Laws, Rules, Regulations and Conscience as Sources of Ethical Guidance
Laws and conscience are the two sources of guidance by which human beings can judge their actions' morality. These sources are particularly important to public administrators in offering a clear and practical guidance. While law is outside the actor; conscience lies within the actor. These two impose an obligation to be moral—that is, to do good and avoid evil.
The Notion of Law
- Law as used in ethics is different from the notion of law in physics, which implies a common or constant way of action. In ethics, law has a moral connotation. For instance, it has been defined as "an ordinance of reason for the common good, promulgated by him who has care of the community." (St. Thomas Aquinas).
- The word lex (Latin for "law") comes from the Latin word ligare, which means, "to bind." It induces people to act or restrains them from acting. It also imposes an obligation. Further it sets up a course of action that must be followed. Moreover, law must conform to human nature and it must be physically and morally possible to obey the laws. It must not only be just, but also burdens equally. Also, it is for common, not private, good.
- However, before anyone can be expected to obey a law, the legislator must promulgate it or make it known to the community. If the legislator does not promulgate or publicize a law's existence, citizens will be ignorant of its existence and the legislator cannot expect obedience.
- St. Thomas Aquinas (a thirteenth century philosopher, Christian saint) provided a famous description of the various kinds of law. He distinguished between eternal law derived from theology, which shows God as the universe's ruler, with temporal law or laws passed in time. Eternal law is law that is there in eternity, i.e. with or without human beings' existence or for that matter, anyone.
- It is, just there. Eternal law is the mind of the God. This is manifested in form of a next category, the Divine Law. Divine law is law derived from eternal law as has been 'revealed' to humans through various holy books in form of commandments.
- But if god created these laws, then god must have designed a way for them to be known to humans. Now everyone cannot/does not read these holy books. Nor does everyone believe in God. Therefore, Thomas says that God had made the human being capable enough to derive the laws based on intuition as well as reasoning from the nature. Thus, two kinds of human laws are natural and positive.
➤ Natural Laws and Positive Laws
- Natural law developed with time or with the coming of human beings. It is based on human nature, and human reason can discover it. What exactly is natural law has been debated amongst philosophers since at least the times of Aristotle. Thomas Aquinas' version of natural law is considered most systematized.
- Accordingly, though the eternal law of divine reason is unknowable to us in its perfection as it exists in God's mind, it is known to us in part not only by revelation but also by the operations of our reason.
- The law of nature, which is "nothing else than the participation of the eternal law in the rational creature," thus comprises those precepts that humankind can formulate—namely, the preservation of one's own good, the fulfilment of "those inclinations which nature has taught to all animals," and the pursuit of the knowledge of God. Human law must be the particular application of natural law.
- For understanding purposes, the simplification of what Aquinas says is that God made us preloaded with all the tools to make us know what is good. The things that we are designed to seek are called 'basic goods'.
- Consider the instinct of survival. All living beings have this instinct. We are designed to seek self-preservation. From where does it come? It comes naturally to us. We avoid things that can harm our existence. Similarly, procreation- all beings have a desire to procreate in order to continue their existence. It also comes naturally.
- The concept of Natural law was further elaborated by Thomas Hobbes, who described it as 'a precept, or general rule, found out by reason, by which a man is forbidden to do that which is destructive of his life, or takes away the means of preserving the same; and to omit that by which he thinks it may best be preserved'. Hobbes further extended the 'basic goods' that we desire, for example, peace, happiness, gratitude, etc.
- Any act that violates the pursuance of peace or hinders happiness or does not give gratitude will be considered as violative of natural law. It should be clear to the students by now that this natural law is not made by a competent authority like a king or a government. Hence, there is no punishment in the strictest meaning of this term.
- Consider further the relation of natural law with positive human law. Sir Edward Coke was a famous English jurist of 17th century who greatly influenced the American revolution. The American declaration of independence is also considered a documentation of natural law (in form of man's rights).
- For the American revolutionary leaders, 'law' meant Sir Edward Coke's custom and right reason. Coke defined law as "perfect reason, which commands those things that are proper and necessary and which prohibits contrary things". For Coke, human nature determined the purpose of law; and law was superior to any one person's reason or will. For Coke, natural law is "that which God at the time of creation of the nature of man infused into his heart, for his preservation and direction."
- There are two kinds of positive laws—divine and human. If the author of the positive laws is God, they are divine positive laws. If the immediate source of a positive law is human, it is a human positive law. Here we are using the term human and positive interchangeably.
- For anything to carry a 'force of law', it must be duly enacted, accepted and enforced. Positive law also developed with time. It consists of laws that depend on the legislators' free will and are promulgated by some external sign.
- Aquinas taught that all human or positive laws were to be judged by their conformity to the natural law. An unjust law is not a law, in the full sense of the word. It retains merely the 'appearance' of law insofar as it is duly constituted and enforced in the same way a just law is, but is itself a 'perversion of law. Natural law is used to pass judgment on the moral worth of various laws and determine what those laws mean in the first place.
➤ Is-ought problem with natural law:
- Natural law theory gives us the basic goods. One does not need the holy books to know these basic goods. Our instinct shows us the basic goods and reasons for deriving natural laws from them. Right acts are simply those that are in accordance with the natural law. Now, consider survival instinct. I want to survive and so does someone else. Hence, through reason, I can derive a natural law that killing must not be allowed, as killing will compromise the basic good of survival. However, killing is a natural order in all living beings- the food chain. Therefore, there develops inconsistency based on how one interprets natural law.
Further, consider that killing is prohibited by natural law. Also, procreation is basic good that all beings possess. What about abortion then? If natural law is the basis of human rights, then abortion does not become a human right, because it violates the natural law of prohibition to kill.
- Christianity and Islam are both prohibitive of any kind of contraceptive measures. Similarly, what about those who are sexually incapable to procreate? Or those who are same- sex couples? Natural laws theory thus fails in such cases. In general, there is a problem with their interpretation as well as ways of their execution. Hence, in practical sense, natural laws are used as a moral guide to adjudge positive human laws' moral character.
➤ Laws in modern context as a source of ethical guidance
- Laws in modern context are synonymous with positive human laws. Laws are those basic ethical standards that the society expects everyone to comply to.
- There are sanctions against their violation, which are generally in the form of duly enforceable punishments. Laws command both action and inaction, i.e. some laws lay down what should not be done, for e.g. murder, whereas others lay down what should be done, for e.g. registration of motor vehicles.
- Although law is an ordinance or a rule resulting from human reason, it is not the same as a regulation or ordinary rule. Regulations and rules often help clarify the intent of laws in more specific terms.
- The purpose of a law is to promote the common good and societal welfare as well as protect individual rights. Based on source, the authority to enact a law belongs to those with jurisdiction or those who are lawfully in charge of the community.
- On the basis of territorial extent, a law does not ordinarily bind outside the territory of the legislator. Indian laws do not bind in Europe; however, some laws may have extra-territorial jurisdiction (for example cyber security laws, taxation laws to punish offenders that flee the territory).
- An interesting example from a US Presidential primary will help clarify the distinction. In the presidential primary of 1992, candidate Bill Clinton was asked if he ever used drugs.
- He said that he never broke any United States laws by using drugs. Later, when asked if he broke any laws anywhere by using drugs, he admitted to having used marijuana once as a student at Oxford University in England. He was thereby claiming that the United States laws do not bind a U.S. citizen in England.
- Despite this distinction, consider an interesting development that occurred in Ireland during the spring of 1992. A fourteen-year-old Irish girl became pregnant as a result of an alleged rape. She and her parents went to England to procure an abortion, which the Irish Constitution prohibited (it was repealed in a referendum in May, 2018) in Ireland. The Irish attorney general brought the matter before the High Court in Dublin. The Court decided that the Irish Constitution barred the fourteen-year-old from having an abortion elsewhere in England.
- The Supreme Court of Ireland reviewed this decision on appeal; however, it did not rule that the young woman had the constitutional right to travel to England to have an abortion. Rather, it ruled that she could obtain an abortion because she was threatening suicide. Her right to life took precedence over the right to life of the fetus.
- Unlike laws, individuals, organizations or groups can make rules. It must be clarified again that rules are made under laws. Rules need not be for the common good; they can be for the private good and they usually bind persons wherever they go. But rules, too, must not violate natural law.
- Rules or regulations should declare or clarify civil laws, just as civil laws declare or clarify natural law. Rules and regulations can be extra guidance to public administrators as to what is right and wrong. The presumption is that rule makers have not violated natural law or civil laws, but sometimes they circumvent what the civil law clearly states. While a superior can punish a subordinate for violating the rules, if the rule is contrary to civil or natural law, the violator may have acted ethically. As with laws, a person has no obligation to obey an immoral rule.
- However, there are so many laws, rules and regulations that govern human behavior that it is virtually impossible for any human being to know all of them. Perhaps that is where the teleology is correct in saying that we do not need standards to govern human behavior; the human intellect alone is capable of knowing and judging what is right and what is wrong (Teleology is an ethical doctrine that says that there is purpose of reason for anything, i.e. certain phenomenon are best explained in terms of their purpose rather than cause).
- Information, reflection, judgment, decision and action are the criteria for determining morality. This approach makes sense and is a valid response to the fact that knowledge of all laws and rules is virtually impossible.
- While deontologists are content with focusing on laws and rules as the principal guidance for public administrators on morality, even they recognize that laws and regulations are insufficient. Public administrators are missing a critical element without conscience to apply those laws and rules to particular actions. So, now we examine conscience as a mechanism for deciding what is right and what is wrong.
➤ Conscience as a source of ethical guidance
- While law focuses on principles of morality outside human beings, conscience is something within human beings that determines the morality of human actions. Conscience is a special act of the mind that comes into being when the intellect passes judgment on a particular act's goodness or badness. It is a practical judgment on particular, concrete, human actions.
- From a deontological perspective, conscience is a judgment—an act of the intellect. It is not a feeling or an emotion, but, rather, an intellectual decision. It is also a decision with a view to a particular action. Conscience can make a practical judgment on the morality of either a past action or an action about to occur.
- Conscience is different from law. Law states a general rule concerning actions; conscience lays down a practical rule for specific action. Conscience applies the law or rule to specific actions, therefore it is wider than law. Some have said that conscience is to law as a brush is to paint.
- From a teleological viewpoint, conscience is quite similar to completion of the ego identity, whereby "every ego is in some sense a code of ethics. Suppose ego and conscience are similar or identical. In that case, people can determine the meaning of a particular action, past or present, and at the same time assess the morality of that action.
- Both approaches involve reflection, assessing both meaning and morality. The deontologist uses conscience to apply the law to a particular action. The teleologist may not admit applying a particular law to give meaning or morality to an action; this process involves applying "a set of value commitments" developed by all human beings from childhood. In practice, both schools use the same process but with different tools. The moral decisions may be different, but since both approaches involve the same human reason, moral judgments frequently will be the same.
➤ Types of Conscience
- Human beings can have different kinds of conscience. The first is a true conscience, which means that judgment is in accordance with fact. The judgment is a correct or accurate application of law to the action. A conscience is erroneous when the judgment is false —the practical judgment incorrectly applies law to the action. The erroneous judgment can be vincibly or invincibly false. (Vincibly false means that it can be corrected i.e. it is not invincible)
- Conscience may be certain, doubtful or probable. A conscience is certain when the judgment on an action's morality is without prudent fear of error. Prudent fear of error does not involve metaphysical certainty, but generally any normal person has no doubts about the judgment. That certainty can apply to both a correct and an erroneous conscience.
- A conscience is doubtful when the judgment does not exclude all prudent fear of error. The person is aware of some doubts about the practical judgment to be made. A conscience can be both doubtful and erroneous at the same time. A conscience is probable when the judgment "almost" excludes all prudent fear of error. A normal person is almost certain the judgment is correct, even though it may be erroneous.
➤ Ethical Principles Governing Conscience
The discussion of conscience leads to the following principles governing conscience:
- A person must take reasonable care to ensure a correct conscience.
- A person is bound to follow a certain conscience even if that conscience is false. For example, if I am certain that it is morally right to lie to save another's life, I am bound to lie.
- It is never ethically correct to act on a doubtful conscience. Vincible ignorance does not excuse—the person must make some effort to resolve the doubt. If efforts to resolve the doubt fail, the principle lexdubianonobligat ("a doubtful law does not bind") comes into play.
When is a law doubtful? Four principles apply and the actor is at liberty to follow the principle that appeals most.
- A law is doubtful and does not bind when there is more probable evidence on the side of liberty than against it. This is probabilism. For example, a person in doubt about what day it is observes four calendars. Three indicate it is one day and the fourth indicates that it is a different day. The person may follow the date indicated by or deduced from the three calendars if that ensures more liberty.
- A second version of probabilism states that the person may follow an option in favor of liberty, provided the evidence in favor of liberty is solidly probable, even though the evidence against liberty is more probable. In the same example, the person may follow the time indicated by the fourth calendar even though the other three numerically appear to offer more probable evidence.
- Another version of probabilism, equiprobabilism states that the person may follow an opinion in favor of liberty if the evidence on both sides is equally balanced. In the above example, if two calendars show that it is one day and the other two indicate that it is a different day, the person may follow either option.
- Compensationalism says that the person should consider the evidence not only favoring and opposing liberty but also the gravity of the law, the reason for acting against the law, the inconvenience arising from following the strict interpretation of the law and the justness of the cause for selecting the option offering most liberty.
Some laws may be doubtful, i.e. not clearly formulated with scope of misinterpretation, and provide options for people. These serve as additional guidelines to the principles of conscience. But one final question on conscience remains:
(i) Is there an additional obligation for people according to their state in life or educational status to have correct consciences? Framed in public administration terminology, the question is: Are public administrators bound to educate their consciences according to the responsibilities they have? In other contexts, management involves getting things done with other people's help. That assumes that management means getting things done right. Here, the argument is that getting things done right is only one side of the coin. Management also involves getting the right thing done. What is the right thing? What is the ethical thing to do?
(ii) If public managers must do things right and do what is right, they have an obligation to educate their consciences according to their state in life.
(iii) This includes not only management theory and practice but also ethical theory and practice. If managers do not do both, they run the risk of being outdated and neglecting true managerial responsibility. If managers are educators and teachers, surely they must learn both aspects of the job if they are to fulfill their role of teaching and coaching others.
(iv) There are two extremes to be avoided in educating and updating the conscience. One is not caring about conscience at all—making no effort to learn what is right or what is wrong, or perhaps showing no interest in right and wrong. Some public managers exhibit this characteristic. The other extreme is the person unable to distinguish serious actions from those that are not, whether getting things done right or doing the right thing.
(v) Some public managers fit this description. Neither extreme is in accord with the concept of conscience, which involves a practical judgment on human action's morality.
- Besides reliance on an action's nature, its consequences and purpose, laws, rules, and conscience provide guidance in determining what is right and what is wrong. However, in spite of the help that laws, rules and conscience may be to a public administrator, they do not guarantee infallible judgment.
- While laws and rules would seem to be a deontologically sound frame of reference in making ethical decisions, there are many flaws. The teleological approach acknowledges that there are too many civil laws, rules, regulations, court decisions and opinions governing almost everything, including ethical decisions. A public administrator can't know all the laws or rules.
- In considering what is right and wrong, public administrators have at their disposal information on the nature of the action performed or about to be performed, the circumstances surrounding the action, and its purpose. In addition, laws, rules and regulations provide additional guidance. Everyone has a conscience that can apply those laws, rules, and other morality criteria to specific actions. Except for what religion and theology have to offer, and they have much, that is all public administrators have to make discretionary administrative decisions. Ethics may indeed shortchange them. But if it does, it shortchanges people in all walks of life. The foregoing is the best that human reason can offer as a theoretical framework for assessing morality.