The Behavioral Code: The Hidden Ways the Law Makes Us Better . or Worse

by Benjamin van Rooij

Whistle-blower provisions are an important strategy to address organizational misconduct and rule breaking. In a sense, such provisions enlist people in organizations to perform a vital regulatory role, namely, to detect illegal behavior from within the organization. Whistleblowers can solve two key problems in the legal regulation of organizational wrongdoing. First, they help to get information from inside the organization that outside inspectors simply cannot get. Second, such whistleblowers add inspection capacity to government authorities who often do not have the means or staff to carry out necessary inspections.

The downside is that whistleblowers who come forward do so at great costs and great risk. Sure, a range of laws nowadays protects whistleblowers by making retaliation a criminal offense. Yet there is clear evidence that, despite the protections, many whistleblowers get demoted, fired, or “quit under duress.”

Internal organizational rules and structures can stifle whistleblowers before they can be heard.

Geertz’s work teaches us that a culture is not something we can grasp easily from the outside. It requires an in-depth local understanding of how a community develops shared meanings that come to shape its common values and practices. So, if we want to understand an organizational culture, and analyze what cultural elements breed illegal behavior, we have to try to grasp how people in the organization develop and transmit shared understandings.

The first consists of what he calls “artifacts.” These are the tangible aspects of an organization’s culture consisting both of the “visible and feelable structures and processes” as well as of “observed behavior.” Artifacts are at the surface of an organization’s culture; they are how the organization manifests its culture. They are the visible products of an organization that may include its physical environment and architecture, its technology, its creations, its style, and its stories and myths. Moreover, artifacts also include the published documents that cover the values, operations, rituals, and organizational charts. The second level includes what Schein calls the espoused beliefs and values, which encompass the shared ideals, goals, values, and aspirations among individuals within an organization. These can come in the form of shared ideologies and also rationalizations for what the organization does. These espoused beliefs and values are deeper in the organization and cannot be directly observed; they must be learned by talking with organizational members. The third level of an organizational culture is what Schein calls the basic underlying assumptions. These are most deeply embedded in the organization and operate unconsciously through organization members.

Capturing an organization’s culture requires a complex form of research. It requires doing an in-depth case study that includes the structures, values, and practices of an organization. And at each of these levels, we have to assess what elements come to sustain misconduct and illegal behavior. In other words, in doing a cultural diagnosis, we must look for toxic elements. Ideally, we should do a forensic ethnography, in which we conduct an anthropological analysis of the culture in organizations that have been found to have structural rule breaking and damaging behavior. We need to do an autopsy of the organization and assess the structures, values, and practices that were at play in the organization’s structural deviance and misconduct.

Overall, we see that the behavioral code works through two broad types of mechanisms: motivations and situations. if people are both motivated to comply and in a situation where they can comply, then they are very likely to comply. And vice versa—when people are motivated to break rules and are placed in a situation where they can make that choice, they are very likely to violate the rules.

Step 1: What variation is there in the unwanted behavior? Before we do any analysis of causes, we must know what we are dealing with. For a series of homicides, are they passion killings or paid assassinations? For speeding, are we looking at people just driving 10 percent over the speed limit or 50 percent over? For industrial pollution, are we dealing with small companies with limited resources or large companies that have the expertise and capital to curb pollution? it is vital to know what variation there is in the behavior we want to address so that we can analyze and address each core type separately. Here we must also determine our unit of analysis: is the conduct just individual or are we dealing with community, organizational, or broader societal behavior? The remainder of the questions should be applied specifically to each type of the unwanted behavior.

Step 2: How does the behavior work? In creating an effective approach to prevent unwanted behavior, it is vital to examine the situation before the motivation. This forces us to think of how they do it instead of why. by finding out how the wrongdoing operates, we may be able to eliminate a vital element in this process and make the behavior more difficult or even impossible.

Step 3: What do people need in order to refrain from the behavior? This capacity approach is the flipside of the opportunity approach. The first step is to look at whether people know the rules. If they do not, we have to figure out if it is because the rules are too numerous, too technical, or just poorly disseminated. Next, we should identify whether people and organizations have sufficient technical, educational, and other skills necessary to follow the rules. Finally, we must examine whether people need help overcoming personal problems or individual concerns, such as low self-control, substance dependencies, or access to sufficient education, housing, employment, income, and opportunities.

Step 4: Do people think the rules, rule makers, and rule enforcers are legitimate? It is much easier to improve behavior through law if people feel a general obligation to obey the law.

Step 5: What role do morals and social norms play? This step turns to other intrinsic motivations. For any successful intervention, we must know to what extent the unwanted behavior is rooted in existing morals and social norms.

Step 6: How do incentives and extrinsic motivations factor in?

We must assess not only what the certainty and severity of the existing sanction and liabilities are but also how people perceive them. We must ensure that their perceived certainty is sufficiently high.