Laws as Sources of Ethical Guidance
This article deals with the topic titled ‘Laws as Sources of Ethical Guidance.’ This is part of our series on ‘Ethics’. For more articles, you can click here.
Laws and Conscience also act as sources of ethical guidance for all humans living in society. They can be broadly classified as
|It is the outside actor of Ethical Guidance
|It is the inner actor of Ethical Guidance (discussed in the next article CLICK HERE)
What is Law?
- It is the codification of mutually agreed values.
- In modern democracy (not authoritarian regimes), it can be said to be minimum ethical conduct that society decides for itself through elected representatives.
Characteristics of Law
1. Common Good
- Law must result in the common good of society.
- E.g., Outlawing murder & thuggery – There is the common good of society if we punish this by law. Hence, this law results in the common good of society.
- Law should be implementable.
- E.g., Although there is a common good in outlawing lies, it cant be implemented. Hence, no such law is made.
3. Create minimum Morality
- Law creates minimum morality in public life.
- Hence, we can say that law represents the minimum morality/ethics that society wants in its members. A citizen can have more than that in himself, but lower than that will land him in jail.
- It is desirable and practicable that we make laws for minimum morality only because if laws cover every aspect of our behaviour, they will become so cumbersome that they can’t be implemented.
Law vs. Ethics
|It is the codification of mutually agreed values.
|Ethics are values held by society which are used in deciding right & wrong.
|It has legal backing.
|It has societal backing.
|Breaking laws has legal sanctions.
|It is voluntary in nature. If you do unethical work, you will not land in prison (although you can face social ostracization).
|There may be many areas where the law does not exist or is silent.
|Ethics has a wider scope.
|Law is the same for all people.
|Ethics may vary from person to person.
|Laws need to be specifically changed by the legislature.
|Ethics change automatically as society matures.
Whether law guides ethics or ethics guide law
- Ethics usually guide the laws, as the law is the minimum ethical conduct the state wants each person to uphold. For example, in the highest form of ethical conduct, we shouldn’t take anything that isn’t rightfully ours. It includes something we have found by chance, like a ₹500 note lying on the road. But as minimum ethical conduct, the state wants that person shouldn’t indulge in theft. A person is punished if he indulges in such activity.
- Sometimes the law can be more progressive than ethics, and in that case, the law guides ethics. E.g., the Sati Abolition law when William Bentinck enacted it. In that case, the law guided ethics and made society more progressive.
- But some of the laws have nothing to do with Ethics. For example, the law prescribes driving to the left (in India, England etc.) and the right (in the US, Canada etc.). Although these laws prevent chaos on the roads, it has nothing to do with ethics.
Exception: Law can be Immoral or Unethical
However, not all laws can have moral or ethical sanctions. Even in a democracy, a majority can take over the legislative process and frame a law that may not be just for every section of society or may undermine the dignity of some. A law that caters to most at the cost of a few is unjust. And according to St. Augustine, an unjust law is no law at all. Mahatma Gandhi also argued that an unjust law is itself a species of violence. In the present context, the following examples could be seen in this light:
- Criminalizing Homosexuality: Many countries, including India, have recently criminalized the LGBT community for their sexual orientation.
- Adultery: Until recently, only a man in India could be prosecuted for adultery under Section 497 of IPC.
- Historically, laws related to apartheid in South Africa and racial discrimination in the US were ethically corrupt.
Therefore, these laws were withdrawn after widespread opposition and resentment by the population.
Question: Describe some acts which are ‘ethical but not legal’ and ‘legal but not ethical’.
Ethical but not legal
- Starting the pension, if some old age person doesn’t have age proof but it is clear that he is a senior citizen.
- Stealing medicine to save somebody’s life
- Breaking signal to save a life.
Legal but not ethical
- Removing slums because they are not legal owners of property without giving them any shelter
- It is ethical not to give capital punishment as it is against the dignity of human life. Still, according to the law, it is correct (mainly for heinous crimes) to maintain law and order.
- Old apartheid laws of South Africa
- Marital Rape
Law as a source of Ethical Guidance
Law and ethics overlap considerably. The law is the minimum acceptable standard of behaviour backed by legal sanctions. But laws can’t cover every possible ethical issue.
Hence, it can be said that
- Law is the minimum morality that is placed on all the members of society. Whether a person wants or not, he has to possess that much morality in himself. Hence, by this notion, it is clear that laws indeed act as a source of ethical guidance.
- But we must remember that morality and legality aren’t identical. Morality (or ethics) is much more than legality, and it is expected that the person’s moral standards should be higher than Legal Standards. But the tragic plight is that we have started to equate Morality & Ethicality with the letter of the law. The old adage “if it isn’t illegal, it must be ethical” is deeply flawed in the context of modern society.
- Outlawing something takes back the legitimacy of that action. E.g. banning alcohol by law is easy, but it is challenging to implement it. But even after this limitation, banning it takes the legitimacy of drinking back.
- Laws command both action and inaction: Some laws lay down what should not be done, e.g. murder, whereas others lay down what should be done, e.g. registration of motor vehicles.
Disobeying the unjust laws / Philosophy of Civil Disobedience
In earlier Authoritarian and Colonial Regimes
- Historically, most of the regimes were authoritarian and colonial and didn’t consist of the people’s elected representatives. They made laws to increase their control over people’s lives and protect their own financial and commercial interests. We also have to remember that they didn’t have any moral sanction to rule people since people did not elect them. Those were despotic governments.
- Taxing salt production may have been just for the financial convenience of the British Indian administration; it was totally unjust for the millions of Indians.
- Slavery laws were made to benefit a few landed magnates and justified the exploitation of millions.
- Hence, disobeying those unjust laws without any doubt wasn’t wrong. Gandhi advocated the moral responsibility to disobey unjust laws through non-cooperation and civil disobedience.
- But the real issue is whether one should go for breaking the law in the case of Modern Democracies. We have to keep the following points in mind while going to conclusions.
- First of all, these laws are made by elected representatives of the people. People have given them moral sanctions to make laws.
- Secondly, people can change the government in the next elections if the government is formulating anti-people laws.
- Still, some government actions may be considered grossly unjust and unfair to a large section. In such situations, peaceful protests and pressurizing through the building up of popular opinion should be resorted to.
- Resorting to Civil disobedience should be avoided because:
- Resort to unconstitutional methods could be justified in past as there was little rule of law or adherence to constitutionalism. In the present, we must hold to the constitutional methods of achieving our social and economic objectives.
- It may result in anarchy: While disobedience may be helpful to some, it may spiral out of control soon, undermining peace and benefitting none.
Martin Luther King also provided a template for opposing unjust laws. He said that one who breaks an unjust law must do so openly, lovingly, and with a willingness to accept the penalty. There should be acceptance of the penalty of imprisonment to arouse the community’s conscience over its injustice.