The gap between law and morality is harming South Africa

Apr 15, 2014


Ethics Institute of South Africa

15 April 2014


The gap between law and morality is harming South Africa


South Africans all agree that we need to create a more moral society, but we rely too heavily on law alone to produce one. This emphasis on law and legality creates a gap that is being exploited by unscrupulous people in both the public and private sectors to act corruptly. At the root of the problem, argues Professor Deon Rossouw, CEO of the Ethics Institute of South Africa (EthicsSA), is the general tendency to assume that law and morality are basically the same thing.


“While law and morality are obviously related, it’s important to understand that they are definitely not the same thing. Once we understand that, we will come one step closer to building the kind of society we all want, but can’t seem to achieve,” Professor Rossouw comments.


Morality is a relatively hard concept to define, but it’s safe to say that it relates to a set of ethical standards that is generally accepted by a society, a religious group, an organisation, or, indeed, an individual. Such a set of ethical values is appropriated by the individuals within the group or society, and is used to govern how those individuals behave. In a sense it operates like the constitution does, providing a conceptual framework that can be used to establish the “right” choice within specific contexts. A moral code, like a set of constitutional principles, doesn’t try to cover the specifics of every eventuality; rather, it provides the principles that an individual or society can use to decide what course to follow in a given situation.


Law, on the other hand, attempts to regulate the behaviour of a country’s citizens in order to achieve stability and prosperity, facilitate commercial relations, resolve disputes and so on. Morality, on the other hand, is aspirational, and speaks to a standard to which most people strive.


“It’s perfectly possible for an action to be lawful but of questionable morality,” Professor Rossouw explains. “Of course the example that immediately springs to mind is Nkandla, and we have already seen President Zuma offering legality as ‘proof’ that he has not acted wrongly. The point here is that ‘lawful’ does not equate to ‘right’, and it seems clear that even if a legal process were to find him not guilty of breaking any applicable law, society would consider he acted immorally or wrongly in allowing so much money to be squandered on his private residence.”[1]


Another example would be the purchase by certain ministers of hugely expensive cars. The defense is that these purchases fall within the guidelines published in the Ministerial Handbook—the “law” in this case. However, public opinion tends to hold that such expenditure is morally wrong given the extreme poverty in the country, and the government’s often-stated commitment to alleviating poverty.


The business world, of course, is rife with the same sort of contradiction. Companies may operate within the applicable laws but still be acting immorally. A prime example of this might be the ways in which a company’s perfectly lawful activities degrade the environment, or put its employees at risk. The attempts by miners affected by silicosis is an example of an attempt to apply broad moral standards to operational standards that were, at the time, often within the strict letter of the law.


Or, in family life, a parent might not be transgressing any of the laws that seek to protect children but yet be acting in an immoral way. For example, a parent could destroy a child’s self-esteem through constant belittling. In another case, a parent might provide adequate food and shelter for his or her children but yet deny them access to greater opportunities by overspending on gambling or drink.


All perfectly legal but, we can all agree, immoral.


“Once we have understood this distinction between legality and morality, we still have to confront another challenge: developing a moral code that is widely accepted as a basis for behaviour, and thus is something that can act as a yardstick for behaviour. Our problem is that morality tends to emanate from amongst others, religious and cultural systems, and we have a plethora of both in our country,” Professor Rossouw says.


One positive is that most of the world’s great religions share many basic moral tenets—Christianity, Judaism, Hinduism and Islam are all well represented in South Africa. This “universal morality” could be combined with African philosophies, like Ubuntu, to create a moral code that all South Africans could use to self-regulate their actions.


“This is an important public discussion that needs to occur, because without a fairly broad consensus, people will not appropriate the moral code into the way they live and act, and actions will continue to be judged on their strict legality and nothing more,” he argues. “We also need strong examples of moral leadership, where people act in terms of their morality rather than waiting to see if they can slip in under the law.


“The way in which the former SARS Commisioner, Oupa Magashula, resigned in the wake of a scandal was not properly celebrated for the moral courage displayed in resigning. Mr Magashula could have hung on and fought a lengthy court battle, and maybe even have been exonerated, but he seems to have decided that, questions of legality aside, he should take responsibility for the morality of his actions. By contrast, Travelgate saw parliamentarians demonstrating a lack of moral leadership by sheltering behind the defense of legality.”



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