Ethics & Law

Most fundamental to this domain are theories of what makes a rule or promulgation (open declaration; decree) a law.  Most grant that a law consists of a promulgation of a rule or command by a sovereign power that is intelligible and known by those governed and, when appropriate, the law is backed by sanctions.  The latter is especially true when the laws pertain to criminal law but also to everyday life (speed limits) and commerce.  Laws do not, however, only impose penalties, for some create powers and opportunities (as, for example, laws permitting and protecting marriage).  Three further philosophies of law should be noted: natural law theory holds that an unjust law is either not a law or is not worthy of being considered a law.  Positivism holds that what a law is, and whether it is just or not, are two different matters.  Legal realism holds that what laws are depends on what the judiciary actually does, has done, and will do.  These distinctions are important when it comes to civil disobedience.  For example, Martin Luther King, Jr. broke segregation “laws” on the grounds that they were not deserving of being considered laws.

In philosophy of law, one also addresses the assessment of action (whether acts are legal or not), the role of intention (did the agent have a guilty mind, mens rea), tort matters (if you play a causal role in bringing about some harm how much of the harm are you responsible for?), mental illness and the insanity defense, theories of punishment, taxation, property, family law, international law, and more.
A popular question to ask about the relationship of ethics and law is: does ethics determine the law or does the law determine ethics? Take for example the current debate over the legalization of marijuana. Is marijuana illegal partly because (some) people believe it to be immoral, or do (some) people believe it to be immoral simply because it is illegal? If ethics determine the law, it must not be immoral in all situations to disobey the law, but if law determines ethics, then whatever is illegal is also immoral. Also involved in the debate are questions of economic and medicinal benefits, the drug trade, and so on.

Some concepts related to law:

Justice: Justice is a surprisingly complex and diverse term in the history of philosophy of religion. The ancients saw justice as a virtue, see for example Socrates’ The Republic and Aristotle’s lengthy investigation in the Nichomachean Ethics. In the virtue sense, justice tends to focus on the correct alignment of character in both the person and the state. Socrates’ thesis in The Republic is that the best way to understand the virtue of justice for an individual is to look at justice in the state, and that the best way to do this is to look at the ideal state. His conclusion is that justice is the right placement of the rational, passionate, and appetitive characteristics of the body in question. Aristotle sees justice as the mean between the extremes of performing injustices upon others as an act of over reaching one’s proper place, and the other extreme of accepting too many injustices and not receiving one’s due.

The concept of justice, however, was not settled by the ancients. Other common disagreements arise from questioning whether justice is a divine command or a principle which guides all other divine commands, as well as the question as to whether justice is a natural virtue or a human-made construct, perhaps nothing more or less than a mutual agreement between people. The modern view generally divides justice into three distinct types: retributive, distributive, and restorative justice.

Retributive justice focuses on giving people what they deserve, often focusing (especially with institutional justice) on punishment for wrong action but also, to a lesser degree, on rewarding right action in an appropriate manner.

Distributive justice focuses mainly on the proper ways of gaining or maintaining wealth and power, for example Rawls (with his Veil of Ignorance thought experiment) sees justice as primarily concerned with setting up institutions which will give all people equal access to opportunities for wealth and power, whereas Robert Nozick (1938-2002) is far more concerned with the appropriate acquisition and transfer of wealth. An important subset of distributive justice is commutative justice which guides principles of contracts and ownership.

The final major type of justice considered by contemporaries is restorative justice, which is focused mainly on a holistic approach to criminal justice and focuses on bringing the victim and the offender together so that each may learn from the other and be fully integrated back into society for the good of the victim, perpetrator, and society as a whole. One useful distinction used by Charles Bonaventure MarieToullier (1752-1835) and other thinkers is to differentiate between interior and exterior justice: interior justice is concerned with morality while exterior justice deals primarily with jurisprudence.

Theories of Punishment: Theories of retributive holds that certain wrong-doing deserves blame, just as certain right action deserves praise. In wrong actions that violate some civic laws, a penalty of some kind may be fitting, but in severe cases punishment may involve incarceration.  Most philosophers today believe that corporeal punishment (whipping, branding, dismemberment) are cruel and unusual, but not all philosophers today condemn capital punishment. Among the latter there is a difference between those who think an unrepentant wrong-doer should be executed and those who believe the wrong-doer may be executed and the wrong-doer would have no right (legal or moral) to complain.

An account of punishment that is related to the retributive account is that when a wrong-doer commits a crime it may be said that the criminal had his way or gained a stolen pleasure (even if the criminal did not enjoy the act, the criminal took something –a life, an event, an object– that was not his.  Punishment is a way of removing that pleasure.

Grounds other than retribution have been advanced: some see the function of punishment as a
way to rehabilitate wrong-doers.  Another function of punishment is as a deterrent. One goal of punishment is to make crime not a benefit to wrong-doers.  In order to function as a deterrent, the undesirability of the punishment and its probability of being visited upon the wrong-doer must outweigh the consequences and probability of acquiring some greater good by the wrong-doer.  Another account of punishment stresses the way in which punishment in a community conveys or communicates the values of a community.

There are different accounts of how much punishment is owed to what crime, but there is wider agreement that there is a difference between punishment and torture.  Torture need not be done in response to any wrong-doing.  But when wrong-doersa inflicted by excessive harm in the form of punishment, many would label a case of torture.

Many distinguish punishment and revenge.  The latter may be disporportionate in terms of the harm inflicted, and it is often personal, whereas punishment (when it is just) must be proportionate and impartial or even impersonal.


Lex Talionis: 
From the Latin, meaning “An eye for an eye, a tooth for a tooth” (cf. Lev. 24:17-23).  Law prescribing equality between crime and punishment. It is often not appreciated how the lex talionis may be understood as establishing a cap on revenge.  If someone unfairly destroys an eye, it is not permissible for you to kill the wrong-doer and his city.

Ignorance: In law, religious and secular ethics, some forms of ignorance are held to vitiate responsibility.  Invincible ignorance is an ignorance the agent cannot (at least in current conditions) overcome.  Perhaps we are in a state of invincible ignorance when it comes to confident views of the mental states of some animals (do fish undergo morally relevant suffering?).  In such a case, a fisherman may be blameless if he is charged with intentionally causing suffering.  Vincible ignorance can be overcome, however, and is the result of negligence or prejudice.  A slave owner in the early 19th century might claim ignorance of whether slavery causes morally relevant suffering, but this does not appear to be exculpatory.

Mercy: Mercy involves unmerited or undeserved favor, typically in the context of justice. So one may have mercy on someone who is in trouble when you are not obligated to go to her assistance and one may have mercy on a criminal when a lesser punishment is imposed or the criminal is pardoned altogether. Philosophers have disputed over the
relationship of mercy and justice. Does mercy need to be consistent (that is, if you have mercy on one criminal are you then obliged to have mercy on a criminal in similar conditions)? Can mercy be good when it is in conflict with justice? Imagine a criminal genuinely deserves a harsh punishment in the context of retributive justice, but a magistrate thinks (rightly) that pardoning the criminal will bring about great good (e.g. the criminal has repented and will aid in fighting crime). In that case, could it be good that the magistrate does something that is wrong from the standpoint of retributive
justice? In theology, some theologians hold that from the standpoint of justice, an all good God would destroy the wicked, but from the standpoint of mercy, God may and has elected to redeem the wicked. Does this involve God doing something that (from the standpoint of retributive justice) should not be done?

Lying: The Western tradition of thought about lying has attended principally to two issues. First, what is it to lie? Second, when, if ever, is lying permissible (or required)? As to the definitional question, three elements have been of importance. The first is duplicity: intentionally claiming what you take not to be the case. The second is an utterance intended to deceive or mislead its hearer. And the third is uttering something which is in fact false. Since each of these can be present in an utterance absent the other two (and any two absent the third), these elements may be combined in various ways in defining the lie. The most common definitions have been those that combine the first and second elements, though with widely differing degrees of emphasis.

As to the second issue, the lie’s permissibility: positions here have ranged from an exceptionless ban on the lie, through a relaxed acceptance of its frequent unavoidability, to a defense of its propriety or even its obligatoriness in certain circumstances. The standard Christian position from late antiquity to the Reformation was that duplicitous utterance is never defensible. This was a position argued trenchantly and influentially by Augustine in the fourth century. The difficulty of that position led to a luxuriant casuistry which attempted to preserve the ban on duplicity while yet making it possible to speak deceptively. Immanuel Kant, at the end of the 18th century, revived a rigorous ban on the duplicitous lie, though for reasons very different from Augustine’s. His position, however, found as little support among Kantians as Augustine’s had among Augustinians, and much current discussion of lying is either strictly historical or attentive to the peculiar paradoxes produced by the possibility of lying to oneself.

Religion: Considerable controversy surrounds the definition of ‘religion.’  Definitions that explicitly identify the belief in a God as an essential feature of religion seem too narrow, as they would make some forms of Buddhism non-religious as a matter of definition.  A popular definition of ‘religion’ today is through giving examples, e.g. a
religion is a tradition such as Judaism, Christianity, Islam, Hinduism, and Buddhism, and those traditions like them.  An alternative definition which aims at giving greater guidance is as follows:  A religion is a body of teachings and prescribed practices
about an ultimate, sacred reality or state of being that calls for reverence or awe, that guides its practitioners into what it describes as a saving, illuminating, and emancipatory relationship to this reality through a personally transformative life of prayer, ritualized meditations, and/or moral practices like repentance and moral and personal regeneration.

Contracts and Covenants: Some distinguish these in personal terms.  A contract is a promise that may be made between strangers or those who do not share in any significant identity, whereas a covenant is part of the covenenters identity.  Arguably, a marriage is a covenant and not merely a contract.