Vermont Bar Journal, Vol. 40, No. 2 Vermont Bar Journal, Spring 2017, Volume 43, No. 1 - Page 33

by Gregory P. Hawkins and Lonn Litchfield, Esqs. Aspirational Ethics and the Second Chair It’s Less About Codification Than About Inspiration When we give public presentations on Corruption, Ethics, or Leadership we often begin with some version of a moral hypo- thetical. The exercise turns out exactly the same no matter the group. A father takes his only child into the state school board building where she will be tested to determine if she qual- ifies for a very special gifted student program. Admittance is competitive and only truly gifted students will be admitted. As he approaches the test administrators, he is surprised to see his best friend. He is apparently the chair of the selection committee. His friend greets him very warmly and tells him not to worry, his daughter will get into the program. Both men under- stand the implication. Most people will say that it is wrong for the administrator to treat his friend’s daughter differently from other applicants. In many groups, there will be some who feel so strongly that it is wrong that they speak out without prompting. Yet even those who speak out will hesitate to call it “evil.” Morals are the basic internal principles that inform and govern a person’s view of right and wrong, good and evil. Although morals are a universal force, they can be di- verse in their application and definition–al- most as diverse as individuals are from one another. This diversity is illustrated as we add to our hypothetical. The facts added do not change the ac- tion itself, but they do change the moral context by emphasizing a competing vir- tue. What if the administrator and his friend were not merely lifelong friends, but they fought together in the war, side-by-side, depending on one another for their life? What if the father had actually, and rather dramatically, saved the administrator’s life? What if the father had been wounded in his heroic effort? What if the wound had left him unable to father another child? What if he was left a paraplegic, forever reliant on a wheelchair for his mobility? As we pro- ceed with each, “what if,” more and more people begin to rethink their opinion. Of- ten, the ones who felt so strongly about the wrongness of the administrator’s actions will be among the first to change their view. As each group looks around the room at what they thought was a homogenous www.vtbar.org group, they begin to realize that questions of right and wrong, good and evil, even in their very own analysis, sometime take real thought to resolve. Sometimes the ques- tions involve good and good, right and right. Which is more important, equality or loyalty? In the abstract, this question is challenging, but it can become quite dif- ficult if it is a question one faces in their own life. Which is the greater good, fair- ness in testing and equality of school pro- grams, or loyalty and honoring life-chang- ing sacrifice? We have discovered that in- dividual resolution of this issue sometimes turns on the person’s life experience. For example, a veteran of combat often sees the question differently than does a presi- dent of the PTA. When the person is both a combat veteran and the president of the PTA, the question becomes intense. Let’s turn from the question of morals to the question of ethics. If we were to ask 100 ethicists what the definition of ethics is, we may well receive 147 different answers. For our purposes, we will use the working definition that “ethics are one’s discretion- ary behavior in relation to morals.” Some ethicists use the term ethics to mean the rules crafted by others to be applied to someone else’s moral conduct. We will re- fer to the creation of someone else’s rules as the codification of ethics. We will define codification as simply, “the creation of an organized set of rules that if violated have a negative consequence to the violator.” Although intended to improve the mor- al climate, the codification of ethics tends to decrease ethical choices. We will briefly discuss five reasons why ethical choices de- crease when ethics are codified. First is the concept of legal moralism. If the conduct is not prohibited in the code of ethics, then, by definition, it is permit- ted conduct. In other words, license is giv- en to engage in conduct not specifically prohibited by the code. This is not to say that codification of ethics results in abso- lute legal moralism to every person in ev- ery circumstance. The question of whether the conduct is right or wrong, good or evil, for some, can simply be set aside. The rules themselves determine the right and wrong of behavior. Discretion can become irrele- vant. This results in less ethical behavior. To avoid this result, continuing codification is required until all conduct that is perceived as bad is prohibited. The code must be ex- haustive–a nearly impossible task. Second, because violation of the code THE VERMONT BAR JOURNAL • SPRING 2017 results in negative consequences, when- ever the code is applied to an individual, that individual resists its application. The person must say, “I did not do it,” or “That rule does not apply to me,” or “You are reading the code incorrectly,” or a multi- tude of variations on this theme. Any indi- vidual to whom the code applies, now or in the future, naturally and even subcon- sciously resists the code. Because the indi- vidual resists the application of the code, the rules lose their ability to affect the per- son’s choices in relation to morals positive- ly. Codification may result in nearly univer- sal resistance by those who are governed. Third, when negative consequences are threatened, a lawyer—an expert dedicated to exploiting ambiguities in the law and its application to specific facts—is invited to participate in the ensuing battle. Yes, it will be a battle, because almost no one willing- ly submits to his behavior being character- ized as bad, or as wrong and certainly not as evil. The lawyer’s job is to defend her client, not to promote g eneralized ethical behavior. The lawyer will find the ambigui- ties in the code being applied, as well as ambiguities in the underlying facts. In time, often a very short time, the code becomes diluted, its benefits reduced. This dilution takes us to a fourth prob- lem of codification. Like legal moralism, dilution requires additions to the code— more codification. Dilution requires a codi- fication that is tighter in its application and more exhaustive, which in turn will require more lawyers, and round and round and round we go. Fifth, codification does not promote good behavior. At its best, codification can only limit bad behavior. As a result of these and other effects, codification by its nature results in less eth- ical behavior. This is a significant idea and bears repeating: rules that take away dis- cretion, choices, about moral behavior re- sult in less ethical behavior because ethics is about discretionary behavior in relation to morals–it is about choices. Despite the problems with the codifica- tion of ethics, no one is advocating that we do away with it. Codification of ethics will always be a part of our modern world. In 1100 AD there were about 50 million people inhabiting our planet. In the 1820s we reached our first billion. In the 1920s, 100 years later, we reached our second bil- lion. In January of 2013 we reached 7 bil- lion. In 2013, there were 206 nation-states 33