese ethics. Disinterestedness implies a lack of person-specific orientation that is central to Chinese ethics.

It is typical in much of the West for children to be taught ethics roughly as follows. Basic rules such as “don’t lie” and “don’t steal” are presented as universal maxims applying to everyone. Anyone who has been around Western children for any period of time will have seen situations where a child sees an adult breaking some such rule—perhaps uttering a white lie to smooth over a social situation and avoid causing someone else embarrassment. Depending on parenting style, the child may call out the adult by saying “but you lied,” apparently thinking that the adult has broken their own rule. Our point is not whether the adult did (or did not) lie, but rather how ethics were evidently presented to, and understood by, the child. Ethics is typically presented and understood in terms of learning rules, and then learning when it may be permissible to break or creatively interpret those rules depending on specific situations and contexts.

In typical business ethics textbooks, this Rules-First approach continues. Students are again taught that the foundations of ethics comprise rules that apply to everyone. Examples include the Utilitarian “act so as to maximize happiness and minimize suffering,” or the Kantian “act in such a way that you could rationally will anyone to act in that way.” One then turns to specific situations (in business ethics often in the form of cases) to learn how to apply these universal maxims in context.

To be clear, we are not making an all-or-nothing claim about rules versus context in Western approaches to ethics. We claim neither that all classes and texts work this way, nor that all parents raise children in a certain way, nor that all Western ethical frameworks fit this pattern. We also do not claim that Western ethics is only about universal maxims and never about context. Rather, the basic point we are trying to make is that the general Western mindset regarding ethics is rules first, context second. Aristotelian Virtue Ethics may be a partial exception insofar as it emphasizes habits of character over specific rules or maxims. Indeed, many of the most successful business ethics training programs within Western companies are those that instill fundamental corporate values such as integrity or honesty— rather than rules—and then train employees in how to apply those values in varying concrete situations in which they may find themselves (Sekerka, 2009, pp. 77-95, 2018). These value-based or, as they are sometimes called, “principle-based” approaches have been shown to be more successful at cultivating ethical behavior and reducing ethical failures than stricter “rulebased” compliance training to “do this and don’t do that” (Paine, 1994). That said, however, attempting to instill a consistent pattern of behavior in accordance with a virtue like integrity or honesty is still in some sense an instance of attempting to achieve adherence to a universal rule.

The Ten Commandments of the Hebrew Bible (or “Old Testament”) constitute a quintessential example of Rules-First ethics. Each commandment is a rule of behavior one must follow in order to avoid punishment. The Ten Commandments are presented, and often taught, as absolute. An example of how the Rules-First mode of ethical reasoning works in business is JP Morgan Chase Co.’s Code of Conduct. For many years it has featured a flowchart where, for an employee to determine whether some act is ethically permissible, they must ask if it passes certain tests that are transparently based on the maxims of standard (Western) ethical frameworks. Questions have recently included: “am I sure it would not cause loss or harm to our clients, customers, markets, shareholders or company,” “would it be okay if everyone did it,” and “am I sure I would not be uncomfortable or embarrassed if I read about it on the front page of the newspaper” (JP Morgan Chase & Co., 2015, p. 4). Respectively, these represent Utilitarian, Kantian, or “deontological” and virtue-theoretic frameworks, which are typically presented as core frameworks for ethics in business-ethics texts. Again, the starting point is learning to follow’ rules of behavior. Secondary evidence of the Rules-First mindset is that, in business contexts specifically, ethics and compliance are, more often than not, grouped together both in common parlance and in organizational structure.

Again, our claim is not that Western ethics ignores context, nor is our claim that there are no rules at all in Chinese ethics. However, there are sharp distinctions between the two approaches. To illustrate the differences in approach, consider a classic dilemma used in teaching ethics. You are in Nazi-controlled Germany and your Jewish friends are hiding in the basement. The Gestapo arrive and demand to know’ whether you are harboring any Jews. You are caught between tw'o competing rules. On the one hand, one must not lie. However, if you tell the truth to the Gestapo, then you betray your friends and become complicit in their torture and probable deaths. Though perhaps Kant himself may not have agreed, standard Kantian thinking is that in this particular context, the rule not to lie is outweighed by the rule not to betray your friends to a regime that intends to murder them. This is an apt illustration that although context is relevant in Western ethical thinking, the rules are the starting place, and from there one learns how’ to interpret them in specific situations and contexts.

This notion of universal rules that apply equally to everyone, by contrast, does not make sense within Chinese culture contexts. To illustrate this, and w’hat we mean by Context-First, we consider how’ Chinese ethics would w’ork through the Friends-Gestapo dilemma. The starting-point would be the relationships that you, the decision-maker, have with the relevant groups. On the one hand are your friends with whom you have an established personal relationship that is so close and strong that you have hidden them in your basement. On the other hand, there are the authorities, with whom you have no personal relationship, who are doing their jobs serving a presumably temporary and certainly evil regime. In situations like these, and in general, personal relationships trump impersonal ones. From a Chinese perspective, the only relevant consideration regarding the authorities is to not get caught, which would endanger your friends’ lives and expose your family to serious risk. Crucially, there is no real tension between established ethical rules or principles. A Chinese perspective on this case looks first at the specifics of this particular context, in this case at the specific relationships you have with the relevant parties—friends versus authorities. This is not to say that no principles or general rules are operative at all. There is one such implicit in the case—that personal relationships trump impersonal ones (a theme we will return to throughout this book). The point for our framework is that whereas the Western approach to the case started with general rules and then looked at context, the Chinese approach to the case started with the particulars of the context, and then moved to a general principle.

A Chinese analog of the Friend-Gestapo dilemma can be found in the Confucian Analects where a Duke converses with Confucius, here named “Kongzi,” which is his family name “Kong” plus the honorific “zi,” meaning “master”:

13.18 The Duke of She said to Kongzi, “Among my people there is one we call ‘Upright Gong.’ When his father stole a sheep, he reported him to the authorities.”

Kongzi replied, “Among my people, those who we consider ‘upright’ are different from this: fathers cover up for their sons, and sons cover up for their fathers. ‘Uprightness’ is found in this.” (Ivanhoe and Van Norden, 2005)

As should now be apparent, what was true of Confucius’ “my people” came to be true of Chinese people at large. Though the ultimate answer in this circumstance—do not tell the cops—is the same, the Context-First approach gets there by different ethical reasoning than the Rules-First approach. Here, and as became common in Chinese thinking about ethics, an overly rigid sense of uprightness—of moral rule-following such as the Duke describes— is actually thought to be harmful (Ivanhoe & Van Norden, 2005).

Another illustration of the importance of context, as it is built into Chinese ethics, can be found in a famous and oft-cited passage from the Analects where Confucius is seen giving very different answers to two students who ask the same question. This is an example of Context-First, because it illustrates how each student needs a different answer because of their personalities and their relationship to their teacher (Confucius). The “right” answer appears to vary, and is not determined just by the question, but also by who is asking the question. Indeed, to Chinese perspectives, it is immature and even naive to suppose that the same question always receives the same answer. Here, “the Master” refers to Confucius, as it is known in Confucian circles that there is only one, while Zilu, Ran Qiu, and Zihua are three of his students.

11.22 Zilu asked, “Upon learning of something that needs to be done, should one immediately take care of it?”

The Master replied, “As long as one’s father and elder brothers are still alive, how could one possibly take care of it immediately?”

[On a later occasion] Ran Qiu asked, “Upon learning of something that needs to be done, should one immediately take care of it?”

The Master replied, “Upon learning of it, you should immediately take care of it.”

Zihua inquired, “When Zilu asked you whether or not one should immediately take care of something upon learning of it, you told him one should not, as long as one’s father and elder brothers are still alive. When Ran Qiu asked the same question, however, you told him that one should immediately take care of it. I am confused, and humbly ask to have this explained to me.”

The Master said, “Ran Qiu is overly cautious, and so I wished to urge him on. Zilu, on the other hand, is too impetuous, and so I sought to hold him back.”

(Ivanhoe &Van Norden, 2005, pp. 3 1-32)

Here, Confucius’ knowledge of the differing temperaments of the two students allows him to perceive that achieving good pedagogical outcomes requires giving different answers to the same question. That knowledge is important for helping the students progress in their own character development. Applying this to business, whom one is talking to can make a difference not only as to how one says things, but also as to what one says and what one is trying to achieve. A Westerner might object: good teachers sensitive to the varying needs of students in the East, West, and elsewhere will sometimes give students different answers to the same question. Again, we make no all-or-nothing claim that context is irrelevant to Western mindsets, only that it comes after the rules, and our point here is that this extends outside of teaching to business and ethics more broadly.

At this point, someone coming from a Western perspective might worry that the Context-First approach to ethics risks eviscerating ethics of its normative “bite.” If it’s all context, the thought goes, then there may be no real rhyme or reason in ethics. Who’s to say what’s ethically right, wrong, or appropriate in any given situation if context plays such a central role while rules take a back seat? The underlying—and very natural—worry is that, without rules, we descend into some form of relativism where there is no real ethical right or wrong. Our response to this skepticism is tw'o-fold. First, we reiterate that “Context-First” does not mean “it’s only context and nothing else.” Rather, it means that the first step toward understanding ethics and ethical behavior is to understand how to read contexts, for instance as Confucius did in the previous example, by knowing the differing temperaments of his two students. Second, while the notion of an absolute rule that applies to everyone does not make sense in Chinese culture contexts, there are nonetheless guidelines—normative concepts and general values—that one learns to apply in varying ways depending on context, such as propriety, benevolence, and respect for hierarchies, all of which we will discuss in Chapter 5. As we shall see, these values and principles have real normative bite, it’s just that their application depends first on context.

• [1] Throughout the book, references are made to “rules," "principles,” and "values,” where each term can have subtly different connotations. Rules are more cut-and-dry directives that allow very little interpretation, whereas principles are broader and allow for some interpretation as one applies them in specific situations. Values are the broadest, allowing for significant interpretation when applied. From that perspective, it would be more accurate to describe Western approaches to ethics as “principle-first” rather than "rule-first,” but we have settled on the latter in part because, as we will argue later, whether or not “principle-first” or “rule-first” is more accurate, the starting-points of Western ethics are generally presented as more like rules, especially to children, students, and even employees.
• [2] Sociologists and other behavioral scientists discuss “higher- versus lower-context” cultures and languages, where context plays a relatively greater or lesser role in interpreting everyday speech and behavior. Not just texts, but Chinese culture and languages, such as Mandarin, are themselves viewed by anthropologists, sociologists, and linguists as “high context.” To say a language or culture is “high context” means that to correctly interpret a speaker, especially in everyday talking and writing, one must typically understand the context of speech as well as cultural connotations of words, including their historical associations (Hall, 1959, 1977, He, 2016).