When we give public presentations on Corruption, Ethics or Leadership, we often begin with some version of a moral hypothetical. The exercise turns out exactly the same no matter the group.
A father takes his only child into the state school board building where she will be tested to determine if she qualifies for a very special gifted student program. Admittance is competitive and only truly gifted students will be admitted. As he approaches the test administrators, he is surprised to see his best friend. He is apparently the chair of the selection committee. His friend greets him very warmly and tells him not to worry, his daughter will get into the program. Both men understand the implication.
Most people will say that it is wrong for the administrator to treat his friend’s daughter differently from other applicants. Yet even those who speak out will hesitate to call it “evil.”
Morals are the basic internal principles that inform and govern a person’s view of right and wrong, good and evil. Although morals are a universal force, they can be diverse in their application and definition — almost as diverse as individuals are from one another. This diversity is illustrated as we add to our hypothetical.
The facts added do not change the action itself, but they do change the moral context by emphasizing a competing virtue: What if the administrator and his friend were not merely lifelong friends, but they fought together in the war, side-by-side, depending on one another for their life? What if the father had actually, and rather dramatically, saved the administrator’s life? What if the father had been wounded in his heroic effort? What if the wound had left him unable to father another child? What if he was left a paraplegic, forever reliant on a wheelchair for his mobility? As we proceed with each, “what if,” more and more people begin to rethink their opinion.
As each group looks around the room at what they thought was a homogenous group, they begin to realize that questions of right and wrong, good and evil, even in their very own analysis, sometimes take real thought to resolve. Sometimes the questions involve good and good, right and right. Which is more important, equality or loyalty? In the abstract, this question is challenging, but it can become quite difficult if it is a question one faces in one’s own life. Which is the greater good, fairness in testing and equality of school programs, or loyalty and honoring life-changing sacrifice?
Let’s turn from the question of morals to the question of ethics. If we were to ask 100 ethicists what the definition of ethics is, we may well receive 147 different answers. For our purposes, we will use the working definition that “ethics are one’s discretionary behavior in relation to morals.” Some ethicists use the term “ethics” to mean the rules crafted by others to be applied to someone else’s moral conduct. We will refer to the creation of someone else’s rules as the codification of ethics, and define codification as simply “the creation of an organized set of rules that, if violated, have a negative consequence to the violator.”
Although intended to improve the moral climate, the codification of ethics tends to decrease ethical choices. Here are five reasons why ethical choices decrease when ethics are codified into law:
First is the concept of legal moralism. If the conduct is not prohibited in the code of ethics, then, by definition, it is permitted conduct. In other words, license is given to engage in conduct not specifically prohibited by the code. The question of whether the conduct is right or wrong, good or evil, for some can simply be set aside. The rules themselves determine the right and wrong of behavior. Discretion can become irrelevant. This results in less ethical behavior. To avoid this result, continuing codification is required until all conduct that is perceived as bad is prohibited. The code must be exhaustive — a nearly impossible task.
Second, because violation of the code results in negative consequences, whenever the code is applied to an individual, that individual resists its application. Any individual to whom the code applies, now or in the future, naturally and even subconsciously resists the code. Because the individual resists the application of the code, the rules lose their ability to affect the person’s choices in relation to morals positively. Codification may result in nearly universal resistance by those who are governed.
Third, when negative consequences are threatened, a lawyer — an expert dedicated to exploiting ambiguities in the law and its application to specific facts — is invited to participate in the ensuing battle. Yes, it will be a battle, because almost no one willingly submits to his behavior being characterized as bad or as wrong, and certainly not as evil. The lawyer’s job is to defend her client, not to promote generalized ethical behavior. The lawyer will find the ambiguities in the code being applied, as well as ambiguities in the underlying facts. In time, often a very short time, the code becomes diluted, its benefits reduced.
This dilution takes us to a fourth problem of codification. Like legal moralism, dilution requires additions to the code — more codification. Dilution requires a codification that is tighter in its application and more exhaustive, which in turn will require more lawyers, and round and round and round we go.
Fifth, codification does not promote good behavior. At its best, codification can only limit bad behavior.
As a result of these and other effects, codification — rules that take away choices about moral behavior — result in less ethical behavior because ethics is about discretionary behavior in relation to morals; it is about choices.
Why Try?
Despite the problems with the codification of ethics, no one is advocating that we do away with it. Codification of ethics will always be a part of our modern world.
In 1100 AD, there were about 50 million people inhabiting our planet. In the 1820s, we reached our first billion. In the 1920s, 100 years later, we reached our second billion. In January of 2013, we reached 7 billion. In 2013, there were 206 nation-states in the world. Each country represents a somewhat, if not a radically, different set of laws, rules and principles people apply when governing their lives. These are grounded in numerous cultural, religious, ethnic and racial perspectives of right and wrong, good and evil. Twenty-eight percent of the world is Christian, 22 percent Muslim, 15 percent Hindu, 8.5 percent Buddhists, 14 percent are found in the “other religions” category, and 12 percent are categorized as nonreligious. Under each general heading there is a vast number of denominations or sects. For example, there are more than 1500 different Christian sects or faith groups. And even within a group espousing the same morals, individuals apply them differently to real-life circumstances.
Advances in technology are bringing the earth’s seven billion diverse inhabitants into contact with each other more and more frequently. We bump into each other, over and over again. The innumerable interactions mean people will witness more behavior that is wrong or evil. Therefore, there will be a growing cry, “There ought to be a law!”
This continuing call for codification of ethics happens in many contexts: corporate, governmental or across a profession or industry. This is the reality when so many people have such easy access to one another.
Codification Not the Only Answer — The Power of the Second Chair
However, as discussed, codification alone will not result in more good behavior. We cannot expect that codification will increase good behavior nor can we choose simply to not codify. Nevertheless, we cannot abandon our desire to increase good behavior. Nor can we abandon our confidence that, given the opportunity, most people will exercise their discretion, their choices in relation to morals, positively. This brings us to the behavioral influence known as the Second Chair.
In the 1950s, Solomon E. Asch, of Swarthmore College, conducted an unusual psychology experiment. The participants in the experiment were informed that it was a visual perception experiment. It was not.
Six people are placed in chairs. Diagrams of lines are shown to them. On the left is shown a line of a certain length. On the right are three lines of different lengths, one of which matches exactly the line on the left. The correct choice is clear and obvious.
The only person actually being tested is the person in the Fifth Chair; everyone else is a co-conspirator. When the test begins, chairs 1–4 and 6 purposely identify the wrong line as the correct match. If the correct answer is B, they all say, “A.” The Fifth Chair identifies the obviously correct line as the match. “It’s B.”
The co-conspirators, subtly at first and then more directly, ridicule the Fifth Chair for choosing the “wrong” line. As the participants are shown set after set of lines, eventually, and often quite quickly, the Fifth Chair begins to give the wrong answer, the same as the co-conspirators, even though the correct answer is obvious.
Then the experiment changes. The person in the Second Chair begins to give the correct answer. Now, the Fifth Chair almost always gives the correct answer, too. With the voice of the Second Chair added, the Fifth Chair is not persuaded by the taunts of the others to join them in giving the wrong answer. The Fifth Chair gives what he knows is the correct answer. “It’s B.”
Many people sit in the Fifth Chair. The truth of something seems obvious: this line is the same length as line B. But the multitude of voices saying, shouting, sometimes demanding, that the correct answer is A creates the environment in which the Fifth Chair finds it compelling to remain quiet or even agree with the demanding but wrong voices.
When the Second Chair steps up and says, “It’s B” — when the Second Chair communicates the truth about what the Fifth Chair sees — powerful things happen.
Aspiring to Ethical Behavior
Ethics are discretionary behaviors in relationship to morals. Ethics are about the choices we make in relation to how we see right and wrong, good and evil. Codification can limit bad behavior, but as discussed, more and more codification is required to be effective. Codification does not encourage good behavior and tends to result in less overall ethical behavior—fewer choices in relationship to right and wrong, good and evil.
This examination is intended to encourage awareness and choices in relationship to morals. We all sit in the Fifth Chair at times. Unfortunately, we may sometimes sit in the First Chair and get it totally wrong. But we can aspire to sit in the Second Chair. We can actively look for those sitting in the Fifth Chair whose choices are burdened with the pounding voices of those sitting in the First Chair. Our aspiration does not require heroic labors; it may be as simple as a thumbs-up or a pat on the back. The Second Chair need only communicate to the Fifth Chair, “You are seeing it right. It’s B.”
Jackie Robinson sat in the Fifth Chair. In fact, he was specifically selected and purposely placed in the Fifth Chair by Branch Rickey, general manager of the Brooklyn Dodgers. Because of his moral backbone, his controlled temper and his athletic ability, Robinson was the perfect choice. Many times, the First Chair piled on ridicule, racial epithets and even death threats. Robinson felt alone. Once, the manager of the Philadelphia Phillies, Ben Chapman, occupying the First Chair, verbally beat Robinson nearly to explosive anger while he was at bat. Chapman said things that today would be outrageous in public or private.
Robinson was at the point of breaking and almost walked over to Chapman to brain him with the bat. But one of Robinson’s teammates, Eddie Stanky, stepped out of the dugout, walked over to Chapman and said, in substance, “Stop it. You are wrong.” The comments had little effect on Chapman, but they had a powerful effect on Robinson. Robinson’s teammate sat in the Second Chair at a critical time for him, as he carried the burden of a terrible Fifth Chair dilemma: Do I brain Chapman or do I hold my peace? Robinson’s teammate lifted that burden, for just a moment, and said to him, “It’s B.”
Robinson was still in the Fifth Chair on another field in Cincinnati. Pee Wee Reese, also a teammate of Robinson, sat in the Second Chair. The people in the First Chair were family and friends of Reese from across the Ohio River in Kentucky. As Robinson took the field, Pee Wee Reese’s family began to throw verbal spears at him, not too different from those of Ben Chapman. Reese walked across the field to where Robinson stood and, in the presence of all, his family included, simply put his arm around Robinson and began to talk. Once more, a teammate sat in the Second Chair and said to Robinson, “It’s B.”
But that’s not the end of the story. In the stands were young nephews of Pee Wee Reese. Unbeknownst to him, they were also in the Fifth Chair. They did not believe the terrible things the adult family members were saying; they had a choice to make. Reese, by simply putting his arm around Robinson, said loud and clear, “It’s B.” They chose not to participate in their elder’s efforts to intimidate Robinson.
While we often struggle with our own Fifth Chair choices, we can aspire to sit in the Second Chair every time the opportunity arises. History — individual history and collective history — is about critical moments. We never know when the moment will come or how critical the moment may be. Nevertheless, we can look for and be aware of those in the Fifth Chair. We can recognize the burden placed on them by the multitude of First Chair voices. We can lift that burden, even if it is only for a moment, and inspire the choice to do good by our reaffirming voice, “It’s B.” And, when we do, powerful things will happen.
Harper Lee’s Pulitzer Prize-winning novel To Kill a Mockingbird illustrates well the principle of the Second Chair in motivating the ethical choice.
Tom Robinson was a black man accused of raping and beating a white woman in “Jim Crow” Alabama in the 1930s. To put it mildly, due process and trial by a jury of one’s peers were not the popular approach to resolve such issues in the rural South at that time. There were 4,742 lynchings in America from 1882 to 1964. Alabama accounted for 347 of these, and the South at large more than 3,130. Rape, attempted rape and insult to a white person accounted for 1,285 — about 27 percent — of these lynchings. A black man accused of one of these crimes could reasonably expect to die without due process of law.
Tom Robinson was not destined for trial. He was jailed and charged. The local judge asked the best-liked, most respected lawyer in Maycomb County to represent Tom in this lost cause — Atticus Finch.
It was a Sunday night and word came to Atticus that the locals were going to the jail to administer justice. Atticus went to the jail and sat outside reading and waiting. Soon local justice arrived in the form of cars filled with angry and determined Southern white men.
Atticus’s son, Jem, his daughter, Scout, and their friend Dill had followed him and were hiding behind a bush. When the moment got tense, they busted out from hiding and ran to Atticus. Scout, surprised at the fear that flashed across Atticus’s face at seeing the children, did not understand what was happening and looked again at the crowd for a familiar face. She finally recognized Walter Cunningham, a client of Atticus. She said, “Hey, Mr. Cunningham.” He pretended not to hear her.
She began a solo, innocent dialogue with him about his work with Atticus, about school, about his son Walter, and so on. Mr. Cunningham tried to ignore her and eventually she simply said, “Tell him hey for me, won’t you?” The scene remained tense and Scout was confused. She finally asked, “What’s the matter?”
Mr. Cunningham squatted down and took Scout by the shoulders and said, “I’ll tell him you said hey, little lady.” And then he stood and said, “Let’s go boys.” Tom Robinson would live, at least for that Sunday night.
In this scene, Scout unknowingly occupies the Second Chair and Walter Cunningham the Fifth Chair. Harper Lee artfully illustrated the power of Scout’s innocent little voice helping Walter choose what, to Harper Lee, 1960 America and us today, was the obvious — justice does not come by a vigilante rope in the dark of night. Other Cunninghams are also lastingly affected — one of them becomes a Fifth Chair himself in the jury room, “rarin’ for an acquittal.”
Gregory P. Hawkins is a lawyer with 30 years of courtroom experience. He has authored four books, three of which are about ethics, and many published articles.
Lonn Litchfield is a trial lawyer of 20 years and author with a JD from the J. Reuben Clark School of Law and an LLM from the London School of Economics.
