Ethics and Law: "Two Porcupines Making Love"

Ethics and law: how are the two related. Does one come from another? Does one (for example law) always trump the other (ethics)? Well, back in 2000 Erich H. Loewy, who is a physician-ethicist wrote the following to my now inactive "Bioethics Discussion Pages". I think that in his few words, he has helped me understand that relationship between the two disciplines. What do you think? ..Maurice.




Ethics and the Law
Dr. Erich H. Loewy
Professor and Endowed Alumni Association Chair of Bioethics
Associate, Department of Philosophy
University of California, Davis


In my view (and that is my view and, therefore, may well be wrong) one of the measures of civilization in a society is to see if its laws derive from ethics or if its ethics (or at least its ethos) derive from laws. In my view, the more civilized a society the more is the former the case. Another measure is the protection of the vulnerable within such a society, something which is closely related.


The Nazi example fits -- mark you, I am not saying the holocaust, I am saying the Nazi state. The ethos shifted with the Nürnberg laws so that what was formerly simply not done became doable. The reciprocal influence of law on ethos (not the same as ethics but still the way we feel comfortable behaving) and of ethos on law is evident.


The question, of course, is "how do you translate ethics into law?". As I tell my students: like two porcupines making love: very carefully!!! To translate ethical precepts into laws must, I think, meet at least two conditions. First it should be something about which a wide consensus exists in society (murder might be an example); secondly it should be the doing of which is not only held to be ethically wrong but "threatens the king's peace" (the origin of law, really: in other words something which seriously impacts the peace of the realm).


Example: Most of us would pay lip service to the statement that it is ethically inappropriate to lie to one's spouse. But it doesn't threaten the king's peace and few of us would want it made into a criminal offense (is the death penalty too harsh??)- Murder, in that it threatens the peace of the realm because of vendettas, falls in the same categories. So, in my view, is a social structure which provides all with basic needs: here you curiously enough have something which threatens the public peace but something that there is no wide consensus about (and hence no or no adequate appropriate laws).


Obedience to law is, in my view, not absolute. When important ethical principles are jeopardized by law citizens are confronted with an ethical problem. An attempt to alter the law and, if need be, civil disobedience remains one of the corner stones of democratic process.


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(c) 2000,Erich H. Loewy. All rights reserved. ehloewy@ucdavis.edu