Natural Law and Ethical Dilemmas
1.0 Introduction
In looking at the origin of ethics, some ask whether natural law is the origin.
The idea of natural law is that underneath the diversity of human cultures and
beliefs about what is right and wrong, we can identify some factors that are
common to our human nature. The notion of natural law was a favourite of
ancient thinkers like Plato and Aristotle, who sought to identify universal traits
of human nature, with the aim of finding common goals or ends that would
bring human fulfilment or happiness (Kane 1996: 46). This pattern of looking
for natural laws continued into the medieval and later periods of Western
culture. Natural laws are said to be laws that govern human behaviour and
define the right way to live. They are said to be “ natural” because they are
thought of as incorporating human nature and the goals that humans naturally
seek. In effect, natural law represents a search for moral absolutes that define
what is “normal” and “natural.” For example, despit e more progressive and
inclusive modern attitudes toward homosexuality, some still argue that
practicing homosexuality is “unnatural” because it is contrary to human nature.
Nowadays, natural law arguments have tended to gravitate towards arguments
in favour of human rights.
2.0 Objectives
The focus of this unit is to examine natural law, normative and applied ethics,
particularly in relation to decision making the exploration and analysis of
ethical dilemmas and conflict situations that arise within the criminal justice
system.
3.0 Main body
Is law a source of ethical standards, and what is the relationship between law
and ethics? It is important to understand that ethics and law are distinct
categories. By law, we generally mean legislation, statutes, and regulations
made by states and by the federal government on a host of subjects for the
public good and public welfare. Laws do not, and are not intended to,
incorporate ethical principles or values, but sometimes ethical standards will be
reflected in laws. For example, both morality and the law prohibit the act of
murdering another human being. Similarly, legislation regulating the legal
profession or other professions may give legal effect to certain professional
codes of conduct. It is possible to argue, therefore, that codes of conduct
regulating legal practice have the force of law. However, on a whole range of
subjects from business practice to driving a vehicle, laws do not set ethical
standards. It is important to appreciate, therefore, that ethical standards are not
necessarily written down in the form of laws or other rules, but represent the
collective experience of a society as it regulates the behavior of those who
make up that society. The fact that an ethical standard is not repeated or copied
in a law does not affect the validity of that ethical standard. However, where
ethical standards are incorporated into law, such as the right to choose an
abortion, although people must obey the law, they are not necessarily required
to hold the same ethical beliefs expounded by that law. Sometimes laws can
conflict with ethical standards. For example, laws promoting apartheid in South
Africa and slavery in the United States were both clearly in violation of ethical
standards relating to the dignity of the person, but were nevertheless lawful and
were expected to be obeyed when in force. From time to time, a mass
movement develops against a particular law or set of laws, reflecting a section
of public opinion that claims that the law is wrong and should be repealed.
Where there is a deliberate disregard of the law by those protesting its
wrongness, the result can be acts of civil disobedience. For example, in India
during the British colonial period, Gandhi advocated and practiced civil
disobedience to British laws because he and his followers wanted an end to the
colonization of their country. Similarly, in the United States, activists in the
civil rights movement deliberately flouted laws that were racially
discriminatory, and civil rights workers were prepared to be arrested and jailed
in pursuit of equal treatment for all citizens.
ETHICAL DILEMMAS
Ethical questions and issues arise for all people, not just for professionals in the
criminal justice system, or professors who teach ethics, or members of the
clergy. We may all have to make decisions involving ethical issues in our daily
and professional lives because, as we have noted, ethical issues are concerned
with questions of right and wrong and how we ought to act. For example, we
might apply for a job, and in order to be considered for the position, we may
have to decide whether to hide the fact that we were fired from a previous job
for misconduct. In other words, we have to decide whether to lie to promote
our own career interests or whether to reveal the truth. Another instance may
arise as we walk down the street and see a person who is apparently homeless,
panhandling from passersby. The ethical dilemma here is whether we should
act to help the poor and needy or just pass by and give nothing. We will have to
make ethical decisions in our day-to-day lives, so it is helpful to recognize
when an issue involves ethical considerations, and then to be able to apply a
knowledge of ethics, including ethical terminology and concepts, in making our
decision about what to do.
A number of ethical approaches can be taken in making a decision about an
ethical issue, and you will see in the following chapters that no one approach is
the “correct” one; rather, different approaches are equally valid in ethical terms.
The approach we adopt to an ethical issue will frame and give meaning to any
decision we make, and can be used to justify and validate our actions. Of
course, it is always possible to abandon the responsibility for making an ethical
decision. We might decide that we will simply follow the dictates of others
rather than applying our own mind to a particular ethical issue. For example,
during World War II, many war crimes were committed by members of the
Nazi Party who claimed they were simply following orders in committing those
crimes. In effect, they abandoned their responsibility to make an ethical
decision not to kill or murder, and opted instead to obey unethical and
inhumane directions. Similar situations may arise in the criminal justice
system. For example, a prosecutor may have to decide whether to seek the
maximum penalty against an accused under three-strike legislation. If he or she
does decide to seek the maximum, the result may be that the accused will be
incarcerated for the rest of his or her life. A prosecutor may decide to act
ethically and fully weigh this issue in light of the facts of the case and the
nature of the crime committed.
Alternatively, he or she may choose not to follow that process and may simply
take the position that the law reflects public opinion, and that he or she should
always exercise discretion so as to impose the full penalty provided by the law.
When we decide to accept responsibility and make a decision involving ethical
considerations, we are faced with a personal ethical dilemma. A personal
ethical dilemma can be contrasted with an ethical issue. The latter is usually an
issue of public policy involving ethical questions. Examples of such issues
include the morality of capital punishment, whether to incarcerate more people
or use alternative sanctions for convicted offenders, and other important social
issues. A further distinction between ethical dilemmas and ethical issues is that
an ethical dilemma is the responsibility of an individual and requires a decision
to be made. Ethical issues, on the other hand, being broad issues of social
policy, do not require individual decision making beyond the decision of
whether one is in favour of, or opposed to, a particular social issue. However,
the fact that ethical issues do not require most individuals to decide the issue
does not mean that an individual is helpless to influence the public debate on a
social issue.
Ethical dilemmas are important in the criminal justice system because criminal
justice professionals are often faced with having to make decisions that involve
ethical issues. Much of the material in this unit concerned with ethical practices
in the criminal justice system will focus on ethical dilemmas faced by criminal
justice professionals, and will analyze options in light of ethical theories and
any relevant rules and regulations. How do we recognize when a dilemma is an
ethical dilemma as opposed to merely a dilemma? An ethical dilemma arises
only when a decision must be made that involves a conflict at the personal,
interpersonal, institutional, or societal level, or raises issues of rights or moral
character. What process is followed in resolving an ethical dilemma? Hare
(1987) argues that we initially use an intuitive level of moral thinking when we
consider ethical dilemmas. This provides us with relatively simple principles
derived from our upbringing and past experience of decision making. Critical
thinking is another process of thinking about moral decisions; in contrast to
intuitive thinking, critical thinking applies principles established by philosophy
and moral concepts, and is therefore non-intuitive. In making moral judgments
when faced with moral dilemmas, we may initially apply an intuitive form of
thinking, relying on our intuition to identify possible courses of action to make
the decision. However, we are likely to find that our intuitions do not
adequately equip us to make moral decisions and that critical thinking is
required. Consider the following scenario:
A newly recruited correctional officer, Tom, overhears
three other correctional officers, Fred, Bob, and Charlie,
discussing arrangements to assault an inmate, Raymond,
who has previously attacked another correctional officer,
a close friend of the three officers.
Box 1: AN HYPOTHETICAL EXAMPLE
Tom is faced with a dilemma: whether or not to prevent the attack on
Raymond. His dilemma is an ethical dilemma because if he does act, this will
involve a conflict between himself and Fred, Bob, and Charlie. It is also an
ethical dilemma because it raises issues of rights and morality; that is, the right
of Raymond to safety and security even in prison, and the morality of allowing
a person to be assaulted other than in an act of self-defense. In order to resolve
his ethical dilemma, Tom will need to pursue a process of analysis resulting in
a decision. The following process is intended to provide Tom with a method for
reaching his decision:
·He will identify the fact that he is faced with an ethical dilemma and
state the dilemma clearly.
·In his mind, he will collect the facts and circumstances of what he
overheard so that he is quite clear about what he heard, the identities of
those involved, and all other relevant information.
·He will collect all the facts and knowledge relevant to the decision,
including his own values about the issue, and the values of his
workplace. He will consider his own position at the prison as a newly
trained officer and the consequences of reporting the incident and of not
reporting it.
·This is an ethical dilemma, so he will call to mind his knowledge of
ethical principles and theories with the aim of applying those ethical
approaches to his possible courses of action.
·Tom will now identify his available options for action. First, he could
intervene in the situation by informing his supervisor of the conversation
he overheard. This action will be based on his responsibility to ensure
the safety and security of all inmates and to enforce the policies and
rules of the institution. Second, he could choose to ignore the
conversation because of his loyalty to his fellow officers and his need in
the future to receive their assistance and support when carrying out his
duties. Third, he could choose to intervene by talking to the officers
involved in an attempt to prevent the misconduct, wit the aim of
minimizing the harm for all involved parties. Tom must support each
alternative action with reasoning derived from ethical principles in order
to give credibility to his choice of action.
·Tom will make his decision based on his analysis of the dilemma after
applying the ethical approaches to each course of action. He will choose
the option that for him is the most ethically appropriate. In other words,
after considering the choices according to this process, he will decide,
“This would be the right thing for me to do.” He th erefore resolves his
ethical dilemma by making an ethical decision and acting on that
decision.
From the hypothetical examples above it is obvious that Tom’s process for
making an ethical decision was straightforward. However, making an ethical
decision may involve factors such as one’s personal values, personal priorities,
or how a particular decision might affect friends or even strangers. Therefore,
the most ethical choice is not always clear. To act ethically is not simply a
matter of deciding what is right and wrong in advance and stubbornly sticking
to that position. Since there are many gray areas where there are no specific
rules, laws, or guidelines laid out in advance, it is not always easy to know
which decision is the most ethical choice. In addition, if we are to act in an
ethical way we have to justify what we do, and the justification must be
sufficient that it could in principle convince any reasonable human being. As
Rachels (1991: 438) puts it,
. . . a moral judgment . . . must be supported by good
reasons. If someone tells you that a certain action would
be wrong, for example, you may ask why it would be
wrong, and if there is no satisfactory answer, you may
reject that advice as unfounded. In this way, moral
judgments are different from mere expressions of personal
preference. . . . moral judgments require backing by
reasons, and in the absence of such reasons, they are
merely arbitrary.
Hare (1987: 218) argues that moral judgments must be able to be applied
universally. According to this principle, similar actions ought to be judged
similarly unless there are morally relevant differences between them. For
example, if I judge it wrong for you to cheat in examinations, I must be
prepared to say that it is wrong for me as well, unless I can explain how my
situation is different from yours in a morally relevant way (Holmes 1998: 151).
Thus, the principle does not say whether you should cheat, but it does require
that whatever you do, you must be consistent. Singer (1995: 175) expands this
notion somewhat by arguing that when thinking ethically, I ought to consider
the interests of my enemies as well as my friends, and of strangers as well as
my family. If, after I have fully taken into account the concerns and preferences
of all these people, I still believe that a particular action is better than any
alternative, then I can honestly say that I ought to do it. What weight do we
give to our personal values when making ethical decisions? By values, we
mean what individuals care about and what they think is important. This can
include such things as people’s desires, such as social approval and what they
enjoy, such as sports or music, their goals or purposes, their ideas of happiness
or success, and their highest ideals. Each person develops a set of values which
forms his or her value system. We often assume that our values are similar;
however, we may define values differently than others. For example, we may
have different definitions of what constitutes a “f amily” but we may all share
“family” as a value. Even if we do have similar def initions of values, we often
prioritize them differently. Thus, one person might give the value of “freedom”
a higher priority than the value of “preservation o f life.” Another may
prioritize the value of “loyalty” higher than “personal freedo m.” The fact that
we may order our values differently explains why our thinking about ethical
decisions differs from others, and why we arrive at different conclusions.
Self Assessment Exercise
1. How do we recognize when a dilemma is an ethical dilemma as opposed
to merely a dilemma?
2. What process is followed in resolving an ethical dilemma?
4.0 Conclusion
Once again the relevance of ethics was brought to bear as all humans have the
capacity to take decisions and what, when and how these are taken becomes an
ethical issue in our daily lives at work or home. Ethical dilemma therefore
arises only when a decision must be made that involves a conflict at the
personal, interpersonal, institutional, or societal level, or raises issues of rights
or moral character.
5.0 Summary
This unit discusses natural law and the ethical dilemmas individuals face in
decision in everyday life activities. The importance of Ethical dilemmas in the
criminal justice system cannot be over emphasised because criminal justice
professionals are often faced with having to make decisions that involve ethical
issues. A hypothetical examples of one of these dilemmas was highlighted as in
the case of the correctional officer (See Box I).
6.0 Tutor Marked Assignment
1. What is the relationship between law and ethics?
2. Is law a source of ethical standards? Discuss.
7.0 References/ Further Reading
Arrington, R. 1983. “A Defence of Ethical Relativis m.” Metaphilosophy 14:
225–239.
Bunting, Harry. 1996. “A Single True Morality? The Challenge of Relativism.”
Pp. 73–85 in Philosophy and Pluralism, edited by David Archard. Cambridge:
Cambridge University Press.
Cook, John. 1999. Morality and Cultural Differences. New York: Oxford
University Press.
Death Watch. 2002. “New Orleans: Recent History 199 6.” Retrieved January
28, 2002 (www. hrw.org/reports98/police/uspo93.htm).
Felkenes, G. 1987. “Ethics in the Graduate Criminal Justice Curriculum.”
Teaching Philosophy 10(1): 23–26.
Glover, Jonathan. 1999. “Capital Punishment.” Pp. 2 45–253 in The Right
Thing to Do: Basic Readings in Moral Philosophy (2nd ed.), edited by J.
Rachels. Boston: McGraw-Hill.
Hare, R. M. 1987. “Moral Conflicts.” Pp. 205–238 in Moral Dilemmas, edited
by C. Gowans. New York: Oxford University Press.
Hinman, L. 1998. Ethics: A Pluralistic Approach to Moral Theory. Fort Worth,
TX: Harcourt
Brace. Holmes, Robert. 1998. Basic Moral Philosophy (4th ed.). Belmont, CA:
Wadsworth.
Kane, R. 1996. Through the Moral Maze: Searching for Absolute Values in a
Pluralistic World. Armonk, NY: North Castle Books.
Ladd, John. 1973. Ethical Relativism. Belmont, CA: Wadsworth. “92nd death
row inmate freed since ’73: Louisiana.” January 5, 2001. New York
Times. Retrieved January 2002 (www.truthinjustice. org/no92.htm).
Rachels, J. 1991. “Subjectivism.” Pp. 432–441 in A Companion to Ethics,
edited by P. Singers. Cambridge, MA: Blackwell Press.
Singer, Peter. 1995. How Are We to Live? Ethics in an Age of Self-Interest.
Amherst, NY: Prometheus Books.
Womack, Mari. 1995. “Studying Up and the Issue of C ultural
Relativism.” NAPA Bulletin 16: 48.
