Fundamental Ethics in Law and Society
| Publication year | 2023 |
| Citation | Vol. 29 No. 3 Pg. 0024 |
| Pages | 0024 |
Feature
The basic meaning of ethics is doing the right thing, or as Mark Twain once said, "There is nothing wrong with doing the right thing."
BY PATRICK G. LONGHI
Over the course of three decades of lectures on ethics at continuing legal education seminars, I postulated that ethics had brought confidence, stability and respect to the bar, the justice system and society at large. Ethics was also used to strengthen other institutions, but today, America is a society in crisis—adrift from its moorings. I further submit that today our institutions are like a ship listing on its side needing to be righted before it sinks. I provided commentary in my lectures about this for years that the time was coming.
This article will attempt to provide a synthesis and context as to what has been happening with the life of the law and in our society through the lens of ethics. Imagine, if you would, a conductor of an orchestra bringing wind, string, brass and percussion instruments in perfect harmony with each other.
Ethics and Morality in Law and Society: Origins and Meaning
Although political theorists predating our Founding Fathers such as Frederick Bastiat and Emmerich de Vattel have written on ethics, it is a simple truth: the basic meaning of ethics is doing the right thing, or as Mark Twain once said, "There is nothing wrong with doing the right thing." Ethics is at the intersection of what's moral and what's legal, thus, it can be relative and evolve with the times. Bastiat, a French political libertarian and economist (1801-1850), wrote about property and plunder, the latter gotten at the expense of others and if easier than work, where morality and religion won't stop it, laws should. "When law and morality contradict each other, the citizen has the cruel alternative of either losing his moral sense or losing his respect for the law. ... There is in all of us a strong disposition to believe that anything lawful is also legitimate."[1]
Historically, there has been a symbiotic relationship between government, law, ethics and religion. One only has to look at Europe and the relationships between the popes who governed the faithful by penalty from the divine and those who governed nation-states by penalty from the law, for examples. Emperors of the eastern half of the Roman Empire (the Byzantine Empire) by the time of the sixth century recognized Christianity as the state religion enabling the church to also retain political and legal power. Emperor Justinian I (527-565 A.D.) created the codification of laws and the opinions of great Roman jurists known as the Justinian Code and constructed several important cathedrals.[2]
In Florence, Italy, during the Renaissance, the Medici family wielded great political power, which included Cosmo II Vecchio (1389-1464 A.D.), a wealthy banker to the popes and first in line as de facto ruler; Leo X (1475-1521 A.D.), who became the first Medici pope extending the family power base to include Rome and the papal states; and Catherine de' Medici (1519-1589 A.D.), who was married by her great uncle Pope Clement VII to Henry of Valois, who later became Henry II of France. King Henry VIII of England broke from the popes and Roman Catholic Church making the Church of England separate to this day. England's dual system of ecclesiastical courts and courts of law were merged in the American judicial system as one court of law and equity.
Foundations of Law and Ethics in the European Union
Today's European Union is a political, economic and social union of 28 member-states—and the Council of Europe, a more loosely bound association of 47 member-states adhering to the European Convention of Human Rights and Fundamental Freedoms and promoting democracy, respect for human rights and the rule of law.[3]
Among the initiatives undertaken by the Council of Europe in the area of promotion of ethics in government was the adoption of the Twenty Guiding Principles for the Fight Against Corruption in 1994. The principles inter alia call for states to take effective measures for the prevention of corruption and, thus, raise public awareness and promote ethical behavior, coordinate criminalization of national and international corruption, ensure those in charge of the prevention, investigation, prosecution and adjudication of corruption offenses have independence and autonomy appropriate to their functions and free from improper influence for gathering evidence, protecting the persons who help the authorities in combating corruption and preserving the confidentiality of investigations.
Moreover, the principles enjoin states to provide appropriate measures for the seizure and deprivation of the proceeds of corruption offenses, appropriate measures to prevent legal persons being used to shield corruption offenses, limit immunity from investigation, prosecution or adjudication of corruption offenses to the degree necessary in a democratic society. They promote the specialization of persons or bodies in charge of fighting corruption, providing them with appropriate means and training to perform their tasks. They also require states...
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