Law and ethics: Natural or unnatural bedfellows?


Wednesday, November 14, 2018

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Prompted by the protracted debate about the buggery law, gruesome murders, abortion, corruption, the ganja industry, etc, I wish to highlight a dilemma that all free societies face; namely, deciding on the relationship between positive law and ethics.

What is positive law and what do we mean by ethics?

“Ethics, or moral philosophy…is the systematic endeavour to understand moral concepts and justify moral principles and theories. It undertakes to analyse such concepts as 'right', 'wrong', 'permissible', 'ought', 'good', and 'evil', in their moral contexts.” (Louis Pojman, Ethical Theory: Classic and Contemporary Readings)

“The term positive law refers to laws made by man that require some specific action. These are statutes, codes, and regulations that have been enacted by a legislature. By contrast, 'natural law' refers to principles that are universal in society, governing moral acts.” (online dictionary)

The wording on the front of a T-shirt I got after a recent presentation in Antigua sums up the issue somewhat: “What's legal isn't always right.”

It is not every positive law that neatly overlaps with ethics, but ponder some instructive comments from lawyers and a wannabe lawyer about the inevitable overlaps and see how cogent their ideas are.

The first is from a wannabe, whose name I withhold to protect the person's innocence:

“Positive law in any society enshrine or at least reflect somewhat that society's ethico-moral outlook or highest aspirations. Statutes are therefore moral censors.”

Whether the statute commands tax-paying (at risk of a penalty), or prohibits extortion (again at risk of a penalty), implied in both command and prohibition, is a value system a suggested 'oughtness' about certain behaviours.

Now to real lawyers:

“…since all law necessarily reflects a moral value system of some kind, there is every reason to have it reflect the proper…value system.” (John Warwick Montgomery, Human Rights & Human Dignity)

The million-dollar challenge is determining the “proper value system”!

Interact now with a statement from Roman Stoic lawyer Cicero (106-43 BC): “I find it has been the opinion of the wisest men that law is not a product of human thought, nor is it any enactment of peoples, but something eternal which rules the whole universe by its wisdom in command and prohibition. Thus, they have been accustomed to say that law is the primal and ultimate mind of God.” ( De legibus, Book 2, chapter 4)

Though we can outline different basic ethical systems our problem is not thereby solved. Montgomery again: “The problem of establishing sound ethical standards in the legal profession and the wider problem of which this is but one aspect — that of finding ethical norms for the evaluation of positive law in general — becomes immensely more acute when we see total societies operating with legal and ethical values directly opposed to our own.”

The fundamental problem during the international Nuremburg trials of so-called 'crimes against humanity' committed by Nazi military officials after the holocaust was deciding by whose legal standard the men would be tried. Their simple yet profound retort was: “We were simply following orders.”

The chief prosecutor wrestled with the ethico-legal norm of not taking human life without legal justification, but faced, also, the military 'ought' of the Nazis on trial “obey the order then question later”.

Though it irks our sensibilities, 'obey the order then question or challenge it later' makes sense in security services because free thought could endanger the lives of fellow security colleagues in a crisis situation. The prosecutor said, I gather: “So what we need is a law above the laws.” Cicero resurrected?

Reflect further on the dilemma in the lament of the late Arthur Leff, professor of law at Duke University. In his 1979 lecture 'Unspeakable Ethics, Unnatural Law', he said: “I want to believe — and so do you — in a complete, transcendent and immanent set of propositions about right and wrong, findable rules that authoritatively and unambiguously direct us how to live righteously. I also want to believe — and so do you — in no such thing, but rather that we are wholly free, not only to choose for ourselves what we ought to do, but to decide for ourselves, individually and as a species, what we ought to be. What we want, heaven help us, is simultaneously to be perfectly ruled and perfectly free; that is, at the same time to discover the right and the good and to create it.” (carried in Duke Law Journal 6 (December 1979): 1229) [my emphasis]

No society can escape the challenge I am raising here. Law and ethics are, in fact, bedfellows, we can only quibble about whether, or to what degree, they are naturally or unnaturally so.

By the way, though our democratic traditions suggest that we have referenda on some controversial issues or that Members of Parliament should consult their constituents on some such issues (like abortion or the buggery law) the result of these exercises fare no better, in essence, than what happens in most churches that ask members to tell what they think the Bible passage means.

In essence, this may just be, and often is, pooling ignorance.

Rev Clinton Chisholm is academic dean at Caribbean Graduate School of Theology. Send comments to the Observer or

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