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Legal, Ethical, Moral: Can I get a Venn Diagram?

28 July 2010

This is the ground work for a future post about governments and morals and why the former should have nothing to do with enforcing the latter. For now, I’d like to talk about five sets of actions, all of which constitute the entire range of actions. The largest, parent set of actions is the impossible. All action is impossible at some time or another. It was impossible for you to read and me to write this post 1000 years ago. I will admit this bit about time is a trick to make the diagram and the metaphor work, but no one ever said that Venn diagrams couldn’t convey a change in time as well as a relation among sets. Every imaginable and unimaginable action is impossible, at some point in time, so the set of impossible actions contains the set of all actions. Impossible is our first set.

Many actions in Impossible become possible over time. The set of actions that are possible, then, is a subset of the impossible because of the outside factor of time. Possible is our second set. This is where things get interesting. Of all possible actions, not all are legal. Here again, the passage of time may affect one particular action’s inclusion within the set of Possible but not the subset of Legal. This may help extend the rationalization for using the time trick, but it is not the interesting part to which I was referring. What I find interesting is that inclusion in the three remaining sets of actions, Legal, Ethical, and Moral, is determined proscriptively by human beings rather than purely as a function of the state of the universe at a given time. Possible actions are only possible because of the state of the universe at a given time. Ten centuries ago blogs didn’t exist so it was impossible to make one. Legal actions, on the other hand, are determined by people who choose to proscribe certain illegal actions. There is a similar basis for ethical and moral actions. Laws, ethics, and morals are sets of rules that say what people can’t do and what people must do (which is to say that people can’t not do them).

So what is the relationship between these three sets? I could write hundreds of posts trying to define ethics and morals, a necessary first step towards determining this relationship. Some people spend their entire lives grappling with these definitions. I prefer a simple definition based on this theme of increasing proscription. Unethical actions are ones that, while legal, are prohibited by a professional code of conduct. Similarly, immoral actions are ones that, while legal and ethical, are prohibited by a personal code of conduct. Don’t get tripped up on any of the ambiguous words like “professional” and “personal”. One reason some people spend their lives struggling with a definition is a desire for semantic precision that overwhelms the practical applications of such a definition. Here’s a simple rule of thumb that most common sense approaches to the subject could probably agree with. Doctors and lawyers practice ethics; sinners and saints practice morals. Or here’s another one. Ethics are for your job; morals are for you.

Breaking things down this way leads to the fairly simple Venn diagram below. The center of the diagram represents the most filtered set of actions, the most subject to layers of proscription. This center is the personal center, the Moral center. People, humans, are subject to a moral code. There is no single moral code – it’s different for every individual. The Moral, as I have defined it, is also Ethical and Legal. Anything unethical or illegal must also be immoral. The basic assumption here is that morals are bound by the law and by ethics. If it were illegal or unethical to love my wife, it must be immoral as well. That just sounds weird and seems wrong at an intuitive level, but it does provide answers to some questions. This is why it is so hard to deal with unjust laws. Morals prefer to be unbound, free of the constraints of the law. The fact of their dependence upon the law is what drives moral outrage. Civil disobedience would have no power to change the law if morals were free of the law. Where laws try to subvert a majority of personal morals, i.e. make illegal something most people consider to be moral, there are major subduction zones in the body politic that cause widespread resistance to the laws. Like plate tectonics, though, this process can be slow but ultimately earth shattering at its climax. There is a corollary to this with ethics and morals in the workplace. When professionals refuse to ethically proscribe actions against customers, employees, peer professionals, or peripheral professionals that are largely considered immoral, there will be a backlash. Unionization, consumer protection, child labor laws, contract law, and regulatory bodies are all collateral damage created by such refusals.

Venn Diagram of All Actions

The reverse of these situations, however, is often – but not always – uneventful. Adultery is considered immoral by a large number of people (even some of those committing it) but is legal in many states, and yet there are few concerted efforts to outlaw it. Many business owners, where it is not already illegal, prohibit smoking in work/business areas. People may fuss and moan, but few organize or boycott over such a transgression no matter how righteous they may feel about their right to smoke. The key with these reverse situations is choice. With the law, it can be hard to choose to live somewhere else that does not constrain one’s morality, and much easier to stay somewhere that provides more freedom than one would personally allow. So the prohibition of alcohol, driven back by moral outrage, eventually falls back into the void from whence it came, and no one makes a serious attempt to totally ban pornography. With ethics, it’s often easier to keep working at or patronizing a business that restricts moral freedom than it is to find another job or a different place to go, but much harder to resist moral outrage at a business that continually defies moral expectations. This is why not many people care enough to act when businesses refuse to serve shoeless customers, but unsanitary food preparation leads to the creation of the FDA.

This brings up a small point. How can morals that have no relation to a professional question be considered a subset of ethics? For this I use a trick similar to the time trick. Any perfectly personal question of morals can be related to a professional question of ethics by imagining the personal question in terms of doing the job at the center of the question. For example, adultery is a personal moral question. It may shed light on my personality, but it has no bearing on any professional code of conduct (unless some profession chooses to make it so). However, if I imagine myself as performing the job of a husband, my morals for the question are translated into ethics. This hypothetical job may have ethics that simply match the morals of the original question, but it’s also possible they may be less proscriptive.

What does this all mean? Take a look at the Venn diagram again. Moral is a subset of Ethical. Ethical is a subset of Legal. This relationship shows why tensions exist between the three sets. To make the analysis easier, I will use the following convention: states have laws, businesses have ethics, and people have morals. When states try to proscribe things that are traditionally moral, people rebel. Likewise, when states try to proscribe things that are traditionally ethical, businesses rebel. On the flip side, when states refuse to protect things that are traditionally moral, people may not always rebel. This contrasts with businesses that still rebel when states refuse to protect things that are traditionally ethical. The legal/moral relationship is the opposite of the ethical/moral relationship and highlights the middle position that ethics holds. When businesses try to proscribe things that are traditionally moral, people may not always rebel. However, when businesses refuse to protect things that are traditionally moral, people rebel. Finally, when people act illegally or unethically, states or businesses, respectively, rebel. These tensions exist because of the successively proscriptive nature of these sets of actions and because of the purgatory of ethics between the state and the people.

In those situations where rebellion is not a guarantee, the key issue becomes the definition of the term “traditionally”. By that word, I mean something between a majority opinion and a widely held tenet. The immorality of adultery is probably a majority opinion but nowhere near a widely held tenet of morals. If it were a widely held tenet, states may proscribe it, and in fact, many have. (Enforcing it is another matter entirely.) “Traditional” morals have a gamut of sanctity that will most probably determine the level of rebellion in response to a provocation of moral outrage. And don’t forget the external factor of time. Sanctity can increase or decrease over time and change the dynamics of the tension. Earthquakes build over time; so does civil unrest and moral outrage. It is also true that the response to a moral outrage may outpace the outrage itself. In these cases, sanctity may have been artificially inflated and the passage of time has leaked the outrage back to previous levels. Consider the example of prohibition above, or the war on terror. In the realm of ethics, consider the Great Depression and some of the banking regulations that were spawned by it. Time passed and the outrage waned. Regulations were loosened.

This brings me to my final point. Even though people and businesses may rebel against the state, those rebellions are not guaranteed success. Who wins those rebellions is determined mainly by the relative power of the players involved at that particular time in that particular arena. Look at the bankruptcy bill passed in 2005, written by and for banks and credit card companies. Business won that one, and people lost. Fast forward to the financial reform bill of 2010, written to regulate Wall Street even more than it already is. The state won that one, and business lost. The interesting, and frustrating, thing for me is that people constitute businesses and states but because of the relationship of Legal, Ethical and Moral, there is an inherent tension in the different roles that people play. This tension drives politics, the marketplace, and society. Any state without this tension has neither people nor businesses, and without those, a state cannot exist.

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