Legally Bombed

Many years ago, I argued with a good friend about aerial bombardment. My friend, a proud Turk, was defending the tactic used by the Turkish military against the Kurds. His argument was based on NATO’s bombing of the Federal Republic of Yugoslavia (Serbia) in 1999. He felt that if it was legal for NATO, why should it not be legal for Turkey?

I didn’t realise it then, but this is just one reason why having “Is it legal?” as one of your first few steps in a decision-making model (usually in a Code of Conduct) isn’t always helpful. Let’s examine the case against, “Is it legal?”.

Legal-ish

Beyond aerial violence, if you use the law as your base of acceptable behaviour, there will always be examples of poor ethics that remain legal. Let’s imagine a few examples:

1. Your country/state implements labour laws requiring minimum wages, paid leave, medical benefits, etc. You move your business to somewhere that doesn’t have such rules.
2. Your local communities use environmental legislation to stop you from creating a landfill site; you ship the trash overseas.
3. Advertising on traditional media prohibits certain practices and messages; few such restrictions exist in social media and in-game adverts, so you move to those platforms.
4. You dominate your market and lobby politicians for favourable laws.
5. You sell your products for multiples of their actual value and burn unsold stock (much made from dead animals) to keep prices high.

In this context, where the law is fungible, and you’re taking the approach in the adjacent cartoon, asking people, “Is it legal?” is not likely to encourage higher-level ethical thinking. Maybe you don’t want to, and that’s fine, but be honest. If your business is about simple compliance with laws, and no more, own it. There’s so much performative guff out there; it would be nice to see a Code that read, “Don’t break the law; everything else is fair game.”

For everyone else, be mindful that just as kids see our failings and ape them as acceptable behaviour, so will employees.

Spirit of the law

The next challenge with the “Is it legal?” mantra occurs when local laws are so confusing or poorly enforced that they lose all meaning. In this sense, the spirit of the law means the law is ethereal or inexistent.

I lived in the South of France years ago, and one weekend a colleague invited me out to dinner in Nice. I drove the 25mins in on a Saturday night and spent the same amount of time looking for a parking spot. My friend called me to ask if all was okay, and I explained my predicament. He replied, “Do you see everyone else parked on the pavement/sidewalk? Well, do the same. What are the cops going to do, tow everyone?”

This safety-in-numbers law-breaking is everywhere. Take anti-corruption as an example. I am not aware of a country that has made bribery legal, yet it is endemic in roughly 2/3 of the world (anecdotal sweeping statement warning). Saying, “Is it legal?” where legality has long since left the building and exists in another realm of conscience is dangerous.

A little knowledge is a dangerous thing

The next challenge occurs when your well-intentioned “Is it legal?” meet someone who reckons something. Perhaps their 10mins on Google – or speaking to Barry in the pub – has trumped your years in law school, but it seems unlikely. My friend’s extrapolation from NATO actions in the Balkans is the best example of this ‘let me run with my idea’ school of legal interpretation.

In more benign contexts, where we (the consumers of your risk and compliance content mean no harm), it’s equally dangerous. For example, there are some areas of legal interpretation where you really don’t want us doing some gonzo lawyering and determining “Is it legal?” including:

1. Anti-trust – there is handsome scope for misinterpretation of what is material, confidential, and non-public.
2. Data privacy – one person’s sensitive personal information is another’s TikTok overshare.
3. Corruption – paying armed militia (who aren’t public officials) isn’t corruption = it’s okay.
4. Money laundering – “Yes, the pink silk suit-wearing counterparty is probably a North Korean gangster, but they opened a Cambodian correspondent bank last week, so it’s defo legit.” True story.
5. Trade sanctions – “How was I to know that selling hundreds of hobby drones through Malaysian middlemen would see then repurposed for military use in [you guessed it], North Korea?” Also true.

Save us from ourselves, and don’t ask us to determine legality in areas of complexity.

You say equality; I say, child bride

Tin hat on for this section, some countries’ laws are diabolical. Human rights, modern slavery, discrimination, and harassment all fail to travel well in these contexts when the measure of integrity is a mere, “Is it legal?”. Aim a bit higher than genital mutilation, child rape, slavery, bestiality, religious fascism, and other perfectly legal acts (in many more places than we’d care to recognise).

For instance, Myanmar’s current crisis is often viewed through the prism of Aung San Suu Kyi, understandably – she has led a dignified and spirited resistance against junta tyranny for decades, with only a flicker of respite. BUT, there are (depending on which sources you rely on) around 140 ethnic groups in Myanmar. Daw Aung does not speak for many (most) of them. These groups have long been subjected to (at best) political exclusion and, at worst, rape, murder, torture and persecution. When you’re not part of any political process or recognised in your country’s constitution (or equivalent), “Is it legal?” is a hollow trope.

Personal responsibility

If “Is it legal?” leads your decision-making hierarchy, it shouldn’t. For all the reasons set out above, and it’s not what the law is supposed to do. The law jogs behind society, testing behaviours we then classify as acceptable or not.

Daoism and stoicism are two of my operating systems. They, along with many other philosophical or religious frameworks, start with the premise that we must first take personal responsibility for our actions (see an old slide on this below). If we’re unsure what path to take, our family, community, and nation sit as sense-checkers. Only when we’ve exhausted these layers should we look to the law for guidance on acceptable behaviour.

The law is a safety net (when at its best). If your goal is to have your people walk the tightrope of good decision-making, make more effort to help them with that act of balance, courage, and confidence. It’s much less tedious than scooping us out of the safety net underneath.