The comments on the recent post regarding the so-called conscience rule being voided in court generated the comments the topic always does. What follows is a relatively short, general post to frame the issues as clearly as possible. Admittedly, when a post is titled “When Law and Ethics Converge,” perhaps I shouldn’t have to explicate with a post focusing on the difference between law and ethics. I strongly believe that conscience clauses undermine the law, and are unethical, as you will see.
Law and Ethics are not the buddies people think they are, or wish they were. If you look around Ethics Alarms, you see why. Ethics, as the process by which we decide and learn what is good and right conduct, evolves with time and experience. A predictable cut of a society’s ethics are always going to be a matter of intense debate. Ethics are self-enforcing, for the most part and by nature, because being ethical should make us feel good. Once an authority or power starts demanding conduct and enforcing conformity, we are mostly out of the realm of ethics and into morality, where conduct is dictated by a central overseer that, if it is to have genuine authority, must be voluntarily accepted by those subject to its power.
Society cannot function on ethics alone. Without laws, chaos and anarchy result. Because chaos and anarchy are bad for everyone, no individual who has accepted the social compact may decide which laws he or she will follow and which he or she will defy—at least, not without paying a price, which is society’s punishment. In ethical terms, this is a utilitarian calculation: we accept laws that individually we may find repugnant, because allowing citizens to pick and choose which laws they will obey as a matter of “conscience” doesn’t work and has never worked. Ethics pays attention to history.
Thus it is ethical to obey the law, and unethical not to, even if good arguments can be made that particular laws are themselves unethical. This is where civil disobedience comes in: if a citizen chooses to violate a law on a the basis of that citizen’s conscience or principle, the citizen also has to accept the legal consequences of doing so as an obligation of citizenship.
This point is always followed by reference to a citizen’s duty when a government and society have installed laws that are unconscionable and unethical absolutely. It is the anomaly where the Ethics Incompleteness Principle becomes relevant. In such a perverted system, the usual rules don’t work, and applying them as if there is no difference between a tax code and a policy of genocide guarantees absurd results.
There are hundreds, maybe thousands, of complex ethics debates embedded in the topic of law vs. ethics, and this is one of them: I believe the Nuremberg trials were themselves unethical precisely because they were based on the fiction that defying unjust laws in Nazi Germany was no different from defying unjust laws anywhere else. When an entire system is corrupted, the usual ways to address bad and unjust laws are useless. Mere civil disobedience is futile, indeed suicidal. Fortunately we know that ethical systems work better than unethical systems, and a completely unethical system like Nazi Germany eventually proves the importance of ethics by self-destructing.
I’m an ethicist and a lawyer, and there is a necessary tension between those roles. One reason I left the field of criminal law was that I found criminal law practice, one either the defense side or with the prosecution, ethically incoherent. Ethics needs to guide the law, and the laws should be based on ethics, but individuals cannot be permitted to use their ethics, or a separate morality (law is essentially a government-dictated morality) to rationalize disobeying a society’s laws and avoiding the statutory penalty for doing so.
The conscience argument for a pharmacist not filling a prescription for birth control pills or a nurse refusing to assist in a hospital abortion renders the concept of law incoherent. In principle, these arguments are no more valid than the claims that illegal immigrants shouldn’t be prosecuted, or the President Trump should be impeached for being unethical when no laws are involved. The end result is chaos. If a foreign national really, really wants a better life for his family, then we shouldn’t treat the family as the law breakers they are when they sneak into the U.S.. If we really, really believe the President of the United States is a scumbag who never should have been elected, then we should pretend that firing an official who deserved to be fired is an “obstruction of justice,” and that his using the same implied quid pro quo techniques with foreign nations that every other President has used for motives valid and questionable is an election law violation. I reject both approaches as intellectually dishonest and societally ruinous. Law is ethics, ethics is law, when we we find it soothing and convenient, and no two people will agree when and how we decide which and when. Then teh door has been opened for individual bias to infects the critical process of deciding which results are more important in a utilitarian calculation.
When we agree to live in a society, we delegate those balancing decisions to the society’s government, law-makers, and finally, the law. If individuals can opt in and out of society’s decisions about the law at their personal whim, however conscience-driven, then society breaks down.