The bad man – the difference between law and ethics

Being hidebound in legal education I was recently surprised by the expectation of an advisor to the health profession that ethical obligations should not and could not be negotiated. Confounded by the concept that ethical obligations could possibly surpass legal obligations, I sought support from other sources to help me to explain that the law is obligatory and ethics are an optional extra. After a little searching, I found this wonderfully simply explanation going back to the 1880’s at the beginning of an otherwise jargon filled law journal article by Neil Andrews. *

Paradise Lost?

Oliver Wendell Holmes, like Satan in Paradise Lost, remains the most memorable character in the story of Anglo-American law. One hundred years ago, on the 8th of last month, as an Associate justice of the Supreme Judicial Court of the State of Massachussets, Holmes introduced another serpent into the garden of American law. It was released amongst the lawyers of Massachusetts, law students and their parents at the inauguration of a new hall at Boston University Law School. In his speech, 'The Path of the Law,' he invited his listeners, interested to know where the limits of the law are, to consider the law from the point of view of a 'bad man'. This will clarify for them the difference between law and morality and ethics.

You can see very plainly that a bad man has as much reason as a good one for wishing to avoid an encounter with the public force, and therefore you can see the practical importance of the distinction between morality and law. A man who cares nothing for an ethical rule which is believed and practised by his neighbors is likely nevertheless to care a good deal to avoid being made to pay money, and will want to keep out of jail if he can....

If you want to know the law and nothing else, you must look at it as a bad man, who cares only for the material consequences which such knowledge enables him to predict, not as a good one, who finds his reasons for conduct, whether inside the law or out-side of it, in the vaguer sanctions of conscience. ...

What constitutes the law? You will find some text writers telling you that it is something different from what is decided by the courts of Massachusetts or England, that it is a system of reason, that it is a deduction from principles of ethics or admitted axioms or
what not which may or may not coincide with the decisions. But if we take the view of our friend the bad man we shall find that he does not care two straws for the axioms or deductions, but that he does want to know what the Massachusetts or English courts are likely to do in fact. I am much of his mind. The prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law.

Onara O'Neill has recently provided a catalogue of virtues in her argument that there is a link across what is generally seen as the dichotomy between abstract principles of justice and the 'particularities of virtuous lives' making both just institutions and virtuous lives interelated. These virtues can be found in institutions, such as companies. They are the best form of citizen and act differently from Holme's bad man.

the virtues of justice include justice itself, as well as varied forms of fairness, of toleration and respect for others, of fidelity and probity, and of truthfulness and honesty.

Holmes went on to speculate that that it might be desirable if 'every word of moral significance could be banished from the law altogether.' This would be 'a law with no duties, rights, or wrongs; no conception of good or bad faith, of reasonable or unreasonable conduct; and no notion of justice or injustice.

Unlike the Critical Legal Scholars of almost a century later Holmes was not advised to leave the academy for inducing cynicism and despondency amongst law students. He was not attacked by a number of judges for introducing students to concepts which would make them unfit for legal practice. Four years later he was appointed as an associate justice of the Supreme Court of the United States where he sat for the next three decades. On his ninety-second birthday President Franklin Roosevelt called at his house. The same President stood in the rain by his graveside when he was buried at Arlington National Cemetery. Hollywood held him up to American youth as an exemplar in the film, the 'Magnificent Yankee'.

In 1880 Holmes had introduced his first snake into the Eden of formalist law in the lectures he gave on the common law at the most-Bostonian Lowell Institute. This was most appropriate. The Lowells, like Adam and Eve, talked only to God. From these addresses developed his book The Common Law. It opened with the words:

The life of the law has not been logic: it has been experience. The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudices which judges share with their fellow-men, have had a good deal more to do than the syllogism in determining the rules by which men should
be governed. The law embodies the story of a nation's development through many centuries, and it cannot be dealt with as if it contained only the axioms and corollaries of a book of mathematics. In order to know what it is, we must know what it has been, and what it tends to become. We must alternately consult history and existing theories of legislation. But the most difficult labor will be to understand the combination of the two into new products at every stage. The substance of the law at any given time pretty nearly corresponds, so far as it goes, with what is then understood to be convenient; but its form and machinery, and the degree to which it is able to work out desired results, depend very much upon its past.

*For the academically minded, footnotes have not been included but you can find a full copy of the article here: Neil Andrews – “Wormes in the entrayles: the corporate citizen in law?”, Murdoch University Electronic Journal of Law, Vol 5, No 2 (June 1998)

http://www.austlii.edu.au/cgi-bin/sinodisp/au/journals/MurUEJL/1998/16.html?query=law%20and%20ethics%20and%20conflict