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Morality, Ethics, and Law: Introductory Concepts Jennifer Horner, Ph.D., J.D.1

ABSTRACT

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The purpose of this article is to differentiate morality, ethics, and law. Morality refers to a set of deeply held, widely shared, and relatively stable values within a community. Ethics as a philosophical enterprise involves the study of values, and the justification for right and good actions, as represented by the classic works of Aristotle (virtue ethics), Kant (dutybased ethics), and Bentham and Mill (utilitarian and consequentialist ethics). Applied ethics, in contrast, is the use of ethics principles (e.g., respect for autonomy, beneficence, and nonmaleficence, justice) in actual situations, such as in professional and clinical life. Finally, law is comprised of concrete duties established by governments that are necessary for maintaining social order and resolving disputes, as well as for distributing social resources according to what people need or deserve. KEYWORDS: Morality, ethics, law, ethics principles

Learning Outcomes: As a result of this activity, the participant will be able to (1) differentiate morality, ethics, and law; (2) recognize the contributions of classic ethics philosophers; (3) identify the essential features of duty-based and utilitarian (consequentialist) ethics theory; (4) define the principles of respect for autonomy, beneficence, nonmaleficence, and justice; and (5) distinguish administrative, statutory, common, and constitutional law.

MORALITY

Morality refers to a set of values that are widely shared and relatively stable within a community. To understand this definition, let us being by asking, what is a community? According to Engle-

hardt, “community is used to identify a body of men and women bound together by common moral traditions and/or practices around a shared vision of the good life, which allows them to collaborate as moral friends” (p. 7).1 The “exemplar moral community” (p. 6)1 has uniform

Ethical, Moral, and Legal Issues in Speech and Language Pathology. Editors in Chief, Nancy Helm-Estabrooks, Sc.D., and Nan Bernstein Ratner, Ed.D.; Guest Editor, Jennifer Horner, Ph.D., J.D. Seminars in Speech and Language, volume 24, number 4, 2003. Address for correspondence and reprint requests: Jennifer Horner, Ph.D., J.D., Medical University of South Carolina, College of Health Professions, 77 President Street, Suite 117, P.O. Box 250700, Charleston, SC 29425. E-mail: [email protected]. 1Medical University of South Carolina, College of Health Professions, Charleston, South Carolina. Copyright © 2003 by Thieme Medical Publishers, Inc., 333 Seventh Avenue, New York, NY 10001, USA. Tel: +1(212) 584-4662. 0734-0478,p;2003,24;04,263,274,ftx,en;ssl00171x.

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values. But, what happens when diverse moral communities come together within larger society and their goals and values clash? The solution is a morality that is broad (and tolerant) enough to bind both moral friends and moral strangers (p. 15).1 This morality must be comprised of a core set of values—or, alternatively, a set of guiding principles—upon which all can agree. At least, this morality must be comprised of a core set of procedures to resolve disagreements—to allow respectful discussion, mediation, and resolution—when values collide. Whether values, principles, or procedures provide the core of society’s morality, both the integrity of individual moral agents and civility among them are requisite to moral discourse.2,3 Thus, a morality that is broadly conceived as complementary values, principles, procedures, and character virtues can accommodate diverse cultural, ethnic, familial, and individual interests. After all, when one looks for humankind’s deepest values, it becomes apparent that people worldwide have common interests. Consider the following examples. All societies, from ancient times to the present, know that in order to survive, we must cooperate.4 To live productive, meaningful lives, we must try to be good to each other. All civilized societies agree that it is wrong to take a life, except for the most compelling reasons (e.g., self-defense). Most people agree that, before doing something to others, we should get their permission, and, at least as a prima facie rule, it is wrong to lie.5 Most people agree, depending on the circumstances, that it is wrong to divulge secrets entrusted in us (for example, details of one’s medical history).6 With some of these ideas in mind, Beauchamp and Childress wrote: “The term morality refers to social conventions about right and wrong human conduct that are so widely shared that they form a stable (although usually incomplete) communal consensus” (p. 4).7 Moral values are those pertaining to what is right or wrong, good or bad. Moral values are the foundations of our obligations (our duties) toward one another. To the extent that we are able to act according to our moral values, we are able to live lives with purpose, dignity, and integrity. To the extent that we are able to act on behalf of others according to our moral values, not only can we foster our own “good”

(including happiness, well-being, security, and the ability to flourish), but also we can foster the “good” of others. In turn, if others behave morally toward us, we receive the benefit of their moral actions. Thus, moral values guide our reasoning, our judgments, and our actions that have in mind the good of everyone in our community. This is the essence of moral cooperation; indeed, the essence of morality itself. But what else makes values moral? First, moral values are “ultimate.” The idea of ultimacy means that the value is of greatest importance, and usually cannot be overridden by lesser values, interests, or preferences (p. xx).8 Second, moral values are “universal.” The idea of universality means that the moral value or principle applies to everyone within the particular community (p. xx).8 Third, moral values are “impartial.” The idea of impartialism means that “moral evaluations must treat the good of everyone alike” (p. xx).8 A fourth, related, concept is that moral actors are other-regarding; that is, they place the good of others above their selfinterests. In the words of Beauchamp and Walters,9 “[i]ndividuals do not create their morality by making their own rules, and morality cannot be purely a personal policy or code” (p. 1). It is our actions toward, and in consideration of, others’ interests that makes our actions moral. From foundational values emerge moral principles. Moral principles do not tell us what to do, when to act (or refrain from action), or why some actions are appropriate (or not). Rather, moral “[p]rinciples are general guides that leave considerable room for judgment in specific cases . . . “ (p. 38).7 Decisions regarding the what–when–why of actions lie in the realm of moral or ethical evaluation and reasoning. The next section defines ethics, reviews the classic sources of contemporary ethics theory, and defines four contemporary ethics principles.

ETHICS

Ethics is “a branch of philosophy, which through formal and systematic analysis, attempts to critically examine human conduct focusing on the rightness and wrongness, goodness or harm-

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In summary, the study of ethics includes philosophical ethics (normative ethics, and metaethics), and descriptive ethics (Table 1). These levels of inquiry inform our reasoning when we are faced with moral quandaries in professional life—the realm of applied ethics. To appreciate the sources of contemporary applied ethics, the next section briefly describes virtue ethics, dutybased ethics, utilitarian and consequentialist ethics, and justice.

Classic Philosophies of Ethics VIRTUE ETHICS

Aristotle was born in 384 B.C. in ancient Greece; at the young age of 17, he moved to Athens to study with Plato. Aristotle is best known for

Table 1 Morality and Ethics (and Types of Ethics) Morality

Ethics

Widely held values of a community Broad principles or guidelines focused on human happiness, well-being, security, flourishing, and fairness Ultimate Universal Impartial Other-regarding

Philosophical ethics studies the meaning of right/wrong, good/bad, as well as the nature and justification of normative standards and moral judgments Applied ethics describes and prescribes standards of conduct for individuals and groups, so as to prevent and resolve moral problems Principle-based Other-regarding Types of Ethics

Normative ethics Meta ethics Descriptive ethics Professional ethics Clinical ethics

Public health ethics

Research ethics

What should or ought be done The nature and justification of moral judgments Actual values and actions Applied to particular scientific, technical, and health professions with a focus on protecting the interests of the clients and patients served Applied to individual patients in complex clinical situations involving uncertainty to assure that clinicians act for the good of their patients, while respecting patients’ rights to self-determination and dignity Applied to public health officials and agents who are concerned with populationbased health and safety regulations (e.g., vaccinations, contagious diseases, addiction, counter bioterrorism measures) Applied to those who conduct research involving human (or animal) participants, to assure the integrity of the research process and to protect the interests of participants

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fulness of actions” (p. 7).10 In other words, the philosophical study of morality is “ethics” (p. 1).11 Philosophical ethics focuses on normative issues that address “what is morally right and what is morally wrong with regard to human action” (p. 2),11 as well as what should be done, and why (p. 7).10 Philosophical ethics also encompasses meta-ethics; that is, the study of “the nature of moral judgments . . . and . . . methods for the justification of particular moral judgments” (p. 2).11 In contrast, the scientific study of morality is “descriptive ethics” (p. 1).11 Descriptive ethics examines moral values, attitudes, and actions empirically to discern how individuals (and communities) actually act, what values they actually hold, and why they act (or refrain from acting) as they do.

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his moral philosophy that emphasized the importance of personal virtues. In his view, there are two kinds of virtue: intellectual and moral. Intellectual virtues evolve from one’s learning, experience, and maturity (p. 181).12 Moral virtues “are traits that make a person good and enable him to do this work well” (p. 5).13 Aristotle described virtues as natural (inborn) dispositions that we must nurture—meaning that we learn to be virtuous by exercising virtues. In Ross’s14 words, “we become just by doing just acts, temperate by doing temperate acts, brave by doing brave acts” (p. 22). Thus, one of Aristotle’s main teachings is that virtue is something we must nurture through practice. Virtue is “a habitual disposition to act well” (p. 5).13 Central to Aristotle’s view of virtue is that each individual is a moral agent. Our moral agency stems from the facts that we are capable of intellectual reasoning and we have free will. As moral agents, therefore, we have a choice whether to be immoral (e.g., to lie, cheat, and steal) or to be moral (to be truthful, generous, and trustworthy).13 In short, virtue is a matter of choice (p. 25).14 Finally, the complementary concepts of virtue (good character) and agency (free will) imply that when we act freely, we must take responsibility for the moral successes (and failures) of our actions.

actions, but make exceptions for ourselves, by lying, acting selfishly, or avoiding responsibility. The second moral imperative—respect for persons—is the idea that because humans have inherent worth, we must respect persons as persons (both ourselves and others). The essence of respect for persons is explained as follows: “So act that you use humanity, whether in your own person or in the person of any other, always the same time as an end, never merely as a means” (p. 38).15 We violate the principle of respect, for example, if we do not tell a patient the truth about his or her diagnosis, ostensibly to spare the patient the pain of knowing. By withholding the truth from the patient, we disrespect his or her right to know intimate details about his or own life and health, thereby using the patient as a means to an end that we believe to be desirable. In contrast, we uphold the principle of respect if we promise to keep someone’s secret, and we, in fact, keep that secret, even though it might be to our disadvantage. In summary, Kant espoused a duty-based (deontological) philosophy. Core Kantian notions are the free will of rational persons (moral agency), the universality of moral rules, and respect for persons because of their inherent worth. UTILITARIANISM AND CONSEQUENTIALISM

DUTY-BASED MORALITY

Immanuel Kant was born in 1724 in Prussia. In his classic work The Groundwork of the Metaphysics of Morals (1785), he explained that ethics was concerned with “the laws of freedom, that is, the laws governing the conduct of free beings” (p. ix).15 For Kant, it was not enough that humans have the freedom and ability to act morally. Rather, he emphasized that free agents have an obligation to act morally. Two moral obligations (or “imperatives”) comprise the essence of Kant’s moral philosophy: the universality of moral rules and respect for persons. The first moral imperative—the universality of moral rules—is the idea that any duty that you would will to become a moral duty, applies to you, just as it applies to everyone else (p. 31).15 We violate this moral imperative if we assert that others have an obligation to tell the truth, to act altruistically, or to be accountable for their

Another important philosophical and political ethicist is Jeremy Bentham, who was born in 1748, in London. In 1789, he published Introduction to the Principles of Morals and Legislation.16 Bentham grounded his moral philosophy in the idea of “utility,” which he defined as a property that tended to produce benefit, advantage, pleasure, good, or happiness. In his view, actions are moral if they produce moral “goods” (p. 44).16 Bentham’s theory disavowed Kant’s emphasis on moral duties; instead, he emphasized that, when we decide to act, we must analyze whether our conduct will produce a good result (or will avoid a bad result). To achieve utility we must balance both good and bad effects, recognizing that estimating the consequences of our moral choices involves uncertainty. Bentham’s student John Stuart Mill expanded on the idea of utility in his classic work

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JUSTICE

In addition to duty-based moral theory and utilitarian or consequentialist theories, moral and political philosophers also considered the meaning of justice. Drawing from Aristotle, justice means “[e]quals must be treated equally, and unequals must be treated unequally” (p. 328).7 This quotation shows that justice does not assume everyone is literally “equal,” but rather that people differ according to what they need or deserve, and that all people should at least be given an equal opportunity. When goods are scarce, moral agents must strive to distribute societal goods according to what people desire, need, or deserve because it would be “unfair” to deprive individuals of resources or opportunities that are necessary for their well-being. In addition, to be just, society must have a fair procedure for deciding who gets what, and how much, of society’s resources7 (see also A Theory of Justice by Rawls19). In summary, justice as a moral notion takes several, overlapping forms: substantive (the actual rights), procedural (the decision-making process), and distributive (allocation of benefits and burdens). Decisions are just (fair) to the extent that persons are treated equally, depending on what they need and deserve. In a just society, benefits and burdens are distributed fairly, and people are given similar opportunities to fulfill their life goals.

Contemporary Principles These complementary moral philosophies give expression to several principles that we use to solve moral problems that arise in clinical practice, typically in complex or uncertain situations. The principles articulated in The Belmont Report subsequently have become prominent notions in clinical, professional, and research ethics in the United States.20 The four main principles are respect for autonomy, beneficence and nonmaleficence, and justice7,8 (Table 2). The principle of respect for autonomy recognizes the worth and dignity of other persons and, therefore, recognizes the right of all persons “to hold views, to make choices, and to take actions based on personal values and beliefs” (p. 125).7 Respect for autonomy means that we should respect the right of all individuals to determine for themselves about personal matters. A corollary to the principle of autonomy is the idea that, when we interact with others who are vulnerable or who have impaired autonomy, we have a moral obligation to protect their interests and to foster their autonomy to the extent possible. The importance of autonomy, according to Cassell, is not what decisions we make, but the fact that we make them. In his article, “Life as a Work of Art,” he explained that it is the process of choosing that gives each person’s life its unique meaning. From an aesthetic point of view . . . autonomy is not important in itself, but rather for its function in the self-creation of a person, of a lived life. . . . [It is in] the moment-by-moment choices that determine the person, that autonomy has true meaning. Choice is the essence of the process (pp. 35–37).21 Beneficence means we should act to prevent or remove harm, as well as take positive actions to do good for others (p. 192).7 Nonmaleficence means we should avoid acting in ways that might harm others (p. 192).7 Both beneficence and nonmaleficence require that we look to future consequences (albeit, with uncertainty), weigh potential goods and harms, and use good judgment when choosing actions, particularly when those actions affect others. Justice refers to acting in ways that are fair and appropriate, and that will distribute soci-

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Utilitarianism (1861).17 Mill believed that rational people will choose actions that produce “good.”17 Therefore, morality requires that we (rational agents) act in ways that maximize good consequences (happiness, in the moral sense) and minimize bad consequences (unhappiness; p. 50).17 A key to this theory of ethics is that the moral standard for utility “is not the agent’s own greatest happiness, but the greatest amount of happiness altogether” (for the greatest number of persons in society).17,18 In summary, Bentham and Mill espoused a utilitarian, or consequentialist (teleological) philosophy. The core utilitarian notion is that actions are moral to the extent that they produce the greatest good, or happiness, overall (see also Beauchamp and Walters9).

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Table 2 Guiding Ethics Principles Principle

Description

Respect for autonomy (auto, self; nomos, rule)

Act so as to enhance others’ self-determination; refrain from interfering with free choice; protect vulnerable persons; and foster self-determination (self-governance) as much as possible Act to benefit others; balance good results over potential harms

Beneficence (bene, good) Nonmaleficence (mal, bad) Justice (fairness)

Act to avoid harm; balance risks and seriousness of potential harms against potential benefits Act to distribute the benefits and burdens of society fairly Substantive justice: give others what they need or deserve Procedural justice: use impartial decision-making procedures Allocative justice: distribute societal resources (such as health care) equitably

etal “goods” according to fair procedures, depending on what a person deserves or needs (p. 327).7 (See also Mill’s On Liberty.22) Pellegrino and Thomasma distinguish justice as an ethical principle from justice as a virtue. For these philosophers, justice as an ethics rule requires actions that “render[-] what is due to others” (p. 92).13 In contrast, justice as a virtue “ . . . is a character trait, a habitual disposition to render to each person what is due. As a principle, it ordains that we act in such fashion that we render to each what is due her and that we treat like cases alike . . . “ (p. 96).13

Types of Moral Dilemmas The first step in analyzing a situation is to determine whether the problem in front of us is a moral problem. Beauchamp and Childress identify two basic types of moral problems: moral uncertainty and conflict of values (or principles). The conflict between a moral value and selfinterest is not a true moral dilemma, but is included in Table 3 for the purposes of contrast.7 When solving moral problems, it is often useful to think in terms of the basic principles of respect for autonomy, beneficence, nonmaleficence, and justice. Virtues are in the background and relate to the personal integrity of each of the actors (moral agents). The reader should be aware that there are other moral theories, principles, and modes of reasoning that have not been mentioned here (see Mappes

and DeGrazia for a comprehensive review11). The approach that emphasizes principles is pertinent to biomedical ethics (as applied to issues in the biological sciences, medicine, and clinical practice), professional ethics (as applied to the rules of conduct governing the health professions), clinical ethics (as applied to specific patient-related quandaries), research ethics (as applied to researchers, research participants, and others involved in the conduct of research), and public health ethics (as applied to policies affecting the health of populations).11 Principles are guidelines for action, not rules of conduct. Principles do not solve problems. Only we, as moral agents, can grapple with the facts of each case to determine the appropriate course of action. To solve real-life moral quandaries, we must use not only principles, but also sound reason, good judgment, and virtues of character. Ethical decision making requires that we consider questions such as the following: What are the roles of the participants? What are the effects of alternative courses of action? What are the means of alternative courses of action? What are the risks and benefits to patients, clinicians, families, and institutions? What is my role, what are my duties, and have I set aside my self-interests when making decisions on behalf of someone else (usually someone vulnerable who depends on me)? Is the course of action social acceptable? Finally, is the course of action legally acceptable?23,24 The next section very briefly highlights the basic structure and function of the law.

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Type of Problem

Dilemma

Example

Moral uncertainty

An agent believes, on moral grounds, that he or she both ought and ought not to perform act x. Some evidence indicates that act x is morally right, and some evidence indicates that act x is morally wrong, but the evidence on both sides is inconclusive

Two moral “oughts” conflict; or two moral principles conflict

The agent has obligations to do both x and y, but cannot do both

Moral issue versus self-interest (not a true moral dilemma)

The agent has obligations to the patient (respect for autonomy, beneficence, nonmaleficence, justice) but her selfinterest conflicts with the patient’s interests

A clinician is grappling with whether she should recommend that a child undergo a particular type of surgery for velopharyngeal incompetence. Surgery has permanent effects on anatomy, and may or may not help the child’s speech. Furthermore, because of the child’s developmental status, deferring the surgery to a later time may limit any potential beneficial effect. The principle of beneficence applies to either choice, but the clinician is uncertain about which course of action (doing surgery, or not doing surgery) is most appropriate A clinician must make a decision regarding a feeding tube for an elderly patient. The patient has refused to have a feeding tube. The clinician believes the feeding tube will prolong the patient’s life. The clinician must choose between two actions. Respect for autonomy dictates one course of action; beneficence, another, and the clinician faces a quandary because she cannot do both A clinician receives financial incentives from her employer for limiting the amount of treatment rendered to beneficiaries (i.e., she receives bonuses at the end of the year). For this reason, she fails to tell her patients about all of the available treatment alternatives. A conclusion that the clinician has behaved immorally stems from her disrespect for patients’ rights to be informed and to choose for themselves what is in their own best interests

Adapted from Beauchamp and Childress,7 p. 11.

LAW

In modern civilization, law and morality establish the ground rules for good behavior. Law is distinguished from morality, in part, by the fact that it is written by legislatures and courts, and it is enforceable. Other differences between morality and law are summarized in Table 4.

One of the most important differences is that morality helps us decide what we should do, whereas law tells us what we must do. The purposes of law are to maintain order, to punish wrongdoers, to resolve disputes fairly, and to distribute benefits (and harms) justly according to what people need or deserve.18,25 To be moral, law must be just. The law is just if

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Table 3 Types of Moral Problems

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Table 4 Morality, Ethics, and Law Morality* Law

Ethics

Defined by government Based on concepts of justice and equality

Defined by individual and community Based on how we define a “good,” worthwhile, or meaningful life Informal guidelines for resolution of complex problems Some uniformity; respectful of diversity Ideal or aspirational (“better” or “best”) Noncoercive (“dictates of conscience”) Standards and exhortations by custom, professionals standards, discussion and persuasion “Should”

Formal rules resolution of complex problems Uniform Minimum standard of behavior (“at least”) Coercive (penalties for misconduct) Rules of law enforced by regulatory authorities and courts “Must”

*Widely held societal values (universal, ultimate, impartial, other-regarding).

it punishes those who deserve to be punished, and compensates those who have been harmed.26 Similarly, the law is just if it gives (or takes away) “goods” (privileges, freedom, or property) from persons according to what they deserve (or do not deserve) (p. 302–306).26 The law involves a mix of both rights and obligations. On the one hand, the government writes and enforces laws for the good of society-at-large, even if this means imposing obligations on, or limiting the freedom of, individual citizens. For example, the government may establish rules to protect the privacy of your medical records; it may also permit access to your medical records if it will help solve a crime. Or, the government may write guardianship statutes that protect the right of parents to make decisions for their children; it may also terminate a parent’s right to raise a child if there is substantial evidence demonstrating that the parent is unfit. On the other hand, citizens enjoy several basic rights under both the federal and state constitutions, which means that individuals have a right to ask the government to leave them alone in certain spheres of activity. These rights include the freedom to speak freely, to practice a chosen religion, and to marry and have children. Among these fundamental personal rights, or “liberty interests,” is the right to choose (or refuse) particular medical treatments. Courts of law, for example, have established that citizens have the right to know the risks of alterna-

tive medical treatments before they voluntarily choose which treatment fulfills their personal goals and interests. This so-called right to informed consent triggers a corresponding “duty of disclosure” on the part of healthcare professionals. The government (including the courts) will override constitutionally protected personal freedoms only if conduct unduly impairs the rights of other citizens or if there is an important societal interest at stake. Finally, the law requires citizens to live up to their obligations—to the law, to their families, and to other citizens. When citizens engage in everyday activities, they are required to take reasonable care. When they engage in professional activities, they are required to act as reasonably and prudently as other professionals with similar knowledge and skills, in similar circumstances, would act. To enforce this basic obligation or “duty of care,” the law allows a citizen who is harmed by someone else’s negligence to sue the careless person for compensation.

Types of Law In modern society, there are several types of law: statutory, common, administrative, and constitutional27 (Table 5). The type of dispute, the applicable law (state or federal), and the geographic region (a state, or a federal district within a federal circuit) will dictate which court has jurisdiction to hear a case.

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Type

Description

Statutory law

Written by state legislatures and the U.S. Congress (elected by the majority of voters) Pertaining to agencies of government and includes administrative codes, agency policies and procedures, and regulations Opinions written by judges entailing the interpretation of statutes, and the application of legal principles to individual cases (legal disputes). Within a particular jurisdiction, interpretations of law by higher courts serve as precedent for future cases and are binding on lower courts Opinions by the highest state courts, federal appellate courts, and the U.S. Supreme Court that relate to questions of interpretation of state and federal constitutions Opinions of the U.S. Supreme Court establish precedent for all the courts (state and federal) in the United States and its territories

Administrative law Common law (“case law”)

Constitutional law

STATUTORY LAW

Statutory law is written by state legislatures, and by the U.S. Congress. At the state level, statutes are recorded in the state’s code of laws; at the federal level, statutes are recorded in the U.S. Code. For example, statutes pertaining to crimes give everyone in society advance notice about which behaviors are not acceptable in an ordered society and what penalties will attach to illegal behavior. Statutes pertaining to social welfare tell citizens whether they qualify for certain types of benefits and the nature of those “entitlements” (e.g., to veterans benefits or to healthcare benefits under the Social Security Act). Another type of statute articulates certain rights and protections for special groups. For example, the principle of nondiscrimination is embodied in the Americans with Disabilities Act and the Individuals with Disabilities Education Act. ADMINISTRATIVE LAW

Administrative law refers to law created by executive agencies (at both state and federal levels) and includes federal and state administrative codes, state agency policies and procedures, and agency regulations. The legislature (for the states) and the U.S. Congress (for the federal government) first write statutes that give power to the agencies (so-called enabling statutes). If the agencies stay within the bounds of the enabling

statutes and follow proper rule-making procedures, the resulting codes and regulations promulgated by those agencies have the force of law. Executive orders are also a type of administrative rule making (pp. 9, 10).27 For example, the U.S. Congress wrote and periodically amends the Social Security Act of 1965, which created Medicare and Medicaid entitlements. Congress empowered the U.S. Department of Health and Human Services to execute these statutes. Within the Department of Health and Human Services, the Centers for Medicare and Medicaid Services have “delegated authority” to write regulations to clarify beneficiaries’ rights and to distribute taxpayer funds to pay for those benefits. COMMON LAW

Common law (or case law) is law that emerges from the resolution of public and private disputes in courts of law. Common law, in short, is written by judges. The interpretations of law by high court judges (at both state and federal levels) serve as precedents for future cases within the particular jurisdiction of the court.27 The benefit of using precedents is that it lends predictability to legal disputes (e.g., malpractice). It is important to note that most cases pertaining to the professions and to medical decision making are decided by state courts. Each state has jurisdiction to decide cases as it wishes, and, therefore, the law may vary from state to state.

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Table 5 Types of Law

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CONSTITUTIONAL LAW

Constitutional law refers to the decisions of state and federal courts that involve issues pertaining to the state constitution or the federal constitution, respectively. The U.S. Constitution establishes the legislative, executive, and judiciary branches of the federal government, which make, enforce, and interpret law, respectively. Federal constitutional law governs issues such as disputes pertaining to copyright and patent, maritime and military law, taxation, and interstate commerce. Federal constitutional law also governs rights of citizens as articulated in the amendments to the U.S. Constitution. A few examples of these rights are the freedom of speech; the right to trial by jury; and the right not to be deprived, by the governments, of life, liberty, or property without due process of law. The Fourteenth Amendment is particularly important, because it incorporates the rights we enjoy as citizens of a state into the federal constitution, which governs the rights and privileges we enjoy as citizens of the United States. To appreciate the “reach” of a decision by any particular court, it is important to recognize both the jurisdiction of the court and the level of the court. When the high court of a state decides a constitutional issue, the judicial opinion is binding on all lower courts of that particular state. When the court of appeals of a federal circuit decides a constitutional issue, the judicial opinion is binding on all lower courts (U.S. District Courts) in that particular federal circuit. Finally, when the U.S. Supreme Court decides a constitutional issue, the opinion of the Court is binding on all courts within the United States. LAW AND MORALITY

Are legislative enactments and judicial opinions designed to enforce morality? Yes. The main purposes of law are to create and maintain an ordered society, and to ensure the safety and welfare of all citizens. To accomplish this, the legislative branch (both state and federal) writes statutes, the courts interpret statutes, and the executive branch executes/enforces statutes—in each case, to ensure equal protection under the law and to protect substantive rights (e.g., nondiscrimination and other liberty interests). In essence, the law is intended to reflect society’s

values and to render justice impartially. Although imperfect, law can be thought of as “social morality”: When a government enunciates the moral posture of a society, it creates policy through law. In a democratic society, that law ostensibly reflects the moral beliefs of the majority of the nation. In summary, law reflects the minimum standards of behavior—the foundational societal norms, if you will—upon which we strive to build good, moral lives. In addition to reflecting the beliefs of the majority of the nation, both morality and law are respectful of diverse moral interests, and attempt to protect the interests of all citizens. Constitutional law helps ensure that the rights and interests of all citizens are respected.

APPLIED ETHICS

Ethics in everyday, practical life refers to rules and principles (based in values) that we abide by or least strive to abide by. Some hold that morality and ethics are synonymous. Most certainly they are related. Morality encompasses the values that are shared by, and form the underpinning of, communities.4,28,29 Ethics are the more specific rules of conduct that govern specific individuals or groups.28,30 To act ethically is to do what is appropriate and morally required. An ethic, then, is a valuebased rule of action—encompassing prescriptive and aspirational notions—that requires and exhorts individuals in specific groups or situations to do “the best” he or she can when it is uncertain what to do, or when there is a conflict between values, principles, or courses of action. To “do one’s best” implies using reason, using prudence (good judgment), and acting impartially (fairly) toward all concerned. Ethical rules of conduct are grounded in moral values, and for most purposes, the terms “morality” and “ethics” can be used synonymously.

SUMMARY

This article defines morality as a set of values that are widely shared and relatively stable within a community. These values reflect core beliefs

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about what is right or wrong, good or bad. Moral values are ultimate, universal, impartial, and other-regarding. Ethics was defined in three ways: first, as the formal examination of human conduct to understand why some actions are right, and others are wrong (philosophical ethics, both normative ethics and meta-ethics); second, as the empirical examination of actual values, attitudes, and actions (descriptive ethics); and third, as precepts we use to guide us when solving real-life problems (applied ethics). This article briefly reviews the contributions of classic philosophers to contemporary morality. Today in the United States, four basic guiding principles of ethics have been integrated into biomedical, professional, clinical, research, and public health ethics: respect for autonomy, beneficence, nonmaleficence, and justice. Concepts of moral agency and virtue bolster these basic principles when quandaries arise, and we must decide how, when, and why to act. Finally, this article provides an overview of different types of law—statutory, common, administrative, and constitutional. In the United States, federal law and state law exist side by side; both function to establish the obligations of all citizens, while protecting basic individual freedoms. The law tells us what we must do; morality tells us what we should do. Law is the floor upon which moral agents walk. Both law and morality exhort us to respect our neighbors and to act in ways that foster well-being within our communities.

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