The post generating texagg04‘s (latest) Comment of the Day dealt with the tricky and common ethics problem of enforcing reasonable rules strictly in the face of situations where compassion and sympathy pull us toward leniency, because the penalty for non-compliance seem out of proportion to the transgression. He correctly identified this as a problem involving the Ethics Incompleteness Theorem (or Principle), which is an ethics analysis concept used frequently here, and one of my favorites. The Theorem, as stated in the Ethics Alarms Concepts and Special Tools, a.k.a. “the Rule Book,” holds that…

The human language is not sufficiently precise to define a rule that will work in every instance. There are always anomalies on the periphery of every normative system, no matter how sound or well articulated. If one responds to an anomaly by trying to amend the rule or system to accommodate it, the integrity of the rule or system is disturbed, and perhaps ruined. Yet if one stubbornly applies the rule or system without amendment to the anomaly anyway, one may reach an absurd conclusion or an unjust result. The Ethics Incompleteness Principle suggests that when a system or rule doesn’t seem to work well when applied to an unexpected or unusual situation, the wise response is to abandon the system or rule—in that one anomalous case only— and use  basic ethics principles and analysis to find the best solution. Then return to the system and rules as they were, without altering them to make the treatment of the anomalous situation “consistent.”

No system or rule is going to work equally well with every possible scenario, which is why committing to a single ethical system is folly, and why it is important to keep basic ethical values in mind in case a pre-determined formula for determining what is right breaks down.

 Tex expands the discussion into such areas as test scores, speed limits, and rule-making itself.  Here is his masterful Comment of the Day on the post, The Eternal Ethics Conflict: Drawing Lines, Enforcing Them:

Rules; Where They Are Set

To start off, let’s establish a couple of scenarios that require rules to govern them, just as aids for explanations. These examples, will be used as analogies for ethical systems (and ultimately legal, in fact one example will be legal). In example one, at the end of any school year, we examine students to measure their mastery of a body of knowledge or skills. In example two, on any highway, we have to balance the needs of individual drivers, their limitations should unexpected contingencies arise and their interaction with other drivers on the road. This balance leads us to Speed Limits.

For the first example – test scores – we decide that of 100% of the knowledge related to this topic, you need to demonstrate 70 % of it to show sufficient mastery to advance. So, some students score 71% and pass, and some students score 69% and fail. At just a 2% difference, how is it that the 71% student gets to advance along with the 100% student, despite their difference being 29%??? Can’t we just have a little mercy for the 69% student?

No. If we give mercy to the 69% student, then why not the 67% student? After all, that’s only 2% from him… then why not the 65% student? That’s only 2% from the next guy you just gave mercy to. Maybe the 69% student was just having a bad day, but otherwise COULD demonstrate the knowledge. Maybe the 71% guy really is less intelligent than the desk he sits at but just got lucky on some guesses. How is that fair?

Well, the truth of the matter is, maybe 60%, in an ideal world of students who perform exactly as they ought to perform given their level of mastery, would be a passing grade. But the role of education, is to advance people who have FOR SURE demonstrated mastery at a certain level…this means that if 60% is an *ideal world* passing rate, but in a non-ideal world, Melvin Shlubnuckles, who would on a normal day only manage a 58, somehow lucked out and got a 65%. Well, if ideal-world passing rate is applied, we’ve just advanced a detriment to education to the next level. So to ensure that we haven’t accidentally advanced guys who only LUCKED their way to a good grade, we have to cut some of the barely good enough guys who would have passed. Yes this accidentally gives the axe to guys who otherwise demonstrate mastery (in the ideal grade) but are low enough to get busted by the 70%. But that’s the only safe way to ensure QUALITY advances, and those who need extra learning won’t – which is the purpose of education. (THERE CAN BE A HUGE ALTERNATE TO THIS PARAGRAPH – which should assuage the anguish of any bleeding hearts that disagree with this paragraph – but for explanation purposes I needed two separate methodologies for establishing cut off points of rules)

In the second example – Speed Limits – we decide that an individual person, by themselves, on a highway, with no contingencies to worry about, can probably drive 100 mph safely. But, we know, there are always contingencies – curves in the road, unexpected conditions, OTHER DRIVERS. We’ve decided that, on a bell curve average (please remember this visual), a safe speed limit would be 80 mph at the middle of that bell curve. But we can’t choose that, because that puts a ton of people on the road with a speed limit much greater than they can react to, with people driving that speed that they must react to. So we skew the speed limit to the “safe” end of the bell curve and make the speed limit 60 mph, so most people are compelled to drive within the limits that ALL (or just about ALL) can handle.

So, much like the Test Grade rule, but from a different approach, the speed limit rule also has margins and exceptions. Where in an “accommodating” world, a high speed limit is more fair to those who can handle it, but allows a ton of people who cannot handle it to suddenly be placed in situations they can’t handle. The Libertarian in me says so what, let people takes the risks they want…good thing that part of me is tempered.

To make a long story short – we make our rules, and they have to be Black and White rules, even though they govern individual instances of conduct that may derive from a whole host of background reasons and therefore lie on a gray continuum. So it seems really really unfair, when Conduct X, looks almost exactly like Conduct Y, but X is banned while Y is allowed only because of small differences. This compels us, when making those rules, to decide, for each particular rule governing a particular continuum of conduct, does this rule need to SKEW on the side of allowing some unethical behavior so that all ethical behavior (even on the margins) is allowed, or does the rule need to SKEW on the side of disallowing some of the ethical behavior on the margins to ensure that ALL (or most) of the unethical behavior is disallowed.

Head spinning yet?

Mine is. Yet we derive almost all of our rules from one of those two balances – even our legal process does this. It SKEWS on the side of allowing some guilty people to walk free to ensure that ALL (or most) innocent people are not accidentally (or falsely) convicted.

Ethics Incompleteness Theorem

So, on the Highway, we’ve limited the speed to 60 mph. We’ve deemed that to be the Safe Speed minus the “Leniency Buffer” or a “Contingency Buffer” or any other type of marginal decrease. One Rule, One Scenario. But the scenario, although the norm, doesn’t factor in exceptions. The highway speed limit scenario considers the Normal use of the road – you trying to get from point A to point B while considering other drivers’ needs & likely contingencies. Well, what if the driver is a woman in labor? A man with a dying child in the back seat? We can come up with any number of “exceptions” that would compel breaking the speed limit. But the speed limit is still broken. So why can’t we just formulate a set of rules that covers EVERY last exception we can think of.

In an ideal world, that’s precisely what a study of ethics does…but always remember, as we determine new rules that take into consideration factors that weren’t ever calculated before, those new rules WILL always generate new areas where exceptions may be found. In legal terms – the Speed Limit – we can’t drive down a highway, glance at a speed limit sign with 284 separate permissable speeds depending on your personal situation and expect life to be relatively seamless. The community & commerce would either be utter chaos or frozen in its tracks. That is why we have judges and police with limited discretionary power to decide if a particular breaking of the speed limit was reasonably exceptional for leniency or not.

Likewise, where is the room for leniency in the test score example? Well, as demonstrated, establishing a 70% cut-off may axe a handful of guys who are *just right there* but need a few more points to pass and would otherwise have been included in the passing grade if it weren’t so high to cut-out the dummies who got lucky. Well, here is where we give teachers discretion. Will the teacher who knows that Frederick O’Middlin, who has demonstrated all year that he has mastered the skills or excelled on the projects or shows real promise, go ahead and award him points or give him a chance to re-test when he just had a bad day on the day of the test? Sure. Why not? More factors than the teacher should reasonably be expected to consider for grading papers may occur which may skew a student’s grade *slightly*. Does this make it unfair for Richard MacPhlegmatic, who often skipped class, failed several quizzes, botched practical demonstrations, and got the same grade by luck to be denied extra points by the teacher? NOPE!

Leniency Should be Factored into making the rules

Because exceptions exist that add ethical considerations to any Rule Violation, leniency must be permitted, BUT only a case by case basis. And each EXCEPTION must be clearly explained why it is an exception. It does no good that the pregnant woman in labor gets off the hook for speeding if it isn’t explained that that is why when the non-pregnant woman demands an exception also.

But that isn’t the only way exceptions are demanded, because there will always be calls from the margins for more leniency. Remember that bell curve for determining safe speed limits? Well, the race car drivers who live on the far side of that bell curve, who could survive a highway full of contingencies and other fast drivers, will be perpetually frustrated by slow speed limits. They know they can handle it safely (they may not care about other’s needs though), and so they will perpetually clamor for a change in the standards to their advantage. The exception those guys want is in a completely different class from the exceptions like the pregnant woman.

Ethics Surrender & Everybody Does It

I find that a lot of the calls for leniency are often derived from [Ethics Alarms Rationalization #1] Everybody Does It. That’s not acceptable. But it certainly leads to calls for [Ethics Alarms Rationalization #1A] Ethics Surrender.

On this topic, it would seem that the woman who was late, may have been 2 minutes late to the “stated standard”, but the established rule, may very well have been derived (as per the methodology described above) from already factoring in a LENIENCY buffer of 20 minutes… that’s why seminars say “Arrive Between 8:30 and 9:00 – no admittance after 9:00”…because the ACTUAL rule is “Arrive at 8:30….but we’re giving you a 30 minute no penalty buffer…which is more than enough if you shoot to arrive at 8:30”.

That’s where slippery slope begins and the fun of Ethics Incompleteness…

I’m back, for a nonce. In a comment to his COTD, texagg04 essentially added a coda, so I’m going to put it here…anything to avoid another one of those awkward “Comment of the Day on Comment of the Days. Here it is; back to tex:

On the topic of leniency and where it is right to consider exceptions I meant to add some clarification:

Exceptions worthy of leniency can ONLY derive from conditions that-

A) are unexpected enough to not have been reasonably factored into the establishment of the rule
B) actually possess some ethical value themselves

This is why the pregnant woman in labor should be granted leniency for speeding (unless it was just truly bad speeding) but the batty-eyed-beauty SHOULDN’T (even though she probably will be)

Let’s use a biblical parallel, supposedly the earliest interactions, arguably before ethics was ever invented –

Cain kills Abel. What did he just do? No one knows…was it ethical or unethical? Who knows…we’ve never considered this before.

So after consideration, the humans decided – Ok guys, the Rule is Set – If you kill someone you are wrong. A simple question, considering only one ethical value – the life of the one who was killed.

Fast forward a few generations.

Lamech kills a man who was attacking him.

Well gosh! According to the Rule Established, Lamech has done wrong. A strict interpretation of the rule is “Don’t kill another person”.

But wait a minute Lamech says, “I’m an exception! It was self-defense, I would not have killed him, if he wasn’t already trying to kill me!”

So the stone-age ethicists begin scratching their head and they decide 2 things:

1) Lamech receives leniency because the original rule was (a) not formulated with the exception in mind and (b) it turns out the begged exception DOES take into account another ethical value.

2) That this exception may occur in the future with enough occurrence, that the rule needs to be rewritten.

So they philosophize some and decide that the rule needs to be a little more sophisticated… “Do not commit homicide, but it is a defense against accusations of homicide, if the accused reasonably acted in self-defense”

It is not right to consider exceptions to leniency if they don’t reflect some conflict of another ethical value…