Morality, Ethics, & Law
What may be defined by some as moral may be classified by others as immoral. Moreover, what we may deem moral may neither be ethical or legal. Conversely, what is legal may be considered by many as neither ethical nor moral.
The line drawn between law, ethics, and morality is often blurred by the propensity of states to incorporate moral codes in its laws, invoking state sanctions for their violation.
Law: A rule promulgated by the state that specifies sanctions for its violation which are enforced by the police power of the state. The sanctions may range from monetary fines, community service, public humiliation, periods of imprisonment, banishment, loss of limb, and loss of life.
Ethic: A rule promulgated by a state regulatory board or private society that specifies sanctions for its violation. The sanction may range from loss of license to practice (a craft or profession), to loss of membership in the private society. Much of ethics is formalized in laws, particularly civil codes pertaining to business, trade, and professional conduct.
Moral: A rule of social conduct, the violation of which may result in feelings of disgust and repugnancy in the general society, and wide social ostracism and isolation. Most moral codes have religious roots and are believed by religious adherents to have divine consequences. Many moral codes are incorporated into law, often with severe penalties for violations.
More: An often unspoken rule of social conduct peculiar to a specific group, the violation of which may lead to group condemnation or ostracism. Mores are typically not part of the codified laws, but nonetheless may have considerable social impact on non-complying individuals.
Norm: Characteristic social behavior of a group which help define it and/or distinguish it from other groups.
The evolution of moral, ethics, and law are intertwined.
Morality is generally thought of as having a religious origin - as a revelation or commandment from God, while ethics is generally thought of as a philosophical concept - an often secular attempt at rationalizing morality. Both morality and ethics may address the same issues, and the terms are often used interchangeably. It is often difficult to discern whether a tenet originated as a moral or ethical concept.
Morality and ethics are our sense of right and wrong, good or evil, fair and unfair, just and unjust, and what is a just reward or just punishment.
Laws are moral and ethical issues codified by the state, and are generally defined, processed, decided, and enforced by the state. The oldest known written legal code that survives intact until today appeared about 1,800 years before Christ, when Hammurabi, the founding king of Babylonia, cast in stone the Code of Hammurabi. We may argue as to whether it was law based on moral codes or ethical codes, but practically it makes no different, as Hammurabi claimed divine ascendance to the throne. Partial copies of ancient legal code are known which predate Hammurabi by some 300 years.
The written history of ethical and moral codes continues some five hundred years after Hammurabi, when the Ten Commandments was revealed to Moses (around 1,300 years before Christ). About 600 years before Christ, Confucius preached ethical tenets eventually published after his death as the 12-volume Analects. Confucius himself could be considered a philosopher, but his followers consider him to be inspired.
Lao-Tzu may have published the Tao-Te-Ching (The Way and the Virtue) containing ethical and moral guidance, perhaps 500 years before Christ. And the Buddha (Siddhartha Gautama) delivered his moral and ethical tenets also about 500 years before Christ to another culture.
The Golden Rule, often ascribed to Jesus of Nazareth (the Christ), was stated in the negative 500 years before by Confucius. By the time of Christ, the Jewish Torah was essentially formed.
Some six hundred years after Christ, Mohammed revealed the somewhat similar Quran - a moral code that became the foundation of Islamic Sharia law.
Interspersed in the above instances, and between then and now, succeeding civilizations have struggled with the concept of setting forth acceptable social interactions and regulating human behavior in furtherance of group coherence and social harmony.
Morality can be considered a “collective social conscience.” It is a decision facing an individual human of whether to further their own selfish interests or to further the greater interest of his society. A moral decision may be easy when the interests of the greater society are the same as the interests of the individual. The moral decision may be very difficult when the interests of the greater society oppose the interests of the individual, or the interests of a subgroup of the greater society.
Conflicting morality often exists between the individual and the family, clan, tribe or state level of the society in which he (or she) is a member. Moreover, conflicts of morality also may exist between different levels of the greater society, e.g., between family and clan, family and tribe, family and state, clan and tribe, clan and state, and tribe and state.
An example of such conflict is the conscripted soldier who dies in war he did not volunteer for, and which his family opposed. Clearly the dead soldier’s welfare, and that of his family, was subjugated to the welfare of the state.
A great effort is often made by the highest-developed level of human society (in modern times, the state) to align morality issues at all levels of the society (i.e., the individual, the family, the clan, and the tribe). Several techniques may be employed by the state to diminish the moral diversity and influence of families, clans, and tribes, and promote the moral imperative of the state - some of which follow:
1) Schools and teachers may be licensed, curriculums closely regulated, and attendance mandatory;
2) Police power to enforce sanctions may be reserved exclusively to the state and its local instruments,
3) Groups inimical to the state may be discouraged or suppressed,
4) Courts of law may not recognize some, or any, moral obligations of the individual to family, clan or tribe,
5) An official religious organization may serve as the moral authority of the state (e.g., Spain, Italy, Germany, Great Britain, all have state-sponsored churches, which are considered the moral conscious of the state. Likewise in Islamic states, particular Islamic sects may dominate politically.)
6) Where a plethora of diverse religions are allowed to exist, (with inevitable conflicts in their moral codes) the state may discourage their political activity by granting tax exemption for those that refrain from (and taxing those that engage in) the politics of the state. (America is the premier example of this tact.)
Family, Clan, Tribe, & State
Family. In the evolutionary scheme of things, the individual and the family are indistinguishable. Both evolved simultaneously – as the individual cannot survive without the nourishment and protection of the family through its infancy and formative years, nor can the family continue-in-kind without the individual maturing to takes the place of family members growing old and dying. The measure of the failure of a family is whether a genealogical line becomes extinct because the offspring do not breed and beget children. The measure of success is in the number of offspring producing more offspring.
Thus as regards the family, it would be immoral for an individual child not to have a family and procreate to continue the line. In addition to procreation, the strongest social bonds are formed between family members, and it would be considered immoral (and in most families, unthinkable) not to come to the aid of a family member in distress or under attack from an outsider. In the Arab maxim, it is “I and my brother (or sister) against the clan, tribe, or state.”
Clan. A clan is a collection of related families. As regards procreation in the clan, it is only necessary that a sufficient number of individuals breed and procreate, most preferably between cousins - so that inter-familial boundaries become blurred, and only the clan, as an extended family, is clearly distinguishable. Surplus individuals could be considered expendable, perhaps as warriors in conflicts with other clans. In a clan setting, familial lines can be preserved by limiting the number of expendable individuals from each family line. The social bond between clan members is second only to that between family members. In general, a cohesive clan is stronger, has more resources, and can more easily dominate a strong family.
Thus an essential clan moral tenet would be to discourage intra-family marriage (the moral taboo against incest begins its evolution here, not so much as an evil thing, but to weaken intra-family bonds and replace them with intra-clan bonds), and encourage inter-family marriage, so it is “I and my clan against the tribe, or state.”
Tribe. A Tribe is a collection of related clans, and perhaps some unrelated ones being assimilated. It is at the tribal level that more than blood ties begin to be involved in forming inter-clan alliances and tribal loyalties. Tribal rituals and initiation rite begin to shape powerful emotions of belonging that ascend over clan and families ties.
An essential tribal moral tenet would be to discourage intra-clan (cousin) marriages, and encourage inter-clan marriages - to promote a greater tribal family, blur clan lines, and still take advantage of the natural affinity family and clan members have for each other. In general, a tribe is stronger, has more resources, and can more easily dominate a strong clan.
State. A state is a collection of tribes, clans and families under a central government, and occupying a defined territory. It is at the state level of social evolution that the rule of written law and government structure is firmly established. Specialization of occupations in commerce, trade, agriculture, industry, and defense occur. A state is naturally inclined to be strong when the great majority of its citizens are of the same ethnicity and share a common culture and religion, which greatly facilitates a high degree of internal alignment.
Strong states may extend their influence far beyond their borders. A state that has a high diversity in ethnicity, culture and/or religion, may find it necessary to impose harsh governance on dissident population factions, and may find it difficult to keep its external focus. In general, a cohesive state is stronger, has more resources, and can more easily dominate a strong tribe or a weaker state.
In regards to family, clan, and tribal bonds, the state tends to promote moral tenets that weaken them and strengthen the relation of the individual to the state. Many states prohibit any degree of filial marriages (1st, 2nd, and 3rd degrees of consanguinity.)
However, a state has an additional tool not generally available to tribes, clans and families - the specialization of labor is so advanced in a state that a permanent police force can be sustained. The morality of the state can be (and is) enforced primarily through its police power, and seldom through bloodline affinities.
Summary. Morality is behavior that promotes the greater social good over the good of the individual. In general, morality promotes the welfare of all over the welfare of the individual. Moral codes are often promulgated as being decreed by God. And it is indeed that if we accept the definition that God is the embodiment of the social conscience of the state. However, the morality that promotes the unity of the state is not necessarily the same as the morality that promotes the unity of the tribe, clan, or family. The morality of the state must often be imposed by force over contravening moralities favoring the tribe, clan or family. Thus the morality of the state is of necessity rooted the police power of the state.
Morality is the general concept of a higher social good. Religion is an embodiment of specific moral tenets couched in terms a moral authority - most often associated with a state.
The moral authority of families and clans is largely unspoken, and often resides in a senior member of the family - a matriarch or a patriarch.
The moral authority of tribes arises from its ethnocentric-oriented god - its community soul. Tribal leadership may claims divine association and revelation with that god, but with few exceptions, the tribal god is not generally perceived or promoted as having omnipotent power. Moral authority in a tribe may lie in a single chieftain or shaman, or within a council of elders. The religion of a tribe is largely unorganized and primitive, but may have some ceremony and pomp.
The moral authority of a state may lie within the state itself, such as when a king is also the high priest. More often it lies in a specialized body, such as a state church. The God of the state is often portrayed as having omnipotent power, all-divining wisdom, and infinite reach. Such overreaching portrayals of the state God is characteristic of a state with ambitions of expanding its influence and control over its neighbors, and assimilating their territory and wealth. State religions tend to be rich in pomp and ceremony.
Families and clans tend to have near-infinite natural lives. Family lines expire here and there for various causes, and some family and clans are extinguished forever through natural calamity, annihilation, and by too many members being rendered unable to procreate (such as taking religious vows of chastity or as castrated slaves). Some families and clans prosper and multiply. Tribes may have lives measured in millenniums, and seldom expire wholesale except in major calamities or annihilation by other tribes or states. A major defense to prevent the total expiration of a family, clan or tribe is for it to be widely distributed and numerous. Another major defense is to be too powerful to be overrun or conquered by another tribe or state.
The moral tenets and religion of a family, clan, or tribe are hard to change - except with constant outside pressure over generations. Often a conquering tribe might annihilate all male survivors of a conquered family, clan or tribe to prevent revenge and rebellion, and to hasten assimilation. In some cases, the entire conquered people have been annihilated - men, women and children. States may discourage assimilated tribes from teaching their own moral tenets, requiring education of the children to be state-sponsored, and encouraging or requiring the assimilated tribe to intermarry with the citizens of the conquering tribe or state.
Tribes that remain nomadic tend to stay tribes, and not evolve into states. Tribes that have fixed population centers and establish cities tend to evolve into states - first as city-states, then as their influence and power grow, into true states with many satellite towns, and villages - and large territories. The city-state tended to be the center of morality and religion, initially with little distinction between church and state function. But as the city state evolved into a true state with a more than one population center, the inevitable bureaucratization of government occurred, separating religion and morality issues into a more formalized religious institution. Being the official guardian of morality and religious ceremony was and still is a post of great power - when a separate position often second only to that of the king.
Monotheism is the belief of one God, generally omnipotent and the creator of the earth and the heavens. Judaism often claims to have been the first monotheistic religion, but early Hebrew texts make it clear that although ancient Hebrews may have had only one god for themselves, they recognized the gods of other tribes and kingdoms. This type of tribal monotheism (henotheism) was likely the prevalent ancient practice for a majority of tribes and primitive states. The concept of a universal god evolves centuries later, most likely as a result of tribes trying to maintain their identity under captivity - as a conquered, but indomitable people having fallen out of favor with the omnipotent god-of-gods.
Modern practices on monotheism range from a single, all-knowing, omnipotent creator of the universe (modern Judaism), to a Lord of gods with a host of feudalistic underlings in constant battle against the forces of darkness (Christianity). Islam falls somewhere in between Judaism and Christianity, with one omnipotent God, but legions of angels, spirits (genies) and evil devils, the chief being Satan.
Pantheism. As some city-states evolved into multi-city states by conquering and assimilating surrounding city-states, the religious gods of the conquered city-states may have bee depicted alongside the god of the conquering state as a family of related gods under the benevolent leadership of the conquering god. The history of early society is murky at best, and looking backwards from today, it may seem that the ancient religions were intrinsically pantheistic, while in all probability it was a rather deliberate move to hasten and strengthen the assimilation, allegiance, and alignment of the conquered tribes and city-states. Even today, most so-called monotheistic religions have a host of minor gods and feudalistic courts populated by imaginary angels, devils, and beasts, so they are hardly in-fact rigidly monotheistic.
Social Conscience. The social conscience of the state must reside somewhere physically. The state legislature embodies its moral code in laws very specific to the state, generally not extending beyond its borders – although many states extend, or attempt to extend, their jurisdiction far beyond their borders. The state’s police force monitors and apprehends violators, and the state’s judiciary tries offenders and sets punishments.
A part of the state morality may embodying a larger-reaching social conscience that readies itself for evolutionary transcendence (for example, the evolution of a state to nation) by searching and promoting those moral tenets that serve even a higher social purpose than the unity of the state - reaching for the unity of all mankind - or at least that portion of humanity to be assimilated into its borders. In its higher calling, religion can also be a transcending morality - supporting the unity of the state to a large degree, rooting itself firmly in the past, embracing the present, but also reaching for more universal tenets to prepare for evolutionary transcendence in the future.
Religion sometimes needs to be distinguished from religious institutions. Religion is a general percept like science or philosophy. Science deals with facts, philosophy deals with systems, and religion deals with the “social wisdom” of a decision. In contrast, a religious institution may formalize a particular set of moral tenets, or may be primarily a set of formal rituals – or somewhere in between.
Many formalized religions have existed for centuries, for example the Catholic Church, the Greek Orthodox Church, and the Coptic Church of Egypt are examples in Christianity. In Islam, the El Azur Mosque and University has operated more or less unchanged for centuries, and is the extant social conscience of Egypt. Other central mosques in other Islamic states serve similar purposes for their particular state. Some of these churches, mosques, synagogues, and temples have changed little over the centuries, but some have undergone considerable evolution. Many have degenerated into places of meaningless ritual of little value in promoting social unity, or provide socially-wise decisions.
Who makes the judgment that a moral or ethical tenet should or should not be codified into law?
Those are very profound and often difficult questions to answer. Issues of morality and ethics permeate law, but not all ethical or moral issues are codified in laws. In general, the state sets definitions, procedures, sanctions – and decides issues of law for which it considers it has an overriding interest. The degree which a state intercedes in an individual’s or group’s affairs and actions vary considerably between states - some being extremely intrusive and overbearing in all aspects of life, and others being very minimally involved. Complicating the issue at law, is the reality that many laws may be considered immoral or unethical by some individuals or groups. However, great care should be taken when challenging a state’s law within its borders, as the state generally has overwhelming police power to enforce its laws.
For moral and ethical issues not addressed by law, or where considerable discretion has been left to the public, specific groups may set definitions, procedures, sanctions - and decide issues of association and contract between individuals or groups - providing that such decisions and/or sanctions do not violate or usurp matters reserved solely to the state or at law. Many issues of ethics, especially business affairs, are left to the parties involved, with options to bring grievances or disputes before court of law if one or more of the parties so chooses. Generally, each individual or group is free to accept or reject the conditions of association mutually promulgated.
For moral and ethical issues not addressed by the state or by a group, the individual is free to make the determination and final judgment - and reap the reward or suffer the punishment falling out of the natural consequences of his decision.
Morality is primarily a religious concept involving faith, while ethics is largely a secular concept derived from logical argument. Both morality and ethics address the same behavioral concepts in terms of human beings – an attempt to relate individual and group behavior to consequences – in a moral sense to an often divinely-defined sense of good or evil, and in an ethical secular sense as good or bad consequences.
Historical moral codes are faith-based and typified by the Jewish Torah, the Christian Bible, and the Moslem Quran. Historical ethical codes are based in logical argument and typified by the tenets of various philosophical schools of thought such as Aristotelian, Epicureanism, and Stoicism, Confucianism, and Buddhism.
Secular and religious advocates often clash on the relevancy and utility of a particular moral or ethic tenet. However, the evolution of morality and ethics are intertwined, and in modern times the terms are often used interchangeably without a distinction as to their roots. Both moral beliefs and ethical philosophy permeate legal codes.
Chains of Consequences
Human behavior generally consists of a complex series of actions – each prior action affecting the subsequent act. Greatly complicating this is that each action in a series is also influenced by external persons, actors, natural forces, and circumstances. Establishing a causal path from beginning to end is a daunting and difficult task at best. Most ancient adjudications of legal and ethical issues brought before a judge only addressed the last actions that could reasonably be identified or recognized, and a judgment rendered in a days time. More modern adjudications might spend months or even years trying to unravel the actions and circumstances of the parties to a complaint.
Moral and Ethical Consequences
Morality and ethics deal with the social interactions of humans, specifically the actions of one human individual, whose actions affect another individual, or please or offend the public sense, often couched in terms of a deity. Codes of morality and ethics, whether formalized in writing or verbal in extant, proclaim that natural or divine consequences are attached to specific actions of individuals. To encourage behaviors with natural beneficial consequences, rewards are given to the acting individual, which are in addition to the natural consequences. Likewise, to discourage behaviors with natural harmful consequences, punishments are given to the actor, which are in addition to the natural consequences.
Thus consequences are natural (emanating naturally of actions caused or initiated by a human purportedly in control acting or not), divine (offending the public sense, often personified as a deity), or they are artificial (made as a reward or punishment, either to encourage or discourage specific acts).
Artificial consequences are also called sanctions, and are intended to modify human behavior – either to promote desirable behavior, but more often to discourage undesirable behavior. Sanctions are usually imposed on the offending individual, but may extend to the spouse, children or extended family (corruption-of-blood). Sanctions are in addition to whatever divine or natural consequences may exist or be imagined. The ultimate goal of sanctions is the beneficial modification of natural consequences, and the means to achieve that are sanctions on individual human behavior. Sanctions may be rewards or punishments, although modern usage generally implies punishment.
Divine consequences are those to be received or imposed by a supernatural force or entity, usually after death, and are tenets of religious beliefs. Religious proscriptions of behavior are most often presented as edicts of God (delivered thru the prophets, or philosopher founders) with little, if any, logical explanation or scientific demonstration of a causal relation of behavior to consequence – or if such explanation was originally given in the older religions, such explanations have been lost and are now subjects of blind faith.
In most religions, divine consequences sometimes occur while the offender is alive, but usually after death, as some form of everlasting torment in retribution for wicked deeds performed while alive (example: going to heaven or hell after dying, based on one’s good or bad deeds while alive.) Despite the fact that little or no proof exists of the truth of divine consequences, belief in them does appear to have a modifying effect on human behavior, at least among believers.
Natural consequences are those that are a result of natural forces that can be investigated and verified using scientific methodology. The causative chain begins with a specified human behavior (the cause) and ends in natural consequences (the effect.) Despite the allusion to natural consequences, many existing sanctions have little or no scientific investigation to establish a causal chain of regulated behavior to supposedly beneficial or harmful social consequences, and even less to the interposing sanction.
Laws have one characteristic not common to morality and ethics – laws almost always prescribe remedies and punishments for causative actions, seldom (if ever) rewards.
Legal consequences are the effects of a legal cause of action, There are three types of legal consequences:
‐ Natural consequences occur as natural effect of the causative behavior without regard to sanctions, (example: a vehicle crash that occurred as a result of speeding). At law, natural consequences are the “facts” of the case, and damage incurred by a complaining party may result in the defendant being ordered to pay compensation to the complainant.
‐ Social consequences occur as impacts on society at large because of a causative legal behavior. Social consequences are largely perceived or assumed to be true, with little more than anecdotal evidence or argument to support their existence. Despite the poor founding in actual fact, perceived social consequences play a powerful force in promulgating laws.
‐ Temporal Sanctions are legal punishments given a violator while alive for violating a law. The sanction is weighed both as a deterrent from further such behavior from the violator, and also as a deterrent, example, or warning to others who may be contemplating similar behavior.
‐ Divine Sanctions are rewards are punishments meted out a divine being - by God, or an executor of God’s will. For example, the Judeo-Christian-Islamic belief is that unrepentant sinners will be raised from the dead and cast into a lake of fire at some future and final day-of-judgment. This is a belief, and not a factual natural consequence. However, it is clear that beliefs, whether based in reality or not, do affect social behavior among the believers, though generally of no effect on non-believers.
There are several factors that greatly complicate the analysis of moral and ethical issues:
1) Humans tend to have multiple and sometime conflicting motives for taking an action.
2) Humans (like most animals) engage in deception as a natural course – seldom is what is on the visible surface reflective of what goes on below the surface;
3) Human decision to act is prompted by a complex mixture of innate temperament, peer pressure, rational thought and emotional reaction, which is difficult to predict for specific individuals, although the characteristic behavior of a group can often be established;
4) Gender may play a large role in the predisposition, manner, and mode of action or reaction to similar stimuli – males, as a group, tend to react differently than do females as a group to the same stimuli;
5) The characteristic actions of a group cannot be used to predict the specific actions of an individual with any certainty.
In considering moral and ethical issues, natural consequences are perceived or assumed which may or may not exist in reality, or there may be no real causal connection, or the causal connection may be weak, or only one of many other causes.
The first order of analysis is to establish or confirm what these natural consequences may be, that they are indeed caused by the behavior to be sanctioned, and the probability and strength of their occurrence in any given set of circumstances, That is very easy to say, but exceedingly difficult to establish with any degree of causal certainty. The preferred methodology to establish causality is by statistical inference. Generally, for social settings, this is the only way. However, one should always be aware that such causal correlations, especially those which employ pseudo-experimental procedures (which is true for almost all social studies) can never be more than tentative.
Assuming that natural consequences exist and are a true effect of the causing behavior, and are sufficiently established, the next order of analysis is the consideration of sanctions, either as reward for desirable behaviors, or punishments for undesirable behaviors. Sanctions are appropriate only if they actually result in a social benefit, or cause a beneficial change in the natural consequences. The same degree of causality that should be established for natural consequences should also be established for the artificial consequences of sanctions – and the procedures and caveats are the same.
Prescriptive rule pertains to behavior that is enabled or authorized - usually associated with a reward.
Proscriptive rule pertains to behavior that is prohibited - usually associated with a punishment or penalty.
Sanctions are either rewards or punishments associated with prescribed or prohibited behavior, although "sanction" often infers only punishments or penalties.
The question of who is the authorizing body runs the gamut from “God,” to formal and informal group rules, to government legislative bodies acting under some self-assumed, traditional, or popularly-elected constituency. The humans subject to sanctions may have voluntarily submitted to the process, or may be involuntarily made subject to it by some coercive force.
Generally, all powers are assumed by state governments. Unique to the Earth is the American constitution which limits power to the federal government except those specifically enumerated in its federal constitution. However, much of that enumeration is so broad and sweeping, that little power is actually restricted. The US federal constitution, and most US state constitutions, specifically provide that what is not specifically prohibited is allowed. However, the charter or laws of many countries do not address this important issue, and citizens and enforcement agencies are often in opposition as to whether an action outside normal cultural bounds is an actionable crime, and if so what punishments apply. In the US, federal and state supreme courts generally completely invalidate any law or statute that is considered too vague. However many local US jurisdictions, and most foreign jurisdictions, are quite comfortable making their own interpretations - often with wide variation as to interpretation and punishment between jurisdictions and regions. Such legal actions are enforced unless appealed to a higher court which holds otherwise.
Ex Post Facto Rules
In most societies and cultures, behavior not specifically proscribed is allowed. However, throughout history there have been governments or individuals ascending to power that established rules which retroactively redefined legal definitions or retroactively proscribed formerly legal or undefined behavior. This is retroactive rule-making is known as ex post facto (from after the fact.) Most modern cultures prohibit ex post facto rule making for criminal sanctions as unfair use or abuse of government power.
A very contemporary example of the ex post facto problem is the aggressive interrogation techniques used by the George W Bush administration in the US intelligence gathering actions against Al Qaeda operatives. These aggressive interrogation techniques were widely credited for exposing the Al Qaeda organization's destructive plots against the US at home and abroad . In the succeeding Obama administration, attempts were made to bring criminal war crimes prosecution against Bush administration officials for authorizing such aggressive interrogation techniques on the claim that they were torture prohibited under Geneva Convention on War Crimes. However, the Geneva Convention articles do not precisely define torture, and the ex post facto principal would prevent a refined definition from applying to past action.
Sanctions may be divided into official sanctions and social sanctions. Official sanctions are those imposed and enforced by a governmental agency. Social sanctions are those imposed by private (non-governmental) organizations on its voluntary members.
Official Sanctions come in a variety of forms and classifications. One major classification is to divide official sanctions into criminal and civil categories.
Criminal sanctions are established by statute, adjudicated by a court system, and enforced by the police power of the state. Elements generally required for an action to be considered a crime are:
1) a proscribed behavior,
2) intention to commit a proscribed behavior,
3) the commission of the proscribed behavior, and
4) sometimes (but not always) the occurrence of the natural consequences of the proscribed behavior.
Enforcement generally require a formal judicial process such as a judge and/or jury to find guilt and impose the sanction, and have penalties ranging from death to prison to monetary fines. The modern classifications of crimes, which vary between jurisdictions, is more or less as follows:
Capital offense – such as pre-meditated murder and treason, punishable with a death penalty or life imprisonment;
Felony offenses – such as robbery and assault, punishable with a significant prison sentence measured in years;
Misdemeanor offenses – such as speeding and public nuisance, which generally carry a monetary fine, or light jail term measured in days if the fine is unpaid,
Civil sanctions may be divided into Administrative sanctions, Domestic sanctions, and Contract sanctions
Administrative sanctions are enforced by regulatory governmental bodies, such as those that issue drivers licenses, professional and trade licensing, zoning boards, and so forth. Administrative sanctions for regulatory violations may result in fines and or temporary or permanent loss of license privileges. In most cases, administrative sanctions do not include imprisonment, but ignoring or failing to comply with an administrative sanction is considered a crime in most jurisdictions, which may result in criminal prosecution and imprisonment.
Domestic Sanctions are those that are enforced through family and juvenile courts in the dissolution of marriages, resolution of domestic disputes, and the treatment of criminal offenses by juveniles not subject to normal criminal sanctions. In times past, domestic courts endeavored to preserve marriages and families, and legislative and judicial efforts focused on putting the burden of proof and the expense of litigation on the party seeking dissolution or familial interruption. In more modern times, notably in western countries, domestic courts have been subverted into woman’s advocates, actively encouraging women to divorce, providing them free court services, adopting extreme “feminists” positions, and putting all the burden of proof and expense of litigation on the husband or father. Domestic court judges generally have secret hearings, and are widely regarded as over-reaching (to the point of abuse) in using its contempt powers to intimidate and imprison “obstinate” litigants (almost always male) brought before it.
Contract sanctions are among the most litigated matters. Non-performance and interpretation of contracts between private parties, and between government and private entities are often brought to a court of law or equity for resolution. Contract sanctions may range from enforcement of contract terms, to award of damages, to seizure and sale of property. Contract sanctions rarely involve criminal sanctions, but imprisonment for failing to heed a directive of the court (contempt of court) is possible. Contract litigants often find their court-ordered remedy impractical to realize, and their litigation expenses enormous. A concerted effort has been undertaken to promote non-judicial resolutions of contract disputes (example: binding and non-binding arbitration, and mock trials.)
Social Sanctions. There are several major classes of social associations. Some of those for which moral and ethical issues are important are as follows:
1) Inter-business associations, which involve business relations or financial transactions between two separate firms or parties;
2) Intra-business associations, which involve business relations or financial transactions between employer and employee;
3) Political associations, which exist to promote political agendas and political leaders to office;
4) Religious associations, which administer to the spiritual needs of its members;
5) Competency organizations, which promote the special interests and competencies of their members, such as trade unions and professional associations;
6) Advocacy associations, which advocate specific social agendas, such as animal rights or the regulation (or not) of firearms;
7) Humanitarian associations, which provide aid to individuals in crisis;
8) Front associations, which have covert (possibly illegal) activities masked by socially-acceptable activities; and
9) Opposition associations, which exist to oppose government sanctions or sovereignty.
Social sanctions differ from official sanctions in that the police power of the state are not normally brought to bear on the enforcement of the sanctions of social groups. However, in many instances, especially for inter- and intra- business associations, parties may avail themselves of remedies available through official sanctions, should an aggrieved party choose to bring their case to court of law.
Social associations often offer very large benefits to members at very low expense to the individual member, such as insurance against calamity, or promotion of an agenda that is far beyond what a single individual could accomplish.
In general, An individual is relatively free to choose to associate with others in whatever common cause they choose, providing it is not contrary to the interests of society at large. Most individuals would find it of considerable economic and social disadvantage to forego social associations. Besides economic benefits, associations provide an individual with feelings of belonging, social worth, a sense of direction, a more fulfilling life, social contacts, and opportunity to meet members of equal or higher status.
A special class of morals and ethics exist for Engineers and other professionals, very often embodied in law as a Code of Professional Ethics. The violation of such a legal code of ethics may lead to reprimands, censure, fines, suspension, or revocation of a state issued license to practice the profession or trade. Continued violations after due notice and warnings may lead to arrest and imprisonment.
The state usually provides for a board appointed by the governor of the state to oversee the licensing of engineers, specifying licensee educational requirements, minimum experience levels, technical exams, and a procedure for adjudicating complaints lodged against alleged non-complying individuals and firms (partnerships, limited-liability firms, and corporations.) Licenses to practice are usually issued in one or more technical disciplines (e.g., civil, structures, mechanical, electrical, petroleum, etc.)
The primary complaints processed by such boards generally fall into the following categories:
· Unlicensed individuals and firms practicing engineering
· Malpractice complaints (poor or unacceptable engineering processes or applications – not according to generally accepted practices)
· Practicing in engineering areas outside of ones license or abilities
Note: jurisdictions vary – most allowing an engineer to practice in any field he (or she) is competent in, regardless of which discipline the license is obtained. Other jurisdictions require separate licensing for each discipline to be practiced.
· Certifying engineering plans or documents which have not been personally reviewed or supervised
· Corruption and bribery
· moral turpitude (conviction of crimes unrelated to the profession, but which cast a shadow on the integrity of the individual or firm)
In addition, engineering boards and societies are often active in promoting laws that favor engineering firms over the welfare of the general public. Engineering boards are necessarily populated by engineers. After all, who is qualified to judge a professional or certified engineer except other professional or certified engineers? No one else is qualified. Thus inevitable conflicts-of-interest can arise when the welfare of the general public is pitted against the welfare of the engineer.
An example is the ban on issuing or submitting a bid for engineering work. Many states have laws sanctioning engineers who engage in bidding processes for engineering work, requiring instead processes using qualifications only (i.e., not based on price). Such processes favor large, established firms at the expense of smaller, newer firms. In a statistical study performed by this author for his doctoral dissertation, there was no correlation (i.e., no social benefit) found that resulted from choosing engineers by qualifications versus choosing engineers by price. Generally the choosing of engineers by qualifications alone resulted in substantially higher fees for the engineer.
Thus one might see the allusion to conflict-of-interest between government bodies appointed to protect the general welfare of the public versus their own professional welfare. This conflict is endemic throughout government – and a neutral resolution is difficult to find. It affects not only engineers, but other professionals such as medical doctors, architects, and even extends down into the trades such as plumbers, masons, electricians, iron workers, etc.
Ethics and the project manager
The project manager, and the project team, can encounter ethical issues that involve the licensure of the engineer. More often, though, it is very grey-areas of ethical concerns that are most difficult. A great deal of compromising and weighting and weighing of contributing factors is done in the normal course of a project. Very often, the specter or opportunity for personal or professional gain at the expense of the owner arises, often by no deliberate attempt by the project manager or the project team members.
It is important for the project manger to have well-documented processes for his decisions so that if the specter of personal gain is raised against him, he can show his decision process (as a logical and unbiased process). Anything less may lead to the appearance of corruption. The mere appearance (and not necessarily the actual commission) has ruined many careers.
The following situations are areas of danger that should be avoided by the project team members:
· Receiving gifts and gratuitous or services from contractors obligated to the owner for some aspect of the project which you supervise or influence.
The US government allows small gifts under $25 which are essentially advertisements or goodwill available to the general public, but bans all other gifts and gratuities. If there is any concern as to the nature or value of the item offered, the safe thing to do is report it to the legal office and ask for a determination. It is better to lose the gift than lose your job – or even imprisonment – over an unnecessary lapse of discretion.
The theory behind such bans on gifts and gratuities is that even the smallest favor can turn the heart and mind of the owner’s agent away from the owner and towards the interest of the giver. It is not necessarily always a tit-for-tat action that results, but nevertheless, it is a wise precaution.
· Using project-funded resources for personal use.
Generally speaking, the owner’s agent(s) should not use the contractor’s facilities or resources for his own use, even if it is project related. However, in many remote jobsites, it is common to require the contractor to provide office and/or life support for the owner’s agents assigned to the field. In such cases, the owner should independently approve large items to be utilized by his field personnel, such as office facilities and equipment, and vehicles to preclude any semblance of impropriety.
· Being overly friendly with contractor personnel
It is entirely appropriate to be professional, act in a courtesy manner, and respond in a neutral, pleasant way to contractor questions and inquiries. However, it is inappropriate to engage in verbal and physical horseplay and games with the contractor and his personnel. No romantic interest should be shown with contractor personnel, nor friendly outings that may be construed as “something more than business.”
As the owner’s agent, the project manger and team members may have to reprimand the contractor or take adversarial action contrary to the interests of the contractor. It is exceedingly hard to do so if overly-friendly relations have been established. Also, such friendliness can too easily subvert the interests of the owner in favor of the contractor.
· Intra-team personal relations
Team members should act in a professional and courteous manner towards each other at all times. A clash of wills and an occasional blow-up may be tolerated, but repeated displays of animosity must be dealt with by counseling and or removing an offending member unable to correct their behavior.
Another area of concern is romantic interests between team members. Special morale problems arise when one or both of the amorous pair are married to someone else. Aggrieved spouses may suddenly appear on your project and divert attention and resources from the project. In such cases it may be best to remove the amorous pair from the team while they sort out their often-deteriorating personal lives. Even worse morale problems may occur when the amorous pair split. Seldom can lovers be friends after a split, and more likely they will display great animosity towards each other. One or both may have to be removed from the team.
Another area of concern is when a supervisor or person with an influence over a subordinate’s career gets entangled in the subordinate’s personal life. The perception is that such entanglement will of course unduly affect the subordinate’s career. Both the subordinate and the superior may be guilty of promoting such entanglement – each for their own motives. However, charges of sexual harassment are becoming more prevalent, and it is often the company or corporation that suffers the pangs of financial redress too often claimed by the “aggrieved” subordinate. It is better for firms to discourage such entanglements, with the primary duty to the superior to refrain from such temptations.
The project manager, and indeed, even each team member, most often experience a conflict with their sense of duty and their sense of fairness.” We owe a sense of duty to the project owner – to give him what he expects. We also have developed a sense of fairness which prompts us to treat other humans in a respectful manner.
A classic example of this conflict is with project labor. The project duty requires us to be efficient and conserve the resources of the owner or client. This means that as project demand for labor decreases, labor – human beings with families to care for and support – must be reduced by termination. In many cases, the human individual may be severely stressed by the termination. There may be babies and small children to support, but no income for purchasing their sustenance.
But, depending on our personal philosophy and temperament, we usually find it difficult to satisfy both are sense of duty and are sense of fairness:
1) Some may easily leave it up to each individual laborer to set aside sufficient resources (usually money) to sustain himself and his family over the temporary interruption of employment.
2) Others may delay labor termination at the expense of the owner – retaining labor with little or no project utility – in order avoid a sense of betrayal to what they might consider their comrades.
3) Still others may selectively retain certain laborers or workers who may be relatives or friends.
The difficulty with the ethics of this situation is that it is highly dependent on the temperament of the individual faced with selecting the individuals to be released. How would you handle the following situations, where you are faced with a surplus of labor, and it is time to select individuals for release. You feel you must terminate one person. The candidates are as follows:
Joe, your cousin on your mother’s side, who is living in your home (if you terminate him your mama will surely be scolding you daily);
Madeline, whom you are having an affair with (and who may terminate the affair if you terminate her – and you really, really like her);
Jack, who is your best friend, but otherwise a mediocre worker (and who expects you to save him from termination);
Manny, who is a great worker who could still be utilized in another skill area, but otherwise you don’t socialize with him.
What would be your choice, and why (class discussion). Discuss the ethical justification of each alternative.
What about the owner? Isn’t he a human being also – worthy of respect. What about his capital risk? How do we weigh that against human value?