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Ethics and the Law


Introduction

Both morality and the law try to guide human action. How are the two disciplines related? Specifying the precise relationship between the two fields is difficult and controversial.


Descriptive Approaches

Morality typically is held to include principles and rules concerning how a person ought and ought not to behave. One can approach morality descriptively, as a social scientist might when discussing the views of a particular culture (descriptive ethics), or normatively, as a religious believer might when arguing that certain moral rules are the correct ones (normative ethics). Or one can as a philosopher of ethics engage in metaethics and ask questions about the meaning and justification of moral language and claims.

With respect to the law, one can as a social scientist discuss legal systems in a descriptive fashion as well without arguing that one is better than another. When one approaches the topic of the relation of morality to the law purely as a social scientist, it is obvious that they are not the same because societies treat them differently -- they are different institutions. Morality comes from religion or personal or cultural secular origins, laws come from officials of the government voting or decreeing them. Attorneys are hired for legal expertise, not to give personal advice on morality as the clergy might.

A very obvious difference between morality and the law is that the law has a whole apparatus of the courts and law enforcement that is lacking in morality, except for some rare instances where religious courts handle moral interpretation and enforcement. But then that seems more like moral rules that are at the same time legal rules.

So considering morality and the law as social institutions, we see that violating moral rules affords one shame, violating legal rules affords one fines or jail. The law, unlike morality, has the enforcement power of the state behind it. Those who act immorally may earn the scorn of others, for example, but suffer no such state punishment unless they are acting illegally. (Some religious traditions, however, hold that immoral individuals may be punished by God in their earthly life or in an afterlife.)

From a purely descriptive standpoint, one can list some types of behavior that under certain circumstances might be thought to be immoral but not illegal:

  • Acting grumpy to your spouse in the morningM
  • Refusing to spend an adequate amount of time with your children
  • Telling a lie to a friend or spouse
  • Favoring one child to the exclusion of others
  • Telling someone walking by that they are ugly in order to wreck their day
  • Animal rights advocates believe killing and eating nonhuman animals is immoral
  • Some conservative Christians and most Muslims believe drinking alcoholic beverages is immoral
  • Seventh-day Adventists believe drinking caffeinated beverages is immoral
  • Some conservative Christians believe dancing is immoral

Here are some acts that might be illegal but not immoral:

  • Failing to fill out a motor vehicle registration form in triplicate as required by law
  • Jaywalking when no traffic is in the vicinity, there is no other danger, and one is not setting a bad example
  • Spitting within city limits
  • Walking your dog without a leash when no one is around
  • Mixing food garbage with paper trash
Some people believe that breaking the law is automatically acting immorally, but in the above examples we cite instances of acts that apart from the law would not otherwise be immoral, unlike behavior such as murder and theft.


Legal Positivism

This descriptive type of approach which sees a clear difference between morality and the law is characteristic of legal positivism, which arrived on the scene only during the last few centuries. In the nineteenth and especially twentieth centuries people began to think there could be a relatively neutral account of human institutions such as morality, religion, the law, and other aspects of culture and society. This view seems commonsense today but was actually rather revolutionary years ago.

The same thing has happened in the study of religion. It used to be studying religion meant you went to Seminary or took courses offered from the perspective of a particular religion or denomination being correct or the best one. But now you can take relatively neutral courses at any major university. Thus in a secular university there are courses in religion in which students learn about Christianity, Islam, Buddhism, etc. The teaching is in a more or less descriptive fashion presenting the traditions and views of the religion in a neutral way.

A similar conception of the law is present in legal positivism. Legal positivism basically holds that the laws of a country are what the government says they are. They are not arbitrary; they are based on reasoning and deciding, but they do not need any further validation than that of being sanctioned by a legitimate government. Laws of different jurisdictions can be studied by social scientists and legal scholars just like any other area, such as accounting principles. Laws are not necessarily closely tied to ethics. There might be unjust, unfair, just-plain-wrong laws, such as racist, anti-Semitic, or otherwise discriminatory laws.


Natural Law

On the other hand, one might consider the relationship between morality and the law by adopting a normative approach instead of the descriptive approach used above. Granted that, as social institutions, morality and the law are different, still, would the ideal, most correct system of morality coincide with or track the ideal, most correct system of law? Are they in essence the same thing except that one (law) has “teeth” in the sense of authority to punish for noncompliance? Or are they two very different things, morality based in ultimate reality itself but the law merely human convention or the sometimes seemingly arbitrary decisions of policitians?

Above we have pointed out seeming differences between morality and the law, but we shouldn’t overplay the significance of seeming differences on a descriptive level. Morality and the law do have a lot in common – they seem intimately related in some ways. There are very many morally impermissible acts that are also illegal (for example murder, rape, theft, etc.) and many thinkers would argue that the moral impermissibility of such behavior is what causes legal bodies to make such acts illegal. Is it a coincidence that we consider murder to be immoral and also make it illegal? Why would so many illegal acts also be considered immoral if the true basis of the law were other than morality? Some people in fact think of the law as “institutionalized morality.”

We might try to distinguish between the actual laws of a particular government and the conception of the best, ideal, correct system of laws. This distinction and the fact that morality seems to be at the basis of many laws hint at a natural law approach. Natural law theory holds that real laws depend on morality for their authority and legitimacy. Hence the famous claim of Augustine that “unjust law is not really law.” More modern versions of natural law theory recognize that bad laws are considered real laws and can be recognized as bad legal rules, but the most basic legal principles derives from moral truths.


Realms of Law

The law in different parts of the world displays differences that aren’t really present in morality. Some countries like the United States emphasize the role of the precedent of earlier court decisions in determining current cases. This is known as the Common Law tradition. Other countries, such as those in continental Europe, that use the Civil Law tradition, emphasize more the role of statutes and regulations.

The already-mentioned enforcement side of the law is a difference from morality. Legislators have to consider the reality of enforcement in making the law. The well-known problems that occurred during prohibition made that clear. Morality has no such worry – something can be wrong whether or not we can get people to refrain from doing it. Also to be considered in law is the reality that in prosecuting lawbreakers one has to produce evidence in court to prove the offense. Ethicists commonly argue about what is right and wrong but don’t spend much time worrying about how one would prove that someone did something wrong.


Morality and the Law in Healthcare

Some businesses seem not to understand or value morality over and above the law, but not exactly in the way natural law intends. To such businesses, moral business behavior consists simply in obeying the law. Ethical questions are handled by corporate attorneys or by retaining the services of an outside law firm. If it is against the law, don’t do it. If it’s not against the law, it is considered morally permissible. There is no thought that a company or its employees might be morally obligated to go beyond what the law requires to “do the right thing.”

This sometimes occurs in healthcare. But many modern hospitals and related institutions often do make an implicit distinction between morality and the law by distinguishing between ethical and legal functions and personnel. There may be hospital attorneys or a risk management department that handles legal and some ethical issues. But clinical ethical questions are referred to groups of physicians and clergy and sometimes an ethics committee consisting of participants from various parts of the organization.

An area in which morality and the law are similar in healthcare is that both can be considered to consist of general principles or rules that apply to specific cases or situations. It is not always clear which rule or principle applies to any given situation. In many societies, including the United States, a great deal of attention is paid to determining which law applies and decides the legality or illegality of the particular action of an individual. Courts decide this in specific cases that create precedents that are then cited in later similar cases. The same thing needs to happen in healthcare ethics. Having moral principles is not enough; attention needs to be paid to the issue of what principles and rules apply in any given situation. This attention to the need for not just rules and principles but also extremely careful determination of the application of those rules to specific situations is greatly appreciated in law but perhaps underappreciated in morality.

Van Der Burg notes the mutual influence of morality and the law in the development of biomedical ethics. Lawyers and ethicists have worked together to develop doctrines such as informed consent. Some of the concepts that figure in ethics discussions, such as the right to privacy, have their roots in the law. And in recent decades in biomedical ethics there has been some movement from a principles approach to a case-based approach. The case-based approach obviously draws upon the legal tradition of court cases and precedence.

Rights talk in particular seems to be a curious combination of legal and moral concepts. Talk of human rights used to interpret them as inalienable, self-evident “natural rights.” These would exist quite apart from any government recognizing them in the law. So they were closer to ideal law or to a moral matter. Much talk in intervening centuries has considered rights, though, as legal entitlements. In recent years some have taken pains to distinguish “legal” rights from “moral” rights. But much talk still keeps the concepts intermingled.


References

Wibren Van Der Burg, “Law and Ethics”
 
Revised: Wednesday, June 08, 2011 • Copyright © 2007 The Curators of the University of Missouri
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