Vermont Bar Journal, Vol. 40, No. 2 Vermont Bar Journal, Spring 2017, Volume 43, No. 1 | Page 33
by Gregory P. Hawkins and Lonn Litchfield, Esqs.
Aspirational Ethics and the Second Chair
It’s Less About Codification Than About Inspiration
When we give public presentations on
Corruption, Ethics, or Leadership we often
begin with some version of a moral hypo-
thetical. The exercise turns out exactly the
same no matter the group.
A father takes his only child into the
state school board building where she
will be tested to determine if she qual-
ifies for a very special gifted student
program. Admittance is competitive
and only truly gifted students will be
admitted. As he approaches the test
administrators, he is surprised to see
his best friend. He is apparently the
chair of the selection committee. His
friend greets him very warmly and tells
him not to worry, his daughter will get
into the program. Both men under-
stand the implication.
Most people will say that it is wrong
for the administrator to treat his friend’s
daughter differently from other applicants.
In many groups, there will be some who
feel so strongly that it is wrong that they
speak out without prompting. Yet even
those who speak out will hesitate to call it
“evil.”
Morals are the basic internal principles
that inform and govern a person’s view of
right and wrong, good and evil. Although
morals are a universal force, they can be di-
verse in their application and definition–al-
most as diverse as individuals are from one
another. This diversity is illustrated as we
add to our hypothetical.
The facts added do not change the ac-
tion itself, but they do change the moral
context by emphasizing a competing vir-
tue.
What if the administrator and his friend
were not merely lifelong friends, but they
fought together in the war, side-by-side,
depending on one another for their life?
What if the father had actually, and rather
dramatically, saved the administrator’s life?
What if the father had been wounded in his
heroic effort? What if the wound had left
him unable to father another child? What if
he was left a paraplegic, forever reliant on
a wheelchair for his mobility? As we pro-
ceed with each, “what if,” more and more
people begin to rethink their opinion. Of-
ten, the ones who felt so strongly about the
wrongness of the administrator’s actions
will be among the first to change their view.
As each group looks around the room
at what they thought was a homogenous
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group, they begin to realize that questions
of right and wrong, good and evil, even in
their very own analysis, sometime take real
thought to resolve. Sometimes the ques-
tions involve good and good, right and
right. Which is more important, equality
or loyalty? In the abstract, this question is
challenging, but it can become quite dif-
ficult if it is a question one faces in their
own life. Which is the greater good, fair-
ness in testing and equality of school pro-
grams, or loyalty and honoring life-chang-
ing sacrifice? We have discovered that in-
dividual resolution of this issue sometimes
turns on the person’s life experience. For
example, a veteran of combat often sees
the question differently than does a presi-
dent of the PTA. When the person is both
a combat veteran and the president of the
PTA, the question becomes intense.
Let’s turn from the question of morals to
the question of ethics. If we were to ask
100 ethicists what the definition of ethics is,
we may well receive 147 different answers.
For our purposes, we will use the working
definition that “ethics are one’s discretion-
ary behavior in relation to morals.” Some
ethicists use the term ethics to mean the
rules crafted by others to be applied to
someone else’s moral conduct. We will re-
fer to the creation of someone else’s rules
as the codification of ethics. We will define
codification as simply, “the creation of an
organized set of rules that if violated have a
negative consequence to the violator.”
Although intended to improve the mor-
al climate, the codification of ethics tends
to decrease ethical choices. We will briefly
discuss five reasons why ethical choices de-
crease when ethics are codified.
First is the concept of legal moralism. If
the conduct is not prohibited in the code
of ethics, then, by definition, it is permit-
ted conduct. In other words, license is giv-
en to engage in conduct not specifically
prohibited by the code. This is not to say
that codification of ethics results in abso-
lute legal moralism to every person in ev-
ery circumstance. The question of whether
the conduct is right or wrong, good or evil,
for some, can simply be set aside. The rules
themselves determine the right and wrong
of behavior. Discretion can become irrele-
vant. This results in less ethical behavior. To
avoid this result, continuing codification is
required until all conduct that is perceived
as bad is prohibited. The code must be ex-
haustive–a nearly impossible task.
Second, because violation of the code
THE VERMONT BAR JOURNAL • SPRING 2017
results in negative consequences, when-
ever the code is applied to an individual,
that individual resists its application. The
person must say, “I did not do it,” or “That
rule does not apply to me,” or “You are
reading the code incorrectly,” or a multi-
tude of variations on this theme. Any indi-
vidual to whom the code applies, now or
in the future, naturally and even subcon-
sciously resists the code. Because the indi-
vidual resists the application of the code,
the rules lose their ability to affect the per-
son’s choices in relation to morals positive-
ly. Codification may result in nearly univer-
sal resistance by those who are governed.
Third, when negative consequences are
threatened, a lawyer—an expert dedicated
to exploiting ambiguities in the law and its
application to specific facts—is invited to
participate in the ensuing battle. Yes, it will
be a battle, because almost no one willing-
ly submits to his behavior being character-
ized as bad, or as wrong and certainly not
as evil. The lawyer’s job is to defend her
client, not to promote g eneralized ethical
behavior. The lawyer will find the ambigui-
ties in the code being applied, as well as
ambiguities in the underlying facts. In time,
often a very short time, the code becomes
diluted, its benefits reduced.
This dilution takes us to a fourth prob-
lem of codification. Like legal moralism,
dilution requires additions to the code—
more codification. Dilution requires a codi-
fication that is tighter in its application and
more exhaustive, which in turn will require
more lawyers, and round and round and
round we go.
Fifth, codification does not promote
good behavior. At its best, codification can
only limit bad behavior.
As a result of these and other effects,
codification by its nature results in less eth-
ical behavior. This is a significant idea and
bears repeating: rules that take away dis-
cretion, choices, about moral behavior re-
sult in less ethical behavior because ethics
is about discretionary behavior in relation
to morals–it is about choices.
Despite the problems with the codifica-
tion of ethics, no one is advocating that we
do away with it. Codification of ethics will
always be a part of our modern world.
In 1100 AD there were about 50 million
people inhabiting our planet. In the 1820s
we reached our first billion. In the 1920s,
100 years later, we reached our second bil-
lion. In January of 2013 we reached 7 bil-
lion. In 2013, there were 206 nation-states
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