Law vs. Ethics

 


On facebook today, a person asked, "In any culture, isn't law exactly the same as ethics?"

Here's my reply:

Here's a take. I'm not saying this is absolutely true, or even that I'm sure I believe in it, myself... but I'm sort of working on this idea, so hear me out.
Ethics comes first. Early humans had ethics, and even other primates have ethics. Probably other animals have ethics as well. The vast majority of the time humans have been on Earth - hundreds of thousands of years - there has been ethics and no law. Law has only emerged in, say, the last 25,000 - 30,000 years, and very gradually, in a complex way.
In many ways, law emerged out of ethics, and even can be thought of as the development of ethics, the fulfillment of ethics, the completion of ethics, ethics becoming more ethical, ethics becoming more fully what it is. Thus, in a certain sense, law is ethics, and even, in a certain sense, ethics is law - or at least, what ethics always was, potentially, law is becoming, in actuality. (On this layer of meaning, it makes a kind of sense to say that law is "the march of God through the world," etc., etc.) You might say that this is true on an "ideal" level.
But this is a dialectical progression, full of negations, false starts, and reversals. Law could only become law by distinguishing itself from ethics, by establishing a firm separation between itself and ethics, by negating ethics. You might say that the history of history is the history of the separation of law from ethics. Thus, in a sense, law is the opposite of ethics - or more precisely, we could say that, from ethics, law and morality emerge as opposites - and not always the same way, in every culture. I have a lot more to say, but I'll stop there... except to note that this emergence of morality and law out of ethics, which should not be thought of as an event but rather as an ongoing historical process, can also be viewed as the emergence of the state and the development of the concept of freedom - and that this process, which is not at all linear, and often involves centuries of backtracking and reversion, is far from done, so there is much that has not yet fully separated - we can only dream of a future where law has fully separated itself from morality and ethics.

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