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ethical positions (and I certainly hope particular ones do), but it is hard to
conceive how the state can enforce ethics and penalize non-ethical behavior
that is not somehow tied to a command of the state. If the state were to simply
issue a command to “do good” and then enforce what prosecutors perceive
as not good, would that initial legal command of “do good” be any law at all
or would it dissolve to the prosecutor’s whim or subjective view of what is
good? Furthermore, what happens when an organization does not do good
but has violated no other law than a proscription to do good? Does the state
have room to seek a penalty when no objective law can be pointed to as being
violated? As will be discussed later, there is arguably a closer connection of
ethics to an organization’s policy commitments as policies may go above and
beyond the law and may even make commitments in areas the law does not
speak to. Yet, like a broad law that commands to “do good”, if a company’s
organizational policy amounts to something reducible merely to “do good,”
how does the employee know what doing good is and how is that policy
command enforced? A policy proscription to do good (or the more common
corporate admonition to “do the right thing”) is more easily enforced by a
company that has at-will employees than the state which must abide by the
words of its proscriptions and needs to at least pay lip service to due process.
But even in the at-will employment relationship, the company is exercising a
judgment over the supra-policy factors of ethics solely from its vantage of
power in an at-will employment arrangement because it need not legally give
any reason for terminating employment. 13
Ethics does not seem to fit well within the concept of regulatory
compliance even though we know that compliance programs deal with ethical
questions and we know that the Federal Sentencing Guidelines expect that an
effective compliance program hasan ethics component. Ethics may be an
important part of compliance programs but it remains to be seen how ethics
has a role in compliance law.
So that is “regulatory compliance” — conforming to everything which an
actor must conform to, albeit it a nail-biting experience trying to figure out
the source of the expectations which must be conformed to. Why the actor
must conform is diffuse and heterodox. Compliance may be due to a fiat
command, or because an action is prudent for managing risk of appearance
of non-conformance, or the result of someone’s voluntary agreement to
conform to higher standards. It also, may, on the edges, be about conforming
to an ethical framework.
In exploring is the essence of compliance, it is important that both theorists
and practitioners engage in an on-going dialogue on at least three things. ( 1)
A continuing exploration of what compliance means, both broadly for all
13. See generally PEGGIE SMITH ET AL., PRINCIPLES OF EMPLOYMENT LAW (CONCISE
HORNBOOK SERIES) (2009).
