Law as a branch of morality

Ronald Dworkin – who “was widely respected as the most original and powerful philosopher of law in the English-speaking world”  – died this week. As described in the above-linked-to obituary, “If one can dare to summarise so rich and lucid a lifetime’s argument, Dworkin rejected both the traditional view, that judges must conform to established authority, and the belief of American liberals, that judges should seek to improve society, with a new emphasis on the judge’s responsibility to uphold individual and collective morality.” Indeed, he viewed law as “a branch of morality.” His approach was an important break with the once dominant theory of “legal positivism,” which conceived of law in a largely amoral way and which focused largely on process, customs and institutions; and it was also a break with the school of utilitarianism.

Dworkin’s context was, needless to say, more on the world of courts than that of compliance-and-ethics programs.  However, the latter do constitute internal legal systems – and C&E officers are often in the position of articulating, interpreting and enforcing law-based/law-like standards, i.e., they serve as legislators, prosecutors and judges for their respective companies.  In all of these roles, there are times in which a company’s standards of conduct need to be interpreted.  Dworkin’s approach to promoting morality – and particularly the values of justice, fairness and respect for the individual – may provide a useful compass in that regard (and indeed may be consistent with some values-based approaches to C&E already in existence).

Of course, a set of legal principles for binding governments (i.e., constitutional law) does not necessarily translate completely to principles governing the operation a business enterprise.   But given the values that most companies – at least the ones with strong C&E programs – profess,  this approach certainly has some place in the business world.  This is particularly so given the demonstrated role that organizational justice in the workplace can have    in promoting ethical and compliant behavior.

Finally, while Dworkin’s work has been attacked by some on the political right, I do not think that his morality-based approach need be viewed from a partisan perspective. As Jonathan Haidt has shown ,  all sides of the political spectrum have deeply held moral beliefs and a morals-based approach to interpreting legal standards does not, in my view,  inherently favor one over the other.