The Law Isn’t Enough: We Need Ethics

By Cennydd Bowles, Instructor of ProThink Learning online course The Impact of Ethics in Innovation and Technology

The discussion around ethical technology is often shrouded by a common objection: isn’t the law enough? Why do we need ethics?

It’s an appealing argument. After all, every country tries to base their laws on some notion of good and bad and uses legality as a kind of moral baseline. While there are always slippery interpretations and degrees of severity, law tries to distinguish acceptable behavior from behavior that demands punishment. At some point we decide some acts are too harmful to allow, so we make them illegal and set appropriate punishments.

The law has another apparent advantage over ethics: it’s codified. Businesses in particular like the certainty of published definitions. The language may be arcane, but legal specialists can translate and advise what’s allowed and what isn’t. By comparison, ethics seems vague and subjective (it’s not, but that’s another article). Surely clear goalposts are better? If we just do what’s legal, doesn’t that make ethics irrelevant, an unnecessary complication?

Despite its appeal, the argument doesn’t work out. While there’s some overlap, the law isn’t a good enough moral baseline. We need ethics too.

Problem 1: Some Legal Acts Are Immoral

Liberal nations tread lightly on personal and interpersonal choices that have only minor impacts on wider society. Adultery is usually legal as are offensive slurs so long as they’re not directed at an individual or likely to cause wider harm. The right to protest is protected, even if you’re marching in support of awful, immoral causes. Some choices might lead to civil liabilities, but generally these aren’t criminal acts. Some nations are less forgiving of course — we’ll discuss that in Problem 3.

Even serious moral wrongs can be legal. In 2015, pharma executive Martin Shkreli hiked the price of Daraprim, a drug used to treat HIV patients, from $13.50 to $750 per pill. A dreadful piece of price gouging but legal; if we don’t like it, capitalism’s advice is to switch to an alternative provider. (Shkreli was later convicted of an unrelated crime.)

Or imagine you witness a young child drowning in a paddling pool. You could easily save her but you choose not to, idly watching as the child dies. This is morally repugnant behavior, but in the UK and US, unless you have a duty of care — as the child’s parent, guardian, or teacher, say — you’re not legally obligated to rescue the child.

Essentially, if we use the law as our moral baseline, we accept any behavior except behavior that gets us arrested. It’s entirely possible to behave legally but still be cruel, unreliable, and unjust. This is a ghastly way to live, and we should resist it strongly; if everyone lived by this maxim alone, our society would be a far less trustworthy and more brutal place.

Fortunately, there are other incentives to go beyond the legal minimum. It’s no fun hanging out with someone who doesn’t get their round of drinks in, let alone someone who defrauds their employer. Unethical people and companies find themselves distrusted and even ostracized no matter whether their actions are legal or not: violate ethical expectations, and you’ll still face consequences, even if you don’t end up in court.

Problem 2: Some Moral Acts Are Illegal

On the flip side, some behavior is ethically justified even though it’s against the law.

When Extinction Rebellion protestors stood trial for vandalizing Shell’s London headquarters, the judge told the jury that the law was unambiguous: they must convict the defendants of criminal damage. Nevertheless, the jurors chose to ignore the law and acquitted the protestors.

Disobeying unjust laws is a cornerstone of civil disobedience, helping to draw attention to injustice and pushing for legal and social reforms. In the UK and a majority of states in the US, recreational marijuana is still illegal, despite clear evidence that it doesn’t cause significant social ills. Although I don’t enjoy it myself, I certainly can’t criticize a weed smoker on moral grounds, and the nation’s widespread disregard of this law makes future legalization look likely.

There’s also a moral case for breaking some laws out of necessity. A man who steals bread to feed his starving family is a criminal, but we surely can’t condemn his actions. Hiding an innocent friend from your government’s secret police may be a moral good, but the illegality puts you at risk too: if you’re unlucky, you might find yourself strapped to the waterboard instead.

Problem 3: Laws Change Across Times and Cultures

The list of moral-but-illegal acts grows if we step back in time. Legality isn’t a fixed concern: not long ago, it was legal to own slaves, to deny women the vote, and to profit from child labor.

Martin Luther King Jr’s claim that “the arc of the moral universe is long, but it bends toward justice” gives us hope that we can right historical wrongs and craft laws that are closer to modern morality. But there are always setbacks. Look, for example, at central Europe today, where some right-wing populists are rolling back LGBTQ and abortion rights that most Western nations see as moral obligations.

If we equate the law and morality, aren’t we saying a change in the law must also represent a legitimate shift in moral attitudes? If a government reduces a speed limit, were we being immoral all those years we drove at 60mph rather than 50mph? Is chewing gum ethically wrong in Singapore but acceptable over the border in Malaysia? It can’t be right that a redrawing of legal boundaries is also a redrawing of ethical boundaries: there must be a distinction between the two.

There is, however, a trap here. Moral stances can vary across different times and cultures, but if we take that view to extremes, we succumb to moral relativism or subjectivism, which tell us that ethics is down to local or personal opinion and leaves the conversation at a dead end. Almost every culture agrees on certain rights and wrongs, and to make any progress we must accept that some ethical stances are more compelling and defensible than others. Where moral attitudes vary, they still don’t move in lockstep with legal differences.

Problem 4: Invention Outpaces the Law

The final problem is particularly relevant for those of us who work in technology. Disruptive tech tends to emerge into a legal void. We can’t expect regulators to have anticipated every new innovation, each new device and use case, alongside all their unexpected social impacts. We can hope existing laws provide useful guidance anyway, but the tech sector is learning that new tech poses deep moral questions that simply aren’t covered by legal guidance. The advent of smart glasses alone will mean regulators will have to rethink plenty of privacy and IP law in the coming years.

We can and must push for better regulation of technology. That means helping lawmakers understand tech better, and bringing the public into the conversation too, so we’re not stuck in a technocratic vacuum. But that will take time, and can only ever reduce the legal ambiguity, not eliminate it. The gap between innovation and regulation is here to stay, meaning we’ll always need ethical stances of our own.