TRAGIC LIVES: ON THE INCOMPATIBILITY OF LAW AND ETHICS

College Literature, Summer 2008 by Hogan, Patrick Colm

In the following pages, I wish to explore, first, the ways in which law and ethics are in necessary conflict with one another; second, the ways in which this conflict gives rise to tragedy in life; and, third, how such tragedy is manifest in literature. In the final sections, I will consider two works that address state cruelty-specifically, the imposition of death as punishment for murder-one modern (Krzysztof Kieslowski's Decalogue V), one ancient (Aeschylus' Eumenides).

Morality and Law

Most of us have an intuitive sense that law and ethics comprise related systems of norms bearing on action. However, isolating just what differentiates these systems is not as easy as it may seem. Clearly, they are not the only systems for evaluating actions. In fact, most of our evaluations ("Should I bring an umbrella?") are neither legal nor moral. We might term these other evaluations "pragmatic," but that only pushes the problem back. What differentiates legal and ethical from pragmatic evaluations? One's first impulse may be to say that the former are non-instrumental. However, there are instrumental considerations that enter into both systems. Saying that legal and ethical evaluations concern what is good and bad is of no use, because it is circular. It tells us only that laws and morals treat legal and moral goods-and, after all, pragmatic evaluations treat pragmatic goods.

There are a number of complex issues here and the scope of the present essay does not allow a developed treatment of any of them. However, it is possible to sketch a few key points. First, an obvious and common way of differentiating law and morality is by reference to some sort of spiritual standard. Adherents of one or another religion might find it a simple matter to isolate moral norms-moral norms are what God says is good, or what are defined as good by a sacred text, or what result from (or in) spiritual transcendence. Not being religious, I am setting out to isolate a naturalistic criterion. On the other hand, that naturalistic criterion should define a distinction that has at least some affinity with the distinctions drawn by various religions. In other words, we would probably not wish to adopt a naturalistic criterion that made the resulting set of moral norms radically different from those of most people throughout the world for most of history. Among other things, that would risk making the conflict between morality and law inconsequential-a conflict only for the tiny number of people inclined to accept this particular, naturalistic view of moral evaluation. (It would also make it difficult to explain why Aeschylus' and Kieslowski's works manifest this conflict, since both have religious elements.)

Moral systems in different religions and societies clearly involve a range of different moral principles. For example, monotheisms particularly tend to see worship of the supreme deity as a central moral obligation. Religions based on principles of self-realization through contemplative practice often do not. And, of course, secular moral systems do not have a place for worship. On the other hand, there do seem to be certain sorts of acts that are widely seen as falling under the heading of morality. For example, the killing of innocents appears to be broadly accepted as immoral (though the precise scope of those covered may vary due to group membership, age, social status, circumstances of the killing, and so on). Conversely, giving comfort to the miserable and aid to the helpless appear to be seen as benevolent across a range of cultures. We might generalize this idea to something along the following lines: Ethics and law treat our evaluation of and response to harm or suffering.4 The response has two components. The first is a matter of limiting harm. This is often the province of duties in ethics, at least when one would be the cause of the harm oneself. It is usually the crucial issue in law. The second component is the alleviation of suffering. This is often a matter of benevolence in ethics. It is generally a matter of less importance in law, insofar as suffering is not construed as the result of harmful action (e.g., when poverty results from bad luck, not from theft). Despite this connection, however, the natures of normative evaluations and responses differ, depending on whether they are moral or legal. Put very simply, ethics involves evaluating possible or actual harm or suffering, first of all, individually; it involves responding to that harm or suffering, first of all, empathically.5 Law, in contrast, involves evaluating possible or actual harm, first of all, socially; it involves responding to that harm, first of all, through something along the lines of probability calculation.6