TRAGIC LIVES: ON THE INCOMPATIBILITY OF LAW AND ETHICS

College Literature, Summer 2008 by Hogan, Patrick Colm

If asked about the relation between law and ethics, I imagine that most people would say something along the following lines. Actual legal systems are not fully ethical. There are many points where the law allows unethical activity. Moreover, there may even be points where the law punishes ethical action. Certainly many legal systems in the past (e.g., in Nazi Germany) have done this. However (they might continue), legal systems should ultimately be compatible with ethics. This is not to say that law should force everyone to adhere to some particular morality. However, it should not contradict a core of fundamental moral principles.

The point is not merely commonsense. It is adopted, implicitly or explicitly, by a range of legal theorists as well. Natural law theory is an obvious case in point. As Robert George explains,

Some natural law theorists propose to identify basic principles of practical reasoning and morality and to derive from those principles norms to guide the decisions of legislators and, in some cases, judges. Others seek to guide legal interpretation, reasoning, and adjudication on the basis of a putatively necessary connection between law (or legality) and morality. (George 1994, v)

Even theorists who tend to separate legal and moral concerns do not commonly see them as intrinsically opposed or irreconcilable. Thus Margot Stubbs explains that a key tenet of positivism is that "there is no necessary connection between law and morals." But this does not mean that positivists do not distinguish between "law as it is and law as it should be" (1993, 455). Indeed, Stubbs implies that the lack of a "necessary connection between law and morals" is precisely what allows a distinction between "law as it is and law as it should be." In keeping with this, David Lyons (1984b) explains that positivists may point out the moral fallibility of law. Lyons s own view is consistent with this attitude and, I suspect, shared by a wide range of writers, lawyers, and judges. As he puts it, "Though law is no simple fact, we have more reason to regard it as a social datum, subject to moral appraisal, than as something automatically informed by moral principles" (1984a, 3). Presumably the point of moral appraisal is to improve the law by bringing it into conformity with moral principles.

Nor is this view confined to what might be considered more traditional approaches to legal theory. For example, feminist writers often invoke moral principles in criticisms of current law. Thus Ann Scales writes that "The feminist legal standard for equality is altogether principled in requiring commitment to finding the moral crux of matters before the court" (1993, 54). In connection with this, Scales discusses how feminist legal theorists have drawn on Carol Gilligan's idea of a female "ethic of care."

At one level, one can hardly disagree with this general view of the relation between law and ethics. We might have different ideas about the use of philosophical ethical theory in legal reasoning (as discussed by Richard Posner [1999]), the degree to which the best interpretation of the constitution might be a justification that incorporates moral principles (as treated by Ronald Dworkin [1978]), whether the immorality of an act is sufficient to justify its legal regulation (as examined by H. L. A. Hart [1971]), and so forth. But it seems clear that there are some basic moral principles that should be enshrined in law and other moral principles that, if not enshrined in law, should not be contradicted in law. For example, I imagine most of us would agree that the killing of innocent people is morally wrong and should be prohibited-and certainly should not be fostered-by law.

But, at another level, I believe that this common view is quite mistaken. In fact, there is, I will argue, a profound and irresolvable conflict between law and ethics. This conflict is pervasive. It exists no matter what the precise nature of the legal system, the precise laws it comprises, the exact procedures it employs to enforce those laws. Indeed, this conflict between law and ethics is one feature of human society that makes life tragic-not simply unhappy, but inexorable in the production of pain that is morally wrong.There are two elements of this necessary conflict. One concerns those who are guilty of some harm. Legal systems invariably entail moral excess in their punishments. The other element concerns people responding to the guilty persons; we might refer to them as "evaluators." There are always cases in which law prevents evaluators from acting in a fully moral way.1

As this suggests, the conflict between law and morality is also an important element in the development of literary tragedy. Indeed, the conflict between law and morality is at the root ofWestern tragedy-in part due to the Greeks'"awareness of the fragility of law and the moral values it embodied," as William Allan put it (2005,79). Perhaps the most obvious case of this is Sophocles' Antigone. Antigone's moral obligation to her brother brings her into conflict with the law established by Creon. Initially, the law prevents her from fulfilling her moral obligation. Subsequently, when she does partially fulfill that obligation, she is punished and the punishment (death) obviously involves excess from the moral perspective. One way of phrasing the conflict here is to say that there is a contradiction between the needs of the community (manifest in Créons law) and the moral duties of and toward individuals. This issue is not confined to the West. For example, the ancient Sanskrit epic, Râmâyana, includes several moments of such conflict. A famous case occurs in the final canto. The people believe that King Rama's wife, Sîtâ is pregnant by another man. They maintain that, if this goes unpunished, women will feel free to have multiple sexual relations, with disruptive consequences for social order. Rama's personal, moral obligations to his wife come into conflict with the needs of the populace, subsequently established in law through Rama's banishment of Sîtâ. Sîtâ's punishment is, in an obvious way, morally excessive as well. A third instance may be found in the Chinese drama, The Injustice Done to Tou Ngo, by the premier Yuan dramatist, Kuan Han-ch'ing (late 13th/early 14th century). In this play, the main heroine makes a false confession in order to protect her mother-in-law from the threats of a corrupt magistrate. She is then executed. Here we see Tou Ngo's moral obligation to her mother coming into conflict with her obligations toward the law, with morally excessive, tragic results.