Useful illegality

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The term useful illegality is understood to mean conscious behavior or action by members of an organization that violates the formal expectations of the organization; Legal misconduct plays a subordinate role in the sense of Niklas Luhmann . Such action is useful insofar as the organization benefits from the illegal behavior of its members. This is committed by those involved with the self-motivation to contribute to the company's goals. Due to the uncertain outcome, such an action can bring benefits for the person performing it, but it also entails considerable risks and negative consequences if this behavior is discovered.

Useful illegality within the framework of legal systems and the formal structure of an organization

Legal violations are illegal regardless of the formal structure of the organization. Violations of the formalities do not necessarily have to constitute legal violations. Deviating actions by members of the organization can relate to the communication channels (hierarchies, reporting channels, project structures), programs ( special-purpose and conditional programs ) and to the staff. There are rule violations of the communication channels when informal communication channels that are not provided for in the formal structure are used (e.g. short official channels). With regard to conditional programs, so-called if-then programs, violations occur when illegitimate means are used to achieve the goals (e.g. the screw tap study). The term “illegality” indicates a similarity between the legal system and the normative system of the organization. Both are dependent on consistency.

Differentiation from useful to selfish illegality

On the basis of the usufruct, usable and selfish illegality can be distinguished. While in the case of useful illegality the organization profits first, in the case of self-serving illegality the individual profits first. In some cases the organization is harmed by selfish illegality, while in other cases the organization benefits as well. The distinction between the two ideal types is often difficult in reality.

Useful illegality can be understood as functional for the company and is necessary to ensure that the organization can adapt to the environment. Based on this concept, illegal activity in organizations can be divided into two types of organization: "Organizations of corrupt individuals" (OCI) and "corrupt organizations" (CO). These differ in that there are several individual perpetrators or groups in OCIs who harm the organization from this in order to maximize their own benefit, while COs have a systemic illegality arranged from above for the benefit of the organization. This means that CO's can be said to be useful illegality.

The Siemens scandal is typical of a CO, while embezzlement, as in the Middelhoff case, is typical of an OCI. While the marketability of the organization was strengthened at Siemens, the Middelhoff scandal only served his personal gain.

Causes of usable illegality

Organizations are sometimes faced with conflicting expectations. These expectations are brought to the organization from the outside (environment) as well as generated within ( subsystems ) of the organization itself. Expectations brought to the organization from outside are to be understood as meaning, for example, legal regulations or social and moral values. Internal organizational expectations, on the other hand, are structural. There are, for example, general guidelines that apply to the entire organization, as well as expectations that only apply to individual subsystems and which may well conflict with those of other subsystems.

In order for organizations to be able to give their members consistent instructions, they must formulate a consistent formal structure. If organizations are now exposed to contradicting expectations, they cannot resolve them through formal regulations alone. For this purpose, informal orders are formed in organizations, which may well contradict the formal requirements, but are nevertheless functional for the organization and are therefore tolerated by the organization. Useful illegality thus develops as a means of coping with contradicting expectations.

Risks of useful illegality

Since illegal practices cannot be formalized, they must remain latent. This not only affects the deviant behavior itself, but also its function. This has a number of dysfunctional consequences. The most important feature of this is the uncertainty of the costs of illegal activity: “It blocks most of the possibilities for rationalization. That is precisely why illegal action needs courage or secondary support that reduce the cost risk and guarantee calculable consequences ”.

It should be emphasized that illegality, as it is not expected, is personally attributed. A change in personnel, as described by Niklas Luhmann in "The New Boss", can threaten the continuation of illegal practices. While representatives or newcomers can simply be instructed in their formal tasks, illegal action cannot be demanded of them. Even communication about the deviant behavior is made more difficult because it requires trust, which also does not represent an explicit expectation of the role of a member.

Reference to other terms (corporate crime, organizational crime, white collar crime, deviance, rule deviation)

According to Luhmann, useful illegality always includes deviations from rules. It deviates from formal expectations, although this does not necessarily mean illegal in the legal sense.

Deviance : Deviance shows an intersection with useful illegality. On the one hand, this includes deviating behavior, on the other hand, deviance refers to deviating norms and values. These are not necessarily formal expectations, as is the case with useful illegality.

Organizational Crime : Organizational crime is often equated with corporate crime. Based on the concept of organization, it can be argued that organizations in general are affected here and not just companies. Matches with useful illegality are that both are abnormal behavior in organizations. In the case of organizational crime, however, it is not specified for whom the deviation is useful or usable.

White-collar crime (overlaps with corporate crime ): The term white-collar crime describes a form of useful illegality. The concept of useful illegality can be found here, especially with regard to commercial enterprises and government agencies.

Corporate Crime : Corporate Crime describes criminal behavior that is exercised by companies and / or individuals who act criminally in the interest of a company (for it). In the context of the organizational term, corporate crime is a sub-category of organizational crime. The concept of usable illegality applies to organizations in general, and not exclusively to businesses. For this, these two terms overlap in terms of their usefulness and usability for the organization or the company.

Using the concept of usable illegality in research

It has been common knowledge since Durkheim and Mead that deviations from the norm are not to be regarded simply as negative. Useful illegality is only one form of deviation from the norm. While the term useful illegality was coined by Luhmann, there are already earlier studies which indicate that deviations from the formal structure in organizations can be beneficial. Bensman and Gerver showed, for example, that efficiency increases can be achieved through usable illegality. The same can be said of Bergmann's study of the Siemens corruption scandal, which was carried out more than half a century later

On the other hand, even “useful” illegality is described as a problem in the organizations' self-description. This may still be necessary for the organizations for reasons of presentation, but reflective sciences such as business administration also treat (illegal) deviations from the formal structure as a problematic phenomenon that needs to be corrected or avoided. The resulting recipes to avoid (useful) illegality, however, have a very different perspective on the phenomenon.

Individual evidence

  1. ↑ Luhmann, Niklas (1964): Functions and consequences of formal organizations: with an epilogue 1999 (5). Berlin: Druncker & Humblot, 1995, 304 ff.
  2. ↑ Bensman, Joseph, Gerver, Israel .: crime and punishment in the factory. In: Heinz Steinert (Ed.): Symbolic interaction . Klett-Cotta, Stuttgart 1973, p. 126-138 .
  3. ^ Luhmann, Niklas .: Functions and consequences of formal organization: with an epilogue 1994 . 4th edition Duncker & Humblot, Berlin 1995, ISBN 3-428-08341-5 .
  4. ↑ Jonathan Pinto, Carrie R. Leana, Frits K. Pil: Corrupt Organizations or Organizations of Corrupt Individuals? Two Types of Organization-Level Corruption . In: Academy of Management . tape 33 , no. 3 , July 2008, doi : 10.5465 / amr.2008.32465726 .
  5. ↑ Osrecki, Fran (2015): Critical Functionalism. About the limits and possibilities of a critical systems theory. IN: Social Systems 20 (2). Berlin: De Gruyter, 242.
  6. ↑ Luhmann, Niklas (1964): Functions and consequences of formal organizations: with an epilogue 1999 (5). Berlin: Druncker & Humblot, 1995, 305
  7. ↑ Luhmann, Niklas (1964): Functions and consequences of formal organizations: with an epilogue 1999 (5). Berlin: Druncker & Humblot, 1995, 305f.
  8. ↑ Luhmann, Niklas (1964): Functions and consequences of formal organizations: with an epilogue 1999 (5). Berlin: Druncker & Humblot, 1995, 306f.
  9. ↑ Luhmann, Niklas (1964): Functions and consequences of formal organizations: with an epilogue 1999 (5). Berlin: Druncker & Humblot, 1995, 29ff
  10. ↑ Luhmann, Niklas (1964): Functions and consequences of formal organizations: with an epilogue 1999 (5). Berlin: Druncker & Humblot, 1995, 305
  11. ^ Luhmann, Niklas (1964): Functions and consequences of formal organization. Berlin: Duncker & Humblot, 313.
  12. ^ Luhmann, Niklas (1964): Functions and consequences of formal organization. Berlin: Duncker & Humblot, 314.
  13. ^ Luhmann, Niklas (1964): Functions and consequences of formal organization. Berlin: Duncker & Humblot, 313.
  14. ^ Luhmann, Niklas (1962) .: The new boss . Suhrkamp Verlag Berlin, Berlin 2016, ISBN 978-3-518-74475-8 .
  15. ↑ Luhmann, Niklas (1964): Functions and consequences of formal organizations: with an epilogue 1999 (5). Berlin: Druncker & Humblot, 1995, 304
  16. ↑ Bergmann, Jens (2016): Corporate Crime, Crime Theory and Organizational Sociology. In: Monthly for criminology and criminal law reform. 99 (1), pp. 3-22.
  17. ^ Luhmann, Niklas: Functions and consequences of formal organizations. Berlin: Duncker & Humblot
  18. ↑ Bensman, Joseph, Gerver, Israel .: crime and punishment in the factory. In: Steinert, Heinz (Ed.): Symbolic interaction. Klett-Cotta, Stuttgart 1973, pp. 126-138.
  19. ↑ Bergmann, Jens (2016): Corporate Crime, Crime Theory and Organizational Sociology. In: Monthly for criminology and criminal law reform. 99 (1), pp. 3-22.
  20. ↑ Müthel, Miriam (2017): Pro-organizational behavior. How and why good employees harm the company. In: Zeitschriftführung & Organization 86 (1), pp. 31–36.