activity. The second is to model and influence the creation of professional
character so that the exercise of discretion and judgment will be done in
ways that are decent and responsible. This latter belongs clearly to the field
of ethics. These two objectives or projects are not necessarily incompatible,
but require such different attitudes that they cannot be effectively taught
together in a single course.
One well-known debate about this issue was between H.L.A. Hart and Lon
Fuller. See Hart, "Positivism and the Separation of Law and Morals," 71 HARV. L.
REV. 593 ( 1958), and "Positivism and Fidelity to Law--A Reply to Professor
Hart," 71 HARV. L. REV. 630 ( 1958). This debate continued in H. L.A. Hart, THE
CONCEPT OF LAW ( Oxford, Clarendon Press), 1961, and
Lon Fuller, THE MORALITY OF LAW ( New Haven: Yale University Press, 1964). Another famous dispute was between Justice Abe Fortas and Professor Howard Zinn over the
legitimacy of civil disobedience in protesting the Vietnam War. Abe Fortas, CONCERNING DISSENT AND CIVIL DISOBEDIENCE ( New York: New American
Library, 1968), and
Howard Zinn, DISOBEDIENCE AND DEMOCRACY: NINE
FALLACIES ON LAW AND ORDER ( New York, Random House, 1968).
A contemporary example is the argument made by prolife zealots charged
with having murdered obstetricians who are performing abortions. They contend
they are obeying God's law and that taking one life to save many other innocent
ones is justifiable homicide. Such arguments have not been given credence in the
courts. See "Killer of Abortion Doctor Is Sentenced to Die," NEW YORK TIMES
( Wednesday, December 7, 1994): A16.
Katharine Q. Seelye, "Packwood Resigns Senate Seat after Panel Details
Evidence," NEW YORK TIMES ( Friday, September 8, 1995): p. A1, col. 6.
Stuart Hampshire, "Public and Private Morality," in PUBLIC AND PRIVATE MORALITY,
Stuart Hampshire, ed. ( Cambridge, Cambridge University
Press, 1978), p. 33.
There is an interesting discussion of law's formality in
Stanley Fish, THERE'S NO SUCH THING AS FREE SPEECH . . . AND IT'S A GOOD THING
TOO ( New York: Oxford University Press, 1994), Chapter 11.
6. On the question of whether there is an ethical duty, cf. T. M. Scanlon, "Rights,
Goals and Fairness," in PUBLIC AND PRIVATE MORALITY,
Stuart Hampshire, ed.
( Cambridge: Cambridge University Press, 1978), pp. 110-111, where he says:
[in considering] our apparent policy regarding mutual aid. If, as seems to be the case, we are
prepared to allow a person to fail to save another when doing so would involve a moderately
heavy sacrifice, why not allow him to do the same for the sake of a much greater benefit, to be
gained from that person's death? The answer seems to be that, while a principle of mutual aid
giving less consideration to the donor's sacrifice strikes us as too demanding, it is not nearly as
threatening as a policy allowing one to consider the benefits to be gained from a person's
See also the discussion in Ronald Dworkin, TAKING RIGHTS SERIOUSLY ( Cambridge, Mass.; Harvard University Press, 1978), p. 99.
3 Pick. 207 ( Mass., 1826).
Questia, a part of Gale, Cengage Learning. www.questia.com
Book title: Ethics and Excuses:The Crisis in Professional Responsibility.
Contributors: Banks McDowell - Author.
Publisher: Quorum Books.
Place of publication: Westport, CT.
Publication year: 2000.
Page number: 61.
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