9.6 Ethics, the Law, and the State

Some problems associated with law and the state have been aggravated by a general disrespect for both that has become endemic in the West in the last few decades. Some observers feel that the situation has been exacerbated by actions of some judiciaries, which have in recent years undertaken adventuresome rewritings of laws and constitutions with an almost total disregard for the intentions of the original framers or legislators. On the one hand, proponents of judicial activism argue that the courts need to reinterpret law to suit new social realities, even if this means taking this function away from the legislative branch. On the other, proponents of judicial conservatism argue that the judges' attitude has become that the law means what they say it means, nothing more, and nothing less. They point out that such an outlook not only does not foster either respect for the law or for its enforcement, but destroys the system of checks and balances needed for the functioning of democracy.

Will the direction of change reverse? There may come to be some realization that the courts have usurped too much legislative prerogative by changing laws through reinterpretation, and a more legally conservative era could begin. There could be a trend back to a traditional view of the separation of the legislative and judicial functions, to a more cautious view of law itself, and to a greater willingness to enforce the laws that do exist. On the other hand, no group or institution willingly yields power once it has obtained it, and one could as easily go to the opposite extreme and suggest that a new tyranny imposed by a judicial system run amok could be in the offing. After all, such an outcome would be one way that a system of arbitrary law could succeed the chaos of a system based on moral relativism.

The Relationship Among Government, Commerce, and Society

In addition to these difficulties, the role of the state in regulating and providing order to the economic and social system has always been one that has made government officials vulnerable to a variety of temptations to abuses of power and conflicts of interest. Some typical falls to such temptations include:

o The owner of a company who runs for office or uses political influence to direct government business to the family business,

o The union official who is elected to high office and uses the opportunity to change labour laws and government contracts to favour his union associates,

o The former government or military official who takes employment after leaving office and then uses insider information from the years of public service to enrich the employer,

o The banker who allows her institution to be used to launder drug money or finance terrorism in support of her personal loyalties,

o The social activist appointed to the bench or to a quasi-judicial but supposedly impartial body who uses the position not to dispense justice but to bring about social change consistent with her political beliefs,

o The person in a position of government, policing, teaching, or professional authority over others who uses that power for personal enrichment or the obtaining of sexual favours,

o The government official who personally directs lottery profits or tax money toward organizations in her own district to ensure re-election,

o The utilizing of networks of school friends extending over business and government to work to each other's mutual benefit,

o The awarding of contracts to specific companies or regions for political reasons instead of economic ones,

o The bribing of government officials for information or contractual favors.

o The maintenance of expensive lobbies to press for measures favourable to particular businesses, when the voice of the ordinary citizen has little opportunity to be heard, and

o The frequent transfer of government and industry officials to and from the lobbying profession that creates an incestuous relationship rife with conflicts.

Much more has been heard about such things in recent years, though it would be difficult to say that the increase in publicity represents any change in levels of questionable activities. Indeed, in some parts of the world, bribery is the only way to get anything done. Rather, the publicity about government/industry relationships and the conflicts therein reflect the information age paradigms beginning to operate. Simply put, there may soon no longer be any such thing as a closed-door deal, a secret agreement, an undisclosed relationship, or an unknown potential conflict. Regulating these problems is another matter, however. No number of regulations and audits can control the desire for illicit gain from public office if everyone involved believes the behaviour to be normal, or has no absolute standards. Indeed, the words "illicit" and "corrupt" in such a connection lose their meaning when there is no standard to say that any particular behaviour is wrong, that is, when morals are only a relative or arbitrary matter. This is easily illustrated by travelling to one of the many countries where accepting bribes to perform public duties is a way of life.

The Problem Behind the Problems

The legal problems associated with technology are not simply those of mechanics, of law, or of economics. Rather, they involve moral and ethical issues. Until they are addressed as such, there is unlikely to be any real progress, and solutions will be only cosmetic. Among other things, there is often an attitude that no longer sees it as wrong to steal or to trespass. In fact, if one can rationalize that there shouldn't be private property, then stealing and trespassing do not even exist. This is a risky paradigm, for a destruction of all personal rights to privacy and to ownership would mean that the individual person has far less protection than a chip on a machine.

It is important to understand at this point that Western civilization is based on concepts of respect for the individual citizen, and the notions of liberty, freedom of speech, privacy, and the right to hold property in private ownership that this implies. Moreover, these concepts cannot be divorced from the stream of Judeo-Christian culture and thinking in which they were developed. This assertion by no means implies that Western society ever was "Christian", but only that it has a heritage of respect for Judeo-Christian values, and that those values are to a great extent reflected by a legal system that assumes that there is an absolute basis in morality for law.

The growth in statism, and popularity of the concept of law as relative and arbitrary has eroded that basis for law and the democratic state without replacing it with a new one, and the result has been diminished regard for both. Simply put, the social compact that once provided the basis for ethical decisions has been set aside, and for a growing number of people there is no underlying set of principles on which they can base ethical decisions. Hence the law, once regarded as solidly grounded on certain immutable principles, is now treated as subject to arbitrary change or reinterpretation.

This is in part why there is little hope of enforcing drug or property laws under such circumstances. If every person is a law unto herself to the extent that they can get away with it and behave as they choose, there is no reason for them to consider obeying laws whose enforcement have only minor penalties. If the self-abuse of drugs is not seen to be a matter of wrongdoing, the pleasure obtained from using them is, pragmatically, the greater good for the individual, than is abstaining for the sake of a vague social contract. If a person wants money and property, and can take it from someone else who has it with little prospect of legal retribution, and no concept of guilt for doing wrong, the formality of a law is not a sufficient obstacle to deter theft.

Moreover, that which is relative can be changed at a whim either by the courts or by the legislators. That which is arbitrary is subject to the will of the strongest arbiter, a condition that easily leads either to tyranny or to chaos. To an extent, this is the situation society now faces, with a myriad of special-interest pressure groups vying for dominance over the political system amidst growing economic tension. Each group has a set of "rights" it insists upon for its own members, sometimes at the expense of everyone else, and no interest in discussing its corresponding responsibilities. Thus, it becomes more difficult all the time to pass and enforce laws that are obeyed because they are universally perceived to be just and fair. Orwell's vision may turn out to be slightly blurred--legal chaos may be as possible an option as legal rigidity.

Is any Solution Possible?

This suggests a rather bleak general picture, but there are good reasons to be optimistic as well. The recession of the early 1980s and the 1987 stock market crash changed a lot of attitudes, and a new breed of high-school graduate with a more work-oriented and education-conscious attitude emerged in the aftermath. Coincidentally, these are the first wave of information age men and women and they are obtaining the skills and attitudes necessary for the next great awakening of creative spirit. There is also some reason to be optimistic that a new consensus in support of the law may also emerge, but if so, it may at first be rooted for many people in the somewhat novel grounds of economic pragmatism and self-fulfillment rather than in any absolutes. They may not have learned much from the stock market though, for these were some of the same people who drove its prices to unreasonable highs in the technology bubble of the ninety's only to suffer the predictable meltdown in 2001.

A coincident increase in religious interest has also characterized recent years, and will undoubtedly come to bear on ethical questions, but if this activity turns out to be largely experiential and nominal, it may not have significant impact on the mainstream of society. If, on the other hand, it results in a revival of the notion that faith and ethical behaviour are an integrated whole, religion may yet play a significant role in establishing a new ethical consensus. Of course, even though some have always believed that moral and ethical issues were absolutes, it may be that only a minority will be committed to such an approach in the new society. In the past, many others have agreed with the ethical conclusions of traditional religious thought, either for reasons of self-interest, or out of purely pragmatic considerations. These may join a new ethical consensus for similar reasons, but the consensus they join may well have a different basis than any in the past if religion continues to play only a small role. One such basis could be enlightened self interest, but the very real possibility exists that no ethical consensus will be found, and so long as this is true, the nascent society could lack the social glue on which to base workable laws.

The Fourth Civilization Table of Contents
Copyright © 1988-2002 by Rick Sutcliffe
Published by Arjay Books division of Arjay Enterprises