Sunday, October 18, 2009


Ethical dilemmas
are dilemmas of a certain kind of conflict between the rightness or wrongness of actions
and the goodness or badness of the consequences of the actions.

What complicates the issue, as it happens, is the difference between duties of omission and duties of commission.

Duties of Omission imply negative rights of others, e.g. abused victims ignored.

Duties of Commission imply positive rights of others. e.g., abused victims protected.

There are fundamental differences between the two kinds of duties. For a duty of commission to be binding, someone, an agent of the law, i.e., police, judges, prosecutors, and defense attorneys must be able to carry it out. However the ability verses the consequence of responding are often problematic and become matters of judgment which can blur the nature of such duties and result in duties of omission.

Example: Judges, prosecutors, and defense attorney all belong to the “Lawyer’s Club,” and they may all consider the “protection” of each other rather than the consequences of not doing the right thing for the victim as morally more important. This is the kind of dilemma that arises from human limitations, and a
partiality of friendship, not from the structure of value itself. Now, all in the legal field know they ought to be impartial; that is the essence of legal morality -- they all tell themselves that. But this belief can be rejected if these agents of law resolve that in partiality of friendship there is a more moral importance to each other that permits, and perhaps even requires partiality in some circumstances to protect each other from the consequences of their omissions of justice.

The human condition, which is ignorance and fallibility -- especially for those in authority, deceived by their own, as Shakespeare says, "insolence of office" -- is what makes the
presumption of innocence a good principle, if it is put into practice, for it is the basis for the protection of the innocent, allowing for the lay citizen to have the protection of the law beyond their own familiarity or understanding of it.

Now a situation can become a dilemma when we want to make duties of commission matters of law, as in "Good Samaritan" law where one can be sued for following their moral standard of giving aid to a person in need. The person giving aid is faced with a ethical dilemma: to get involved, or not get involved. Attorneys and judges are faced with a dilemma that may involve them to ignore their own moral standard and a breach of ethics and a duty of omission occurs.

When a breach of ethics, and a duty of omission results in a
wrong of commission, it is often because of ignoring empirical evidence, i.e., the abused victim and the laws that protects the victim -- even though it is relatively easy to know that a crime has been committed through empirical evidence, and the law -- but if the agents turn a blind eye to both evidence and the law, justice is lost.

When this sort of a breach of a duty of commission results in a
wrong of omission, which by its very nature will produce no legal causal effects to the agent it means no one will ever even know that a wrong has been committed -- the evidence is ignored, and the law is not followed, and nobody notices. The Minute Order will simply read “Motion Denied” and no one, apart from the agents will ever know that a wrong was involved.

This is an important point to consider in relation to the nature of law. Someone who is prosecuted, or sued, or retaliated on for
being a "Good Samaritan" is not guiltier than the unnoticed callous agents who are caught up in an ethical dilemma, and perhaps more guilty for ignoring the good of helping someone in need. The Good Samaritan is simply more legally unlucky. However, legal sanctions ought not fall more heavily on the unlucky than on the guilty. That makes for a bad law.

Good Samaritans have a strong sense of their duty of commission involving an obligation to do the right thing but may very well become a victim of a system where agents ignore their obligation to do the right thing. By that very omission agents may not produce enough evidence, or even give false evidence, which means no one can never know how many of the guilty, even grossly guilty -- like callous agents, escape the consequences of their behavior.

Furthermore, since ability and fear of consequences cloud the very nature of duties of commission, it becomes very easy for agents to distort the evidence, or to unfairly second-guess a victim who
did the right thing and throw that victim to the prosecutorial wolves, who, as they now operate, go for convictions rather than the truth, and would be perfectly happy to portray the real victim who did the right thing as a dangerous violator of the law, all for the sake of winning.

The whole project of examining moral dilemmas is a relatively modern one. We don't find it in Plato or Aristotle who propounded relativism. With them, as now in life, what we just really want to know is what a person is like morally -- are they a good person or a bad person? If they are a good person we want to believe they will try to do the right thing, and the occurrence of dilemmas will not subtract from their goodness.

Most lay citizens do not come across such dire legal situations that present such ethical, moral dilemmas, but it is always a very interesting exercise to consider a dilemma and what our reaction to it may be.

Large scale evils require the cooperation, and conspiracy of the many against the few. A very large number of people are just going to go along with the crowd, afraid of being different and/or victimized by the agents themselves. However if even one example can give heart to those then a right action can suddenly produce the best effects.