Articles,  Issue XXI, Jan 2021

Is Law Obstructing Justice? COVID-19: A Critical View of Legal vs. Ethical

We walk a path clothed in a wide array of different shades of moral gray. We create the rules we later bend and set the stage for an epic battle of temptations that inhabit our famished egos. And in that path to find the right shade of moral gray that will cast our footprint along the way, we often stumble upon the dichotomy of aligning legal and ethical behavior.

The difference between them is what you are able to do without punishment, following the letter of the law, versus what you are expected to do following your own value system and the reigning moral status quo. Consequently, even though there is the expectation that human values be codified in legal form, we are confronted with a global advocacy agenda that demands protecting principles not yet translated into code. Such concerns relate to environmental matters, human rights, social responsibility, accountability and transparency with an underlying premise to prevent corruption.

During the current COVID-19 pandemic, we have witnessed public officials forced to resign due to increasing reports of fraud, mismanagement of public funds and money laundering. According to recent reports, the international organization that monitors protections against money laundering and terrorism financing said that fraud related to coronavirus is on the rise.

The Financial Action Task Force (FATF) released an update on “risk information and recent case studies demonstrating how criminals have been taking advantage of the COVID-19 pandemic with an increase in counterfeiting, cybercrime and fraud related to stimulus measures.” (U.S. Department of Treasury, October 2020)

Under the premise of an imminent health crisis, norms and regulations have become flexible, procurement protocols overridden, whistleblowers silenced, audit institutions bypassed, and governance and accountability weakened. From East to West, this pandemic has exposed the highest integrity deviations the world has seen at a unison, hitting already crippled economies while isolating entire societies from each other. Deviant interests have seen this health crisis as an opportunity to overlook ethical principles and smoothly ride the corruption wave through the gray corridor of the law.

The legal vs. ethical paradox

When we juxtapose the terms law and ethics, the differences between them start to display.

I define ethics as the accepted moral rules and guidelines that lead a person or society; which establish what is good or bad, right or wrong. Ethics are the code of conduct agreed and adopted by the people. They are the collection of fundamental notions and principles of an ideal human character that assist in making decisions with judgment.

I consider law as the system of universally established rules and regulations created by a legitimate governing authority to oversee the actions of its constituents, enforceable through the imposition of penalties. The law is created with the purpose of maintaining social order, peace and justice in the society. Every individual and organization is bound to follow the law. It is created after considering ethical principles and moral values.

Yet, as friendly as they may seem, these two concepts often either collide or are far apart from each other, which leaves room for policy ambiguity and blurred judgment. This ambiguity allows for corruption to creep in and find a nesting place seeking  to gain strength. Even though not per se a crime, corruption swiftly finds the flaws around the rules that govern our system and lures individuals into an alley of devious considerations.

Legal obligations and ethical responsibilities do not always correspond. Something may be legal, like tax havens, but we may consider it objectionable. In contrast, we may consider something morally right, like assisted death/euthanasia, but it may not be legal. Moreover, the steadfast advancement of technology is challenging this balance at its very core, as we have seen with the big regulatory void on blockchain and cryptocurrency frameworks or experiments on genetic manipulation.

Nevertheless, as seen in these definitions, the expectation is that compliance with the law, while paramount, does not extinguish the duty to act in the public interest and in accordance with social principles. However, there is no moral court to judge unethical behavior not prescribed as crimes under the law.

The expectation of ethical behavior and common law to be in alignment should be revisited and redefined, as many current legal frameworks are actually obstructing the expectation of safeguarding ethical behavior. ‘Legalised corruption’ is flourishing in the cracks of an osteoporotic regulatory system. It is hiding in legal loopholes, right where discernment is overpowered by greed.

COVID-19 and the law of the jungle

We might agree that the law sets minimum standards of behavior while ethics sets maximum standards. Hence, the distance between these two is where corruption comfortably inhabits. This grey regulatory area is where the law of the jungle is enthroned. The greater the gap between law and ethics, the stronger the social strain. To compensate for this gap in safeguarding the compliance of society’s expectations on individual rights and institutional code of conduct, organizations are increasingly facing public scrutiny for their ethical misconduct, some of which perhaps not illegal per se.

Experts have claimed that, out of the estimated more than 7 trillion the world spends in health services, between 10% to 25% is lost to corruption (The Lancet, 2019). Some assert this is not a consequence of culture but of institutional design. Even if tempting, we will not  question the motives for the ambiguities of certain hazy regulations and whether or not they have been purposefully seeded to allow for accommodating loopholes or if they are part of the challenge of scripting fair rules within communities with diverse norms and ethos.

Yet, it is clear that during the present health crisis, these loopholes have allowed for ample extensions of power granted to government officials able to spend great amounts of public funds to save lives and livelihoods. Abuses have multiplied thanks/due to the emergency tenor of contracts, the unsupervised mechanisms of procurement, the limited availability of supplies, and the newly established market prices. As an example, “dozens of corrupt officials and politicians in Latin America are losing their jobs over fishy health care dealings during the coronavirus pandemic” (Deutsche Welle, June 2020).

Furthermore, as part of the EU efforts to tackle the COVID-19 crisis, “The European Commission has suspended the delivery of 10 million Chinese masks to member states and the United Kingdom after two countries complained about the poor quality of the batches they received” (Aljazeera, May 2020).

One of the most controversial business decisions for the healthcare industry is to establish an equitable return on investment after spending a substantial amount on failed drugs before finding a successful one. Pharmaceuticals raise drug prices with the argument that it finances research and development for better treatments or for the development of a vaccine. Maximizing profits for shareholders is sometimes done at the expense of ethical standards, like access to healthcare. Thus, establishing market access is, in essence, an issue of values that weighs the widespread availability of a drug and its profitability.

The U.S. Department of Justice confirmed that Purdue Pharma filed for bankruptcy and “will plead guilty to three felonies and pay $8.3 billion to settle federal probes of how it marketed OxyContin, the highly addictive painkiller blamed for helping spark the U.S. opioid epidemic.” (Bloomberg Government, October 2020)

These sorts of transgressions have offset an uprising in social empowerment increasingly demanding that governments and companies to follow ethical norms and act responsibly towards society or face commercial boycotts and public opinion demise. Individuals and businesses with low ethical standards may yield short-term financial gains but risk damaging their reputation in the long term, challenging the very core of their existence to the point of risking their survival.

The COVID-19 legacy

This health crisis has exposed the true nature of leaders performing under pressure, revealing the breaches in governance and ethics. Yet, COVID-19 has been only a vehicle that evidences how flexible our current regulatory frameworks are and how wide the gray moral corridors have become. It is in these cases where justice appears to be obstructed by the same code of law that claims to preserve it.

At the core of this predicament lies the observation of an empowered society in need of a vast regulatory review in accordance with a sovereign ethical structure empowered by education, governed by suitable laws and enforced by a compelling compliance system with improved mechanisms of enforcement and accountability controls.

If the end purpose of the law is to protect the ethical principles of society, this health crisis has the potential to leave us rethinking which values are worth safeguarding, as our current regulatory system may very well be inconspicuously allowing transgressions to the same values it intends to preserve. Because the end may justify the means… but what justifies the end?

References

U.S. DEPARTMENT OF THE TREASURY (October 23, 2020) Financial Action Task Force Adopts New Standards on Proliferation Financing, and advances work on COVID-19 AML/CFT Risks, and Trade-Based Money Laundering. Available at: https://home.treasury.gov/news/press-releases/sm1163

Corruption in global health: the open secret (The Lancet, November 27, 2019). Available at: https://www.thelancet.com/journals/lancet/article/PIIS0140-6736(19)32527-9/fulltext

Coronavirus: Latin America’s corruption fighters gain new ground (Deutsche Welle, June 2, 2020) Available at: https://www.dw.com/en/coronavirus-latin-americas-corruption-fighters-gain-new-ground/a-53661216

Europe halts delivery of 10 million ‘poor quality’ Chinese masks (Aljazeera, May 14, 2020). Available at: https://www.aljazeera.com/news/2020/5/14/europe-halts-delivery-of-10-million-poor-quality-chinese-masks

Healthcare Briefing: Purdue to Plead Guilty Over Opioid Crisis (Bloomberg Government, October 22, 2020). Available at: https://about.bgov.com/news/health-care-briefing-purdue-to-plead-guilty-over-opioid-crisis/