Running Head: the Law As a Standard

The Law 12

Running Head: The Law as a Standard

The Law as a Collective Ethical Standard

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Abstract

If we define the law to be nothing more than “a consistent set of universal rules that are widely published, generally accepted, and usually enforced,” the law can never serve as a an ethical standard. Moreover, the law should not serve as an ethical standard because ethics are intimately personal in nature, and the law is concerned with the mass population not the individual. The law is a set of rules which must be obeyed, whether humans elect to obey only that minimum standard or to treat others legally and as they would want to be treated themselves is a decision each person, not each government or authority, needs to make.

The Law as Collective Ethical Standard

Can the law serve as a collective ethical standard or should it is a question pondered for many years. Based on the history of the common law system, which the United States inherited from England, law has never been meant to be an ethical standard, it has only meant to be a system of rules used to peacefully establish rights of citizens and property. As long ago as the 12th century Henry II of England separated the “courts of law” from the “chancery courts,” and separated law from the control or influence of the Catholic Church (Arnheim). The courts of law were to make decisions based on the laws of the nation (Arnheim). The courts of chancery were to make decisions more in line with equity, ethics, or morals, as deemed appropriate by the King’s Chancellor’s views (Arnheim). When litigants felt their rights were not properly or sufficiently addressed by the courts of law, they could appeal to the chancery courts (Arnheim). The chancery courts eventually disappeared and the courts of law took on a minor portion of their functions, such as when they order a person to do or not do something through an injunction, which is an “equitable” or ethical remedy (Arnheim). Other than that, however, courts of law determine only punishment in criminal cases or money damages that must be paid to resolve a conflict in civil cases (Arnheim).

I. The Law

Western nations, therefore, who have based their legal systems on either the Napoleonic Code or the common law, draw a fine line, purposely, between the law and any interpretations or definitions of ethics (Arnheim; Engber; Rowe). In Moslem countries, however, courts of law follow the “just,” “ethical” laws of Sharia, expressed in the holy text the Koran (Otterman). In these nations law and ethics are the same thing and law is defined as a collective ethical standard (Otterman). This principle, however, is quite foreign in the United States and in Western nations whose laws are separate from the ethical standards of their populations.

Law professor Daniel C. Turack, nationally renowned for his knowledge in international humanitarian law, often shocks beginning law students when he tells them that if they expect fairness, righteousness, ethics, or morality to always be present in law they will be disappointed (Turack). While the law is defined as being, or is frequently said to provide, “justice for all,” that statement does not mean that the law will always be fair or ethical to all (Turack). The law is meant to allow society to be ordered and to permit all members of society to understand what the basic rules of society are, it is not meant to offer an ethical standard for life. Nothing may speak to this more clearly then when one considers that although each state has enacted both attorney and judicial codes of ethics which attorneys and judges must adhere to, these codes are entirely separate from the “laws” of the state (ABA). While a violation of law by an attorney or judge will lead to imprisonment, a fine, or other legal action, a violation of an ethical code can lead to disbarment or suspension from the practice of law or from court, but not imprisonment or civil damages (ABA). The legal profession itself separates law from ethics, even though it tries to honor both.

II. Ethics and Law

To fully realize that law has never meant to serve as a collective ethical standard, however, we must go further. The law has been defined in this paper, but the word “ethics” has not yet been defined. We all have a common sense understanding of this word, but a clear meaning of it is required in order to conclude that the law, as defined herein, is not an ethical standard and cannot be one. Black’s Law Dictionary, the chief legal dictionary, defines “ethics” as:

of or relating to moral action, conduct, motive or character; as, ethical emotion; also, treating of moral feelings, duties, or conduct; containing precepts of morality; moral. Professionally right or befitting; conforming to professional standards of conduct. (Black’s, p. 553).

Notice that although this strictly legal dictionary includes a definition of ethics the definition does not tie “ethics” to the law other than when it discusses the ethical codes or standards meant to govern attorney or judicial conduct.

The English language online dictionary of Merriam Webster defines “ethics” as follows:

ethics ... the discipline dealing with what is good and bad and with moral duty and obligation ... a set of moral principles : a theory or system of moral values ... <an old-fashioned work ethic> ... <Christian ethics> ... the principles of conduct governing an individual or a group <professional ethics> ... a guiding philosophy ... a consciousness of moral importance <forge a conservation ethic> ... a set of moral issues or aspects (as rightness) <debated the ethics of human cloning>

When reading this English language definition it also stands out that while the concept of ethics is interrelated with morals, at no point does Merriam Webster tie ethics to any legal concept or item nor does it use law to explain any part of ethics. This is significant because Merriam Webster serves as a dictionary that defines words in the way the English speaking population understands the word (Stevenson). This conclusion is supported by the fact that dictionaries update and incorporate new meanings in order to properly reflect common understandings of the English language. Therefore, ethics and law are not the same.

The evidence presented through the discussion of the development of law, the separation of ethics, morals, or religion from law in Western countries, and the separation the legal community and the general population understand to exist between law and ethics, is also supported through the use of Hosmer’s “Analytical Process for the Resolution of Moral Problems,” or “Method,” (Moral Analysis, p. 60). Through this standard the fallacy that law can act as a collective standard for ethics or morals is fully illustrated.

III. Analytical Process for the Resolution of Moral Problems

This Method can be described as follows (Moral Analysis, p. 60):

Understand all moral standards / Define the complete moral problem / Determine the economic outcomes / Propose convincing moral solution
Recognize all moral impacts: / Consider the legal requirements
Benefits to some
Harms to others
Rights exercised
Rights denied
Evaluate the ethical duties

A. Understand all Moral Standards

The law does not have a true “moral” standard. A moral standard can only be held by a person and the “law” is not a person. However, the group of people in the legal community must certainly have moral standards that govern their lives, their work, and their interactions with others. Their work in the legal community is also governed by the ethical standards of their profession, be they judges or attorneys (ABA). Therefore, the moral standards in law are the personal ones held by the members in the community and the professional ethical standards they must adhere to.

The law also impacts the lives of members of the community who are not members of the legal community. These persons also have personal morals and ethics which apply to them as individuals, be they religious or not, they all have matters which they consider to be right or wrong and all make decisions about what is right or wrong for them to do. They may also have professional ethical standards which they too must meet. Members of this community include not only those who obey the law but also those who do not obey the law, who also have ethical standards, even if we cannot understand them as such or disagree with them.

B. Recognize all Moral Impacts

The main benefit to most of the legal and non-legal members of the community (whether it is a town, state, or nation) is that the law provides them a known set of rules and interpretations of those rules that all must live by. The rules are not changed due to someone’s wealth, power, religion, or family name. This secures equal rights to all and gives them confidence that the law will tend to follow standard principles and analyses to arrive at a legal conclusion about all matters. Because the law tends to act in ways that assure the security of society in all matters, although these determinations attempt to be as fair as possible, there will be times when the law will work an injustice to an individual because the interpretation or analysis of the law supports the claims of the opposing party, even if result of that legal application of “justice” is not what people would consider moral or ethical.

The rights exercised under the law are those that allow persons to bring their legal claims to an impartial judge and jury to determine what remedy the law provides for the disagreement before them. The rights denied are that not all claims or disagreements can be brought to court, only those the law says can be filed can be filed. Another right denied is that, due to the cost of legal actions, not all persons can access the courts to obtain resolution of their problems, which is very unfair for a great many people.

C. Define the Complete Moral Problem

Law is based on the attempt to give members in society a means to secure their rights against each other and in regard to their property (Turack). This purpose of law is not designed to incorporate personal opinion or personal ethics in either the final decision nor the analysis used to arrive at the final decision. If personal opinion or ethics were allowed into this process or system, the result may be that society may lose the security found in the objective rules the law provides. But, this does not mean that the legal system is perfect, it sometimes is not and courts can make seemingly unethical decisions. For example, for years it was understood that a government could only use eminent domain to take private land for a public use, such as a public school or park (Kelo v. New London). But, the Supreme Court of the United States recently said a city had the right to use eminent domain to take property from individuals and give the land to a private contractor (Kelo v. New London). Because legal decisions are made on an objective basis and must follow the rules created to dictate what is “legal” and “proper,” the result in all situations is not necessarily ethical and persons may be treated unethically through the legal system they once thought would protect them from those who act unethically.

D. Determine the Economic Outcomes

If law were to be made a system that made decisions based on ethics the economic outcome might be disastrous for all. As imperfect as the current system may be, it tends to be reliable and parties can easily understand the costs of obeying or not obeying the law. A key example of this is the Ford Pinto case, which, although Ford’s cost analysis was reprehensible, shows that the legal system can be trusted to routinely decide similar matters in similar ways (Dowie).

If decisions were made on an ethical basis, because ethical bases and beliefs are so personal in nature, the outcome could not be determined, may be biased, and may vary based on whose ethical code is used to make the determination of what is proper. Under the common law legislatures make the law but judges interpret and enforce it (Marbury v. Madison). Should the ethical standards of legislators be used or those of judges to make sure decisions are ethical? If that of the legislative members, then which ones, the ones who are newly elected or the ones who have more political power or those form larger districts? What if they change their ethical beliefs? What if the decision they make is not considered ethical by the parties involved or society in general, what laws, applied under whose ethics, would protect those persons or give them the ability to change the law? Such uncertainly in what a result would be or could be would increase the cost of entering into business or personal agreements and transactions because regardless of what the parties agree to, if they end up seeking legal assistance neither one could be sure what the result would be. To compensate for this insecurity they would likely increase the costs of all such agreements or transactions.

E. Consider the Legal Requirements

The law must meet the needs of government and citizens in a way where neither group is treated better or worse than the other. The law requires predictable results so that people are not surprised or confused by what is required of them. The law must be something that all persons can equally follow, whether they are poor or rich, fully healthy or ill, fit or disabled, young or old.

F. Evaluate the Ethical Duties