In the wake of the General David Petraeus scandal, the Pentagon has reviewed its ethics training and recommends that training should start earlier and continued to be reinforced through an officer’s career. In all likelihood, the Pentagon’s legal counsel will lead the training, as it usually does.
And therein lies a problem. Lawyers aren’t very good as ethics teachers. (And this has nothing to do with the many lawyer jokes that just popped into your head.)
The problem is that ethics isn’t the same as the law, but ethics regulations and ethics training often conflate the two. Making matters worse, when ethics and law are bundled together, legal considerations almost always trump ethical decisions. Better to be unethical and not be sued than be ethical and open yourself to liability.
Let me give you an example from my own experience. It is from the field of medicine, but the point is the same.
I am on two hospital ethics committees and each has a different approach. In one, legal questions are set aside for the sake of the discussion. Committee members are charged with deciding what is ethical in any given situation. The patient’s wishes are taken into consideration and this is often balanced against medical necessity. The committee’s decisions are advisory and final decisions are made elsewhere, often with the help of legal counsel.
The demarcation between ethics and law is maintained so that the ethics committee can think about moral decisions unencumbered by legal considerations. What actually happens is, of course, done within the context of the law.
By contrast, at another hospital, legal counsel may be part of committee meetings and discussions are often framed in terms of what the law requires. Objective discussions about ethical actions are subordinated to matters of law; legal considerations short-circuit the considerations of ethics. Knowing what the law requires puts a stop to the discussion, as though ethics were a sub-category of the law.
In fact, matters should be the other way round. Law—good law—should reflect ethical considerations. The function of the law is to instantiate justice, although as law students quickly learn, it isn’t justice that is taught at most law schools but the practicalities of legal practice.
Lawyers tend not to be very good guides at providing ethical guidance. Several studies show that law students experience a decline in altruistic values and community service orientation towards appearance and image values (45 S. Tex. L. Rev. 891 (2003-2004) “Moral Judgment of Law Students across Three Years: Influences of Gender, Political Ideology and Interest in Altruistic Law Practice”; Landsman, Maury; McNeel, Steven P.)
Legal ethics encapsulates the problem with codes of ethics and ethics training in so far as they reduce ethics to regulations. Thinking in terms of rules and roles inhibits a full understanding of what morality actually entails.
Rule following and judging what is right and wrong, good and bad are distinct enterprises. A computer can be programmed to provide correct answers regarding rules but no program can substitute for good judgment.
Compliance, which legal counsel can guide, isn’t the same as ethical judgment. To present compliance with rules and regulations as though it was the same as ethics may, in fact, undermine doing the right thing. This is one the possible explanations as to the decline in ethical judgment scores in law students over three years. Students accept the redefining of ethics as rule following and in so doing forgo personal responsibility for actions that are ethically questionable.
Professional ethics needs to be redefined, reconfigured and designed if matters are to improve.