The Global Ethic and Law
October 27, 2015
One of the noteworthy attributes of a global ethic is its capacity for critical engagement with diverse disciplines and spheres of activity.1 By nature, a global ethic is dialogical; it invites and indeed requires interaction with diverse cultures, traditions, practices. It scrutinizes embedded assumptions and boundaries, and in so doing, affirms the possibility and the importance of the common within the particular. In the Declaration of the World Parliament of Religions (1993), drafted by Hans Kűng and a foundational document of his version of a Global Ethic, it states: "Our different religions and cultural traditions must not prevent our common involvement in opposing all forms of inhumanity and working for greater humanness."2 Similarly, Michael Ignatieff views a global ethic as cultivating a tension between the common and the specific: "a global ethic is better understood not as a series of propositions, but as a site of argument in which the particular is called to the bar of justification before the universal."3
One aspect of the critical function of a global ethic is its implicit challenge of what might be termed 'sector morality,' a kind of institutional and social analogue to role morality in personal ethics. The notion of sector morality posits that different social spheres entail differing ethical orientations, and these orientations may conflict to a greater or lesser extent. The idea of sector morality reflects the specialization that characterizes contemporary societies, marked by a high degree of differentiation based on expertise, knowledge, and status. It draws on Max Weber's idea of autonomous law ("Eigengesetzlichkeit") that Weber considered characteristic of various spheres of rationalized societies.4 Similarly, the German sociologist Niklas Luhmann speaks of "Teilbereiche" or social subsystems with distinctive ethical environments.5
The professions are prototypes of such specialized domains. But other broader and more diffuse sectors, such as commerce, economics, science, technics, sport, and politics, are also relatively autonomous in the sense that each tolerates or endorses distinctive ethical attitudes and practices. For example, consider what qualifies as the duty of truthfulness in an economic/commercial context, in medicine, and in law. There is no unitary notion of it that applies uniformly across those fields; it is contextually conditioned by other ethical values and practices intrinsic to each of them. In a commercial context, the duty of truthfulness is transactional and subject to prudential considerations (caveat emptor). In medicine, the degree of disclosure made to obtain the informed consent of patients is governed by pragmatic, circumstance-sensitive standards. In law, the duty of truthfulness is subject to important constraints and prohibitions. This suggests certain subtle differences in ethical orientation among various domains of activity. Of course, the idea of sector morality should not be pressed too far. There is undoubtedly a degree of consistency in fundamental ethical understandings even in complex, pluralistic societies. At the same time the phenomenon of ethical compartmentalization should not be ignored; there are disjunctions in ethical norms across domains as well.
With respect to law, legal theorists have distinguished between ethical considerations interior to law and those extrinsic to it. Interior considerations are those primarily shaped by the procedures and character of a legal culture, by its modes of argumentation and canons of rationality, and by its historical development. In this view, law is a distinct moral realm with norms essentially adapted to, and derived from, its intrinsic character and functioning. But if unqualified, this interpretation understates the interaction between law and its political and cultural setting. It also downplays or ignores the ethical quandaries that confront participants in a legal system, whether as parties, lawyers, or judges. A fuller, more satisfactory of the law-society matrix envisions law's empire as existing within a broader commonwealth, one whose ethical concerns and aspirations transcend the parameters of law. Law's autonomy is an embedded autonomy. Though relatively sovereign in its own right, law is not impervious to ethical pressures and sensibilities external to it. The relation between law and its ethical environment is osmotic and indirect, but nevertheless real.
In contrast to specialized domains, the Global Ethic articulates a general and non-sectoral ethic. Its duties and obligations relate to both individuals and institutions. This is not to say that its principles are apodictic and universal (as distinguished from common), oblivious to locality and context; indeed the Declaration recognizes the place for specific ethical formulations, such as professional codes of conduct.6 But it holds sectoral and localized ethoi up to a critical light, suggesting that integrative coherence is a relevant consideration in ethical thought and practice.
In this respect, the interaction between law and the Global Ethic is instructive. While not legal in character or aspiration, the Global Ethic nevertheless offers useful perspectives in critique of law. A number of academics have explored the engagements between the Global Ethic and law in a recently published volume entitled The Global Ethic and Law (Nomos/Bloomsbury 2015).7 Among the topics the essays in that volume consider are the relation between the Global Ethic and jurisprudence, international law, legal aspects of global health pandemics, human rights theory, and notions of human dignity.8 The studies are essentially exploratory: they propose contrasts and connections between ethical aspects inherent in legal norms with common, global norms. For example, Brian Lepard suggests that a Global Ethic can contribute to the development of customary international law. In another chapter, Timothy Fort and Joshua Perry contend that there are significant ethical implications in the legal frameworks applicable to transnational public health crises, and indicate how those ethical aspects should be informed by global ethical perspectives.
Other topics for exploration in the encounter of the Global Ethic and law suggest themselves as well, some more theoretical, some more practical. In a theoretical vein, the Global Ethic and legal cosmopolitanism are both concerned with the tension between global and territorial approaches to rights and duties, as well as with how they are grounded. Each can profit from consideration of the other. More practically, various fields of law are enmeshed in the balancing of individual rights and common welfare, and increasingly, also in negotiating the tension between state sovereignty and global responsibility. These fields include environmental law, financial and capital markets regulation, anti-bribery and corruption laws and private codifications, criminal law, and others. The integrative and critical character of the Global Ethic can provide reflective resources for the ongoing challenge of balancing such conflicting demands.
It is obvious that the Global Ethic is not transposable into legal formulations, nor is it a source of legal norms. What it offers in its engagement with law are broadly consensual principles that can exert ethical pressure on legal norms without the metaphysical entailments of specific religious or secular worldviews. In that sense, the Global Ethic is more adequately understood as a project rather than a compendium; it invites further elaboration and articulation through dialogue and research.
The Global Ethic's resistance to ethical compartmentalization flows from its embrace of an integrated understanding of rights and duties. Of course, there will always be a place and need for specialized ethics adapted to the particular circumstances of spheres of activities or groups. But there will also be a complimentary need for the critical leverage of comprehensive ethical perspectives. Though its principles are general, and lack the tailored specificity of localized and sector-specific ethical frames, the Global Ethic can help maintain a useful tension between particular and comprehensive ethical perspectives. It does so in part, by serving, in Michael Ignatieff's phrase, as "a view from nowhere," that is, by maintaining a critical distance from prevailing political or ideological perspectives and inquiring about their ethical viability when viewed in a broader context. Whether with respect to law or other spheres of activity, the Global Ethic acknowledges legitimacy of local and sector ethics without capitulating to them. It does so by respecting the necessity of specific expressions of ethical rights and obligations, while affirming the common values that inhere in them.
1 While it is more accurate to speak of "a global ethic" rather than "the Global Ethic" given there are various versions of it, for the sake of concreteness, references here are to the Global Ethic developed by Hans Kűng in a series of writings dating from 1993, such as Global Responsibility: In Search of a Global Ethic (1993) and A Global Ethic for Global Economics and Politics (1998).
2 Hans Kűng, Declaration of the Parliament of World Religions, in Global Responsibility (2004).
3 Michael Ignatieff, "Imagining A Global Ethic," Ethics and International Affairs, Vol. 26.1, p. 13 (2012).
4 Cf. Weber's essay "Religious Rejections of the World in Their Directions" in H. Gerth and C. Mills, eds., From Max Weber, Essays in Sociology, pp.323-359 (1946).
5 Cf. Hugh Baxter, Niklas Luhmann's Theory of Autopoietic Legal Systems", 9 Annual Review of Law and Social Science 167 (2013). For example, Luhmann writes: "Morality as such has no legal relevance." Quoted in Baxter, p. 174.
6 Cf., Declaration, p. 14.
7 This volume was co-edited by the author together with Eberhard Stilz, an appellate judge in Germany and president of the Global Ethic Foundation in Tübingen.
8 Another illuminating book (in German) on the Global Ethic and law is A. Pelinka, ed. Weltethos und Recht (2011).