3.5: What has Ethics in Common with the Law?

However important to mention at this juncture is the fact that the Sovereign Nation known as the United States was founded on the “Rule of Law” (Fagin, 2015). There are two dimensions of rule law:

Social order which is concerned with the extent to which law is used to provide individuals with personal security and order in their personal, workplace, and business relationships; and Prevention of tyranny which is the protection of civil liberties and the accountability of government (Hall, & Feldmeier, 2017).

The Constitution contains several clauses equally important but for this discussion the Supremacy Clause specifies the federal laws of the U.S are the supreme law of the land. This requires all judges in each state to adhere to and are bound by federal law. The 10th Amendment of the Constitution reserves that authority not catalogued to the Federal Government are: The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people. Through this authority and in this manner exist 50 different State Constitutions and 50 sets of accompanying laws with numerous digests of local laws. All of which are subordinate to the Federal Code.

Asserted by Fagin (2015) through scrutiny of laws by the courts has resolved benchmarks used in contemplation of the legality of a law. These are:

• Principle legality-prevents arbitrary bias and must be published to inform of the law.
• Ex Post Facto Laws-prevent retro-active prosecutions.
• Due Process-prevents deprivation of life, liberty or property without having first the due process of the law and protections guaranteed to its citizenry.
• Void for Vagueness-must have specific purpose and not open to individual interpretation.
• Right to Privacy-being secure in person, places, and effects against unreasonable intrusion by government.
• Void for Overbreadth-too far reaching and lacks specificity and often linked with Void for Vagueness.
• Cruel and Unusual Punishment-a guard against punishment that does not fit the offense.

The listed principles are premised on Natural Rights. Natural Rights are inalienable and cannot be abdicated. The benefactor of the benchmarks are the citizens that reside in the multiple locations. There is one set of rules that cannot be waived by state or local authority and they reside in the U.S. Constitution. In an effort to standardize laws, the Model Penal Code was adopted and is used by various law schools and used in law textbooks teach law (Fagin, 2015).

Important to the discussion is that of ethics. Ethics are inviolate. Ethics is found, either directly or indirectly, in foundations of society, law, and government to name a few. Ethics cannot be defined to seamlessly agree with every situation in life, absolute impossibility and probably unethical to attempt. If something that is asked of someone does not feel right, it probably isn’t right; in other words if it brushes up against the ethical being, then it is probably unethical.

This does not prevent delivery of a service or obligation through one of the previously discussed approaches (Deontological or Teleological). As stated earlier in the discussion the former approaches are overarching and most if not all other ethical approaches generally fall within one of the two guidelines. There is another approach that is important to service delivery and that is the Prophetic Approach. Prophetic decision making is based on the fact that not all of life’s outcomes or decisions are predetermined, preordained, but rather are the result of foresight, vision, intuition, ingenuity, and emotion to seek truth. The latter is not risen to the level of philosophical acclaim, but is often taught in disciplines dealing with forecasting and planning. I offer this as an alternative for future discussions dealing with decision making. However, might this approach not prevailed in our founding fathers deliberation of our U.S. Constitution?

The U.S. Constitution is the basis of American law, the Rule of Law, and the foundation of liberties (Natural Law). Although scholars may argue that the U.S. Constitution is not the formation of ethics, and rightly so, ethics is a root proposition for the document itself and oversees our systems.

The U.S. Constitution further amplifies John Locke’s premise of a Social Contract, preventing governmental over reach in some form or fashion that violates Natural Law. The Constitution should be viewed as a contract between citizenry and government, a business document if you will. Those functions citizens permit government to perform and protects those rights of the citizen that are inalienable. The founders of the Constitution never insinuated that the document in itself would provide an easier life. On the contrary because of the difficulties fore-sought in maintaining liberty and democracy our founder‘s provided us as citizens a seat at the table. This simply means that Americans can and should be part of the debate. Too many members of society have thought they could abdicate the responsibility to others and often the more powerful that is absolutely contradictory to ethical behaviors necessary to survive in a true democracy.

To bring the section to a close, it began with the examining of the history of laws then progressed toward the foundation of the U.S. Constitution and concluded with a look at ethics and the law. What should be abundantly clear at this juncture is that Ethics is essential in the understanding of law and the student should develop a clearer understanding of how law interacts in the CJ system. Ethics is not a buzz word used when finding fault with another’s decision but rather is how “We ought to live our life; or how we ought to deliver service”. Ethics must be taught as well as morals to develop principles in life. The reader should undertake this opportunity to understand terms such as principle, values, ethics, morals, and judgements in order to place the impacts of a CJ worker in perspective.