-----THINKING ABOUT ETHICS-----

How are Law and Ethics Related?

C D Herrera

Philosophy & Religion Department

Montclair State University

Upper Montclair, NJ

It often happens, in courses ranging from Introductory Ethics to graduate-level Philosophy of Law, that someone will ask for a precise answer to the question: how are law and ethics related? The question surfaces increasingly in bioethics courses and discussions. Not wanting to claim real expertise in ethics, law, or the relationship between them, my typical response to this question is to suggest a little background reading. Those curious about this alleged relation, I suggest, should consult the impressive, and very readable exchange between two legitimate experts, Hart and Fuller. These scholars of jurisprudence wrote separate commentaries on the relation between law and ethics in the 1958 edition of the Harvard Law Review (v. 71).[1] This reference no doubt strikes many students today as a bit of ancient history. Nevertheless, in the half-century since this issue of the Review, no writer has matched the insight and analysis that Hart and Fuller provide. Certainly there are more recent commentaries on the contentious relation between law and ethics (e.g., the exchange between Dworkin and Posner). Unfortunately, these tend to spiral off into politics, rights, constitutional interpretation, and many other issues that detract from the underlying question.[2]

Since pointing someone towards the library or computer hardly amounts to giving an answer, my next move is to urge skepticism. An exhaustive reading list might still leave one without conclusive answers to questions about the relation between law and ethics. There are two reasons for this. First, questions like this can denote two very different stances, the empirical on one hand, and the abstract or theoretical on the other hand. It is one thing to interpret a person's actions according to a particular theory of ethics or law, and another to say (or better yet, prove) that the actions result from adherence to this or that theory. Many a judge's decision represents utilitarian principles to one person without there having been any real attempt by the judge to reflect or even acknowledge what to another person constitutes "utilitarian" principles.

There is a great deal more that could be said about the empirical-theoretical distinction. Suffice to say that we err whenever we confuse what really happens with what we would say about what happens, or what should happen. In this case, the skeptic must bear in mind that it is entirely possible that utilitarianism is the farthest thing from someone's mind when making a decision that others interpret in utilitarian terms. We could conceive similar cases involving the ethical deliberation of hospital committees, or to some degree, an opinion expressed in the bioethics literature.[3] And of course, even when someone announces an attempt to offer a specific position, say, a utilitarian solution to a problem of medical confidentiality, the net result might seem to critics far removed from utilitarian orthodoxy.

Evolving Concepts

The second reason to not expect an exhaustive answer to questions about law and ethics is a bit more complicated. At the outset, we should note that philosophical, as opposed to empirical, questions about the relation between law and ethics date at least to Plato.[4] This relation defies final answers partly because no relation can be any more stable than its shifting components. Plato recognized this, as others have since. One's interpretation of law will necessarily influence the interpretation of ethics, and vice-versa. Given a lack of consensus on what "ethics" refers to, we should not be surprised that attempts to chain this concept down long enough to see how it relates to "law" (itself no unitary, unequivocal notion) lead only to more questions.

Thus, entire books will continue to be written on the philosophical linkage between law and ethics from the utilitarian perspective, the Kantian perspective, or the Natural-law perspective. My hunch is that we won't for some time find substantive agreement in these texts. It is not uncommon for authors to omit definitions of the law and ethics altogether. Not only that, because the interpretations may rest upon conflicting foundations (e.g., the need for ethics and law to cater to the general good, or the need for ethics to cohere with Divine Law), scholars have so far been unable to prove, in a conclusive, scientific sense, that one interpretation merits more consideration than another. The price we pay for moving away from empiricism seems to be recurrent argumentation.

This means that law and ethics form a problematic package, but a package deal nonetheless. The current trend towards Kantian interpretations of ethics, for instance, cannot help but force a reexamination of Kantian philosophy of law. Likewise, consistent application of Kantian legal theory hinges on our ability to make sense of Kant's ethics.[5] It is somewhat clear in Kant's writings what he means by ethics. When Kant turns to explain what a legal duty is and how it should function, he appeals to much the same conceptual resources that he relies on when discussing ethical duties. Laws, he insists, must apply to everyone equally. It must also be possible for each citizen to embrace the reasoning behind the law, including any penalties for violating the law, and so on. One could be forgiven for thinking, based on this sketch, that to understand the system of law is to understand the system of ethics.

Yet there is room to wonder if Kant really intends this result, or if this was his goal, whether he pulls it off. We do know that for Kant law functions as a system of externally imposed constraints on behavior, whereas ethics functions as self-imposed constraints. Kant's description of persons as "self-legislators" when it comes to ethics is apt. Still, it may not get at the interplay of ideas and interests that arise in bioethics. Imagine the patient whose wish for assisted suicide is rejected by hospital staff and state law. We face a challenge in understanding the magnitude of this philosophical problem if we restrict ourselves to Kantian terms of legislation, self-imposed or otherwise. And in the case of an apparent conflict between law and ethics, what is one to do? Kant lived and wrote in a time when protests against what might be considered an unethical law did not enjoy the social status that they do today. It is now almost taken for granted that one has a ethical obligation to protest against laws that are judged to be unethical. What is less clear is how we would distinguish an ethical law from an unethical one. The tendency to fuse one ethical system with another only complicates things further.

Where does this land us? In law or ethics there are few arguments that do not cross party lines. And the most Kantian-sounding legal decision can involve distinctly unKantian themes. This may be an unwanted liability to purists. It is doubtful, though, that a promising alternative is at hand. A convergence of ethics, laws, and assorted theoretical positions may be the mark of our best efforts in deliberation.

Another problem for determining the relation between law and ethics is that bioethics as a field has developed systems of group-analysis and collective deliberation that typically involve committees. In other instances this deliberation involves court justices, and teams of healthcare workers. To the extent that bioethics is what "bioethics" does, strict adherence to a system of Kantian individuals, self- legislators in private deliberation would be grossly inadequate. Such problems arise not simply for ethics, but in law as well. To cite another example, the common law makes little or no effort to specify what our individual duties are to each other in a positive sense, that is, in the sense that I have to do something foryou. Rather, the law is heavily weighted towards rules that tell me what I cannot do, or must avoid doing to you. Ethics, even the Kantian variety, is no different in this regard. My primary duty is to leave you to your own autonomy. This leads to the puzzle of Samaritanism: the extent and the range of ethical, legal, and of course financial obligations that healthcare workers have towards patients and society is anything but clear.

In some cases the legal obligation conflicts with the ethical obligation. In other cases, the conflict works towards the opposite direction. For people who do not work in healthcare, obligations of any kind are often minimal or non-existent. You may have very little ethical obligation to assist me if I am suffering, and even less of a legal obligation. How could the two giants of ethical and legal theory, Kant and J. S. Mill, both grapple with this problem of Samaritanism, without offering firm guidance? In part, because the issue may have seemed to each of them as a blurring of the distinction between law and ethics, which is how it apparently seems to many people today.[6]

We are left then with a situation not unlike that where two people assume that the other is taking care of business, when in fact neither is. Here, we encounter a situation where people seem agreed on the need to do something on behalf of others (e.g., patients, research subjects), but lack clear guidance on how much or why they are obligated. There is almost no problem in bioethics that we could not view through this lens. The more obvious problems or issues would include organ and tissue donation, allocation of resources, questions about justice, and substituted judgment.

Hearing this, it is easy to grow impatient, and declare that we will not simply sit back and wait for ethics or law to come up with the most appealing resolution. In this mind set, it becomes tempting to think that we might give up trying to clarify the philosophical relationship between law and ethics, and look to a legal stipulation of what a person's duties are (or aren't). Only how should law take the lead this way, with no compelling ethical defense for such an action? And by what means would we test the stipulation if not according to community or individual ethical standards? Once more, law and ethics seem like a couple who cannot live together or apart, and we seem destined to accept their continual squabbles along with, one hopes, eventual compromise. We do not so much lose hope for lasting resolutions as we realize that our expectations were unrealistic. The problem, we can now see, is not an inability to know what law and ethics are. The problem is that we cannot state where one ends and the other begins.

One could still legitimately ask how far the standard accounts of law and ethics in themselves can illuminate the Classic Problems in bioethics anyway. If there was a clearer relationship between law and ethics, dealing with problems of obligation and personal conscience might be more easily resolved. In the absence of that clarity, we may be left with a bioethics that begins with vague ethical guidelines, but in fact functions as a second-order system of law, where strangers take a collective stance on which actions should be permitted, and which reasoning is most sound. The empirical is as close as the armchair, we might say.

I do agree that the bureaucratic, legalistic nature of much bioethics practice is bound to raise criticism. But as elsewhere, here we are hard-pressed to find an alternative. One might, in other words, grow disillusioned with the thought that law and group compromise eventually carry the day. Yet do we think of the transplant surgeon, who knows that she can save only one of two patients, possibly because of a shortage of available organs? To insist that the surgeon rely on a personal ethical compass, with no oversight, seems to place a great deal of faith in the surgeon's ethical judgment. The law rightly steps into such scenarios, to protect society from the risks of misplaced trust of this kind. Of interest here is the fact that the law frequently dictates that the surgeon in this kind of situation first approach a committee of those who specialize in bioethics (though what that specialization amounts to is left an open question). Here too, law and ethics might reasonably be taken to depend on each other. This holds true regardless of their habit of disagreeing or attempting to supersede each other at times.

Naturally, some people will stubbornly want to know the priority in this: does the symbolic nature of the committee reveal the nature of the relationship between law and ethics? Should law await the decision of ethics, or hold a last-resort position when agreement on ethics either cannot be reached? And, as Plato might have asked, should the committee view the law as the test of ethical principles, or vice-versa? That is, do those who think that abortion is ethical hold this because something like abortion is in some areas legal? Or is it more correct to say that abortion is legal simply because it is ethical?

Notice how with this question we return to our starting point. Except that we now realize that those who would rush to answer it one way or another are likely pressing their own specific interpretations of the relationship between law and ethics. Is there a way around this? Can we guard against law or ethics overly influencing the other? I suspect that there is not, and furthermore, that we should not attempt to try. The safe course might be to look on law, ethics, and even bioethics, as components in an evolving discipline that takes as one of its main tasks the clarification of the relationship that these components have.[7] This sets a high standard for those who work in the field. It calls for knowledge of the history and various theories of both law and ethics, to say the least. It calls for an awareness of what is philosophical and what is empirically verifiable. But there is every reason to think that this standard can be met.

Ultimately, one would hope that the wisdom gained in the attempt to resolve problems in bioethics, commentators, writers, and consultants are merely continuing a long-standing dialogue. I suspect that someday our community of scholars and practitioners will arrive at a new, radically different conception of the relation between law and ethics. This provides for an encouraging thought: sufficient interplay between those who lean towards abstract analysis and those who hammer out practical compromise might help to elaborate and explain this relation in and of bioethics.

Notes

1. H. L. Hart, 1958. "Positivism and the separation of Law and Morals." Harvard Law Review, v. 593; L. Fuller, 1958. "Positivism and Fidelity to Law: A Reply to Professor Hart." Harvard Law Review, v. 630. For those interested, Hart and Fuller have written very useful full-length texts that elaborate on the theories they offer in these articles.

2. See R. Dworkin's Law's Empire (1986), and R. Posner's The Problematics of Moral and Legal Theory(1999), both from the Harvard Univ. Press.

3. What relevance should empirical details have? Does it matter for our analysis that courts often establish precedents that have an effect on our view of ethics, or that a particular justice will intentionally reach a decision based on his or her own views of what the society should hold as ethically permissible? The practical force of law cannot be ignored, to the extent that it draws from, and sometimes shapes our ethical thinking. Again, however, the question is how to integrate what would amount to legal anthropology into a theoretical inquiry concerning law and ethics.

4. The Platonic dialogue, The Laws, remains possibly the most thorough attempt to work through the problems that an integration of law and ethics raises. Regrettably, it seems to come across as dry and unimaginative among readers accustomed to the free-ranging dialogue of works like The Republic. The Laws does reward those who press through its few tedious passages. Plato's Crito also raises interesting issues regarding law and ethics, and is both engaging and brief.

5. Of course, this in turn rests on our acceptance of at least part of Kant's metaphysics.

6. See, e.g., S. Jain (1999). "How Many People does it take to save A Drowning Baby?: A Good Samaritan Statute in Washington State." Washington Law Review, v. 74, pp. 1181-1208.

7. On this interpretation, the label "bioethics" serves as shorthand for an as-yet ill-defined and unnamed discipline that would integrate these and other sub-fields.

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(c) 2000,C D Herrera. All rights reserved. herrerach@mail.montclair.edu


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This page was last updated 11/19/2000