Monday, October 24, 2005

Law and Ethics

Both Paul and Repeal’s previous posts got me thinking (yes, I know how dangerous that is, but sometimes I can’t help it despite my best efforts), what is it about law and ethics that makes so many people, including intelligent ones, (myself included) conflate the two to make rhetorical arguments? Perhaps it’s just poor or imprecise use of language. True, I argued that even if Tom Delay’s actions weren’t illegal, perhaps they were unethical. To which Paul responded that maybe I was right, but that he wasn’t sure because the laws regarding campaign finance are a joke. Then of course, whenever partisans engage in this debate there is always the Clinton example. Did the President act legally? Was lying under oath an impeachable offense? Was denying his affair ethical? Good, fair questions all, some of which have answers, some don’t. I don’t want to debate either the Clinton or Delay examples, but rather to explore the difference between that which is legal and that which is ethical. Then I want to leave with a question, namely, which standard do we want our elected officials to live by, a legal one, an ethical one, or if possible, one that is both legal and ethical? Hopefully this question will be clearer by the end to the post…if you can bear with me that long.

Let me start with the following premise: Law and Ethics are at best only tangentially related fields, and thus, are to be analyzed using different standards. Yes, there are overlapping concepts in law and ethics, but in a very real sense both of the following statements are true; “not everything illegal is unethical,” and “not everything ethical is legal.” Why is this? Basically, it is because laws and ethical rules serve two separate yet related functions. Laws, and by extension legal systems (i.e., legislatures, courts, juries, judges, etc.), are designed to develop and enforce rules or norms of conduct which, inter alia, mandate specified relationships among persons (including organizations), provide methods for ensuring the impartial treatment of said people, and provide for the punishment of those who choose not to follow the agreed upon rules of conduct. Conversely, ethics is best defined as a system of thought that attempts define that which is right from that which is wrong.

Now we can all come up with examples of behaviors or actions that satisfy both definitions. The classic example is “murder,” which is legally defined as the killing of another human being with malice aforethought and with no legal justification (self-defense or insanity are two commonly used legal justifications for murder). Murder, as I’ve defined it, is both illegal, in that it is against the agreed upon rules of conduct for which our legal system has determined we are to live under. Murder, again as I’ve defined it, is also unethical, because it is considered morally wrong to take another life. However, you can quickly see how careful I’ve been not to overstate either the legal or the ethical argument. Self-defense, which results in the killing of another person, is clearly not illegal, but it may nevertheless be unethical. Even you can conceive of cases where a killing in self-defense is ethical, you have to admit that it is a close call and not intuitively obvious. Likewise, accidental deaths, which may be considered illegal as a form of manslaughter, may be ethical if they clearly prevented a greater wrong. (i.e., swerving to avoid crashing into a school bus full of children, only to strike and accidentally take the life of a single pedestrian in the intersection). Hopefully, you can see how quickly things can get confusing if one is not precise in their use of the terms legal and ethical.

This example, or series of examples, brings me back around to my question. Which standard do we want our leaders to follow? Are we content to argue, as Paul does, that legality is the measure by which we are to judge the actions of our leaders? In other words, if a person commits no violation of the agreed upon code of conduct created by our legal system, is it the case that he or she can be absolved of all culpability? (For the record, I’m not accusing Paul of having this view. In fact, I’m pretty sure he’ll disagree with my characterization, and I’ll believe his views, however he chooses to describe them, are sincere. If anything, I’m doing nothing more than pointing out the imprecision of the language we all use when discussing these things in an imprecise forum such as a blog.) Or, are we to go to the other extreme and argue that even if one obeys the code of conduct to the letter (and spirit), they are still to be judged based on a (hopefully objective) theory of right and wrong conduct, for which there are many disagreements? Thus, people who ascribe to a well-developed ethical system, which can include religion and religious beliefs, are free to judge and exact political accountability on elected officials even if the legal system absolves them of any technical wrongdoing? In a perfect world, I think we would like to see leaders and people with positions of public trust act both legally and ethically, to the extent that both are possible.

This is why the recent situations in politics, whether it be Rep. Delay’s indictment, Sen. Frist’s questionable stock sale, or the Valerie Plame investigation are so vexing. The strictly legal people will argue perhaps persuasively, that in none of the above cases was a “crime” committed and no illegal actions were taken. Even if that’s true, does that satisfy the ethical standard? Can people really say that Delay’s actions were objectively right? That Sen. Frist acted in accordance with ethical principles? Or that those who may have inadvertently revealed the name of a once covert operative were correct in their actions? Maybe we can say all of those things. Maybe we can justify those conclusions because the people making the accusations are less than perfect themselves, and may have a political agenda to pursue. Then again maybe we can’t make those claims. Maybe there are two standards in play when it comes to politics and legal acquittal isn’t enough? Maybe we should hold people to impossible or even worse subjective ethical standards so that they are sure to fail? Maybe there is no such thing as ethical standards at all?

To answer my own question, I think that people should try there absolute best to abide by both a legal and ethical standard. That being said, I also think that when it comes to politics and elected officials we often impose an unreasonable burden on people. As I’ve said before the first paradox of American politics is that the electorate wants their leaders to be just like them, only perfect. Impossible or at least one would think so. No one is perfect; similarly no one is above reproach. One of the best things about democracies that the standard is subjective, once you go into the ballot box the only person you have to convince is yourself. I suppose the controversy is what keeps pundits and political operatives employed, but the questions are worth asking, and I’ll be interested to see what, if any, comments I get from our various and intelligent readers.


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