Ethics and Excuses: The Crisis in Professional Responsibility

By Banks McDowell | Go to book overview

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.


NOTES
1.
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).
2.
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.
3.
See Katharine Q. Seelye, "Packwood Resigns Senate Seat after Panel Details Evidence," NEW YORK TIMES ( Friday, September 8, 1995): p. A1, col. 6.
4.
Stuart Hampshire, "Public and Private Morality," in PUBLIC AND PRIVATE MORALITY, Stuart Hampshire, ed. ( Cambridge, Cambridge University Press, 1978), p. 33.
5.
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 death.

See also the discussion in Ronald Dworkin, TAKING RIGHTS SERIOUSLY ( Cambridge, Mass.; Harvard University Press, 1978), p. 99.

7.
3 Pick. 207 ( Mass., 1826).

-61-

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Ethics and Excuses: The Crisis in Professional Responsibility
Table of contents

Table of contents

  • Title Page iii
  • Contents v
  • Preface vii
  • 1 - Introduction: The Ethical Crisis? 1
  • Notes 10
  • 2 - Responsibility and Excuses 13
  • Notes 23
  • 3 - Ethical Excuses 27
  • Notes 44
  • 4 - Law and Ethics: The Different Systems 47
  • Notes 61
  • 5 - Defenses: The Legal Excuses 63
  • Conclusion 79
  • 6 - The Fallibility of Human Beings 85
  • Notes 96
  • 7 - The Informal Moral Codes 97
  • 8 - The Need to Reformulate Ethical Expectations 111
  • Notes 130
  • 9 - The Professional and the Market--Is Efficiency the Predominant Value? 133
  • Notes 144
  • 10 - The Responsibility of Others Toward the Excuse Giver: The Need for Dialogue 147
  • Notes 157
  • 11 - Conclusion 159
  • Bibliography 163
  • Index 167
  • About the Author 171
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