Does Professional Ethics Fail the Profession of Arms?

presented to the

Joint Services Conference on Professional Ethics

Washington, DC

24 January 2002

Robert G Kennedy, PhD

Professor of Management

University of St Thomas

Mail #MCN 6001

St Paul, MN 55105

VOX: 651 962 5140 FAX: 651 962 5093

e-mail: rgkennedy@stthomas.edu

The hypothesis which I wish to advance is that in the actual world which we inhabit the language of morality is in . . . [a] state of grave disorder. . . . What we possess . . . are the fragments of a conceptual scheme, parts which now lack those contexts from which their significance derived. We possess indeed simulacra of morality, we continue to use many of the key expressions. But we have—very largely, if not entirely—lost our comprehension, both theoretical and practical, of morality.

Alasdair MacIntyre

After Virtue

1981

“This ethics stuff. Either the students at this school have learned right from wrong by this stage in their lives, which I tend to doubt, or they haven’t learned right from wrong, and what the frig can I do to fix that?” He puffed on his pipe. . . . “So anyway, in this ethics unit, I take a few philosophers, and in—what is it?—eight classes, I go over three basic ways of making value judgments. That’s it. After that, you all go off to Wall Street. It’s like trying to give an intellectual life to baby wolverines.”

Peter Robinson

Snapshots from Hell: The Making of an MBA

1994

n the closing decades of the twentieth century the subject of ethics returned to the curriculum of professional schools with a vengeance. Though the teaching of ethics had always had some presence in these schools, especially those with a religious affiliation, it was never really an important presence. At best, and with rare exceptions, it was a second or third interest for a faculty member otherwise trained in the principal disciplines of the profession. Philosophers and theologians who had a special expertise in ethical theory became involved with professional ethics only at considerable risk to their careers.[1]

Nevertheless, as medicine began to confront more daunting problems and controversies—questions about transplants, abortion, and euthanasia, to name a few—some serious (and some not-so-serious) philosophers and theologians turned their attention to issues of applied ethics. From its beginnings in medicine, the newly-discovered discipline of professional ethics soon expanded to law, business, and a variety of other professions, including the military.

The question I wish to pose in this paper has to do with whether professional ethics, as it is currently practiced and taught, really offers a constructive contribution to the professions it purports to study. Does it make a difference? Does it genuinely improve the practice of the medical profession, the legal profession, the business profession, or the military profession? Does it equip practicing professionals to make better decisions? Or, in the end, is it merely well-intentioned window dressing that enables schools and other organizations to offer the illusion of concern and responsibility without demanding or facilitating significant improvements in professional practice?

For nearly 15 years I have devoted the better part of my professional energies to business ethics, with occasional sorties into the fields of medical and legal ethics and, quite recently, into military ethics. This paper is occasioned by my desire to reflect on what I have been doing all these years, whether it has been sensible in principle, and whether the whole project ought to be reconsidered. Some of my observations will be critical of the common approach to teaching ethics to students of business, medicine and law. I want to be quite clear, however, that while I have studied and written a bit about military ethics, I have never taught the subject, nor have I investigated carefully how the subject is being taught. My criticisms, then, are not consciously directed to the ethics curricula of the military academies or other institutions. Indeed, I have deliberately not sought out detailed information about these programs. For all I know they do not share the weaknesses I have perceived and experienced in other curricula. Nevertheless, if teaching and research in military ethics share the basic characteristics of medical, legal, and business ethics, I believe some critical reflection will be in order.

How Do We Approach the Teaching of Professional Ethics?

To begin my investigation I would like to describe some conceptual and pedagogical elements that are common in the textual materials used to teach professional ethics, especially in medicine and business. While it is probably the case that no single textbook includes every element, I believe the overall description fairly represents the state of the art. By beginning with what we actually do in teaching professional ethics, we may be able to work backwards and draw some conclusions about the unspoken assumptions and convictions we bring to the discipline.

The Presentation of Competing Methodologies

In most disciplines, an introductory text will aim to acquaint the student with a set of generally agreed upon principles. These principles normally constitute a common language for people working in the area and form the foundation upon which applications and further research will be constructed. The British philosopher Alasdair MacIntyre has famously observed, however, that modern moral philosophy has no such commonly accepted foundation.[2]

As a result, what we commonly see in ethics textbooks (especially in business and medicine) is a survey of competing theories about the fundamentals of ethics, which is to say a survey of theories about why some behaviors are good and some bad. Since these texts focus on the application of ethical theory to practice, they also commonly describe these competing theories as different methodologies.

For example, some of the most widely used texts in medicine and business suggest to students that the “standard methods” to be employed in addressing ethical issues include utilitarianism, deontology (which they usually take to be an emphasis on duty), and contractarianism (which they usually take to be an emphasis on rights and justice).[3] More recently, some texts have begun to include comments on virtue, feminist ethics, post-modern ethics or other ethical theories du jour. Each of these tends to be wedged into the category of a methodology, however inappropriate this might be.

Many authors suggest further that none of the methods described is really adequate by itself and so someone attempting to be ethical in professional practice ought to be prepared to use one method in some cases, another method in others. Just how one ought to know which method to employ on which occasions is rarely explored. Some authors deal with this problem by urging students to learn how to integrate the insights from each of the methods to analyze every problem. Thus it may be suggested that a utilitarian insight coupled with a deontological or a contractarian insight will yield a better moral conclusion.

The Use of Dilemmas and (Hard) Cases

In law and business, and to some degree in medicine, it is quite common to use case studies of one sort or another, but both the form of the cases and the mode of their use varies widely. Sometimes the cases are used as the primary teaching vehicle (as in the Harvard model), while in other texts they serve as illustrations or as opportunities for practice. Some are factual descriptions of problems actually experienced by professionals in the field, while others are fictional.

The cases vary from short descriptions of fact situations to lengthy narratives. In some instances, the cases insert the student into a problem situation and invite him to propose a resolution, while other cases ask the student to evaluate a decision that has already been made. In legal education, case method teaching often calls upon students to anticipate a judge’s decision and to provide legal evidence and arguments in support of that decision.

Cases may also place students in a position that moral philosophers once called perplexity. A person who finds himself in a position of perplexity is caught in a hard situation in which there appears to be no morally sound resolution. Each available choice seems to be unethical in some way. Cases of this sort offered to students sometimes only create the appearance of perplexity (perhaps by exaggerating emotion tensions), but sometimes, because of bad decisions already made, the problem as presented has no genuinely ethical solution. The intention in using such cases may be to compel the student to think more deeply about priorities, but the result may often be to persuade students that difficult moral problems have no real answers.

Finally, the use of cases depends upon a set of criteria for determining what constitutes an ethical problem worth considering. The situations presented to students often portray a tension between what is taken to be ethical behavior and sound professional practice. The student is then challenged to explain why the “ethical” alternative is to be preferred to the standard of practice in this instance.

The Importance of Laws, Policies and Codes of Ethics

In a great many professions the heavy lifting in ethics education, both in the degree-granting classroom and outside, is done by familiarizing practitioners with the details of codes of ethics and other policies, which are often grounded in laws and regulations. A strong connection is therefore forged between ethics and the formal requirements of law. It is not at all unusual in business organizations, for example, to find that the responsibility for acquainting employees with the company’s code of ethics and for interpreting the code in ambiguous cases falls to the legal department. In law, accounting, advertising and many other fields ethics education consists in little more than discussions about relevant codes of ethics and regulations.

Such discussions are hardly bad in themselves, but they do encourage professionals to think about ethics and law as interchangeable. Thus, if something is legal it must also be ethical. It further encourages them to think that there is nothing permanent or universal about ethics, since laws and codes are generally subject to change. Furthermore, instruction that relies on codes and policies does not prepare professionals well for the unpredictable challenges they will undoubtedly face in their careers. Such instruction may be acceptable for non-professionals or even para-professionals, since their decision-making responsibilities are diminished, but it probably falls short of what professionals require.

The Place of Ethics in the Professional Curriculum

Instruction in ethics occupies an ambiguous place in our professional schools. The American Bar Association, which exercises a uniquely extensive influence on legal education in the United States, requires that every law student take a course in ethics as a condition of graduation (and therefore as a prerequisite for taking the bar exam). The ordinary course of study, though, principally aims to acquaint students with a code of ethics and rarely explores the theoretical roots of professional ethics.

In other professional areas, accrediting agencies do not exercise the ABA’s influence and while they may require the study of ethics, they are not really in a position to enforce that requirement. For example, most business schools, especially on the graduate level, expect students to study business ethics and many schools now have ethicists on their faculties. However, ethics is generally not well integrated into the overall curriculum, even in accredited programs, and business faculty have low levels of comfort and competence with regard to teaching the subject. As a consequence, ethics comes to be regarded as a subject quite distinct and separate from the normal course of study, as if ethics were somehow an external intrusion on professional practice.

It is probably fair to say that in most professional education programs, ethics instruction occupies either a position similar to legal education (where it is instruction in the formal requirements of a code) or it is somewhat isolated from the rest of the curriculum, as it tends to be in business programs.

What Does This Approach Tell Us?

I have painted a picture of education in professional ethics with a wide brush. No doubt there are notable exceptions to my descriptions and no doubt it is the case that no single program manifests every element I described. Nevertheless, a review of accrediting requirements, curricular offerings, and texts should confirm that my comments are not too inaccurate. Granting for the moment that my observations are valid, can we say anything about the assumptions and convictions that may lie beneath and determine the nature of ethics education in the professions. At the very real risk of overstepping the evidence, I would like to offer the following analysis, not as the last word, but as a set of questions. If we are honest in our self-reflection, is this or is this not what we believe?

Where Do Our “Methods” of Moral Analysis Lead Us?

In most professional disciplines a debate about competing fundamental theories or methodologies will be resolved sooner or later by an evaluation of success in practice. One theory will display a superior power to explain and to predict, it will be more useful in accomplishing desired goals. There may be competing theories, for example, about the underlying cause of a certain disease but it is generally clear to everyone that not all of the theories can be correct. Indeed, none of the current theories may prove in the end to be the right one. The point is, though, that there is common agreement that a correct explanation exists (though we may not know it for some time to come). Until such time as we discover the correct explanation, the efforts of physicians are either hit-or-miss affairs or treatments or symptoms but not causes. It is a fundamentally unsatisfactory situation.

In the case of instruction in professional ethics, however, we have become content with a foundation of competing explanations. This presents students with a particularly unsatisfactory foundation for integrating ethics into professional practice. At the very least, Mill the utilitarian understood that the foundation he was proposing for ethics was quite different from, and indeed hostile to, the foundation proposed by Kant the deontologist. To put it bluntly, Mill was convinced that Kant was deeply mistaken about the nature of ethics, while Kant, had he been alive to read Mill, would had the same opinion about Utilitarianism. The proposal to integrate the two theories into one coherent decision-making process is therefore completely unworkable and grotesque. No one really makes sound moral decisions in this fashion and it is a disservice to well-intentioned students to present such a thing to them as a model for ethical analysis.

But something more is at work here. If we are really content to present this model to students as a finished work, if we are not urgently searching for a single, coherent conceptual foundation for ethics, then we have in fact lost confidence in the possibility of possessing moral truth. Now we might present a set of competing theories to students as a sort of “state of the question” report. We are not sure—yet—which theory really explains the nature of morally sound action, but we are working to resolve the question. In the meantime, here are the leading candidates, with their strengths and weaknesses.

This, however, is not the position we generally take in our texts. In most texts in medicine and business (the question is not so often treated in legal education) the competing theories are presented either as alternate methodologies (as there might be different but equally valid methods of calculating the value of an inventory) or as several inadequate explanations of morality, each explanation capturing something about moral truth but none capable in principle of grasping the whole. Both approaches are mistaken in fact, but both are also “predictable” results of MacIntyre’s assessment of the state of moral philosophy.[4]

In the first instance, the competing theories of ethics cannot be reduced to mere methods of analysis. While it is true that some theories of ethics (such as the Utilitarianism of Bentham and Mill) imply or lead to a method of ethical analysis, others do not. It is a distortion of the classical theory of virtue, for instance, to suggest that it reduces to a method of analyzing ethical problems in terms of whether one choice or another would develop or diminish the character of the agent. It is similarly a distortion of Divine Command theory to suggest that one might analyze situations by imagining what a just God would require. As a consequence, the existence of competing theories cannot be explained as if they were simply different methods available to achieve a desired result, the selection of which is merely a matter of taste or preference.

Nor can they be fairly said to be a set of theories, each inadequate to the task. In the first instance, as I have suggested above, the theories cannot be complementary explanations, each capturing some essential facet of a complex reality. It may be true that any one of the commonly presented theories is indeed inadequate, but some of them are mutually exclusive explanations; they cannot both be true. To suggest to students that they can is to bewilder them and, in the end, to discourage them from taking ethics seriously as a component of their professional practice.

If we cling to these approaches, then, we must abandon the attempt to discover moral truth.[5] But if we believe that there is a truth to be found about the morality of human acts, even though it might be hard work in some cases to find it, then we must search for a more adequate, unified, and coherent foundation for ethics, professional and otherwise. My own view is that such a search is not in vain.

Is What We Teach to Professionals Genuinely Practical?

If ethics has a legitimate place in the professional curriculum it must have practical effects. That is to say, it must give professionals a useful set of tools for making good decisions, especially in conditions of crisis and uncertainty or when a new and unpredictable problem arises. Instruction in ethics, however, does not always do that. Some of the techniques commonly in use simply draw upon the capacity that students already possess to make morally sound decisions and try to tease out the reasoning that they employ somewhat unconsciously.[6] Other techniques begin with the common practices of the profession and work backwards to articulate an explanation for these practices, in effect “free-riding” on the ethical judgment of experienced professionals.[7] In both cases, nothing very useful is provided to the student, except perhaps a few examples of good decision making that may or may not be applicable to the problems she may encounter in her own professional life.

In point of fact, an unspoken assumption that influences the way we present ethics is that ethical considerations are in some sense in conflict with what we take to be sound professional practice. Ethics constitutes a set of principles or values that are extrinsic to professional practice but which, for various reasons, ought to channel or direct or constrain that practice. For example, a certain standard of practice suggests that an uncooperative patient be compelled to take his medication, but the principle of patient autonomy may rule against this. Or the clear economic purpose of a business is to maximize the wealth of shareholders, but considerations of corporate social responsibility (something quite foreign to wealth maximization) demand that this goal not be pursued as aggressively as it might otherwise be.

This notion of conflict between professional practice and ethics, which I think is more widespread among ethicists than it might appear, has its roots in a deeper conviction. This is the conviction that there is a conflict between the ethical and the practical, as if one might either be ethical or practical, but not both. And since professionals are eminently practical, they can easily become suspicious about the role of ethics.

In another way ethics instruction can fail to be practical is if it fails to describe a reliable technique for ethical decision making, or fails to train students in the use of such a technique. Unfortunately, very few ethics texts offer anything more than a simple, intuitive technique, and even those that do offer something rarely show how it could be applied to truly challenging problems.[8]

In the end, we can and should ask whether instruction in ethics makes a significant change in the ability (as opposed to the motivation) of professionals to make sound, well-reasoned moral decisions.

What Is an Ethical Problem?

The extensive use of cases is both a blessing and a curse in the teaching of professional ethics. When they are well-written and well-selected, cases provide invaluable examples of practical issues which can be used to illustrate good decision making and as practice. But sometimes a problem arises in the way in which case problems are selected and cases are constructed.

Textbook writers—and I can speak from some personal experience here—are attracted to case problems that are dramatic. They make better stories and sometimes livelier discussions. The problem is that the situations we choose to write about are often unusual, unlikely and perplexing. They often pose a problem for which, because of choices that have already been made, there may be no sound moral alternative. This can produce an energetic discussion in a class, but it can also create two problems.

The first problem is that cases of this sort can suggest to students that ethical issues really have no objectively sound resolutions. As illustrated by the class discussion itself, there are a wide variety of perspectives available and perhaps, in the end, it all comes down to one’s own personal preference.

The second problem is that the cases we choose may give the impression that ethical problems are unusual (“How often can something like this happen?”) and that ethics has little role to play in the day-to-day decision making of professionals. As a former colleague of mine was apt to say, this reinforces the notion that ethics is like the measuring chains referees use at football games. Both the chains and ethics stay on the sidelines for most of the game and are only used when the situation is too close to call. This contributes further to the mistaken idea that ethics is and ought to be at the margins of professional training.

Part of the problem here is that we are often unclear about just what constitutes an issue requiring ethical analysis. Some textbooks are inclined to regard ethical problems as a separate species from merely practical problems, as if only problems with certain distinct characteristics can count. A more realistic view, in my judgment, is that every situation calling for a decision is an ethical issue. The vast majority of situations that a professional will encounter call for decisions that are very straight-forward and unambiguous. They appear not to have an ethical component merely because the ethical element is non-controversial. It is only in situations that are new or obscure or distinctive that a more deliberate ethical analysis will be required.

Another part of the problem arises from the tendency of case writers to create personal dilemmas for the student. There are countless cases, for example, that describe a situation in which someone is confronted with a decision that is made difficult not by its moral obscurity but by some personal conflict. A young lawyer is tempted to overbill a client because if she doesn’t bill a certain number of hours each month she will not be offered a partnership. Or a young accountant is pressured to change an audit report because his firm will lose the company’s consulting business if he does not make the changes. In each of these cases the moral problem is clear, but students are encouraged to focus on the personal dilemma, which introduces a different sort of problem that texts rarely confront.

Some ethical problems are problems of determining the right course of action, but other ethical problems are problems of character. That is to say, they are problems that focus on the question of what sort of personal attributes will be required of professionals. The military are almost certainly more attuned to this sort of problem than are other professions. The military realize that personal virtues like courage, discipline, loyalty, and so on are vitally necessary if soldiers, sailors, airmen, and marines are to function effectively. Most professions have very little sense that personal virtues are indispensable, and I suspect that even the military may not consider the development of virtue to be a component of education in ethics.

Can Professional Ethics Serve the Professions?

As mentioned above, the idea that ethics is somehow in conflict with practical thinking, or at least practical thinking as it is understood by the professions, is quite common. It is present among ethicists and widely shared by practicing professionals, many of whom believe that ethical consideration get in the way of best practice.

People who hold this view misunderstand what ethics is really about, or perhaps it might be better to say that ethics has been presented to them in a distorted way. In fact, so long as ethics is conceived in this way it cannot be of much use as a practical discipline; indeed, it cannot be a practical discipline at all. Many economists and managers, for example, share the view that ethical reflection is useful in the world of business only insofar as it respects the distinctive character of the economic dimension of life. The world of commerce, in other words, is hard reality, while ethics is an artifact, perhaps even an ideology. Moral analysis, it is commonly thought, may be helpful in reducing or resolving the inner tensions that many businesspeople experience, but it is out of place if it attempts to direct or constrain practical decision-making in the real world. Similar views can be found in medicine, where practitioners are often bewildered and dismissive of ethical concerns raised about new techniques, or among lawyers, who quickly become cynical about truth and justice.

In fact, this false distinction between the practical and the ethical plagues contemporary discussions of professional ethics in all areas. As a result, while practitioners feel that, at least in some critical instances, ethics interferes with sound practice, moralists fear that without ethical reflection to guide it, professional practice is liable to be reduced merely to a soulless technical exercise. The tension that is perceived to exist between doing what is necessary for success (properly considered) and doing what is right is artificial but nonetheless powerful.

Moral Thinking and Technical Thinking

The truth of the matter is that practical thinking concerns both means and ends. As our technological abilities have expanded in so many areas, there has been a natural tendency to focus attention on refining and improving means. In other words, technical thinking (which is thinking about means) has come to dominate practical thinking, especially in the professions. We become so attentive to what we can do that we are distracted from considering whether we ought to do it. This is particularly evident in the medical profession and the life sciences, where many professionals have become seduced by the power of their techniques and unable to think clearly about the morality of employing the techniques.

A further sign of this is the intense concern manifested in many professions with questions of efficiency and effectiveness. These are technical concerns, but they are not the only practical questions we ought to ask.

By contrast, moral thinking embraces considerations of both means and ends. Technical thinking is not a subset of moral thinking, but it is properly qualified and channeled by moral thinking. That is, technical thinking answers the question of whether something can be done (and if so, how to do it), but moral thinking addresses the question of whether it should be done (and if so, under what conditions).

Practical thinking requires technical thinking, to be sure, but without moral thinking, practice is a loose cannon, capable of doing great harm in its lack of direction. In the end, doing what is right—conforming action to moral thinking—is eminently practical because it always leads us in the direction of enhancing human well-being. There can be no real conflict between ethics and practicality. Genuinely practical choices achieve and protect real human goods, while unethical practices inevitably damage these human goods. And nothing is more impractical than that.

How Must Ethics Education Change to Serve the Professions Well?

In my judgment, several changes will be required before professional ethics can genuinely serve the professions effectively. Here are five areas in which I believe changes will be critical.

First, ethicists must address the false distinction between the ethical and the practical. They must provide credible explanations to show why professional practice dominated by technical thinking is impractical, in fact, and potentially dangerous to human well-being and the common good. In order to do this, ethicists must review their own assumptions and prejudices, and think more clearly about the goods that each profession serves. For example, in the context of the business professions, ethicists need to distance themselves from the notion that business is simply or primarily about acquiring money, and as much money as possible. They need to show that business serves a variety of human goods, such as satisfactory employment, and that the pursuit of these goods must be balanced against the good of creating wealth. The false distinction between the ethical and the practical is rooted in mistaken ideas of the goods to be served, and it will disappear if these mistakes can be corrected.

Second, ethics must position itself quite differently with regard to the curriculum of professional schools. Most professional schools today are dominated by technical thinking, and this has shoved ethics, and moral thinking generally, to the margins of the curriculum. Not only is ethics instruction starved for attention in the struggle for space in student schedules, but it is largely ignored in the functional courses in the professional curriculum. The proper position of moral thinking as gently directive of technical thinking must be restored. This is not to say that professional education ought to become ethics training with a few technical courses tacked on, but rather that moral thinking ought to frame and channel what we consider to be sound professional practice, and that this ought to find its way into the technical courses in the curriculum. Note, however, that this change, like many other significant organizational changes, will absolutely require visionary leadership at the most senior levels.

Third, to be credible, ethics education must reestablish itself on a coherent, unified foundation. It cannot substitute the history of philosophy for philosophical analysis and the search for moral truth. If the discipline of professional ethics cannot do this, then it can hardly claim a legitimate place in the curriculum. At the very least, instructors in professional ethics ought to bite the bullet and choose one theoretical foundation upon which to construct a program of education.

Fourth, instructors in ethics must devise practical techniques for making morally sound decisions in ordinary cases as well as in tough and novel cases. And they must train professional students, who have already been brought to a clear understanding of the goods to be served by their professional practice, in the use of these techniques.

Fifth, professional ethics must attend to the importance and the development of character in candidates for the professions. While this may once have played a larger role in formation than it does now, its evident neglect must be remedied. Ethicists must take on the task of clarifying which virtues are especially important for different professions and assist in devising means of cultivating these virtues in students.

I cannot, after all, answer the question of whether professional ethics fails the profession of arms. If it shares the problems of other areas of professional ethics, then I fear that it might. But if that is the case, it can be reformed and renewed to become an effective instrument for promoting professional excellence.

NOTES