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The Law
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.
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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.
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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
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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
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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 oldfashioned 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
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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
Recognize all moral
impacts:
Benefits to some
Harms to others
Rights exercised
Rights denied
Determine the
economic
outcomes
Define the
complete
moral
problem
Consider the legal
requirements
Evaluate the
ethical duties
Propose convincing
moral solution
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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
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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
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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
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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
The law does not have an ethical standard, other than as it affects how attorneys
and judges practice their profession. Using that as a guide, the requirements are to be
honest, truthful, avoid conflicts of interest, and obey the law. Individual ethical duties of
members of the legal profession and of members of society are not likely to be uniform.
Personal ethics are based on religion, upbringing, personal experience, personal belief,
and intellectual review and analysis of situations. For example, in Moslem courts, the law
has the ethical standard which Moslems understand through the Koran. Under Moslem
law, Sharia, a man can divorce his wife any time he wants, but a woman must seek his
consent, and, if he denies it, she must stay with him (Trosch). This is ethical in Moslem
nations that follow the ethics of the Koran. This example shows just how the ethical
standard used can lead to results which some find ethical based on their personal views
and which others find reprehensible based on their personal views. As a general standard,
however, almost all persons can be said to want an ethical standard which would treat all
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persons as the party exercising the standard would himself or herself want to be treated.
However, note that here, again, how each person would want himself or herself treated
will be highly personal and based on private, personal experiences and beliefs, so that
while in general this can be agreed upon, the result it brings may not be viewed equally
good by all.
G.
Propose Convincing Moral Solution
All persons deserve to be treated with respect and to have their personal beliefs
and ethical standards respected and acknowledged. All persons deserve to live in a
society where they feel secure and safe. Because the law serves to prevent chaos and to
enforce the rules a society has made to objectively determine who is “right” or “wrong”
in any situation, it best meets the needs of people to feel secure and safe in their
community under the “rule of law.” If that standard is altered to meet the ethical views of
any majority or minority group, the entire system could collapse and lead to tyranny,
unexpected economic costs, and unfairness may become customary because not all
persons share equal definitions or determinations of what is ethical in every situation. The
law cannot serve as an ethical collective standard, it cannot function as one and is not
meant to serve that need. The legal system must remain as it is, one that creates order in
society and teaches all citizens what to expect and what to do under the law. While this
may not reach an ethical result in all cases, in the major sense of society and the need to
nurture and keep society safe from chaos, violence, vigilantism, and confusion about
what each person’s rights and duties are, the law does provide society a secure place from
which its members can then act as their ethics, given the law, demand from them.
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References
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http://www.govstandard.com/systems/common.html
Dowie, M. (1977). Pinto Madness. Mother Jones, September/October 1977. Retrieved
April 26, 2008, from
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Timor, Asia-Pacific Journal on Human Rights and the Law, 55, Iss. 2.
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