C. The Interplay of Law, Morality, and Ethics

We have said that law, morality, and ethics are not the same thing. What, then, are the differences? How do they relate to one another?

We defined law as a set of rules, established by the government, that tell you what you can and can't do, and for which there are penalties if the rules are violated. Since the imposition of law is designed to promote an orderly society, it is important that the law set out guidelines for behavior that is proscribed or mandated. It is important that there be penalties assigned to undesired behavior; otherwise, no one would tailor his or her behavior to comply with it. Those penalties can include jail sentences and fines, in the case of acts deemed criminal, or monetary damages for acts resulting in civil liability.

In contrast, morality can be defined as a person's personal code; what he feels is right or wrong. It is an internal value rather than an externally applied rule. Imagine a society where everyone was ruled, not by the law, but by their internal sense of morality. Imagine the ways in which conservative and liberal sensibilities would collide. This would not be conducive to an orderly society, which is the primary objective of the law.

Most people would agree that homicide (the killing of a human being) is immoral. But not all incidents of homicide are illegal. The law excuses several forms of homicide, such as killing in self-defense, the imposition of a capital (death) sentence by the prison executioner, and the killing of an enemy combatant by a soldier in a time of war. But many people would say that these homicides, although legal, are immoral, because that is the standard of their personal code.  Although there is a difference between law and morality, many people would say that law should be based upon a sense of morality. The difficult question becomes whose sense of morality?

In the area of criminal law there are two concepts, malum in se and malum prohibititum. Malum in se means "inherently evil." Malum prohibitum means evil because it is said to be. Most people would agree that premeditated murder is malum in se, inherently evil, and therefore should be illegal. But, is it more inherently evil to drive 30 miles per hour—rather than 25 miles per hour—down a typical residential street? If the posted speed limit is 25 miles per hour, you will get penalized for breaking the law by going 30. This is because such things are considered malum prohibitum. The law has declared 25 as the appropriate speed; therefore, it is illegal to go faster because it is prohibited—not because it is immoral. (Some would say that it is immoral to break the law, but that is a different issue.)

So law is different from morality, in that one is externally imposed while the other reflects an internal value system. Some things are considered (by some people) to be immoral, although they are not illegal. Some things are considered illegal, although (to some people) they are not immoral.

Where, then, do ethics fit into this analysis? Sometimes the word "ethics" is used as a synonym for "morality." When used in this sense there is no difference between them, and that is the end of the analysis.

But ethics can be given a different definition. Like law, ethics are externally imposed. Unlike law, they are generally not established or imposed by the government.  For example, when an attorney joins the Bar Association of his state, he becomes subject to the ethics rules of that association. These rules of conduct are externally imposed, and there are definite penalties (such as suspension or disbarment) that accompany violations of them. However, an attorney will not go to jail for violating an ethics rule (unless the underlying action involves a criminal act). For example, an attorney will not go to jail for failing to keep his client informed of the progress of his legal matter; but in a severe case, he might face suspension of his license to practice law. These rules of ethics are not the same thing as rules of law. They are not the same thing as morality either (although they might be based on conduct that most people would consider immoral). For example, some state bar associations have ethics rules that regulate attorney advertising, and they may include procedures for submission of sample ads for approval by the bar association before the ads can be run. Many people (especially attorneys) would not find this to be an issue of morality at all. It is, rather, an issue of maintaining the professionalism of the legal profession.