Equality: Ethics and the Law
Our laws are supposed to advocate justice, and perhaps they do. But examine the word just. It implies honest, moral, fair and impartial, among other things, and while the law proclaims these virtues, it cannot always employ them. What positive law does is to ensure due process. This means only that it must follow the rule of law, its own law, which may be whatever the society that makes it, wishes. The law must make concessions in order to accomplish what it claims to seek—”the greatest good for the greatest number.” The law must judge.
The foregoing illustrates both the law’s ambiguity and its ethical status. The law operates on legal, not ethical, principle. This probably is as it should be. After all, we can’t always operate on the basis of perfection because none of us are perfect. How then can our law be perfect? Obviously it cannot and is not, nor should we be expected to honor its definition of ethics or ethical verities like equality.
An example of problems caused by a group’s operating beyond its limits is illustrated by the issue of equality. We’re all familiar with the following: “ALL MEN ARE CREATED EQUAL”
It’s true and, as a given, there’s no ethical problem here. The problem lies in trying to define abstract terms using group rules–laws.
Of course, the group may redefine equality according to its own rules to mean anything it wishes, but its definition can only be in the context of that particular group and can’t be extended beyond it. The basic definition must remain intact.
True equality extends beyond any group, so the group runs out of territory when trying to deal with the term. Real equality can’t be given because we already have it. It’s simply not an issue.
And any group making it an issue goes beyond its limits. All men are created equal, and at the same time each is unique and develops uniquely, while remaining at all times equal. Few, if any, institutions can deal with this.
Positive Law and Equality
The differences between societal law and morality are as marked as the differences between the group and humankind. Morality means principle, virtue, probity, not law. (Positive) law means decree, legislation, ruling, not morality.
Law may descend from moral principle (ethics) but the process is neither automatic nor reversible. On the other hand, moral principle does not require the law for validation—moral principle simply is. Law that seeks to be universal not only requires morality for validation, it presupposes it.
So long as society remains a group, its laws will not—cannot—be entirely ethical in spite of what society claims.
A simple illustration: We are sworn to tell “the truth, the whole truth and nothing but…” But consider: while the prosecution must hew to the truth in proving its case against the criminal, neither the accused nor his advocate must follow suit. The criminal is, in effect and in fact, expected to lie, or at least not to tell “the whole truth,” and his attorney is presumed to support his case. After all, whether or not he is guilty, criminal law says that a criminal must be proven guilty, even offering protection against self-incrimination. If a guilty person always told the truth (i.e., were ethical), the function of the court would be limited to sentencing and punishment. A nice idea, but that’s not the way it is.
A simple question makes the point: Where is equality in all this? We certainly aren’t equal under the law if some must tell the truth (be ethical) while others need not do so.
Affording positive law ethical status is intellectually perfidious. In the final analysis, institutional law may benefit the institution, but unless it is completely ethical, it will fail at least some individuals, and therefore humanity.
Ethics will never—cannot—fail either individual or humanity. If it should fail a group, the problem lies with the group.
So despite our society’s claims, we are not all equal under its law. We are, in fact, equal before the law. Equality is a perfect and unambiguous ethical concept. The law is imperfect and in its ambiguity, often misleading.
Neither society as a group, nor its institutions or laws, can define ethics or regulate ethical or moral behavior. It can only deal with unethical behavior when that behavior is congruent with illegal activity. The law must settle for that. Ethics cannot.
The law in its position of institutional power may lose sight of the fact that relationships exist in more than one plane. Institutional relationships do not require a personal bond. Vital (personal) relationships do, but law cannot effectively regulate personal relationships. So long as we remain a group, our laws will not—cannot—be entirely ethical in spite of what society claims.
To move beyond the basic—vital—relationships of being and becoming to the larger, active perspective of living in the world, we’ll have to deal with the reality of living in the societal milieu. A workable plan—a system of principles for guidance in practical affairs would be helpful. This has been covered in previous blogs…and in the book.