In social science, ‘useful illegality’ is a reality but in law, it is unsettling. In every organisation there is behaviour which breaks formal rules but is useful to the organisation, perhaps even vital for it to exist. The survival of a social system, such as a business undertaking, depends on its members, namely the employees of the company, to comply with rules but also allows them to bend those rules. Absolute compliance would not maintain the organisation at its best – it would destroy it. Advising companies on compliance issues, lawyers react to this in different ways. The most common reaction is denial, what is not allowed, does not and must not happen. After all, is the opposite not modern compliance: zero tolerance? No breach of a rule is tolerated and offenders are penalised. Only in this way is compliance real.

The sociologist Niklas Luhmann, himself a fully qualified lawyer, knew better. The violation of formal rules of a system does not per se and always have to have negative consequences. Breaking rules can also be advantageous, for example if thereby there is an improvement in the adaptability of the system or resolution of a conflict of goals inherent to the system. Where decisions whether to follow certain formal rules are taken situationally, the organisation adjusts to its actual framework conditions and is better equipped to meet daily challenges. Continuing along the lines of these thoughts, breaking rules in a company can therefore be understood as collective strategies whereby employees leave the space provided by formalised structures and develop solutions to problems that may be informal but are feasible and workable.

Apr-Jun 2018 Issue

Hengeler Mueller