When the Unethical Becomes the Unlawful

December 20, 2010

In a recent essay on his blog Rationally Speaking, philosopher Massimo Pigliucci wrote that :

“… plagiarism and cheating happen for a variety of reasons, one of which is the existence of people like Mr. [Ed] Dante and his company, who set up a business that is clearly unethical and should be illegal.”

The argument was that we as a society should not just admonish ethically but, through law, punish a man (Ed Dante, a pseudonym) who tries to, or does, sell papers to students. But why?

Now, it seems obvious to me that our ethical convictions (think: moral and ethical beliefs, values, and principles) do influence the law. These convictions -- about right and wrong, good and bad, justice, virtue, happiness, and human flourishing - concern the sort of society we would like to see realized. Since laws help to secure a certain model of society, ethics will naturally inform, if not determine, the sort of laws we want. There is nothing particularly strange about this. The challenge is to get it right. Yet it also seems obvious that not everything that is unethical should be unlawful (and, of course, not everything that is unlawful is really unethical). So what makes Massimo’s case for plagiarism being both unethical and worth making illegal?

To weigh that question, we need to consider a few different cases where ethics and law influence each other in varying degrees. We regard the killing of an innocent person as unethical, and accordingly murder is against the law. Abortion opponents find abortion to be unethical, and as such, push to ban the procedure in law. On the other hand, it is generally considered unethical to have sex, or carry on a relationship with another man or woman while being in a committed monogamous relationship with your spouse, girlfriend or boyfriend. Yet, rarely do people argue that it should be unlawful as well (it used to be that way, though!). And vegans and vegetarians regard eating meat as unethical, but only a minority argue that we ought to ban eating meat.

What makes the difference in these cases? I think the answer rests mainly in two notions. The first is pragmatism: is it practical to encode a given ethical conviction into law? That is, can we actually pass this law and then enforce it? The second is the potential for real harm. How much harm has this caused or might cause? As we will see, however, harm alone — regardless of practical considerations — can be cause for action.

Let us return to the cases above, and then Massimo’s argument. Murder: it is practical to both have and enforce laws against murder, and either way, murder surely causes great harm to society. Abortion: it is rather unpractical to think we can ban abortion in the U.S. (though restrictions are another matter). But that’s less important, considering that for opponents, the perceived harm caused is so great that they must try to do what they can. Cheating: I don’t see how we could really pass and effectively enforce, bans against cheating on your boyfriend or girlfriend. And while unethical, the act causes limited harm to a select few people. So, no laws. Vegans, vegetarians and meat: again, it seems unrealistic to think we could ban meat taking into account its widespread consumption, or that the government could really enforce this. Most vegans and vegetarians believe we would be better off focusing on process (making meat production more humane) than on the act itself (banning meat eating). Furthermore, the harm caused — while worthy of action — probably pales in comparison to the harm caused in the human world daily. The point here is that not everything is equally unethical in the sense of harm. Some unethical beliefs and/or actions cause more harm, some less, and this matters insofar as we turn our ethics into law.

Now we return to Massimo’s example. I see no reason we could not feasibly outlaw selling papers for the specific purpose of plagiarism, nor why the law could not be enforced. Perhaps more importantly, as we have seen, plagiarism can cause real societal harm, as Massimo outlines in great detail. If people easily fake their way to college degrees, they would succeed when they should not, thus cheating the system; college degrees would become much less trustworthy; massive amounts of money and human effort would be wasted; and more.

In summary, my argument is that the transition from unethical to unlawful is based both on the practical aspects of the situation, and on the potential harm being caused. But are these two notions alone enough? Some would argue that they sound highly consequential, and wonder if there exists a third, firmer deciding notion. I believe there is: rights. For example, consider the so-called Ground Zero mosque. Many Americans thought it was unethical for those behind the project to put up the building in that location. Yet most people did not want the government to stop the project. This decision -- to keep ethics from translating into law -- largely did not involve either practicality or harm. Instead, it had to do with the public's recognition of the inherent right of those behind the project to put up that building, as much as they might disagree (of course, one might argue it would not be practical to ban the construction, but that would only be because of the inherent right).

But I should note that these three notions -- practicality, harm, and rights -- could be trumped by other ethical convictions . Consider some libertarians, or even Democrats, who deem abortion unethical, but do not want to see abortions banned by law, because they value the principle of freedom (or liberty) of individual action. However, I think considering freedom above potential murder here should make us wonder in what sense such a person really opposes abortion. Regardless, these people are not denying the general link between ethics and law, nor are they rejecting considerations of practicality and harm (they’d likely still try to limit abortions through non law-regulated avenues, such as “counsel for life”). It’s just that when it comes to translating ethics into law, we value a range of principles that make for a more nuanced and complex transition.

Note: this essay was originally published on the blog Rationally Speaking.