Morality And Legal Ethics

Our opinion-makers still look for answers, while apparently believing that justice is equivalent to the infield-fly rule.

This interesting notion was offered, a few weeks ago, by a friend who teaches at the war college attached to one of our military services: His students were all seasoned veterans, in their forties; they had all seen military action; but they were still, twenty years later, the people who had been college students in the 1960s, and they had absorbed much of the secular religion that affected other young people at the time. They were, on the whole, skeptical of the notion of moral truths that held in all times and places. They had served their country in the military, but they were far from clear that there was anything about the American Republic that truly justified the risk of their lives. They could not really say, with Lincoln, that the right of human beings to govern themselves was a right that was “applicable to all men and all times.” These soldiers of their country were more disposed to believe, with other people their age, that the understanding of what was right and wrong was always “relative” to a particular “culture” or country. They would not claim, then, that the political regime in America was morally superior to that of the Soviet Union or Vietnam. They would settle for the far more modest claim that our political way of life was at least “ours.” And on that basis, we were warranted in hazarding our lives to preserve it.

In this construction, of course, the principles that defined the character of the American Republic would be no different from the rules that marked tbe character of a club, or defined a regime of play. The rules of the American Constitution, in other words, were hardly distinguishable from the rules of baseball or the rules of chess. In that event, I offered this proposition to my friend at the war college: The willingness of his students to risk their lives for the rules of the American Republic apparently stood on the same moral plane as a willingness to risk one’s life to preserve the infield-fly rule or the “institution” of the designated hitter.

My friend agreed that such was indeed their understanding. The only thing he might say in their defense is that it is “our” infield-fly rule, and we are free to change it. And in any system of conventions, in any rules of the game, that is certainly true. We are free to decide that it will require five balls outside the strike zone to constitute a “base on balls.” But are we really free, in the same way, to alter these axioms of the law: that “people should not be held blameworthy or responsible for acts they were powerless to affect”; that like cases should be treated in like fashion; that people accused of a crime should be presumed innocent until proven guilty; that beings who are capable of understanding reasons deserve to be ruled only with their own consent? We would be far more reserved about “legislating” a change in propositions of this kind. For even the dimmest of us may suspect that these truths are not merely conventional: they are not ours because we have chosen to adopt them; rather, we have adopted them -we have made them “ours”-for the sovereign reason that they are compellingly true.

WHAT WE SEE at work here, in the case of our military officers, is the enduring tension between a morality that is merely conventional, and a morality that is rooted in the laws of reason, in the nature of things, or, as Kant put it, in the nature of “a rational creature as such.” It is no small service for any teacher of moral philosophy to make his students alert to that distinction. This much can be said then, at least, for the editors and journalists who shaped the ten-part PBS series Ethics in America. It was quite evidently part of their design to bring out vividly to their viewers the tension between a morality merely of convention-a “morality” marked by professionals, cast in “roles”-and a morality that was constantly looking past the system of roles, and appealing to a more exacting moral standard.

From that tension, the designers of this series managed to produce its dramatic action, in the exchanges among the participants. And in that vein, there was probably no moment more dramatic than the moment just after Mr. Mike Wallace had waxed eloquent, by his own lights, in insisting on the integrity of his standards “as a journalist.” The journalist in the hypothetical case under discussion had agreed to gauge the “other side” of a war in South Kosan (read: South Vietnam) by traveling with contingents of the North Kosanese. In that position, he might be able to encounter the atrocities committed by the South Kosanese and their American allies. The North Kosanese suddenly come upon a contingent of American troops, and they are about to ambush them. At this point, Mr. Peter Jennings allowed that he would not film the incident. In fact, he thought he might actually try to warn the American troops, even though that might be, altogether, bad manners toward his hosts, who had invited him along for this excursion. For this mild reflex of national loyalty, Mr. Wallace came down upon Mr. Jennings with a severe reproach: as a journalist, his responsibility was to the story. “You’re a reporter,” said Wallace. “Granted you’re an American, but you’re a reporter covering combat . . . and I’m at a loss to understand why . . . you would not have covered that story.”

The discussion seemed to be settling in with a comfortable sense of the journalist at ease with himself and his professional “responsibilities.” Suddenly the lull was broken by the quiet, steely words of George Connell, a colonel in the Marines. Connell spoke with an anger evidently coiled in reserve, and he announced that this display had stirred in him “an utter contempt”: there would be an incident, with two reporters wounded in the action, and he would be asked to send some Marines into a contested zone for the sake of extracting those hapless journalists. At that moment, said Connell, he could insist that “They’re just journalists, they’re not Americans.” How can they have it both ways? he asked-as Mike Wallace apparently experienced a mild epiphany, and felt obliged to nod his assent. “But I’ll do it,” the colonel continued, “and that’s what makes me so contemptuous of them. Marines will die going to get a couple of journalists.”

With his simple, powerful intervention, Colonel Connell had exposed the moral emptiness of Mr. Wallace’s stern lecture on the responsibilities of a journalist: the supposed moral requirements of a journalist had simply reduced to the “interests” of a journalist; and those interests could be served scrupulously in a project that was morally obtuse. But what was it, exactly, that made the course of the journalists morally wrong in this case? Was Colonel Connell simply posing, against the “roles” of journalists, the conventional roles o”Americans”? Was he merely asking them to override their loyalty to the code of journalism by acting on the rule of a wider club: viz., that “Americans should help one another in times of danger”? Did the lesson run any deeper than that? I think it did, but the producers of the series made no provision to ensure that the lesson would be drawn or articulated. And that omission cannot be ascribed to accident. The designers of the series were not shy about imposing structure on these conversations. When it was thought necessary to make a point, they found a way to make it. Apparently, it was part of the purpose of the producers to leave certain questions unaddressed, unarticulated, unresolved, as part of the deeper teaching in the program: namely, that there were, finally, no standards for judging.

If we return for a moment to the case of the journalists and the army, let us imagine that the journalists were trying to report, with detachment, on a war between the forces of syntax and the forces that were seeking to overthrow syntax. The reporters go out to travel with the other side-with the armies that would obliterate syntax in the countries they occupy. And yet, the reporters themselves would have to make use of syntax in offering their reports. One might say, in fact, that they have a deep professional stake in the preservation of syntax. Their own occupations, indeed their way of life, would be rendered unintelligible by its destruction. For them to take a posture of detachment in this conflict would be to deliver themselves into a position of deep incoherence.

But it would hardly be more incoherent than the position of those Western reporters who were willing to travel to North Vietnam in the late war, or travel with the contingents of North Kosanese in the case contrived in the program. For the American reporters understood themselves to be working in the character of a free press. They were not like the “reporters” and photographers who traveled with the Nazi troops to provide photos and stories for propaganda. The American reporters were not agents of the government, but reporters detached, in their independence, to tell an accurate story unshaped by the government. In other words, the “work” of the reporters depended, for its character and integrity, on a free regime, which could sustain a free press. The American reporters could hardly be neutral, then, on the moral differences that separated the American regime from the regime in North Vietnam (or North Kosan). Their way of life was inconceivable if it were detached from the moral premises that defined the character of a free society. It made no more sense for them to pretend that they were indifferent to the moral distinction between a constitutional order and a totalitarian regime than it did for the reporters in our example to claim neutrality in the battle between syntax and its enemies.

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