ETHICS AND DISCIPLINE IN LAW: AKIN TO WAITING FOR GODOT (PART 9)
Monday 6th March, 2023.
BY: PROF. MIKE OZEKHOME, SAN, CON, OFR, FCIArb, LL.M, Ph.D, LL.D, D. Litt.
It has been said that the relationship of ethics and law considers that conscience is the guardian in the individual (ethics) for the rules which the community has evolved for its own preservation (law). There are limits to the law. The law cannot make people honest, caring, or fair. For example, lying, or betraying a confidence, is not illegal but it is unethical. While not every physical therapy practice act requires adherence to a code of ethics, all do require adherence to the law. On this note, we shall continue our discourse on this vexed issue.
MEASURES TO CONTROL INDISCIPLINE (CONTINUES)
THE RELATIONSHIP BETWEEN ETHICS, DISCIPLINE AND LAW
There is an ongoing debate about the relationship of ethics and the law. In 1958 the Harvard Law Review published the famous Hart Fuller Debate, which addressed the relationship of law and ethics (Harvard Law Review, 1958). Hart stated morality and law are separate, and Fuller opined that morality is the source of laws’ binding power. Ethics and law both address similar issues.
To make a somewhat distinction between the concepts we may say that ethics focuses on actions of individuals and groups, and political philosophy centres on political institutions such as the state or democracy. Legal philosophy is then the discipline that focuses on the institution of the law. It is the primary perspective, not the issue, which determines the discipline. We may, for example, study civil disobedience from the vantage point of each of the three disciplines. Ethics asks when individuals have a moral obligation to obey the law; political philosophy studies how the democratic state should react to civil disobedience; and legal philosophy analyses whether it is possible for legal institutions to take into account the specific character of civil disobedience in prosecution and punishment. Obviously, these analyses are related and partly refer to each other – yet they can be distinguished.
In Nigeria the basic national ethics and discipline include self reliance, patriotism, loyalty to the nation, honesty, dedication to duty, obedience to authority, respect of elders and seniors in authority, participation in national service, payment of tax, reporting criminals and members of cults to the police, assistance to the poor and the needy, parental care, participation in an election, protection of government property and contribution to national development.
The observance of these ethics and discipline in national life would instill national consciousness on the people. Once a person examines his conduct in line with its effect on the nation, he is bound to participate in the activities that will bring good name and development of the nation.
It is the non observance of national ethics and discipline in Nigeria that has given rise to fraud (419), political unrest, embezzlement of public fund, corruption, indiscipline, forgery, armed robbery, cultism in higher schools of learning, bribery, religious bigotry and fanaticism, exam malpractice, vandalism, and smuggling.
Ethics, morality and discipline have been jettisoned in the conduct of national life for financial gains. Much of the Nigerian problems in terms of development are resultant effect of none observance of ethics and the standard of ethical conduct in national affairs. A nation is said to be developed when the standard of her discipline and social structures are measured in comparison with others in the developed society.
Ethics is the moral principles that govern a person’s behavior or the conducting of an activity. Morals are concerned with the principles of right and wrong behavior and the goodness or badness of human character. Law is the system of rules that a particular country or community recognizes as regulating the actions of its members and may enforce by the imposition of penalties.
If you are ethical you can abide by the law. If you are Moral you can be ethical. Also, if you are moral you can abide by the law. But you can never be all three together.
Morality governs private, personal interactions. Ethics governs professional interactions. Law governs society as a whole, often dealing with interactions between total strangers.
Some people talk about their personal ethics, others talk about a set of morals, and everyone in a society is governed by the same set of laws. If the law conflicts with our personal values or a moral system, we have to act – but to do so we need to be able to tell the difference between them.
Ethics and morals relate to “right” and “wrong” conduct. While they are sometimes used interchangeably, they are different: ethics refer to rules provided by an external source, e.g., codes of conduct in workplaces or principles in religions. Morals refer to an individual’s own principles regarding right and wrong.
Morals and Law differ because the law demands an absolute subjection to its rules and commands. Law has enforcing authority derived from the state. It is heteronymous (being imposed upon men upon the outer life of men). Law regulates men’s relations with others and with society.
A promissory note is in force for three years. It is the debtor’s duty to repay the loan. It is the legal duty. The creditor can enforce legal action against the debtor within three years from the date of execution of a promissory note before the court of law. The legal duty involves a corresponding right. The state provides organized machinery for the enforcement of the law. Legal disputes admit to the principle of alteration by legislation. Legal disputes can only be settled by an appropriate court of law. Law is narrower than morality. It extends to a great number of such acts. The law applies to all the citizens whether they want or not. Law cannot be changed into morals.
Morality demands that men should act from a sense of ethical duty. Morality has no such enforcing authority from the state. It is autonomous (coming from the inner life of men). It governs the inner life of men. If the promissory note is time-barred, then the legal duty of the debtor turns into moral duty. Of course, moral duty is not enforceable before the court of law. It is also accompanied by a corresponding right. But right is not enforceable before the court of law. There is no such organization for the enforcement of morals. Moral rules do not admit even in principle admit of change by legislation. Moral disputes can be solved by the mediation of caste elders, village elders, etc. Morality applies to every human act.
Morality also applies to all persons. But it depends from person to person, from religion to religion, society to society. It is his/her pleasure to follow or not. But morals sometimes can be converted into law. Example: a donation to a charity institution is a moral principle. The income-tax recognized and exempts a certain percentage of income-tax towards donation from the total income.
Ethics and Law – Ethics are rules of conduct. Laws are rules developed by governments in order to provide balance in society and protection to its citizens. Ethics comes from people’s awareness of what is right and wrong. Laws are enforced by governments to their people. Ethics are moral codes that every person must conform to. Laws are codifications of ethics meant to regulate society. Ethics does not carry any punishment to anyone who violates it. The law will punish anyone who happens to violate it. Ethics comes from within a person’s moral values. Laws are made with ethics as a guiding principle.
It is clear that one cannot be Ethical, Moral, and follow the law. In today’s society following the law affects the morality of people. Being ethical makes you look like you are against someone or something. What do you do? It is not to please anyone but make sure you are ok with what you will follow. Choose wisely because only two go side by side.
ETHICS AND DISCIPLINE IN LAW: THE NIGERIAN PERSPECTIVE, A CASE OF WAITING FOR A GODOT?
The 1999 Constitution of the Federal Republic of Nigeria particularly made an unending relationship between the concept of ethics, discipline and law. The concepts are both in operationally and constitutionally inseparable. Any attempt to distinguish between any of the concept will end up lopping into others. In this regard, the constitution of Nigeria graciously sought to make a constitutional balance. See Section 23 and 24 of the 1999 Constitution.
The various professions, such as the legal profession, medical profession and the others have put in place set of ethical rules to regulate the affairs of their members in the practice of their respective professions and the application of which has help to shape the conducts, behaviour and relations of its members. Example as stated earlier is the Rules of Professional Conducts for Legal Practitioners, 2007.
An ideal society where ethics and discipline in law reign, is realistic in Nigeria if only Nigeria and Nigerians could have an unflinching resolve to have it so, otherwise with the crop of politicians and citizenry Nigeria currently has, the case of ethics and discipline in law may be the tale of Waiting for a Godot.
Nigeria cannot become a state where ethics and discipline in law is possible where Nigerians continually cherish bags of rice and a few Naira Notes more that having a beautiful tomorrow realizable by good leadership. How can Nigeria be a society where ethics and discipline in law reign where favouritism, ethnocentrism and tribalism all have a filled day? It would amount to erecting a great edifice in the air to expect ethics and discipline in law where we keep revolving, rotating and regurgitating old set of people who have erstwhile dissipated the Nigerian economy as elected and/or appointed leaders. We cannot have a nation where ethics and discipline in law exist where all we keep having as leaders are visionless, purposeless and directionless homo sapiens. Until those we have as leader hold Accountability, Transparency, Responsibility, Discipline and Meritocracy as virtues, we will keep wallowing in a society where ethics and discipline in law are in abeyance. (To be continued).
THOUGHT FOR THE WEEK
“In law a man is guilty when he violates the rights of others. In ethics he is guilty if he only thinks of doing so”. (Immanuel Kant).