Ethics and Excuses: The Crisis in Professional Responsibility

By Banks McDowell | Go to book overview

Another important linguistic distinction signals the difference between legal and ethical systems. "Excuse" is the appropriate term when discussing ethical obligations. In reference to legal obligations, one speaks of "defenses."


WHO DECIDES WHETHER AN EXCUSE IS SATISFACTORY?

A significant difference between the normative systems of law and of ethics is that the legal system has developed a means by which the validity of an excuse can be determined "objectively." This process is the trial during which a judge and/or jury will hear the reasons given by the actor for not complying with the law and will decide whether they constitute a persuasive defense. Even if no trial is held, the defendant must be prepared for such an eventuality. Thus his defenses must not merely be persuasive to himself, but appear likely to persuade judges and jurors. The decision by the court would, of course, not be merely a personal decision, but constrained by a centuries-long development of rules, standards, and distinctions that the judge and jury are supposed to take account of. No such procedure exists in ethical systems. The closest analog for professionals would be the opinion of peers or possible victims who may indicate whether they find the excuse persuasive or not.

For practical ethics, the actor is the most important judge of whether an excuse is valid. If he feels there is a justification for not obeying an ethical norm, he is free to act in accordance with his perceived self-interest. This makes ethics largely a system of voluntary compliance. Of course, others, such as clients, victims, bystanders, or fellow professionals, may evaluate the excuse and they could well decide that it was not valid. If they do not inform the actor of their feelings, which is a strong possibility in our culture where an important informal moral maxim is "mind your own business," or if the actor does not care about their opinion, there is no constraint on acting in an unethical fashion. As long as an excuse exists that the actor can persuade himself or herself is a valid justification, ethical systems will have little bite in controlling action. This freedom to be indifferent to ethical systems has been exacerbated in modern urban life with the breakup of close communities and tight family structure.

We will return to this problem, which is the primary focus of this book, in Chapter 9.


NOTES
1.
For a valuable discussion of the various meanings of "ought" or "obligation" and the dangers of restricting those to rule-based duties, see Joel Feinberg, DOING AND DESERVING: ESSAYS IN THE THEORY OF RESPONSIBILITY ( Princeton: Princeton University Press, 1970), pp. 3-9.
2.
Wesley N. Hohfeld, FUNDAMENTAL LEGAL CONCEPTIONS ( New Haven: Yale University Press, 1919). An abbreviated introduction to Hohfeldian

-23-

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