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Ethics Always Trumps Law: Or Why Have Laws, Anyway? By Louis W. Hodges 

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Definitions: o “Morality” is understood to consist of that dimension of human beings in which we consider matters of right and wrong conduct and of good and bad character. o “Ethics” refers to the sub-discipline of philosophy or theology that conducts reasoned inquiry into the moral dimension of our species and into the various systems of morality that humans have designed. o “Jurisprudence” is the special sub-disciplined of philosophy that engages in reasoned inquiry into law and legal systems. Both ethics and jurisprudence grow from a common human condition in which human beings must design and create structures, moral and legal, under which we can live together for the common good. The subject of this essay is the relation between morality and law. Similarities: o Together they constitute the only means at our disposal for guiding human interactions, whether in social, economic, or political dealings. o They both deal with rights, obligations and duties. o Both also have to do chiefly with shaping conduct and with establishing standards by which human behavior can be judged. o Both are found in all known societies, and both offer sanctions against bad conduct. Differences: o Moral standards are universally applicable to human beings, while laws apply only within the sovereign governmental entity that creates them. o Though both seek to establish minimal standards of conduct- drawing a line below which behavior is unacceptable and will be punished-morality also offers definitions of ideal standards, whereas, law has none, or almost none of that.  A person who violates the minimal standards of either morality or law is regarded as blameworthy, but one who obeys the minimal standards of either morality or law is not regarded as praiseworthy. One whose behavior approximates the moral ideal, however, is highly praiseworthy, while no one is thought blameworthy for failing to achieve the ideal or exemplary level of conduct. o Morality, but usually not law, is concerned with not only conduct (what one does), but also with character (what one is). o A final difference between morality and law lies in the origin of the sanctions each imposes.  In law it is the sovereign state that judges and punishes the evildoer (compensatory, distributive or retributive justice). In the moral order, however, sanctions are most often imposed by the smaller community of which the evildoer is a member (not only compensation but also reformation)  You can be fined or jailed for violating laws; you can be held up to ridicule and scorned for violating moral standards. The complexity of our subject can be approached from a variety of perspectives and analytical questions. o Hart identified at least 4 questions that might be posed under our general rubric of morality and law:  Historical causation: Has the development of law been influenced by morals? YES  Whether some reference to morality must be part of an adequate definition of law? NO  The third question concerns the possibility of the moral criticism of law. Hart answers that moral criticism of law is possible because there is no contradiction in “the

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assertion that a rule of law is valid and yet conflicted with some binding moral principle...”  Is the fact that certain conduct is by common standards immoral sufficient to justify the making that conduct punishable by law? Not sufficient. So the question is before us: How may we most rationally and usefully understand the relationship between morality and law? Positivist’s Denial of a Connection o The positivist philosophy of law separates law from morality. o Early positivists were the ones to introduced a truly scientific method of analysis of law. They decide cases by what laws actually say, not what judicial tribunals would like them to say, or think they ought to say. o Hart & Kelsen: insisted that the scientific analysis of law has nothing to do with ethics or morality. o Austin: sought to divorce law from ethics altogether. o Bentham: sought to imbue law with his social utilitarian principles, moral standards that would guide law toward particular good ends. [Author’s preferred perspective on the relation between ethics and law in journalism] o Moral standards enable us to evaluate laws, but laws do not provide standards by which we might evaluate morality. o Kohlberg (expert in theories of moral development}: three main levels of development  Pre-Conventional- the individual begins to emerge as a moral agent. The person is fully egocentric and makes all choices solely with reference to some advantage for the self.  Conventional – individuals begin to take social conventions- including social customs and laws- into as foundations of moral choice.  Post-Conventional- mature individuals are capable of standing on principle and of transcending matters of custom and law that were central in the conventional level.  Also, at level two, respect for law develops, but at level three, respect for principle (justice) transcends concerns of law.  In this way, Kohlberg’s findings give a measure of psychological for the primacy of morality over law, at least in fully mature individuals. The Moral Foundation of Law o We must turn to ethics for guidance in achieving the moral objectives of journalism- the achievement of which can be either aided or frustrated by the laws we enact through legislatures and courts. My thesis is that both history and common sense show the prioritychronologically, logically, and axiologically- of the moral over the legal.  Chronologically speaking, those behaviors that law prohibits (murder, theft, assault) were morally wrong and were recognized to be so, long before sovereign states created laws prohibiting them.  Moral standards, which had been enforced only informally, began to be enforced formally as law sanctioned by the governing authority.  From these, two kinds of standards of behavior resulted: the moral and the legal. o MORAL standards of right and wrong that have to be sanctioned by threat of punishment by the state. o LEGAL rules are, in this view, merely those moral standards of right and wrong that states choose to enforce.  In that sense, morality exists before law and provides the foundation upon which law is built.

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Logically speaking, states cannot devise useful or just rules of social conduct, until law makers have first determined the human ends those laws ought to be designed to achieve.  Determination of the ends of the law is a moral and not a legal enterprise. The judgment that “there ought to be a law against it” is a moral judgement, not a legal one.  Moreover, it is logically impossible to speak of “unjust law”, in the absence of some established standards of justice (notion of right and wrong).  Axiologically, the law maker cannot devise mseaningful rules without having determined beforehand what values he wishes those rules to embody. Those values always incorporate, but are not limited to, moral values. o From this perspective, it seems evident that any effort to understand the origins of the positive law, or its social functions, without reference to moral standards is fundamentally mistaken. o Gillmor: “it is difficult… to imagine a just political or legal system without a moral base.” Morality and Law in Modern Journalism o One of the more important recent developments in morality and law for the modern press is the use of what we can call “laws of general applicability” to constrain news organizations. o Cohen v. Cowles Media Co  Dan Cohen was director of public relations for an agency that ran campaign advertising for the Republican candidate for Governor of Minnesota in 1982. Cohen offered some reports certain documents pertaining to a 12 year old shoplifting charge against the Democratic candidate, but only on condition that he would be treated as an anonymous source.  Editors of two newspaper violated the reporter’s promises of anonymity and identified Cohen as the source. Cohen filed a lawsuit, and won, under the doctrine of promissory estoppel.  Purpose of promissory estoppel is to compensate for harm incurred by one who has acted on the assumption that a promise would be kept. o Few people would reject the principle that those who make a promise have a moral duty to keep it. Also, few people would reject the moral principle that editors have a duty to readers to inform about what is really going on in political campaigns. o The author believes that the decision was morally defensible, but the courts concluded it was not legally defensible, and that is where ethics and law met. o The courts used a legal tool against a moral offense. They applied a law in a situation where its applicable had never before been acknowledged. The effect was surely, a further limiting of press freedom.  Cohen invoked the high moral standard of promise keeping in order to engage in morally despicable campaign tactics. He then appealed to law to enforce the moral standards. That is how morality and law met. o Food Lion v. ABC  Having received allegations of unsanitary and potentially lethal food handling practices at Food Lion supermarkets, ABC News executives concluded that the story was important and that an investigation should be undertaken to confirm the allegations.  Two ABC field reporters, worked undercover in three Food Lion stores.  Food Lion brought suit against ABC invoking three state laws of general applicability: business fraud, tres, and duty of loyalty to employer. Food Lion won.  Federal jury found that ABC investigators violated North Carolina’s statue against business fraud when its producers lied on job applications. It also found that by fraudulently gaining access to non-public areas in Food Lion stores ABC personnel had

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violated statutes forbidding tres. ABC were also held liable for failure of duty of loyalty to employer. o These two cases involve morality and law in obviously important ways.  The duty to keep promises and the duty to tell the truth. o Both principles have been written into law. But before Cohen and Food Lion, these laws had not been used against the press. o Their employment in the journalistic context can become nationwide in scope and effect because most states have enacted comparable laws, and that is of utmost importance not merely to journalists, but also to the people they serve. o Moral obligations transmogrify into legal obligations guaranteed through state sanctions. o An important consequence is that as we rely more and more on the force of law, and less and less on the power of the status and conscience. One result is that many of us accept the absurd and destructive notion that “if it’s not illegal, it’s OK to do it.” As more and more people act on that premise, social behavior deteriorates, the general level of insecurity and harm rises, and the cry goes out that “there ought to be a law”. As laws are created to regulate more and more spheres of conduct the role of the state in governance is enhanced. The ultimate consequence of that process, logically speaking, is totalitarianism.  All responsibility for regulating conduct shifts to the state and personal responsibility for one’s actions disappears.  As state sanctions increase, and as moral sanctions decrease, citizens look increasingly to the state, not only to enforce rules of conduct, but also to determine what the content, substance, and goals of those rules ought to be. Our civilation seems to be moving in that direction. A Concluding Note o Ethics and law in journalism have always been intertwined in complex ways. o Our laws have heretofore largely been guided by the ethic of freedom and the free press. o Laws of general applicability have now been employed in novel ways that limit that freedom. o The task before us is to refine the ethic of the free press to show ways it is compatible with the ethical norms of promise keeping, truth telling, and loyalty. o Once that task is completed we will have shown again that “Ethic Always Trumps Law: Or Why Have Laws Anyway?”