Exactly.
Malice is a legal, quasi-religious concept. A tiger can also quite actively exploit weaknesses and imbalances for the harm of its prey, yet we don't judge the animal as malicious - because we don't attribute concsiousness to it in the same way we attribute it to humans.
To have "malice", you need "intent", for which you need need "consciousness", in the classical folk understanding of the term: taking "selfhood", "free will", and "adequate theory of mind" as axioms. Whatever the scientific consensus on those, they seem to have little explanatory power in the domain of business. They're also a pretty high bar, so to speak - certainly higher than we give 'em credit for.
If those words really meant what they purported to mean, we'd be functioning in a much more humane economy; but for whatever reason these concepts just don't "stick" to what's really going on in the day-to-day. They're just the wishful thinking of Western humanist authors who were trying to set an example, i.e. mold the world in their own image a little bit.
> Functionally, though, your experiences may be very similar on the receiving end of incompetence vs malice.
Precisely. And since we're just people who just have objectives to accomplish, and our understanding of the consciousness of others takes at best a pragmatic role in pursuing those, our response to others failing us ends up being essentially the same: looking for ways to enforce compliance so that the counterparty delivers.
At the end of the day, "attributing malice" vs. "attributing incompetence" is about saving face - for the counterparty as well as for ourselves. Either way, dedicating effort to saving face detracts from the effort of understanding the problem at hand, which like you said is fundamentally structural.