The answer being: when there are real sanctions: “If such sanctions are absent, the code is just a list of pieties.” (USlegal.com)
This post gives some background to what Codes of Ethics are about, including some legal stuff. I’ve summarised some general codes useful to ethics policy in higher and further education elsewhere on this blog, and I’m building a page on Codes (additions welcome!).
First, the unscrupulous pirate captain from Pirates of the Caribbean sums things up nicely:
Our heroine (who, on boarding a pirate ship, is about to be held hostage): Wait, you have to take me to shore, according to the code of the Order of the Brethren …
Captain Barbarossa: First, your return to shore was not part of our negotiations nor our agreement, so I must do nothing. And secondly you must be a pirate for the Pirate’s Code to apply and you’re not. And thirdly, the code is more of what you call “guidelines” than actual rules. Welcome aboard the Black Pearl, Miss Turner!
Code – legal context: The word code here has a legal origin. A law code is ‘a more or less systematic and comprehensive written statement of laws’. (Britannica Academic Edition). Codes that are enacted by the State are not common in common-law countries such as the UK. ‘Stare decisis’ is the principle that underpins all common law systems – ‘similar cases should be decided according to consistent principled rules so that they will reach similar results’. In common law, if a judge has to rule on a situation that is fundamentally different to all preceding cases, he or she creates new law in their ruling on the case before them. If there is a code, this over-rules the common law approach.
History: Very briefly, the best known early Code was Babylonian – the Code of Hammurabi, of 1790BC. It uses the ‘if … then… ‘ approach, common to Codes (eg ‘If any Man shall offer to run away, or keep any Secret from the Company, he shall be marooned with one Bottle of Powder, one Bottle of Water, one small Arm, and Shot’ – pirate code of Captain John Phillips, 1724)
An important step forwards came with the Romans, though quite late in the (Roman) day – Emperor Justinian had his laws brought together into one system, the Justinian Code (529AD).
The Hippcratic Oath is not really a code. It has been revised and updated several times, but an article in the BMJ in 1994 apparently reported that only 50% of British medical students swear an oath (while nearly all US medics do – oaths may be more popular in the US because citizens there grow up swearing allegiance to the flag). (This is referenced in a 2001 article in the BMJ which goes on to state that ‘Oaths are neither a universal endeavour nor a legal obligation, and they cannot guarantee morality’.)
Getting back to codes, a famous example is the Napoleonic Code, which forbade privileges based on birth, allowed freedom of religion, and stated that government jobs should go to the most qualified. This and the German Civil Code have been important models for subsequent civil codes enacted by governments.
In the US, the Sarbanes-Oxley Act (“SOX”), requires that corporations whose stock is traded under the provisions of the Securities Exchange Act of 1934 must publish their codes of ethics, if these exist. The Act was passed in the wake of the ENRON scandal.
Codes of ethics and codes of conduct – what’s the difference? “A code of conduct is generally addressed to staff and is predominantly an internal tool for organisaitons. It provides guidance and usually sets out restricitons on behaviour. A code of ethics… will start by setting out the values that underpin the code of conduct and will describe an organisaiton’s obligations to … anyone with an interest in the organisation.”
Ethics Matters: Managing Ethical Issues in Higher Education p 11
Some typical features of a code of ethics: There is not complete convergence on this, but the Institute of Business Ethics sums a code of ethics up as follows:
“Its main purpose is to provide guidance to staff. Unlike a code of conduct which is generally “do this or else” in tone, a code of ethics will usually be predominantly aspirational and supportive. The code illustrates how a company’s values translate into concrete policies, procedures and standards. “
Here are some pointers from USlegal.com:
- A code is formal.
- It is published.
- You may be required to sign it.
- It should be brief.
- If it comes off the peg (eg straight after some scandal) it is unlikely to have much purchase.
- It starts with principles, and then sets out the standards of behaviour.
- Obeying the law may be the first standard, but higher ethical standards come next.
“Obeying the law is the minimum level of ethical conduct enforced in society; ethical behavior includes more than simply legal behavior. It is unethical to lie, for instance; but lying is against the law only under certain limited circumstances.” (USlegal.com)
- There are likely to specific rules regarding for instance preferential treatment, harassment, breach of contract, gifts etc.
- It is helpful to have short illustrations of the appropriate behaviour, as part of the guidance.
- A Code may refer to other professional codes if these are relevant.
- Sanctions will be set out for those who impinge the Code, with guidance on how such sanctions can be reported, and how they will be assessed.
- Not all ethical infringements of a Code will be illegal, so sanctions have to take this into account.
According to the Institute of Business Ethics, “Many codes fail because they suffer an identity crisis. It is not clear who or what they are for . They are often not designed or written with their reader in mind nor the context in which they are intended to be used.”
The Institute of Business Ethics (IBE) is a great resource for anyone wanting to set up a Code of Ethics. For instance, see their publication ‘Developing a Code of Ethics’, by Simon Webley. IBE joined up with a number of other organisations to produce the very helpful Ethics Matters: Managing Ethical Issues in Higher Education. I also recommend the US Legal webpage on codes.
Codes of ethics that really really count: The higher the degree of professionalism required of society members, the stronger and, therefore, more enforceable the code. (Legal dictionary)
If a profession is licensed, its code of ethics is all the more important. “licenses are usually issued in order to regulate some activity that is deemed to be dangerous or a threat to the person or the public or which involves a high level of specialized skill” (Wikipedia). Lawyers, architects, doctors, accountants and others have to be given a license to practice by a professional body
All professional codes can be considered quasi-public because of the effect they may have on legal judgments during litigation. (Legal dictionary).
So that’s where the teeth are sharpest.