90 Journal of Regulatory Compliance Vol. I
This article takes it as a given that laws and policies are descriptions of ethical
behavior that are desired by a corporate body, be that the state or a company.
But this is not to be naive to the reality that a particular instance of either law
or policy might very well be decidedly unethical and that such a thing as an
unjust law is something against which we must be vigilant. We will need to
put aside for now the question of what a compliance program does when it
encounters an unjust law or unethical policy that the company wants the
compliance officer to enforce. We will assume laws and policies are ethical
and examine compliance in the context of decisions that are needed to be
made when there are no laws or policies to guide actions.
Accordingly, ethics as a source of compliance references decisions a
company or its workforce must make when there is no law or policy to point
the way. Something confronts the company and it must make a decision.
How are those decisions made? Not every decision without law or policy
guidance are hard ones and some decisions may fall in the realm of a type of
neutrality in which a decision must be made to do X or Y with insignificant
consequences for either path. Other decisions which pose no moral qualms
might be made by resting on the principle of profit maximization or
conformance to a company’s mission. These easy decisions give a false
appearance of being morally neutral but are not neutral at all; they are merely
easy right decisions. It is the contention of this author that there is no such
thing as a morally neutral act; rather, there are either good acts or bad acts
and hard decisions or easy decisions. The range of good acts may be so
trifling in their observed good actions that we may in a practical moment
think of them as morally neutral, but every defensible choice aims at some
perceived good; indeed, it is in our very nature to choose the good31 even if
we are mistaken about what the good is. 32 The point being is that humans
need a framework for making decisions, and ethics is the realm of considered
If ethics is a framework by which to make decisions and render actions,
then anything from choosing which color fire extinguisher to purchase to
whether to hire or terminate an employee might require an ethical framework.
If ethics is as broad as I propose, then it encompasses all decision making by
a corporation acting through its workforce. And needing an ethical
framework seems to be not so much different for the compliance program as
31. “Every craft and every investigation, and likewise every action and decision, seems
to aim at some good; hence the good has been well described as that at which everything
aims.” ARISTOTLE, NICOMACHEAN ETHICS (T.H. Irwin trans., Indianapolis: Hackett Publishing
32. JAN A. AERTSEN ET AL., THE CAMBRIDGE COMPANION TO VIRTUE ETHICS (2013)
(“People can, of course, be mistaken about what is good for them in individual actions, and
they can be mistaken as to the superordinate and subordinating ends they set for themselves.
Happiness will consist in the attainment of that which truly realizes the ratio boni.”).