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The Legal versus the Ethical: Issues in Ethics

Education 19 Feb, 2020 Follow News

Dr. Livingston Smith is a Professor at the University College of the Cayman Islands. He is also Director of the CXC Education Volunteer programme

Mr. Bumble in Charles Dickens’ Oliver Twist said, "If the law supposes that," … "the law is an ass — an idiot.’ Unfortunately, history has shown repeatedly, that this is possible.

In the last article, we laid a groundwork for covering some major issues in ethics.

Derived from the Greek word ethos, ethics is that branch of philosophy that covers systems of moral principles essentially seeking to answer the question: ‘How should we live our lives?’ The formal study of ethics began with the Greek philosopher, Socrates, who saw morality as a kind of self-discovery to know what is right. Others after him such as Plato, taught character based ethics emphasizing such qualities as courage, temperance, justice and prudence.

Specifically, ethics is the study of those principles that define behavior as right, good or proper. It analyzes standards of right or wrong that prescribe what humans do as well as the continuous efforts of striving to ensure that we, and the institutions we help to shape, live up to standards that are reasonable and solidly based.

It is useful to develop an appreciation of the distinction between what is permissible or illegal according to what the law says versus broader principles of morality, human dignity and equality. They are not necessarily the same.

There are multiple instances both historical and otherwise, of laws which are not ethical, as they are not grounded in morality. How does one make such a distinction? In addition, why is it important to do so for the practice of ethics and for identifying moral acts? These are questions that have been the subject of intense debate in the fields of human rights law, legal and moral theory.

Making a distinction between what is legal and what is ethical can be a complicated process requiring some understanding of legal and moral theories. Simply put, laws govern all our behaviors and make human societies possible. It is that which is codified by legal statue or precedent - that which is passed by an authoritative body seen to have the right to do so.

In apartheid South Africa, for example, the black majority were denied the right to vote, as no statue passed by the authorities in control gave them that right. This system was implemented and enforced by immoral laws and distinguished itself by the systematic way in which this was done.

Similarly, slavery in the Americas was made legal by laws passed by relevant Parliaments in the European countries involved. This institution in the Anglo-phone Caribbean became illegal upon the passing of the relevant legislation in the British parliament. In Nazi Germany, many laws passed by that government, seen by many to be morally repugnant and bankrupt, were made legal by the fact that they were passed by the then authoritative body.

In the cases of Apartheid and Slavery and certain laws passed by the Nazis, one would readily argue that they were immoral and unethical.

That which is ethical is bound up in ideas of morality preceding human societies and their social and political specificities. This is what political philosophers and others refer to as natural or moral law or others, the existence of a universal moral community. Immanuel Kant, for example, justified the capacity for the exercise of reason as the distinguishing characteristic of humanity and the basis for justifying human dignity.

It is critical that citizens obey the law, but even more-so consider at all times universal moral principles such as the priority of human dignity, moral autonomy and equality. Mr. Bumble in Charles Dickens’ Oliver Twist said, "If the law supposes that," … "the law is an ass — an idiot.’ Unfortunately, history has shown repeatedly, that this is possible.

Whereas what is legal is determined by the law, what is ethical is determined by universal principles grounded in human dignity and rationality, which can be said to be anchored in nature itself - called natural laws.

Ethical behavior is grounded in an appreciation and acceptance of human dignity, and equality as given by nature itself, preceding human society and human law, and so guaranteed by natural laws. For those of us with Christocentric views, as laid down by God when he created humanity in his image.

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