An important and subtle topic in the field of ethics, and particularly business ethics, is the relationship of ethics to law. The topic arose at a fascinating conference held recently at Achva College on ethics in the teaching profession.
Professor Gaby Shefler, a prominent Israeli psychologist who has devoted much study to developing and institutionalizing the ethics of the psychology profession in Israel, gave a lecture on the nature of professional ethics. Part of his presentation was a slide showing the relationship between law and ethics. Adherence to the law was shown as a low, minimum threshold for professional behavior; the ideal level, that of conforming to the letter and spirit of professional ethics, was at the top, with most practitioners falling somewhere in between.
This model was not invented by Professor Shefler - it is a common model used in business ethics courses worldwide. The message is that good business ethics is not just about conforming with the law but that ethics demand a higher standard.
However, there is a danger in this model. The implicit message is that illegal behavior is always below the line - beneath what is demanded of ethical practitioners. It doesn't take into account that at times, hopefully rare ones, ethical behavior may demand breaking the law.
This misconception was sharpened by a question raised at a panel discussion following the presentations, a panel in which I was a participant together with Professor Shefler and Professor Shlomo Nachmias. Someone asked if codes of ethics should include a stipulation that practitioners should always abide by the law.
Professor Shefler's answer was that the code for psychologists states that practitioners must always be aware of the law. This is the correct approach. Certainly, no one should ever act in willful disregard for the law. Obedience to just laws is a basic obligation in virtually every ethical system. Professionals need to be aware of the law, and to respect it.
Yet, the question itself disturbed and even frightened me. In my mind, the whole concept of professional ethics is meant to create an underlying standard of right conduct that is intended specifically to obligate practitioners even when it counters the law. They give people backing and moral courage to resist unethical laws. A neighbor of mine who is a physician once told me that in the course of his reserve duty he was asked to do things that violated his professional ethics, and he refused. The fact that ethical standards for physicians have been formalized, at least since the time of the Hippocratic oath, certainly makes it easier for people to stand up to pressures of this nature.
I'm all in favor of the rule of law, but I sense a disturbing tendency in Israeli society to elevate this value above all others, and to create some kind of inherent identity between what is legal (as interpreted, of course, by the legal establishment) and what is ethical and right. This is a two-way street: judges often assume that what is right must be the law, and are thus led into dangerous and adventuresome interpretations of the law. One illustrative example is the ruling a few years ago that spanking children is illegal, though there is no law or precedent that says so.
Conversely, people often assume that what is illegal must be unethical. An illustrative example is the punitive sentences imposed on many protesters last summer, beyond what is usually imposed for similar offenses without a political motivation. The fact that people intentionally violated the law was interpreted by judges as indicating that they were dangerous or anti-social individuals.
We certainly strive for a legal system that incorporates ethical ideals, and we must certainly affirm that being law-abiding is on the whole an important ethical desideratum. But an ethical code or system must set an independent standard, and not allow itself to be subordinate to the law. The most it should demand is the standard Professor Shefler mentioned: respectful awareness of the law.
The writer is research director at the Business Ethics Center of Jerusalem (www.besr.org), an independent institute in the Jerusalem College of Technology.