Ethical analysis

Ethical analysis What is “ethical study”?

Definition of ethics • Ethics is the philosophical study of morality • “Morality” involves “doing the ‘right’ thing

What is the “right thing”? • At least two approaches to determining “the right thing” • Teleological, that is, look at “ends” or consequences of what we do • Deontological, that is, look at the intrinsic nature of what is done or the act rather than consequences

Example deontological approach • “Lying is intrinsically bad, irrespective of the consequences.” • Authority: St. Augustine: “Lying is always morally impermissible.” (absolutist) • Source of St. A’s proposition: his interpretation of Scriptures (Bible) • What is a “lie”? “False statement made with intent to deceive.” Cf. Fraud dfn

Deontological approach (cont’d.) • Even St. A recognized some deceptions were not lies. • -false statement that speaker actually believes is true is not a lie (no intent to deceive) • -”jocose lies” O.K. b/c no intent to deceive • St. A: some lies are excused but still wrong: Hebrew midwives lied to Pharoh

Deontological (cont’d) • Why excuse some lies? St. A: B/c moral immaturity of person committing them • Problems: Lying to defeat a competitor (St. A: wrong; b/c one must not do evil that good might come of it)

Deontological (cont’d) • Casuistry: overly subtle reasoning • Raymond Pennafort treated as founder • gist: apply general moral principles to specific situations (precursor of situation ethics) • hypo: Hitler: Are there any Jews here? • Casuist (who knows of hiding Jew): No response; Or, “Jews don’t eat here.” St. A: Don’t co-operate; (problem: death)

Case problem: Cont’l Vending v. Roth • Who was “bad guy”? • Who was made to look bad by the bad guy? • Who was criminally convicted? • Who was exonerated?

Examples of teleological approach • Utilitarianism: “greatest good for greatest number,” that is, maximizing utility • e.g., star athlete gets caught ‘red-handed’ stealing from appliance store; is exonerated on specious reasoning so team’s winning potential is not jeopardized

Positive law • What is it? Rule; from political superior to political inferior; sanctions • Philosopher/exponents: John Austin; Bentham; H.L.A. Hart • Examples: Constitutions; statutes; regulations; judicial decisions (common law)

Positive law (cont’d.) • Strengths: structure; predictability; order • Weaknesses: could be “uncivil”, bad order (Hitler; Sadam Hussein; Stalin) • Institutional sources: Legislatures; courts; regulators

Is positive law replacing ethics in setting rightness” • What is the author’s thesis? • Is the thesis credible? • What evidence does the author cite to support his thesis? • Of the items the author cites, which is the most credible to you? • The least credible or at least provides the least support for his thesis? • Contemporary examples supporting the thesis? • Any ethical dangers in such a thesis?

Natural Law • What is it? What is “right” and “just”; what “ought” to be done • Philosophers: ancient Stoics, Blackstone, Jefferson; Martin Luther King • Examples: Nuremberg War Crimes Trials; U.S. Constitution’s Bill of Rights (includes “due process”; UCC’s 2-302 unconscionable contracts

Natural Law (cont’d.) • Strengths: appeals to individuals’ sense of “right” • Weaknesses: multiple conscience problem (individuals have different senses of what is “right”) • Source: “God”; rationality

Ethic of Power • What is it? Might; ability to do the “wrong” thing and get away with it; • Philosopher/exponent: Plato (“justice is the will of the stronger”) • Examples: Executives with power to close a plant; ability to evaluate someone; • Strengths: Provides structure, order • Weakness: corrupt order; perverse system (do the right thing and punished)

Historical jurisprudence • Definition: longstanding custom; “volksgeist” or “spirit of the people” • philosopher: Savigny • examples: private property; the ability to make private, enforceable agreements • strengths: people are familiar with customs • weaknesses: possibly backward, oppressive

Sociological jurisprudence • Definition: Norms; “everyone does it” • Philosopher: Ehrlich • Examples: I had to ‘cook the books’ because my competitors would look artificially good; ‘law’ of equal cheating • strength: follows what people actually do • weaknesses: ethical standards debased

Legal realism • Definition: what trial judges and juries do in fact irrespective of the positive law • Philosopher: Jerome Frank • Example: Widows always win against GM • Strengths: follows what people do and desire • Weaknesses: ignores positive law

Policy-sciences evaluative jurisprudence • Definition: planning applied to positive law • Philosophers: Harold Laswell & Myers McDougal; Louis Mayo • Example: NEPA; backup studies for “regs” • Strength: Consider, weigh alternatives • Weaknesses: “cooked” or tendentious studies

Value Integration • Value “congruence”? Yes, sometimes • Value “incongruity”: When? “embezzling parts manager” hypo; “cooking” the books (write-downs prior to mergers to enhance post-merger profitability • We all “ethically integrate”; How? • The “ideal”: ethical unity • Examine cases in Text ch 1 for this

Ethical analysis