Framing the Legal Frameworks

What happens when laws fall short of a full articulation of the public’s consensus desires for certain outcomes? Assume for a moment that such a consensus exists. We can later relax that, but for the sake of simplicity assume agreement. Does it logically follow that anything not expressly forbidden is therefore permissible? If the law is silent on a topic, does that necessarily mean it is fair game? If so, what are the predictable consequences of that minimalist interpretation, and might that militate for more robust codes of ethics? (For now, this post will punt on the issue of ethics code enforcement and recourse for contravening one of the explicit canons in a code. This is a post more about the philosophical weight of conveying messages, and the potential inadequacies of the usual avenues, rather than the realistic logistical issues of what to do on the back end to ensure compliance.)

The crux of the idea is that some may point to legal codes as the instantiation of morality, yet this reification is incomplete, at best. There is no prima facie reason to believe that the laws map neatly to the desired ethical behavior as a necessary and sufficient set of conditions. First, consider the process (especially in present times). Legislators and public officials can barely reach an agreement on a temporary spending resolution. If they cannot agree on something so fundamental to the operation of the government, how are they going to decide upon what constitutes the morally correct or incorrect thing to do, which one might need to identify in order to actually reify these ideas in a law. This is not to denigrate the plurality of opinions inherent in an open society. Moreover, it is not meant to diminish the size of this task. Take punishment, for example. We as a society can hardly agree upon the purpose of laws that punish, as Thom Brooks describes in his book Punishment. In it, he attempts to reconcile the restorative justice, retributive justice, and deterrence theories of punishment into a unified theory. The point is that many laws will exhibit similar disagreements about their purpose and function, so relying upon such a legalistic framework to demarcate the boundaries of ethical behavior may be incomplete. To assume they are exhaustive, and the corollary that anything outside their purview is permissible, might be akin to the debates between federalists and anti-federalists and the tenth amendment in the U.S. Constitution: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.” Nowhere was it written that I couldn’t do X, ergo I can do X.

 

Just as the federal government is given certain powers, and the rest are reserved to states or the people, using a minimalist interpretation of the law might assume everything proscribed is unethical while the remainder is consequently ethical. Such an interpretation can lead to disastrous consequences if for no other reason than the fact that lawmakers are human, fallible, and not omniscient, and therefore the laws may be incomplete articulations of ethical conduct. How could legislators possibly anticipate every scenario in which an ethical dilemma might arise? Instead, while laws can establish a bare minimum foundation, society requires something additional to try and ensure ethical behavior within professions such as engineering.

 

Enter codes of ethics. Unfortunately, as the keen observer will have already noted, this same process of writing a code of ethics can fail to address the quandaries that arise from writing legislation. Specifically, they are still written by people with limited knowledge, and they are still open to interpretation as permitting whatever is not expressly prohibited. Is it possible that a new model is required? Perhaps one that emphasizes the importance of ethical behavior from day one in an engineer’s education such that the codes of ethics are almost superfluous in their redundancy because engineers are already attuned to the differences between ethical and unethical behavior by the time they graduate? Stranger things have happened…

 

For those interested, a more thorough review of the interplay between law and morality can be found in this article by Steven Shavell in the American Economics and Law Review.


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