"The Sources of Ethics and Law"
The Sources of Ethics and Law-Notes by Instructor Introductory Comments: The development and evolution of ethics as a discipline reflects the varying “trends” in different civilizations at different times in different places. The study of ethics also reflects change in what and how much we know about our internal and external world. As we learn more, the range of ethical analysis expands and expands. For example: 1- The French Revolution brought with it recognition of the special status of human-kind, challenging older views of ethical norms. 2-Capitalism’s ascendancy brought with it new definitions and applications of ethics 3-Psychology and psychiatry: The Freudian revolution (and others) introduced new insights into our ethical (or a-ethical) motivations 4. Socio-biology, similarly, pointed out the biological aspects of our ethical process and conclusions, e.g. influence of hormone, genetic determinants, drug induced ethics etc 5. Chemistry 6. New technologies raised new issues that ethicists could barely imagine, including a more complex view of “consequences”, a reconsideration of what is “pain” and “pleasure” of our actions; the cultural alternative to traditional held views of the good and the bad 7. Exposure to other cultures in an our world becoming ever smaller I. Historic Sources of Ethical Principles: There have been many efforts to examine how human-kind can best achieve the ethical “good”, ranging from seeking to be God-like and virtuous; to applying pure reason to ethical dilemmas; to examining the consequences (not the motivations) of actions); to seeking an absolute guide in religion or nature; to relying on our ego or hedonist needs ethics can be maximized. The Sources A. The Great Thinkers (From Socrates, Plato & Aristotle onward) B. Religion (1) Primary source: Revelation (a) Koran (b) Old Testament (c) New Testament (d) Teachings of Buddha (are these divine in origin) (e) Bhagadavita (f) Book of Mormon (Revelations) (2) Unwritten “oral” law tradition in traditional societies (3) Secondary religious source: Authoritative religious commentaries and explanation (a) Talmud (Judiasm) are the commentaries on the laws set down in the Torah (b) Code of Jewish Law (c) Sharia (d) Hadith C. Notions of natural law 1 2 D. Cultural history E. The State F. The Party G. The Family H. The market system I. Our Biology J. Our Psychology (including Freud) K. One’s Conscience, Super-ego II. The sources of ethics: In a contemporary, practical sense A: Law: Is the law a source of ethics: Mostly no but ethics is sometimes source of law B: Religious guidance & direction C: Canons of ethics exist in most every profession (a) Examples (1) Lawyers (2) Doctors (3) Hospital administrators (4) Real Estate Brokers (5) Nurses (6) State and national officials (7) Teachers (8) Engineers (9) Transport engineers (10) Yoga (11) Cyber workers (12) Journalists (13) And hundreds more (b.) Why do we need to learn ethical theories with all these ethical canons and rules? (c) Are these canons of ethics voluntary or involuntary? By whom are they enforced? D: Precedent; prior experiences; reasoning by analogy Law consists of enforceable rules governing relationships among individuals and between individuals and their society. He focus is on maintaining a balance between stability and change. In many ways, its purpose is to establish predictability in the consequences of one’s acts (or business acts) III. The historic sources of domestic law (in US but may apply elsewhere). The sources of the law are, to a great extent, a product of the form of government and how government justifies its right to authority. Depending on the political structure, law has claimed its source in everything from divine guidance (in Japan; even today in Thailand; until recently in Nepal….); to quasi-religious teaching at a level less than divine guidance (e.g. Confucius); to rights claimed by lineage/descent; to the requirements of the Marxist dialectic materialism; to imperative of the consent of the governed. 3 A. Great thinkers B. Religion C. Ideology D. Public morality E. Evolving political structures IV. The contemporary practical sources of the law: Using the USA as an example, the contemporary sources of law are usually listed as: A: The Constitution or other first law/prime directive (US: China): The federal constitution is a general document that distributes power among the branches of the government. It is the supreme law of the land. Any law that conflicts with it is invalid. The states also have constitutions, but the federal constitution prevails if their provisions conflict. In other B: Common law: The English system unified its local courts in 1066. This unified system, based on the decisions judges make in cases, is the common law system. The common law system involves the application of principles applied in earlier cases with similar facts. This use of precedent, known as the doctrine of stare decisis, permits a predictable, quick, and fair resolution of cases. Stare decisis is important because part of the function of law is to maintain stability. If the application of the law was unpredictable, there would be no consistent rules to follow and no stability. C: Administrative law: Administrative law consists of the rules, orders, and decisions of administrative agencies. Federal agencies are created by Congress through enabling legislation, which specifies the powers of an agency.