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Ethical analysis. What is “ethical study”?. Definition of ethics. Ethics is the philosophical study of morality “Morality” involves “doing the ‘right’ thing. What is the “right thing”?. At least two approaches to determining “the right thing”

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Ethical analysis

Ethical analysis

What is “ethical study”?


Definition of ethics
Definition of ethics

  • Ethics is the philosophical study of morality

  • “Morality” involves “doing the ‘right’ thing


What is the right thing
What is the “right thing”?

  • At least two approaches to determining “the right thing”

  • Teleological, that is, look at “ends” or consequences of what we do

  • Deontological, that is, look at the intrinsic nature of what is done or the act rather than consequences


Example deontological approach
Example deontological approach

  • “Lying is intrinsically bad, irrespective of the consequences.”

  • Authority: St. Augustine: “Lying is always morally impermissible.” (absolutist)

  • Source of St. A’s proposition: his interpretation of Scriptures (Bible)

  • What is a “lie”? “False statement made with intent to deceive.” Cf. Fraud dfn


Deontological approach cont d
Deontological approach (cont’d.)

  • Even St. A recognized some deceptions were not lies.

  • -false statement that speaker actually believes is true is not a lie (no intent to deceive)

  • -”jocose lies” O.K. b/c no intent to deceive

  • St. A: some lies are excused but still wrong: Hebrew midwives lied to Pharoh


Deontological cont d
Deontological (cont’d)

  • Why excuse some lies? St. A: B/c moral immaturity of person committing them

  • Problems: Lying to defeat a competitor (St. A: wrong; b/c one must not do evil that good might come of it)


Deontological cont d1
Deontological (cont’d)

  • Casuistry: overly subtle reasoning

  • Raymond Pennafort treated as founder

  • gist: apply general moral principles to specific situations (precursor of situation ethics)

  • hypo: Hitler: Are there any Jews here?

  • Casuist (who knows of hiding Jew): No response; Or, “Jews don’t eat here.” St. A: Don’t co-operate; (problem: death)


Case problem cont l vending v roth
Case problem: Cont’l Vending v. Roth

  • Who was “bad guy”?

  • Who was made to look bad by the bad guy?

  • Who was criminally convicted?

  • Who was exonerated?


Examples of teleological approach
Examples of teleological approach

  • Utilitarianism: “greatest good for greatest number,” that is, maximizing utility

  • e.g., star athlete gets caught ‘red-handed’ stealing from appliance store; is exonerated on specious reasoning so team’s winning potential is not jeopardized


Positive law
Positive law

  • What is it? Rule; from political superior to political inferior; sanctions

  • Philosopher/exponents: John Austin; Bentham; H.L.A. Hart

  • Examples: Constitutions; statutes; regulations; judicial decisions (common law)


Positive law cont d
Positive law (cont’d.)

  • Strengths: structure; predictability; order

  • Weaknesses: could be “uncivil”, bad order (Hitler; Sadam Hussein; Stalin)

  • Institutional sources: Legislatures; courts; regulators


Is positive law replacing ethics in setting rightness
Is positive law replacing ethics in setting rightness”

  • What is the author’s thesis?

  • Is the thesis credible?

  • What evidence does the author cite to support his thesis?

  • Of the items the author cites, which is the most credible to you?

  • The least credible or at least provides the least support for his thesis?

  • Contemporary examples supporting the thesis?

  • Any ethical dangers in such a thesis?


Natural law
Natural Law

  • What is it? What is “right” and “just”; what “ought” to be done

  • Philosophers: ancient Stoics, Blackstone, Jefferson; Martin Luther King

  • Examples: Nuremberg War Crimes Trials; U.S. Constitution’s Bill of Rights (includes “due process”; UCC’s 2-302 unconscionable contracts


Natural law cont d
Natural Law (cont’d.)

  • Strengths: appeals to individuals’ sense of “right”

  • Weaknesses: multiple conscience problem (individuals have different senses of what is “right”)

  • Source: “God”; rationality


Ethic of power
Ethic of Power

  • What is it? Might; ability to do the “wrong” thing and get away with it;

  • Philosopher/exponent: Plato (“justice is the will of the stronger”)

  • Examples: Executives with power to close a plant; ability to evaluate someone;

  • Strengths: Provides structure, order

  • Weakness: corrupt order; perverse system (do the right thing and punished)


Historical jurisprudence
Historical jurisprudence

  • Definition: longstanding custom; “volksgeist” or “spirit of the people”

  • philosopher: Savigny

  • examples: private property; the ability to make private, enforceable agreements

  • strengths: people are familiar with customs

  • weaknesses: possibly backward, oppressive


Sociological jurisprudence
Sociological jurisprudence

  • Definition: Norms; “everyone does it”

  • Philosopher: Ehrlich

  • Examples: I had to ‘cook the books’ because my competitors would look artificially good; ‘law’ of equal cheating

  • strength: follows what people actually do

  • weaknesses: ethical standards debased


Legal realism
Legal realism

  • Definition: what trial judges and juries do in fact irrespective of the positive law

  • Philosopher: Jerome Frank

  • Example: Widows always win against GM

  • Strengths: follows what people do and desire

  • Weaknesses: ignores positive law


Policy sciences evaluative jurisprudence
Policy-sciences evaluative jurisprudence

  • Definition: planning applied to positive law

  • Philosophers: Harold Laswell & Myers McDougal; Louis Mayo

  • Example: NEPA; backup studies for “regs”

  • Strength: Consider, weigh alternatives

  • Weaknesses: “cooked” or tendentious studies


Value integration
Value Integration

  • Value “congruence”? Yes, sometimes

  • Value “incongruity”: When? “embezzling parts manager” hypo; “cooking” the books (write-downs prior to mergers to enhance post-merger profitability

  • We all “ethically integrate”; How?

  • The “ideal”: ethical unity

  • Examine cases in Text ch 1 for this


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