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Struggling with what is legal and what is ethical, and whether the twain shall meet


Ismail Lagardien is a writer, columnist and political economist with extensive exposure and experience in global political economic affairs. He was educated at the London School of Economics, and holds a PhD in International Political Economy.

Separating or bringing together ethics, politics and the law sometimes gets messy and absurd. Whether we like it or not, South Africa’s Constitution is the supreme law of the land. We cannot make up laws (after the fact) if and when events or states of affairs change.

What follows is a train of thought. I set out to write something coherent, but was unable… I should beg the indulgence of the reader.

In an earlier professional incarnation, I was faced with a set of circumstances that I thought were ethically questionable, but were presented to me and defended as being perfectly legal. I caved in, and the law, such as it is, won. This has always bothered me.

It comes up when I think of the Ministerial Handbook. It came up with news and information about threats to arrest Russian President Vladimir Putin when he visits South Africa later this year, and most recently when a delegation from the United Arab Emirates visited the Eastern Cape.

When is something legal, but not ethical? When is something ethical, yet illegal. I don’t know the answer, so you might want to stop reading if you think there is an answer, dear reader.

The relationship between the law (what is legal) and ethics (what is considered to be wrong conduct) is one of the more difficult issues in public life. Laypersons, among which I include myself, can get the law terribly wrong whenever they try to make ethical claims, or even legal pronouncements.

It does not help that it’s much easier to play hide-and-seek with a snow leopard than getting a lawyer to agree with you about general ethics.

“Have you seen the snow leopard?” Peter Matthiessen asks in The Snow Leopard, a book I cannot resist recommending. Comes the reply, “No! Isn’t that wonderful?” 

There are times, then, when lawyers are more like postmodernists. They always have another, different, word or meaning for something; if the courts confine you to your house, a smart lawyer would get you free because you don’t live in a house, but in an apartment, or in a caravan.

It’s silly, I know, but I rarely argue with a lawyer — especially not when I make general moral or ethical claims, and am confronted, in turn, with ethical particularist responses. The contention here is (something like this): my grand ethical ideas cannot, or should not, be allowed to address ethical lapses in particular situations. 

I should stop writing at this point. My limited knowledge about ethics is (mis)informed by contentions around “lifeboat ethics”, ethical and moral claims about the common good and common pool resources, and highly contested arguments about human rights, diversity and “the bottom line” and of holding private corporations accountable.

With his critique of “lifeboat ethics”, American scholar Garrett Hardin made a quite shocking case against “helping the poor”. As a radical political economist, that makes my skin crawl.

I would venture, to say, nevertheless, that the professional conduct of lawyers has to be guided by ethics. (Yes, I know. Whose ethics? What ethics? Blah Blah Blah). Though I am not conspiratorial, it’s easy to imagine that when legal professionals are conflicted, they come out on the side of the law.

My departure point is, nevertheless, that lawyers, like other professionals, are social groups, and the laws that they defend, uphold, challenge or adjust are necessarily guided by constitutional principles.

It’s fair to say that lawyers are obliged to uphold the “system” that they are part of. That, I’m afraid, is as far as my intellectual courage will take me. As it goes, in moments of irascibility, I would imagine that “the law” should not be readily confused with justice, fairness or even ethical behaviour. So, let me take this down a notch.

It’s legal but is it ethical?

I’m neither going to enter a major discussion on the definition of ethics, nor separate the issues of “moral” and “ethical”. In the simplest of terms, ethical conduct refers to generally agreed rules of actual conduct and morals have to do with what guides us… To further confuse things, there are as many opinions about right or wrong as there are living and breathing people.

Consider the recent visit to South Africa by United Arab Emirates President and Abu Dhabi ruler Sheikh Mohamed bin Zayed Al Nahyan, ostensibly to celebrate religious holidays, but also to go hunting. The visit, in its totality, was legal. This was confirmed by the Minister of Police, Bheki Cele, who said:

“The whole lot of guns that they brought were not allowed to come into the country, except a very limited number of firearms and a very limited number of ammunition, according to the South African laws.

“To do that, the special convoy or the special police that deal with the arms issue were sent under the leadership of the provincial commissioner of the Eastern Cape to make sure that everything is according to the law, according to the Firearms Act of the Republic of South Africa, so everything is in order.”

The visit was legal, but it did not prevent opposition political parties from raising questions. Nor can we prevent citizen objections and concerns. The Democratic Alliance asked the government to “provide answers on whether the 500 guests who were accompanying the UAE president had the requisite visas and were cleared by immigration officials to enter the republic. The immigration status of the guests needs to be verified and confirmed to ascertain if they are in the country legally.”

The African Transformation Movement focused on issues of territorial integrity, the law and “economic status” of the visitors. It gets messy and absurd. Whether we like it or not, South Africa’s Constitution is the supreme law of the land. We cannot make up laws (after the fact) if and when events or states of affairs change.

Consider the for-and-against positions of the (unlikely) arrest of Vladimir Putin if/when he visits the country for the BRICS Summit later this year. The legal argument is that he should be arrested. A political argument is that we should ignore South Africa’s legal and political obligations to the International Criminal Court because Putin is a political ally.

Ethics, politics and the law are almost always in a troubled relationship. Consider the idea of “land theft”. This is essentially a legal claim suggesting that the land was previously owned. It is, however, probably more correct to make political, historical and ethical claims, which will then be taken to the courts. We should not traduce the impact and consequences of land dispossession.

To be sure, European settlers took land from indigenous Americans by various means of coercion and consent. In North America, the “thinning” of indigenous people was justified because it was the work of disease by the “hand of God … eminently seen”.

I have always been amused when, in North America, evangelicals and other religious fundamentalists secure their claims by some biblical injunction. In response to European land occupation in North America, one prelate, a Reverend Solomon Stoddard, claimed in An Answer to Some Cases of Conscience Respecting the Country that taking land from indigenous people was justified because his God said it was cool to do so.

Reverend Stoddard stated, matter-of-factly, “there was some part of the Land that was not purchased, neither was there need that it should ⎯ it was vacuum domicilium; and so might be possessed by virtue of GOD’s grant to Mankind, Genesis I:28. And God blessed them, and God said unto them, Be fruitful and multiply and replenish the earth, and subdue it: and have dominion over the fish of the sea, and over the fowl of the air, and over every living thing that moveth upon the earth. The Indians made no use of it, but for Hunting. By GOD’s first Grant Men were to subdue the Earth. When Abraham came into the Land of Canaan, he made use of vacant Land as he pleased: so did Isaac and Jacob.”

Here we have, then, ethics, politics, the law, racism, notions of manifest destiny and the Bible all contending for primacy. This should help explain why I put out the disclaimers in the opening paragraphs of this commentary.

Our impulses, at any moment of any and every day, are driven by all of the aforementioned and none of it. There are people who would abandon all principles when there are pecuniary benefits to be derived or when members of the “in-group” need solidarity.

The Constitution should be the guide in most all cases of contention in the courts and politics. It helps us become more active and engaged, and should, ideally, shape the moral codes and ethical conduct in our day-to-day lives.

We can’t bend the Constitution for the benefit of our friends and funders, or when it does not change with our opinions every other day of the week.

There may not be an easy fit between ethics (the range of ethics is vast) and the law (the five or six “types” of law), but it is never worth abandoning either. DM


Comments - Please in order to comment.

  • Ion Williams says:

    Intuitively everyone knows what morality is. However its definition seems elusive. The reason for that is that something that is required to define morality still needs to be defined. That would be time. It appears that time is the genesis of value, firstly you cannot create value without investing time, it is a impossibility, if you know if a way please tell me the secret I would like to go on holiday for the rest of my life but need access to a value income stream to be able to do that. Secondly it appears to transcend us to be applicable to all consciousness, every conscious being values time, ultimately ultimately. It’s the logic behind the fight or flight mechanism or at an even more basal level it why you scratch an itch. It’s why every conscious being dies what it does. It is a universal value theory that transcends us as a species and is an axiom (genesis of a logic) and singular maxim of a moral theory. The value theory of time. It is an end in itself, places no undue obligations on others and a realization of Kant’s concept categorical imperative that is applicable to all consciousness. Reality is the only thing that is both subjective and objective, we all objectively experience the same reality however we all subjectively experience it from our own unique sensory perspective at the same time. Once one understands that time is the genesis of value, one can look to design a architecture for a social contract around/based on a sound universal natural moral theory.

    • Ismail Lagardien says:

      Thanks, Ion. This is a brilliant comment. I live by the Kantian maxim that you never treat people as means to an end, but ends in themselves. I cannot publicly state some of the recent encounters where morality/justice/ethics have been shifted to accommodate “in-group” members. I have difficulty to accepting that some people deserve more justice/freedom than others. Murderers, rapists child molesters and others in prisons are exceptions. As mentioned, I started off wanting to write about it, but sometimes writing in a circuitous way is simply not possible without using more specific examples and evidence, so I wandered off…I agree with what you have said. Thanks.

  • Nanette JOLLY says:

    My experience with the law is that it is only very distantly related to truth or justice, but is all about how you can make words mean something to your advantage. Disillusioning.

    • Ismail Lagardien says:

      Yes, Nanette. I agree. Sadly, we will be left worse off without laws. It all depends on who makes them, why they are made. Thanks for you comments.

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