ETHICS - THE BASIS OF A JUSTICE SYSTEM

H. Dale Nute

Summary

A justice system is based on rules.  There are many types of rules and some interact to form the justice system.  The principle rules are ethics, morals and laws.  These are related in the following way.

Morals are based on authority, Ethics are based on reason.  

Laws may have a moral basis or an ethical basis.  Those in the United States are supposed to have an ethical basis.

Ethics are of two types -- Consequence-based and Rule-based.  Consequence-based are less reliable in the long run.

Rule-based ethics are of two types -- Value-based and Rights-based.  

Our Constitution, and the laws derived from it, are based on the rights asserted in the Declaration of Independence.

 

 

 

Rules

 "Our justice system is ethically based." What does this mean and how is our justice system different from other justice systems? 

The first question is what do we mean by ethics and how is that different from what we mean by morals and other similar terms.  The following chart describes a number of common terms that describe how a society attempts to control the behavior of groups and individuals within that society.  They all are based on the concept of a rule so we first define a rule and then we contrast the different types.

Rules are:
    a generic term for prescribing a guide for governing conduct or behavior
    they may be based on reason (ethics) or authority (morals)
    they may be issued as laws, mores, religious commands or etiquette.  

CONCEPT FORM BASIS ADHERENTS STANDARDS ENFORCEMENT IMPORTANCE
ETHICS codified premises ethical axiom individuals, professions, culture ethical code group promulgating the code vital
MORALS uncodified or codified commands political/religious authority culture/society rightness / goodness moral code political / religious authority vital
LAWS codified statutes governmental authority governed laws state's authority & power vital
CANONS codified priest / diety revelation believers beliefs, creeds church sanctions vital
MORES uncodified tradition, customs culture /  society rightness / goodness cultural pressure high
ETIQUETTE uncodified or codified customs, experts social class fashion peer pressure low
RULES OF A GAME codified experts players rulebook game organizer low

  

Laws may have both an ethical and a moral component. They may be ethically valid or invalid and they may be either moral or immoral.  They may also be amoral - neither moral nor immoral.  They may, and usually will, have conflicting ethical perspectives.  A law giving liberty or freedom to one, usually takes it from another.  The basic principle of equality is thus violated for one of the parties.  The decision may have to be based on considering the interests and purposes which the rules were designed to promote.

The above chart contrasts ethics with other forms of rules.  Ethics may also be thought of as the area of study that encompasses morals, mores and values.  We want to focus on the details of applying ethics and how they impact on the justice system, but first we need to get an overall picture of ethics.  The following chart presents a taxonomy of ethics that shows the "big picture" with ethics as one of the five aspects of philosophy. It shows two different aspects of ethics.

When discussing ethics with respect to criminology, we generally are concerned with just the first aspect -- ethical/moral thinking -- the use of ethics. In other words, when faced with a situation in which we have to decide between two conflicting courses of actions, we want to know how to decide which action is right and which action is wrong.

The second area is the study of ethics/morals as a subject. What are ethics/morals? Where do they come from and how do they work? 

PHILOSOPHY

I. LOGIC

II. ESTHETICS

III. METAPHYSICS

IV. POLITICS

V. ETHICS

A. Ethical/Moral thinking - 
        Normative ethics -an attempt to answer a first order substantive question about what is right or wrong, good or bad

1. Judgments of ethical obligation (deontic)

a. Consequentialist - Teleological

MANNER OF CHOICE BENEFICIARY
(1) General Utilitarian individual - egoism
(2) Action based Utilitarian small group - restricted
(3) Rule based Utilitarian society, culture - restricted
     (A) primitive rule utilitarianism world - universal
     (B) actual rule utilitarianism universe - universal
     (C) ideal rule utilitarianism

b. Non-consequentialist - Deontological

(1) Act based - situation ethics

(A) Particular situations only -

(B) General rules induced

(2) Rule based

(A) Duty based - loyalty, responsibility, obligation

(B) Rights based - dignity, liberty

(C) Natural law based - life, procreation, (sociability, knowledge)

c. Mixed Deontological/Teleological -- Theory of Obligation

2. Judgments of moral command - morals

a. Divine
b. Political
c. Cultural

3. Judgments of moral value (aretaic) - values

a. Ethics/Morality of virtue
b. Ethics/Morality of duty or principles
c. Moral Responsibility

4. Judgments of prevailing moral rules - mores

B. Thinking about ethics/morals as a subject - 
         second order thinking, reflecting on morality,  thinking about normative ethics, research into ethics and ethical practices .

1. Factual or scientific - empirical inquiry

a. Descriptive - 

            (1) who does what, to whom, when, where and under what circumstances? 

            (2)  how do they justify it?

b. Explanatory -

(1). phenomena of morality

(2). theory of human nature related to ethics

2. Metaethics - Conceptual thinking or analysis -

a. clarify moral concepts like 'obligation' or 'virtue',

b. analyze moral judgments

c. elucidate the logic of moral reasoning

3. Metamoral reflection - thinking about the "big questions"

         What is morality? 
        What is its object? 
        What forms may or should it take? 
        Why should we be moral?

 

What Is Ethics?

Definitions of ethics vary but for our purposes,

"ethics are rules for 'right' behavior
derived from agreed upon principles."

These rules generally are in the form of a code, a code that is derived from an ethical axiom(s) or premise(s). The purpose of the rules is to govern the behavior of humans in their relationships. The formulation of the code presupposes the "individual worth" of all those under the code. This follows from the requirement for agreement on the premise by those governed by it.

Human behavior ranges from exploitative to cooperative to altruistic. Humans establish relationships that range from superior to equal to inferior. The object of the relationship is generally thought to be another human but some authors also include inanimate objects and animals. In addition to considering relationships with other humans as individuals, one can go the other way and consider an individual's relationship with other humans in small groups, in a governmental entity, as a society, and finally, all mankind -- past, present and future.

An ethical code does not necessarily say what is right or wrong but must, as a minimum, establish the procedures and criteria for deciding. Deciding whether an action is ethical requires both logic and an ethical premise. Thus we have:

1) an ethical premise,
2) a code logically derived from the premise, and
3) the enforcement of a person's actions
based on logically evaluating the action against the code and thus against the premise on which it is based.

The remaining two parts of the definition of ethics (what is not ethics and what ethics are not) distinguish among ethics and other concepts that govern people's conduct. These distinctions (summarized in the chart on the previous page) are based on differences of:
whether the concept is codified or not;
on the basis of its authority;
the type of standard by which adherence is measured;
to whom it applies;
the type of enforcement available to insure adherence; and,
its importance.

 

What Is Not Ethics ?

Morals are not ethics. Most authorities use the terms interchangeably. This not only wastes a perfectly good word but also leaves no word to describe the more common behavior. Most of us do not base our actions on reasoned philosophical principles. On the contrary, the vast majority of us choose between right and wrong based on what we were taught by our mothers, the preacher, or the policeman. Most countries base their government, and their laws, on the philosophies of "might makes right" or the "divine right of kings," not on any ethical premise. We, therefore, will distinguish ethics from morals on the basis of how they are formulated.

Moral codes are derived from an authority. They are rules for "right" behavior derived from some authority, political or religious, or just from community customs (culture). You may even set yourself up as your own authority.

Ethical codes are logically derived from an agreed-upon axiom. They may be applied to religious, political or cultural situations but the distinction is that they are agreed on and are logically derived. For example, a religious group may agree upon a principle and base their religious rules on it or they may discover God's will through a prophet and agree to follow the rules set down by the prophet. The first is an ethical code, the second is a moral code.

 

What Ethics Are Not !

Ethics are not customs, mores, norms, values, etiquette, law or religion. All of these govern the conduct of human behavior, but they are distinct from either ethics or morals. Rules are the generic category including all of those commands promulgated by a society. Mores, the more vital norms in a society, are rules for "right" behavior derived from custom or tradition. Etiquette is perhaps the least vital of the codes of rules for "right" behavior in a society. Laws generally include mores but also include a variety of other rules, including some which do not prescribe or proscribe conduct. Law is also distinguished by the level and source of its coercion -- the state. Religion is also distinguished by not being exclusively related to prescribing conduct. Values refer not to behavior (actions), but to motives, intentions, and traits of character.

 

ETHICAL PHILOSOPHIES

The following taxonomy delineates the major philosophical positions for making ethical judgments. They fall into two basic categories -- those based on the consequences of the action (teleological) and those based on other criteria (deontological). Each of these has several variations and Frankena proposes a third category -- a mixture of the two. (For purposes of this class, the following definitions are presented using the term ethical where most authors have used the term moral.)

 TELEOLOGICAL (aka consequential or utilitarian) theories hold that the basic standard to judge whether an act or rule of action is ethically right/wrong or obligatory, is the consequence expected to result from that action. The consequence desired is based on the principle of utility as the sole ultimate standard of right/wrong and obligation. The principle of utility says quite strictly that the ethical end to be sought in all we do is the greatest possible balance of good over evil or the least possible balance of evil over good. The consequence itself has no ethical value, only benefit to someone. Types are distinguished on the basis of
1) who benefits by the action, and
2) how the decision is made.

Benefits may be directed towards:
1) An Individual - Ethical Egoism holds that one always is to choose the utility that will, in the long run, promote his own greatest good.
2) A Group - Restricted Utilitarianism holds that one always is to choose the utility that will promote the greatest good in his particular group. Such groups include the family, religion, profession, community and country.
3) The World - Utilitarianism is generally considered to be measured in the universe. One always is to choose the utility that will promote the greatest good in the world as a whole.

Universal and restricted utilitarianism are the most common forms today. Ethical egoism is seldom advocated as its faults are obvious.

 Manner of Choosing:
One must not only decide whether to apply the principle of utility to himself, to his group, or to the universe, but also must choose the manner in which the choice will be made. Three options are:

Act-Utilitarianism makes the choice by trying to see which of the actions available in this specific instance will or is likely to produce the greatest balance of good over evil.

General utilitarianism makes the choice not by asking in each situation which action has the best consequences but asking what the consequences would be if everyone were always to act likewise in such cases.

Rule utilitarianism makes the choice by asking, not which action has the greatest utility, but rather which rule has the greatest utility.
     primitive rule
     actual rule
     ideal rule

 DEONTOLOGICAL theories assert that considerations other than consequences may make an action or rule right/wrong or obligatory. Since consequences in themselves have no ethical value, how can they dictate an ethical decision -- what is right/wrong or obligatory?

 Act-deontological theories, also known as situation ethics, maintain that the basic judgments of obligation are all purely particular ones. In each case one makes an intuitive decision as to what is best to do.

The extreme act-deontologist maintains that we must decide separately in each particular situation what is the right or obligatory thing to do, without appealing to any rules and also without looking to see what will promote the greatest balance of good over evil for oneself, one's group, or the world.

 A less extreme form allows for induction to produce general rules.   General rules can be built up on the basis of particular cases and may then be useful in determining what should be done on later occasions. Even so, a general rule may never supersede a well-taken particular judgment as to what should be done.

 Rule-deontologists hold that the standard of right and wrong consists of one or more rules. These rules are valid independently of whether or not they promote the good over evil consequences; and are basic, that is, not derived by induction from particular cases. The rule-deontologists base their standard of right and wrong on a variety of types of rules.

 Duty-based deontologists consider a set of duties as basic or obligatory. Kant saw duties such as fidelity as absolute rules but had to allow for exceptions when the rules conflicted. Ross got around this by viewing the rules as prima facie, - they must be obeyed except when they conflict and then one decides which takes precedence, but he gave no basis for deciding.

 Rights-based deontologists see the rights of individuals as requiring obligations in a relationship. Rawls identifies dignity and liberty as basic human rights.

 Natural law advocates believe that there are certain laws of nature obligatory on human conduct. Traditionally the two prime laws are preservation of life and procreation, but Harris points out that sociability and knowledge are also defining human characteristics. 

MIXED DEONTOLOGICAL-TELEOLOGICAL theory (aka Theory of Obligation) holds as basic the principles of beneficence (do good and prevent harm) and of justice (equal treatment). More specific rules of prima facie obligation are derived from these two individually or jointly. Holding principles as basic is a deontological approach but the principles selected are teleological in nature.

 

Philosophical School
------------------------

Criteria for Action
---------------------

Focus of Ethical Decision
------------------------------

Consequentialist - Teleological
Ethical Egoists
(e.g., Nietzche, Hobbes)
Well-being of moral agent, self-interest Consequences of alternative action
Utilitarians
(eg., Mill, Bentham)
Aggregate common good, interest satisfaction, limited self-interest Consequences of alternative action
Action based
(Moore, Smart)
  action that produces the most utility if individually applied
General
(Singer)
  action that would produce the most utility if universally applied
Rule based
(Bishop Berkeley, R.B.Brandt)
  moral rule dictating the action producing the most utility
Non-consequentialist - Deontological
Act-deontology intuition, experience factors of particular situation
Rule-deontology evaluation against basic standards basic rules determine standards of conduct
Duty-based
(Kant, Ross)
Duties of behavior
(eg., fidelity)
relevant duties in situation
Rights based
(Rawls)
Rights of the individual
(eg., dignity, liberty)
limited self-interest value of the human person
relevant rights of individuals affected by action
principles of universalization & persons as end not means
Natural law-based
(Aquinas)
Conformity to human nature
(life, procreation, sociability, knowledge)
relevant requirements for the good of human beings as determined by the characteristics of human nature
Mixed Deontological / Teleological
Theory of Obligation
(Frankena)
Beneficence, Justice do good & prevent harm
equal treatment

 

SOME THOUGHTS ON THE USEFULNESS OF ETHICAL EVALUATIONS

When considering a course of action or debating whether something is "right or wrong" it helps to separate the issues.

Example - when considering marriage laws

Moral - some things are right for religious reasons, legal interests, or tradition.

Utilitarian - What are the consequences? limit STD, stability, no fighting over mates

Rule-Duty - Ought to do so because loyalty & fidelity require it

Rule-Rights - Ought to do so because it satisfies biological drives and maintains human dignity

A police officer "dirtying up" a suspect is acting based on his expectation that the consequences for society will be better if the suspect were in jail. A judge, disallowing the use of illegally seized evidence, however, is acting based on a rule which establishes how all persons are to be treated, suspect or not. The rule derives from some philosophical standard, not from our personal experience.

I have collected some thoughts and proposed them as an ethical code for a professional association of forensic scientists.  Whether they are ultimately accepted or not, I think they are worth thinking about.  They are at
http://www.criminology.fsu.edu/faculty/nute/ethical_code.html 

If you have any thoughts about their efficacy, drop me a line at hdnute@mailer.fsu.edu