The debate about whether humankind is becoming less or more ethically conscious is an interesting one that has no clear winner.
According to a Gallup poll, in 2023 the state of moral values in the US has “fallen further, to the lowest point in Gallup’s 22-year trend”. Yet, some people would argue that the levels of critical analysis and mental sophistication that humans have acquired make us better able to be ethically conscious.
Behind all this is natural law and our innate ability to know the difference between right and wrong, as well as the moral codes we develop in childhood.
When it comes to the difference between ethics and morals, morals are our own individual guiding principles, which are often formed by factors such as our parents’ beliefs and rules and are influenced by educators and other authoritative figures involved in our upbringing. We can also develop morals as adults by reviewing and evaluating evolving situations we encounter.
Ethics are generally considered to be a formal or informal body of rules established by an external source, such as a set of principles created by a particular religion or by an organization. These too can shape our personal moral values.
Where does the law sit against morals and ethics? That is a highly relevant question, with some complicated answers. This is especially true as there are times when all three concepts — morals, ethics, and the law — are closely entwined, and other occasions when they can clash dramatically.
Is it even possible that courts can make decisions that contradict some of the ethics that humans hold dear?
Ethics and the law are not the same
One of the reasons that ethics and the law must be viewed as two separate things is that ethical frameworks vary and have evolved over time. They can be amended more easily than laws can and are usually driven by social needs and the belief systems of a particular group of people.
On the other hand, the law is largely immovable and set. It is also far slower to change as it is government-devised and driven.
In the US, the “Rule of law is a principle under which all persons, institutions, and entities are accountable to laws that are: publicly promulgated, equally enforced and independently adjudicated.”
The way history has formed the laws that bound our modern-day society is fascinating. Whether it is federal, state, or district laws, we have a set of rules that have been established to regulate the actions and behaviors of all people equally. These laws also impose penalties for non-compliance that are fixed and applied consistently in the interest of fairness and clarity.
As this is a pre-determined system, the roles and responsibilities it includes are also dictated.
You only need to consider what is the purpose of a lawyer to understand the clearly defined roles and responsibilities they carry. They study the law, and prosecute, defend, or represent people who are directly impacted by one or more laws.
The judicial system in the US is equally clear in its intent, purpose, and working systems. It operates at various levels, such as the federal judiciary which upholds the laws passed by Congress and signed by the President. The highest court in the US though, is the Supreme Court created by Article III of the Constitution. It is responsible for 94 district-level trial courts, and 13 courts of appeal.
How do ethics differ?
Some of the differences between ethics and the law have already been outlined, especially the highly defined legal system we have in this country.
Ethics, on the other hand, are society’s values and principles or the established rights and wrongs that an organization or group of people adhere to. These rules can be both documented and unwritten rules that seek to deliver fairness, harmony, and successful co-existence.
Breaching ethics can have little or no consequences in some cases, beyond feeling you have gone against your own personal moral standards and code. For example, it is not ethical to waste your employer’s resources and you may receive only a simple reprimand, but it should feel morally wrong.
Ethical considerations generally sit alongside the laws that rule our society. However, they are constantly being influenced by shifting public attitudes, and even global trends, such as the technological revolution.
Shifting ethical considerations can give the legal system a more complex and challenging landscape in which to operate.
To give an illustration of this, money laundering is now a massive issue worldwide and one that lawyers need to be acutely aware of. Though they have a duty to represent their clients and protect their privacy and confidentiality, lawyers also have an ethical and legal duty to report someone who is concealing money digitally or physically.
Examples of law vs ethics
There are other illustrations of the way the relationship between the law and ethics can be uncomfortable and how the two principles can clash.
One of the clearest examples involves the problems that physicians can face when applying their Code of Medical Ethics in the face of apparently contradictory laws. According to the Code: “ethical responsibilities usually exceed legal duties”.
The Code also makes it clear that physicians can be found not guilty of breaches of the law but can still be judged to be unethical under their medical duties and obligations.
A report on this topic dealt specifically with the role of psychologists, who by following the law may “do something that could harm patients, limit patient autonomy, and/or otherwise offend the personal and professional ethical values of most psychologists”.
In another instance, someone who works for a company that has signed a legally binding confidentiality clause and also has a contract that makes them responsible for the organization’s reputation, ability to trade successfully, and the welfare of its workforce will face a dilemma if they believe the company is acting either illegally or unethically, by either breaking laws or acting against commonly held principles. In this case, which obligation comes first? Do they become a ‘whistleblower’ and effectively break the law?
A company avoiding paying taxes or launching aggressive takeovers may not be breaking the law but could be acting in an ethical and morally reprehensible manner. This risks its reputation but does not necessarily incur any legal penalties.
Another prime example of the clash that can occur between ethics and the law is the role of a priest in hearing confessions of crimes.
One of the ways people sort through moral, ethical, and legal dilemmas is by applying ethical reasoning frameworks.
What are the ethical reasoning frameworks?
There are various established ethical reasoning frameworks. These are widely known methods that can be applied to a multitude of situations and decisions, including ones when the law does not seem to offer a clear enough solution.
One of these ethical reasoning frameworks is known as the utilitarian approach. Within this method, your course of action is based on choosing what would lead to the best consequences with the least harm.
A similar but subtly different framework is the common good approach. This framework bases decisions and actions on the best outcome for as many people as possible.
The virtue approach relies on personal morals and individual codes of conduct to shape your decisions and actions.
A fourth ethical framework that is well established is the rights approach. This involves considering all the involved parties and their established rights and beliefs before you make a decision or take action.
The fifth established model for ethical decision-making is the fairness or justice approach. This aims to avoid either favoritism or discrimination while seeking an outcome that is the same for everyone in the interests of universal justice.
Is ethical reasoning essential in law?
Understanding the difference between morals, ethics and the law is important in many professions, but none more so than if you intend to pursue a career in the legal profession. This is particularly true for a criminal lawyer who must convince a jury that their client is innocent of a crime under the existing law despite being morally corrupt or having a track record for unethical behavior.
The interplay of ethics and the law is something that many lawyers need to review during legal arguments and negotiations in order to influence judicial decisions.
Also, there will be times when pursuing a career in law when you need to make personal judgments based on moral and ethical considerations, not just principles of law. This is why one of the central aspects of taking a law qualification is learning to think critically and perform analysis.
For instance, the Law School Admission Test (LSAT) is an assessment of far more than your initial grasp of facts and the sort of things you can learn by immersing yourself in previous law cases. When establishing an LSAT study schedule, you should also make time to consider the other skill sets and understandings this test is designed to evaluate, such as analytical and logical reasoning. Reputable institutions such as Cleveland State University offer an online Juris Doctor degree program and also provide advice on preparing for the LSAT test. Through a combination of online study, clinic programs, externships, mentorship, and in-person weekend residencies, this program prepares students to excel in ethical practice. Students will learn core legal concepts, perform legal research and analysis, and hone their problem-solving and professional competencies.
Creating a balance between ethics and the law
Ethics and morals are flexible, fluid, and in some cases self-regulated. They can vary from group to group and country to country. Laws are formal, uniform, and enforced by the government, to deliver what is considered to be fair, just, and consistent principles for human behavior and decision-making.
For the most part, the two things co-exist and intertwine successfully, to produce the justice and equality we need in society.
The proper balance of ethics and the law has been studied for centuries, beginning with the Ancient Greek philosophers, so it is no surprise that there is plenty of common ground between the two.
However, the fact that they can become seriously unbalanced is also the topic of much study and debate. This is particularly true when it comes to the controversial elements of human rights beliefs and laws.
There was a legal case in England in 2022 that threw the spotlight on the way in which human rights can be the element that upsets the balance between what is legally necessary, and what is ethically preferred.
Black Lives Matter protesters in Bristol threw a historic statue of one of the city’s founding fathers into the local harbor. The argument was that the so-called ‘Colston Four’ were exercising their freedom of speech while highlighting the terrible legacy of the slave trade.
A member of parliament is quoted in the press as saying: “A British jury has confirmed the toppling of Edwards Colston’s statue was not a criminal act. The real crime was the fact the statue was still there when protesters pulled it down.”
This suggested that the defendants’ human rights and ethical standpoint were more important than the fact they committed criminal damage.
The case was later taken to the court of appeal, as there was discontent with the precedent it had set. The court of appeal ruled that the human rights of the protester were deemed to be an invalid defense under English law. The judgment of the court included an explanation that: “The toppling of the statute was violent. Moreover, the damage to the statute was significant … the conduct in question fell outside the protection of the European Convention on Human Rights (ECHR).”
Natural law theory
There is a view that international human rights protection and promotion applies universally around the world and must be upheld. It should be a platform on which all ethics and laws are based.
There is also another, similar concept, natural law theory. This considers human rights to be superior to human-made laws. Followers of this theory believe ethical and moral values should be better embedded into every country’s legal system.
Perhaps surprisingly, this is not a new concept, but dates back to intellectual visionary Thomas Aquinas (1225–1274). Natural law is similar to the ideals established by religion and hinges on the instinct humans have for differentiating between good and evil acts. It puts the need to protect human life at the center of all things.
However, even this creates some gray areas. For instance, if a member of the military kills someone, are they breaking natural law and its ethical principles?
Also, is it wrong to kill someone, even if you are acting in self-defense? Is this something that is ethically wrong — including under natural law — but allowable under the legal system which in many countries includes acceptable use of reasonable force when your life is in danger?
This makes it clear that facts, legal precedents, and frameworks can be impacted by ethical considerations.
How to reconcile ethics and the law
Both the law and ethical reasoning theories seek to find the fairest outcomes. Both law and ethics are rules we live by and principles that guide our actions.
There are few, and some would argue zero, occasions when ethical considerations are more important than our legal controls and measures though. Instead, ethics and ethical reasoning theories are of value for our everyday actions, behaviors, and decision-making. They support trust, respect, fairness, and social responsibility in our lives.
They also help us to form our own personal moral code of conduct and our individual belief systems.
As the Australian Ethics Centre says: “Our values, principles, and purpose are what give us a sense of what’s good, right, and meaningful in our lives. They serve as a reference point for all the possible courses of action we could choose. In this definition, an ethical decision is one made based on reflection about the things we think are important and that is consistent with those beliefs.”
Without this, we would have chaos, even with laws in place preventing and punishing certain behaviors. Interestingly, there are times when ethical considerations develop and take shape in such a manner and with such force that they eventually crystallize into new laws.
