Sunday, January 22, 2006

The Rules of the Game Should Not Be the Law of the Land

Copyright © 2006 by Joel Marks
Published in the New Haven Register on June 29, 2005 (page A6)

If something is legal, is it ethical? Not necessarily. It is wrong to "dishonor thy parents," but not illegal to do so. Yet some of our current legislators in Connecticut seem to think that once the question of legality is settled, nothing remains to be considered. That is why lobbyists are being invited to their fund-raisers. It is legal to do this. The question of its ethically problematic nature does not even occur to them.

The special irony of the current cases, as reported Monday (June 20, 2005) by the Associated Press, is that some of these same legislators support proposed legislation to outlaw such activity. But until it becomes illegal, they argue, the current "rules of the game" would leave them at an "unfair" disadvantage if they did not solicit funds for their re-election campaigns in this way while their rivals were free to do so. The "playing field" would not be level.

This issue fascinates me because it highlights the relation between laws and ethics. I believe that there are good reasons for keeping the two separate. Apparently so do the legislators. However, we disagree about the implications of that separation.

Clearly there must be a realm of ethics that is not covered by laws. If everything that was wrong in the ethical sense had a law against it, the police would rule our lives down to the smallest detail. For example: Cheating on your spouse? Prepare for the men emerging from the car with the flashing lights to break down your door!

Why do we not want that? Because freedom and privacy are precious values. Because a universally intrusive police force puts total power into the hands of folks who are themselves fallible human beings. Because many sorts of problems are better worked out through personal means.

Nonetheless this does not mean that the areas of our lives that are not governed by laws are beyond constraint. In a society that is moral, there can be social pressure to influence our decisions and actions for the good. As we have recently seen in Connecticut, such pressure can even have real political ramifications, as when moral disapproval leads to or threatens the impeachment of a public official who may not have broken any laws.

But besides the external enforcement mechanisms of law -- arrest, court appearance, fine, prison -- and of moral social pressure, there is also an internal force of conscience. A person of integrity can be just as responsive to this prompting as to any disapproval by others or fear of punishment by the criminal justice system.

Where, then, is this power of conscience at work in the actions of those legislators who show no qualms about inviting lobbyists to their fund-raisers? It is obvious, is it not, that asking for money from somebody who is trying to influence your legislative decisions creates a conflict of interest with the public trust. Therefore, whatever legal loophole may happen to exist which permits this cannot possibly close the ethical loophole. To argue that such behavior is legal is not, it seems to me, sufficient to show that one ought, or is even permitted, to engage in it.

Furthermore, one is truly entering the realm of nonsense to make that argument and, as these legislators do, also express support for bills to curb such behavior. On what basis would one provide such support? Presumably on an ethical one: the behavior in question is wrong. Indeed, it rises to a level of wrongness that calls for laws to be enacted against it, despite the intrusiveness, etc., of laws. But if that is so, then how can it not also be wrong enough not to do it prior to the passage of those laws?

Morality is not a game. Neither is legislation. Both deal with laws, not rules. Legislators who take the game metaphor too literally might better spend their time at a casino.

Links to this post:

Create a Link

<< Home