Syracuse University Legalism Responses


Reading Response Guidelines
A Reading Responses (RR) is an opportunity for students to individually reflect on what we read in class. Understanding, questioning, and writing about texts is part of the work of a philosopher. RRs are also opportunities for students to prepare to talk about texts in class. A thoughtful RR translates to a prepared and robust classroom discussion. 
First paragraph:
What is the author’s perspective when considering the text as a whole? You should try to restate the text into your own words, but this is different from merely restating each paragraph from beginning to end. How would you explain this perspective to a reasonably intelligent friend? How about a parent, who thinks taking philosophy classes is a waste of time? When doing this, it’s important to keep in mind something called the principle of charity. This is the idea that we should try to make as much sense of another’s argument as we can before we criticize it. When a charitable listener hears something that doesn’t make sense to them, they work to figure out how the other person might have arrived at that idea. 
Second paragraph: 
What evidence from the text supports your interpretation of the author’s perspective? How did you arrive at this particular interpretation of the text? Here you’re quoting specific sentences and relating them to your interpretation in the first paragraph. Please provide page numbers so others can more easily follow your thinking. 
Third paragraph: 
What do you think about what the author is saying? You can respond in any number of ways. You might argue that the author’s reasons they give don’t support their conclusion. You might provide additional examples or counterexamples, tell a story, refer to another relevant text, ask questions, or reframe the discussion to suggest another way to see the problem

Professional Responsibility: Just Following the Rules?
Author(s): Michael Davis
Source: Business & Professional Ethics Journal, Vol. 18, No. 1 (Spring 1999), pp. 65-87
Published by: Philosophy Documentation Center
Stable URL: .
Accessed: 16/01/2015 12:39
Your use of the JSTOR archive indicates your acceptance of the Terms & Conditions of Use, available at .

JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide range of
content in a trusted digital archive. We use information technology and tools to increase productivity and facilitate new forms
of scholarship. For more information about JSTOR, please contact
Philosophy Documentation Center is collaborating with JSTOR to digitize, preserve and extend access to
Business &Professional Ethics Journal.

This content downloaded from on Fri, 16 Jan 2015 12:39:27 PM
All use subject to JSTOR Terms and Conditions
VOL. 18,NO. 1
Professional Responsibility:
JustFollowing theRules?
Michael Davis
My subject is a criticism of conduct which runs something like this:
‘That’s not acting responsibly, that’s just following the rules.” The
criticism appears as an attack on “legalism” in both business and profes
sional ethics. While my focus here will be on professional ethics,
everything I say should, with minor changes, apply equally well to
following corporate or other business codes of ethics.
Legalism (it is said) reduces professional responsibility todoing as the
profession’s code of ethics requires; professional responsibility, likemoral
responsibility generally, is more open-ended, including (among other
things) certain virtues.2 My subject thus overlaps the larger debate in
moral theorybetween “principle ethics” and “virtue ethics.” I shall draw
some conclusions relevant to thatdebate.
My thesis is that following “the rules,” while not all there is to
professional ethics, is generally enough for responsible conduct (or, at
least, is so when the profession’s code of ethics is reasonably well-written,
as most are). Rules set the standard of professional conduct; just following
those rules, in a relatively robustbut not unusual sense of “following those
rules,” just is acting as a responsible professional.
L Some Preliminaries
The attack on legalism need not be put in termsof rules. One can make it
in termsof “just satisfyingone’s obligations [orduties]” or “just respecting
Business and Professional Ethics Journal 1999. Communication may
be sent toMichael Davis, Center for the Study ofEthics in theProfessions,
Illinois Institute of Technology, Chicago, IL 60616; email: davism@
This content downloaded from on Fri, 16 Jan 2015 12:39:27 PM
All use subject to JSTOR Terms and Conditions
Business and Professional Ethics Journal
others’ rights.” Indeed, Caroline Whitbeck recently combined all three
versions in one omnibus attack on legalism: “Ifrights and obligations or
rules about what acts to perform or refrainfrom performingwere all there
were to professional ethics, itwould be a simple matter and hardly worthy
of attention in a college course.”3
I shall, however, have littlemore to say about obligations or rights
here for two reasons. First, obligations and rights can be, and often are,
stated as rules. Hence, any discussion of rules implicitly includes
obligations and rights (more or less). Second, any separate discussion of
obligations or rightswould complicate my defense of legalism a good deal
without adding much of substance.4 So, I shall concentrate on rules.
When mere rule-following is contrastedwith acting responsibly, there
is always something thatmere rule-following is supposed to leave out
(hence the “mere”). Whitbeck, for example, explains in the following way
why professional ethics deserves attention in a college course: “The
exercise of responsibility typically requires the exercise of discretion and
consideration ofmany technical matters and matters of value.”5 For her,
what mere rule-following must leave out is, it seems, all exercise of
discretion, technical knowledge, and consideration of value. She does not
explain why mere rule-followingmust leave all this out. The explanation
as I shall now show.
is not obvious
Consider this brief rule of engineering ethics having its counterpart
in the code of ethics ofmost professions: “Engineers shall perform services
only in areas of their competence.”6 Sometimes engineers do not need
discretion or even much technical knowledge to know that the service in
question is beyond their competence. (Think of an engineer asked to do
brain surgery because she has a doctorate
in engineering.) Often,
however, engineers do need discretion, technical knowledge, and an
understanding of the values inherent in engineering’s conception of
competence todecide whether a certain service iswithin theircompetence.
For example, whether writing a certain computer program iswithin the
competence of an engineer may depend in part on whether the errors she
is likely to commit given her skillwould create substantial risks for users
or thirdparties. Deciding whether a risk is substantial combines technical
judgments (such-and-such errors are likely)with judgments of value (the
risks are, or are not, substantial).
We must, I think,assume thatWhitbeck knows this. So, her criticism
of rulesmust make a differentpoint one her words leave us toguess. We
This content downloaded from on Fri, 16 Jan 2015 12:39:27 PM
All use subject to JSTOR Terms and Conditions
Professional Responsibility
are, then, in no position to decide whether her criticism of rules or the
similar criticism of others is justified until we understand what “just
following the rules” leaves out. And we are not likely to understand that
until we understand what just following the rules might be. For that
reason, I devote the body of this paper to considering seven different
interpretationsof “just following the rules,” all that I have found in the
literature,noticed in conversation, ormade up onmy own: blind obedience,
strict obedience, malicious obedience, negligent obedience, accidental
obedience, stupid obedience, and interpretative obedience.7 Having
examined these seven, I conclude that,forprofessional ethics at least, the
criticism of just following the rules is unjustified. Under all but one
interpretationof “just following the rules,” the rules are not in fact being
followed. Under that one (the interpretative), there is nothing obviously
wrong with just following the rules.
IL Following Rules Blindly or Strictly
Part of teaching someone to follow a rule is teaching what the rule is.
Many rules are (in part) linguistic entities. Learning such a rule is (in part)
learning itsformula (“by heart,” as we say). Many of us first “learned” the
alphabet in thisway, learning only laterwhat the sounds “ay,” “be,” “see,”
and so on meant. (I still remembermy surprisewhen some weeks intofirst
grade I realized that “ellemmennopee” referred to five distinct let
ters rather than to an indistinct tangle in themiddle of the alphabet.)
Someone who has “learned” a rule only in thisway has little, if any,
His knowledge is as we
understanding of what the rule means.
If ruleswere merely verbal entities, as nonsense syllables are, learning
themwould amount tonothingmore thanmemorizing formulas. Such rote
learning is (asWhitbeck says) not worth the attention of a college course.
But rules, especially the rules of professional ethics, are more than non
sense syllables. They mean something. That meaning is not merely
linguistic (like themeaning ofmost puns) ormerely propositional (like the
meaning of a scientific law). What rules generally mean, and what rules
of professional ethics always mean, are acts required, allowed, or forbid
den. Rules are guides to conduct (and, so, also standards for evaluating
conduct).8 No one has learned a rule of professional ethics (in any robust
sense of “learned a rule”) who has not understood itas a guide to conduct,
This content downloaded from on Fri, 16 Jan 2015 12:39:27 PM
All use subject to JSTOR Terms and Conditions
Business and Professional Ethics Journal
indeed, who does not have a prettygood idea how to guide her conduct by
the rule. Those who learn the rules of professional ethics without
understanding how theyguide conduct have taken only a small step toward
learning them.
We should, of course, not set the standard for learning a rule too high.
We should not, for example, require perfect knowledge before we admit
that someone has learned the rule. If knowing a rule meant knowing
exactly what it required in every circumstance, who among us could claim
to know any important rule? There must be room for occasional uncer
tainty,mistake, and even being totallyat a losswhat to do. To know a rule
is not necessarily to know itperfectly.
How then are we to understand what it is to know a rule? For any
interesting rule, to know itcannot be to have a listof applications inmind.
Interesting rules have an indefinitely large number of applications. They
are not short-hand for a list. They are more like devices for generating as
much of an infinite listas we need. To know a rule, then,must be toknow,
in a general way, how touse it to generate needed applications. How does
one use a rule to generate applications? I shall sketch an answer to that
question when I discuss interpretativeobedience. For now, we need only
agree that knowing a rule (in this robust sense) is to be able to figure out
relatively quickly, inmost situationswhere we might need the information,
what the rule requires, allows, or forbids. We call this figuring out
“interpretation.MTo learn (or teach) a rule is, in part at least, to learn (or
teach) how to interpret it.
Perhaps this uncontroversial point is all that those who contrast
learning ruleswith learning to act responsibly intend tomake; that is, that
merely verbal, linguistic, or propositional knowledge of rules is not enough
to act responsibly. One must learn to interpretthe rules. If so, theirway
of putting thepoint isnotwithout warrant. Consider, for comparison, what
we would say of someone who can recite the rules of chess and even answer
questions like, “How does a kingmove?” (“One space in any direction”) but
who could not draw a chessboard or pick out the king on a properly set up
board.Mightwe notspeakofhis “merely
The warrant of usage is, however, equivocal. If anything turned on
what we said, would we not feel obliged to add some such qualification as,
“Of course, he doesn’t really know the rules” or “But he doesn’t know them
well enough to play the game”?
This content downloaded from on Fri, 16 Jan 2015 12:39:27 PM
All use subject to JSTOR Terms and Conditions
Professional Responsibility
Though our subject is not a criticism ofmerely learning or merely
knowing rules but ofmerelyfollowing them, thisdiscussion of learning and
knowing is not a digression. It has prepared theway for the firstinterpre
tation of “merely following the rules,” the very simple-minded following
of a rulewe might expect to arise from rote learning.
On this interpretation,
mere rule-following isdoing what the rule says
without concern for context or consequence
a “mechanical” or “blind”
obedience. Finding a clear example of such obedience is hard. Here is the
best I have (blind obedience, though not exactly to a rule): One day, at age
two,my sonwas having trouble opening a cabinet door because of a safety

latch. Instead of opening thedoor forhim, I advised him to “use his head.
He immediately obeyed, giving the door a hard rap with his forehead,
apparently without thought to any alternative interpretationofmy advice
or even to past experience of banging his head against a hard surface. He
has not given me such blind obedience since.
I doubt adults ever offerblind obedience. Typical examples turnout
tobe something more measured, what we might call “strictobedience.” In
strict obedience, we allow our own judgment to be short-circuited by
someone else’s. The military provides themost dramatic examples of strict
obedience (though, again, not precisely of obedience to rules).9 Consider
these lines fromTennyson’s “Charge of theLight Brigade”:
“Forward, theLight Brigade!”
Was there a man dismayed?
Not though the soldier knew
Someone had blundered.
Theirs not tomake reply,
Theirs not to reason why,
Theirs but to do or die.
Into the valley of death
Rode the six hundred.
The Light Brigade did not charge into the enemy’s massed cannon with the
withwhichmy sonrappedhisheadon thecabinetdoor
in obedience tomy (misunderstood) advice. The members of theBrigade
could “reason why” even ifdoing so was not their job. They did in fact
understand what was wrong with what theyhad been told to do: “Someone
had blundered.” (The Brigade will probably be shot to pieces, without
effect,well before reaching the enemy.) The Brigade’s members may have
This content downloaded from on Fri, 16 Jan 2015 12:39:27 PM
All use subject to JSTOR Terms and Conditions
Business and Professional Ethics Journal
been entitled to “make reply.” Many armies have procedures allowing
subordinates to object to an order judged ill-advised; in some armies, even
the ordinary soldier has a duty to refuse an order he believes unlawful.
But, unlawfulness aside, once a subordinate has questioned the order, been
heard out, and been overruled, he has no right to disobey, whatever his
final opinion of the order. He must put aside what he knows and do as
This putting-aside-of-what-one-knows may, in certain contexts, be
rational (and so, not “blind”). The division of laborbetween thosewho are
to “reason why” and those who are only to “do or die” may, taking into
account the costs and probabilities of error,make the best overall use of
available information. So, for example, theLight Brigade may have ridden
into the valley of death because itsmembers believed that,on the battle
field, acting on individual judgment generally does more harm than
obeying orders, even orders obviously mistaken. Strict obedience, though
not unthinking in the way blind obedience is, is still unthinking in a
straightforwardway: it ignores the individual’s thinking to an unusual
The battlefield is not the only place where strict obedience occurs.
Consider the courtroom. Judges sometimes defer to the ruling of a higher
court even when theybelieve the ruling iswrong. So, for example, Judge
Reinhardt inWatkins v. U.S. Army explained his dissent in thisway:
Were I free to apply my own view of the meaning of the
Constitution and in that light to pass upon the validity of the
Army’s regulations, I toowould conclude that theArmy may
not refuse to enlist homosexuals. I am bound, however, as a cir
cuit judge to apply theConstitution as ithas been interpretedby
the Supreme Court and our own circuit,whether or not I agree
with those interpretations. Because of this requirement, I am
sometimes compelled to reach a result I believe to be contrary
to theproper interpretationof constitutional principles. This is,
regrettably,one of those times.11
Though rational in some contexts, strict obedience does not seem
rational as a general way to practice a profession. Strict obedience makes
sense where judgment is justifiably separated from performance (for
example, where some “higher” authority is in the best position to “reason
why” and others, subordinates, to “do or die”). The general name for the
This content downloaded from on Fri, 16 Jan 2015 12:39:27 PM
All use subject to JSTOR Terms and Conditions
Professional Responsibility
separation of judgment fromperformance is “hierarchy.” Since hierarchy
tends to ignore what subordinates think, however well-informed and
judicious the subordinatesmay be, any justification of strictobedience must
identifya compensating advantage. On the battlefield, the compensating
advantage is pretty clear. The coordination of largemasses inmovement
is difficult under the best of conditions. In battle, with the noise and
confusion, there is littleopportunityfor joint deliberation even in a unit as
small as a platoon or squad. The alternative to obeying the order of a
superior is disorder or delay, potentially disastrous when coordination and
speed matter.
In a legal system, the advantage of hierarchy is less clear. Why, after
all, should JudgeReinhardt decline to do justice just because the Supreme
Court made (what he considers to be) a mistake? Only insofar as it is
important for the legal system tobe a “system” (in a relatively strictsense)
does his strict obedience to the authority of others make sense. If court
decisions were not published, read for guidance, and used as precedent in
later decisions, JudgeReinhardt need not care whether the decision of
another court is “inconsistent”with his. Perhaps he could not care: inwhat
sense could the decisions be “inconsistent” rather than simply different?
Seldom, ifever,would two courts have before them exactly the same issues,
parties, facts, and law.
Rules, though denizens of hierarchies, occur elsewhere as well. In
fact, many rules are (primarily) relationships among equals in whom
judgment and performance are generally combined. That is certainly true
of those rules we call “codes of professional ethics,” even though profes
sions are organizations (with officersas well as members) and rules as such
always foreclose some judgments (an engineer, for example, cannot
properly choose to ignore the public health, safety, or welfare). Some
professions have no bodies to give interpretations of their codes of ethics.
In those professions thatdo have such bodies, theygive few interpretations.
For example, theBoard of Ethical Review (BER) of theNational Society
of Professional Engineers (NSPE), one of themost active of interpretative
bodies intheprofessions,
has onlyissueda fewhundred
a century. More importantly, interpretationsof a code of ethics such as
the BER’s
lack the pre-emptive status that Judge Reinhardt accorded
decisions of theU.S. Supreme Court. So, for example, while engineers
should, all else equal, accord a relevant BER decision considerable weight
in deliberations, theyare not expected to do as the BER says if they think
This content downloaded from on Fri, 16 Jan 2015 12:39:27 PM
All use subject to JSTOR Terms and Conditions
Business and Professional Ethics Journal
theBER iswrong. The authority of theBER depends on theweight of its
reasons and on its being a body of experienced engineers, not on its
position in a hierarchy.12
Few, if any, professions demand strict obedience to an ethical
authority (such as theBER).13 But, even if they all did, the resultswould
not be relevant to our subject. Where one has rendered strictobedience to
an ethical authority, the proper description is “I was just obeying orders”
or “I was just following controlling precedent” rather than “I was just
following the rules.”
III. Malicious
Sometimes the description, “I was just following the rules,” occurs in
defense of conduct. To have acted according to the rules, however bad the
outcome and however foolish the rules, is to have acted in a way insulating
one from (full) responsibility. The most common use of “just following
rules” in this sense, or at least themost visible, iswhen employees “strike”
their employer by “working to rule” or “going by the book.” This form of
strike is particularly satisfying to employees and maddening for the
employer. The employees continue to be paid, though they are costing
their employer money, time, and grief. The employer cannot complain
without admitting that “thebook” iswrong. For many employers, thepoint
of having “the book” is to have a basis for disciplining employees when
they fail to do as they should. So, working to rule catches the employer in
his own trap. One way or another, the employer must “eat his words.”
Think, for example, how the police can bring trafficto a halt on a busy
highway simply by ticketing every trafficviolation theyobserve as many
police manuals require.
What does working to rule leave out? Another name forworking to
rule, “malicious obedience,” suggests an answer. What working to rule
leaves out is the good will employees otherwise give their employer.
Ordinarily, employees interpretthe rules to take into account the inability
of general language to anticipate special cases; they trytounderstand what
theemployeris tryingto achieveby layingdown such rules; theyuse
In both, there is an
Working to rule resembles strict obedience.
obvious disconnect between what a reasonable person would think should
be done, all else equal, and what the person in question is doing. In both
This content downloaded from on Fri, 16 Jan 2015 12:39:27 PM
All use subject to JSTOR Terms and Conditions
Professional Responsibility
too, there is a reason, though not the same reason, for the disconnect. The
difference between strict obedience and working to rule is that, in strict
obedience, the reason for the disconnect is the overall good of the
enterprise; in working to rule, the reason is the exact opposite. The
employee takes into account what would be good for the employer only in
order to choose an interpretativestrategy to defeat it.
We may distinguish a weak sense and a strong sense of malicious
In the weak sense, malicious obedience is the malicious
interpretative strategy that is not itselfmalicious.
example, theprinciple “Be literal”might be adopted for reasons other than
malice. But, inworking to rule, it is adopted maliciously, that is,with the
intent, expectation, or hope that literalness will make trouble for the
employer. Malicious obedience in the strong sense carries malice one step
further. Not only is the interpretative strategy adopted maliciously but
what is adopted also has malice built into it,for example, “Choose themost
damaging interpretation the language allows.”
What do these two forms of working to rule have to do with just
following a code of professional ethics? For most of these codes, the
answer must be: little. The codes themselves contain rules of interpreta
tion. Often gathered at the frontunder the heading “preamble,” “princi
ples,” or “canons” to distinguish them from less general directives, these
rules of interpretation effectively rule out malicious obedience.
“Fundamental Canons” that seem to rule outmalice:
Engineers, in the fulfillmentof theirprofessional duties, shall:
1. Hold paramount the safety,health, and welfare of thepublic
in the performance of theirprofessional duties….
4. Act in professional matters for each employer or client as
faithful agents or trustees.14
Specific rules of practice must then be read to protect the public welfare
and to serve the employer as a faithful agent or trustee. An engineer
cannot simply work to rule.
But, itmight be argued, engineers can still read these fundamental
canons more or lessmaliciously. Indeed theycan. The question, however,
is whether a malicious interpretation of such interpretative rules can
generate the damaging conduct thatmalicious
interpr?tation of more
can one be about,
This content downloaded from on Fri, 16 Jan 2015 12:39:27 PM
All use subject to JSTOR Terms and Conditions
Business and Professional Ethics Journal
for example, holding thepublic welfare paramount in the interpretationof
the rules of practice? Clearly, there ismuch less room for effectivemalice.
But, even if the fundamental canons could by themselves be given an
effectivelymalicious interpretation,theNSPE code has a fail-safe feature.
Its preamble contains a principle for interpreting the canons: “In the
practice of theirprofession, engineers must perform under a standard of
professional behavior which requires adherence to the highest principles
of ethical conduct on behalf of public, employers, and the profession.”15
I do not claim that such general principles of interpretationmake
following the rules easy. On the contrary, I admit that theymake following
the rules hard. My point is that, as they do, they also rule out most,
perhaps all, of themalicious interpretationsof rules necessary formalicious
Or, tobe more precise, that is one ofmy points. Malicious obedience
requires a conscious misunderstanding of the rules; there can also be
unconscious misunderstanding. For example, engineers have been known
to argue that the rule requiring them to serve each client or employer as a
faithfulagent or trustee imposes a professional obligation t? cut costs even
when doing so endangers the public. These engineers neither reject the
obligation to the public welfare normisinterpret it. They just do not think
of it as they try to do what they should. They fail to exercise reasonable
care in interpreting their professional code. Ifmalicious obedience is a
conscious failure to exercise reasonable care in interpretingthe rules, then
what we are now contemplating is an unconscious failure. We must now
consider three forms of unconscious failure to just follow the rules.
IV. Negligent
and Accidental
Some writers have recently taken to contrasting the law’s “malpractice” or
“negligence” standard of tort liabilitywith the “due care” (or “reasonable
care”) standard of trueprofessionalism.16 Until I read thesewriters, I had
supposed that negligence was a relatively clear concept. I now see that it
is not. So, to avoid misunderstanding, letme explain what I once supposed
In the common law, both American and English, negligence is,
almost by definition, a failure to exercise due care in our relations with
others. In negligence law, the interestingquestion is not whether anyone,
especially a professional, should be held to thedue-care standard. Due care
This content downloaded from on Fri, 16 Jan 2015 12:39:27 PM
All use subject to JSTOR Terms and Conditions
Professional Responsibility
is theminimum standard even for a child or a madman. The interesting
question is what due care requires. For example, Prosser, the leading
authority on torts,understands a failure of due care as “[conduct] which
should be recognized as involving unreasonable danger to others.”17
Any distinction between what one’s profession requires and what is
merely legally required cannot be made in termsof “due care” or, at least,
cannot be so made without inviting confusion.18 A profession does not
need a code of ethics to be held to the standard of due care. The law
already does that; anymalpractice suit (fornegligence) will allege a failure
of due care. What a code of professional ethics does, if itdoes anything
beyond restating existing legal obligations, is to set a new standard of care,
one higher than existed before. That new standard can, in virtue of the
code, become what may reasonably be expected of members of the
profession, since it is reasonable to expect members of a profession to do
what they commit themselves to doing. Some dangers that had been
reasonable before would then become unreasonable, raising the legal
minimum for members of the profession and thereby turning into
malpractice conduct previously allowed to theprofession (and still allowed
to others). A profession’s code of ethics helps definewhat care is due from
members of that profession and, in doing that, sets the standard of
malpractice for them. But, whatever the standard, anything less than good
practice ismalpractice.19
While all negligence is negligent obedience (as I shall use that term),
not all negligent obedience is negligence. In law, negligence requires, in
addition to a failure of due care, that the failure cause harm to someone
(other than the agent). Negligent obedience, in contrast, does not require
harm to anyone or even that such harm be risked. Of course, much,
perhaps most, negligent obedience does harm to others or at least risks
it because much professional work improperly done, perhaps most,
increases the probability of harm to client, employer, or thirdparty. But
that is a matter of fact, not part of the definition of “negligent obedience.”
Negligent obedience is, then, a failure to exercise due care in
following the relevant rules, whether the failure unreasonably risks harm
to others or is in some otherway faulty. Negligent obedience differs from
(whatwe shall call) stupid obedience in that the failure need not arise from
an inability to act as one should. Stupid obedience is a matter of compe
tence; negligent obedience is not (or, at least, need not be).
This content downloaded from on Fri, 16 Jan 2015 12:39:27 PM
All use subject to JSTOR Terms and Conditions
Business and Professional Ethics Journal
The term “negligent obedience” may seem paradoxical. Insofar as the
Is it not
obedience in question is negligent, how can it be obedience?
literally a failure to obey? But, insofar as the obedience in question is
literally obedience, how can itbe negligent? The paradox is resolved by
distinguishing the subjective side of obedience from the objective.
Subjectively, that is, from the point of view of the agent, negligent
obedience is obedience. The agent must believe that she is acting as she
should or her disobedience (sic) would be malicious, not negligent. She
must, in other words, mean well even as she in fact fails to do what
meaning well would ordinarily lead her, or at least someone of ordinary
prudence, to do. What she does fails tobe obedience only objectively, that
is, from the point of view of people of ordinary prudence not directly
What if,from the point of view of ordinary prudence, she seemed to
follow the rule, but did sowithout knowing or intending it?Her act would
correspond towhat the rule required, but only by accident.20 This is an
exotic form of acting according to the rule rather than following it.
Though she might (truthfully and effectively) defend her conduct by
saying, “I followed the rule,” she could not defend itby saying, “Iwas just
following the rule.” “I followed the rule” means that she did nothing
contrary to the rule; “Iwas just following the rule”may, ormay not, mean
that,but italways means that she satisfied the subjective condition, that is,
that she at least tried to determine what the rule requires.
What if she did try to follow the rule, though in a way we would
regard as clearly negligent had she not in fact acted in accordance with the
rule? We would be inclined to say (something like): “Well, all’s well that

ends well, but you really should learn how to interpretthe rule. We would
not, inotherwords, regard her as someone who was just following the rules
(in a sense requiring no apology). Trying to follow the rule is not all there
is to the subjective side; the tryingmust meet a certain standard of care.
The tryingmust be of a sort likely to result in following the rule.
Negligent obedience is always a failure to follow the rule; accidental
obedience, while not a failure to follow the rule, is at least a failure to
follow the rule for theright reason, that is, because one has understood it
properly. Negligent failure tounderstand the rule properlymay arise from
lack of the appropriate virtue (such as carefulness). But itneed not. Lack
of virtue is neither necessary nor sufficientfor negligent obedience.
This content downloaded from on Fri, 16 Jan 2015 12:39:27 PM
All use subject to JSTOR Terms and Conditions
Professional Responsibility
A virtue is a disposition to do a certain sort of good thing. For
example, the virtue of carefulness is the disposition to exercise due care.
A disposition must be either perfect or imperfect. Ifperfect, itcould never
fail anyone who fullypossessed it. So (to continue with our example),
someone who fullypossessed the virtue of carefulness would always act
with reasonable care. If imperfect, the disposition could sometimes fail
even someone who fullypossessed it. Since nothing human is perfect, a
perfect virtue is not a human virtue. Any human virtue, including the
virtue of carefulness, must be imperfect. Being imperfect, it cannot
guarantee, even to someone who fullypossesses it, that shewill always act
with due care.
What then of the truism that justice iswhat the justman does? Like
most truisms, this one is either true but uninteresting or interesting but
false. It is trueas a rule of thumb. The just man generally does act justly;
his acts are a good guide to what is just. The truism fails only when
interpreted as a definition. Justice cannot be exactly what the just man
does because even a just man, being human, will sometimes act unjustly.
Sometimes he will act unjustly by accident, that is, for reasons independent
of his virtuous disposition. That point, though enough to refutethe truism
as-definition, is not my chief point. My chief point is that an act arising
from the virtuous disposition can also be unjust. It can be unjust because
thevirtue, understood as a disposition realized in a human body,must itself
be imperfect, that is, liable tomisfire now and then.
The truism-as-definition can, of course, be saved by turning the just
man into an abstraction, a being defined not by a particular history but
a set of rules stating what the just man would do (if he were
just).21 But saving the truism in this way should not appeal to virtue
theorists. Virtue defined by a set of rules would be principle ethics in
virtue’s language.22 The just man
so understood
is not a man.
So, some negligent obedience may arise even where everyone is as
virtuous as humanly possible. The prudent person (a human being), acting
as judge, may see error the prudent person as agent (also a human
mightoverlook(even thoughshe shouldnot). Lack ofvirtueis not a
necessary condition of negligent obedience.
Lack of virtue is also not a sufficient condition for negligent
obedience. Even a relatively careless person can (sometimes) exercise due
care though she may have to tryhard to do it. Her
tryinghard enough
may, as a matter of fact, arise (in part) from other virtues, such as practical
This content downloaded from on Fri, 16 Jan 2015 12:39:27 PM
All use subject to JSTOR Terms and Conditions
Business and Professional Ethics Journal
or concern for others; but, itmight also arise from less noble
grounds, such as greed or fear of punishment. Whatever theground, ifshe
tries hard, shemay be able to do as the rule requires; doing that, she does
not act negligently, however lacking in thevirtue of care shemay be. Nor
is her obedience merely accidental; it is the ordinary consequence of her
deliberate effort.
Since lack of virtue is neither necessary nor sufficientfor negligent
obedience, negligent obedience cannot be understood as a failure of virtue
(a failure to have, or to act from, the virtue of due care). Negligent
obedience must, instead, be understood as a failure to follow certain rules
(for example, “Avoid unreasonable risk to others”).
In saying this, I am not denying that acting well is easier if one is
virtuous than ifone is not. I agree that,for example, a competent engineer
ismore likely to exercise due care in his professional work ifhe is honest,
meticulous, alert, thoughtful, and serious than if he is not. All I am
denying is that the linkbetween good conduct and any particular virtue (or
virtue in general) is close enough that, even under the best possible
conditions, the one can guarantee the other; acting from virtue is no
substitute for just following the rules.
V. Stupid Obedience
Those who obey stupidly resemble the negligent in unconsciously failing
to exercise due care in interpretingthe relevant rules. They differfrom the
negligent only in the cause of failure. Unlike thenegligent, the stupid fail
because theydo not know better. The cause of not knowing bettermay be
original, that is, a lack of native wit, or educational, for example, never
having been taught how to interpretthe rule inquestion. In law, themost
common formof stupid obedience is the layman’s tryingto follow a statute
without considering how case law may have made the statute’s simple
language treacherous. In professional ethics, themost common form of
stupid obedience is, I think, reading a code of ethics as if each rule were
independent of the others.
The stupid have an excuse the negligent do not. They are not there
fore free of blame. One can blame another for an act or for its conse
quences. To blame someone for an act is to declare the act bad and his; to
blame him for some state of affairs is todeclare the state of affairs bad and
some act or omission of his the cause. To excuse someone’s failure to
This content downloaded from on Fri, 16 Jan 2015 12:39:27 PM
All use subject to JSTOR Terms and Conditions
Professional Responsibility
follow a rule by saying, MHedoesn’t know better,” does not save him from
blame; it only changes the terms. Whether the change of terms even
amounts to a reduction inblame is a matter of opinion; many of us might
prefer tobe thoughtmalicious or negligent rather than stupid. In any case,
for a professional, stupidity is as objectionable as malice.
Perhaps many of those professionals who seek to excuse themselves
formisconduct with the answer, “I was just following the rules,” are
pleading stupidity. It is thereforeworth pointing out thatwhenever this
plea is necessary, the professional in question was not in fact following the
rules (even if she was doing her best to follow them). In this respect,
stupid obedience resembles the other forms of rule-following discussed so
far. It is a failure to follow the rules.
Interpretative Obedience
Except forblind obedience, all the forms of rule-following discussed so far
acknowledged, however implicitly, that rulesmust be interpreted. In strict
obedience, the interpretation is largely left to others (“higher authority”).
Inmalicious obedience, interpretation is deliberately abused; in negligent
or accidental obedience, interpretationisnot given theattention itdeserves;
and, in stupid obedience, interpretation is not done skillfully enough,
whether from lack ofwit or learning. This list ofways inwhich one can
fail to follow the rules suggests that just following the rules is not simple.
We must now consider just how complicated it can be.
In law, there are many methods of interpretinga rule. They are not
exclusive, though some are likely to be more important in one area of the
law and others in another. When interpreting a particular rule, one
important question is always how that rule fitswith the others in the
particular document inwhich itappears. All else equal, a particular will,
contract, statute, or other document should, ifpossible, be interpreted so
that each term keeps the same meaning throughout, none of its rules is
inconsistentwith any other, and all serve the document’s avowed purpose
(or at least thatnone works against it). This “internalist” approach may
yield one defensible interpretationbut more often yields several. Where
thereare several internallydefensible interpretations,theremay be no way
to choose except to go outside the document.
There may, in any case, be other reasons to go outside the document.
For example, the internalist interpretationmay have yielded an immoral
This content downloaded from on Fri, 16 Jan 2015 12:39:27 PM
All use subject to JSTOR Terms and Conditions
Business and Professional Ethics Journal
or irrational result, or violated the intentions of those who composed the
document (intentions indicated by evidence outside the document itself).
Lawyers oftendescribe an interpretationof a rule as a “construction.”
That description is hardly metaphorical.
Interpreting a rule is as much
construction as discovery. There are, therefore,differences in style that,
though well within the bounds of competence, may lead well-meaning
lawyers to quite differentresults. Some lawyersmay, all else equal, think
going back to the intentions of the actual authors thebest guide towhat a
rulemeans; others, that thebest guide iswhat decent, well-informed, and
rational authors would have meant when the document was drafted or
would mean today; othersmay think thebest guide iswhat the “plainman”
would suppose suchwords tomean; and others how a particular interpreta
tion fits with the way the law is developing. Some may think that a
particular method of interpretationpre-empts the rest. Others may think
that each method is relevant, carrying a certain weight, the overall
construal being determined by some combination ofmethods. And so on.
When a lawyer speaks of “just following the rule,” she is likely tomean
“just following the interpretation of the rule I find obvious using the
method of interpretationI take for granted.”23
We have a profession, law,whose members make their living inpart
by offering possible interpretations of rules, and another, the judiciary,
whose members make theirs in part by deciding between lawyers’
interpretations. This at least suggests that following some rules, the rules
of a legal system, can be quite complicated. While there is no profession
inwhich the rules of professional ethics reach the complexity of even a
relatively simple legal system,we need not be surprised that learning how
to follow a code of professional ethics should require college course work.
After all, lawyers need threeyears of law school to learn how to interpret
the law.
What must we teach students in order to teach themhow to follow the
code of ethics of their hoped-for profession? We must, of course, teach
them the context inwhich the code is to be applied, that is, something of
of theprofession,
inwhichmembersof the
profession work, of the expectations othermembers of theprofession will
have of theircolleagues, and ofwhat members do (and the effectwhat they
do can have on others). We must also teach something about the purpose
of the rules, the structureof the code (the relation of one rule to another),
the interpretativestrategies considered appropriate, and the consequences
This content downloaded from on Fri, 16 Jan 2015 12:39:27 PM
All use subject to JSTOR Terms and Conditions
Professional Responsibility
of certain mistakes in interpretation.We should help students to see their
profession’s code of ethics as the work of human beings much like
themselves, human beings who have specific purposes in developing such
rules and should thereforebe open to revising them, or standing interpreta
tions of them, as new information comes in. Last, and perhaps most
important, we should give practice in following the rules, that is, in
analyzing specific “fact situations,” applying the rules to those facts,
reaching conclusions aboutwhat is required, allowed, or forbidden,making
arguments in defense of the conclusions, and inventingways to do as the
rules so interpreted say. One does not know how to follow a rule unless
one knows how to develop, state, defend, and carry out workable courses
of action in accord with the rule in contexts inwhich the rule ordinarily
VIL LeftOut?
This (interpretative)way of understanding “just following the rules” leaves
us with the question with which we began: what does just following the
rules leave out? What I have argued so far is that the rules of professional
ethics themselves exclude certain forms of “just following the rules”
(malicious, negligent, accidental, and stupid obedience); other forms (blind
and strictobedience) are not following the rules at all. Only one interpreta
tion of just following the rules of professional ethics, the interpretative,
seems robust enough to count as just following the rules (without some
apologetic qualification). That interpretation seems to leave nothing
important out.
My argument, even admitting its soundness, may seem tomiss what
underlay the objection to “just following the rules” with which we began,
the idea (introduced by “just”) of trying to get by with theminimum, a
failure tomake room for the “spirit” of the rules as well as the “letter.” To
this fundamental objection, I have two replies, one general and one
particular. The general reply is that “the spirit of the rule” is a metaphor.
By itself,ittellsus little.
My ownview is thattheappropriate
is therule’sspirit.It iswhatgives lifetotheotherwise
letters of a rule. Those who try to follow a rule without the appropriate
interpretative strategymay thinkof themselves as “just following the rule”
but they are likely to fail to follow it. That is the lesson of negligent and
stupid obedience. Those who have criticized “just following the rules”
This content downloaded from on Fri, 16 Jan 2015 12:39:27 PM
All use subject to JSTOR Terms and Conditions
Business and Professional Ethics Journal
seem not tohave realized how much goes intofollowing a rule. That is not
to say that virtue is not relevant to following the rules. It is, instead, to
point to a particular rarely-mentioned virtue, the disposition to interpret
rules correctly, as crucial to responsible professional conduct (though not
defining it), to come a longway down from the airyworld inwhich rules
are hardly worth mention to one inwhich teaching the rules is central to
developing the crucial virtue.
That ismy general reply. My particular reply is a challenge to in
dividual critics: show me a clear case of professional responsibility that is
not just following the profession’s code of ethics. By “clear case,” Imean
one thatmost members of the profession would agree is uncontroversial.
I feel safe making this challenge because I think the critics of
legalism badly underestimate what rules can do. Rules can set high
standards; setpositive standards as well as negative; and provide guidance
on when tomake exceptions to otherwise binding rules. Rules can also
require virtues such as competence and caring.24 There is no reason, except
oversight, why a profession’s code should leave out anything most
members of the profession consider important.
But, itmay be asked, is there not something wrong with a profes
sional tryingtoget bywith theminimum required? This question may be
understood as raising one of two objections. Ifwe emphasize “trying” (an
attitude),we get an objection to a certain interpretativestrategy,one which
few, ifany, professional codes allow. Consider again the preamble of the
code. Does itnot point the faithful interpretertoward “the highest
principles” rather than “theminimum”? How can an engineer follow that
code and tryto do theminimum?
If, instead of emphasizing the trying,we emphasize theoutcome (“the
minimum required”), we get an objection to doing only what the code in
fact requires. The point of the objection so interpretedescapes me. Why
would a professional not be acting responsibly if she did only what her
profession’s code of ethics required? The attack on legalism (the call to
“go beyond” the rules)may be a confused way of proposing reforms in the
rules themselves or in their interpretation. If so, the professional responsi
bilities put forward as beyond the rules the rules as written ifnot the rules
as theycould be written will, upon examination, turnout tobe controver
This content downloaded from on Fri, 16 Jan 2015 12:39:27 PM
All use subject to JSTOR Terms and Conditions
Professional Responsibility
1. I presented versions of this paper to the Philosophy Colloquium,
Illinois Institute of Technology, to thePhilosophy Department, University
of South Florida, at Colorado School ofMines, as the Phipps’ Lecture,
Davis and Elkins College, at a session ofAnnual Meeting of the Society for
Business Ethics, and at theUniversity of St. Francis. I should like to thank
those present as well as David Coogan
for helpful discussions.
2. See, for example, Charles E. Harris, Michael S. Pritchard, and
Michael J.Rabins, Engineering Ethics: Concepts and Cases (Wadsworth:
Belmont, 1995), 67-68: MWehave suggested thatprofessional responsibility
can include virtues thatgo beyond fulfilling thebasic duties typicallyfound
in a professional code of ethics. Virtues are normally understood to include
of the attractions of
attitudes and dispositions, not just conduct_One
responsibility professionals to basic duties
is that thismakes responsibility seem more precisely stateable and thereby
more manageable. However,… moral responsibility ismore open-ended
and admits of varying degrees and stringency.”
3. Caroline Whitbeck, Ethics inEngineering Practice and Research
(Cambridge UP: Cambridge, UK, 1998), 83.
4. The seminal work in the criticism of legalism in professional
ethics is JohnLadd, “Legalism andMedical Ethics,” Contemporary Issues
inBioethics, eds. JohnW. Davis, Barry Hoffmaster, and Sarah Shorten
(Humana Press: Clifton, N. J., 1979), 1-35. Ladd theredefines “legalism”
much as I have: “By ‘legalism’ I shall mean: ‘the ethical attitude thatholds
moral conduct to be a matter of rule-following and ofmoral relationships
to consist of duties and rights determined by rules'” (Ladd, 4). It is odd,
therefore, thatLadd in fact has little to say about legalism in that article.
Most of his criticism explicitly concerns rights (rather than rules). While
I agree with most, perhaps all, of his criticism ofmaking rights central to
medical (or professional) ethics, I regard “legalism” as a poor label for that
criticism. Rules are a category not only larger than rights but immune to
of his criticism of rights. The term “legalism” confuses his
argument. His choice of term is nonetheless understandable: themore
appropriate term, “rightism,” would have been an ugly (even if helpful)
5. Whitbeck, 83.
This content downloaded from on Fri, 16 Jan 2015 12:39:27 PM
All use subject to JSTOR Terms and Conditions
Business and Professional Ethics Journal
6. National Society of Professional Engineers, Code ofProfessional
(1997), II.2.
7. Those familiar of thephilosophy of lawmay see analogies between
my subject and the Legal Realists’ denigration of “mechanical juris
prudence.” While I believe there ismore than an analogy, I say nothing
more about ithere.
8. In an influentialarticle, “Codes ofEthics and theMoral Education
ofEngineers,” Business and Professional Ethics Journal 2 (Summer 1983):
41-61, Heinz Luegenbiehl distinguished “a set of ethical rules” (which he
rejects as “unjustifiable” in professional ethics) from “guides for
ethical… decision making” (which he accepts). (Italics mine.) While his
article contains a good deal of huffing and puffing about “rules,” it
contains, as far as I can see, no principled distinction between rules and
guides. I have therefore (following the dictionary) defined “rules” so that
they cannot be distinguished from guides to conduct. Compare Ladd,
“Legalism and Medical Ethics,” 12: “By calling them rules, I want to
emphasize that, like legal rules, public rules are given an explicit
formulation; they function as guides to conduct and are used to justify it.”
I pass over the distinctions I would ordinarily make between theways
“rules” guide conduct (as requirements, principles, or ideals).
9. Hence, the old drill sergeant’s joke: “There are fourways to do
things here: the right way, thewrong way, theArmy way, and my way.
You will do thingsmy way.”
10. “If theArmy had meant foryou to think,” says thedrill sergeant,
“itwould have issued you a brain.”
11. Sergeant Perry Watkinsv. United States Army; 847 F.2d 1329,
1988), at 1353.
12. I am here implicitlymaking use of a distinction between formal
authority (what Reinhardt accorded the Supreme Court) and material
authority (what theBER has over engineers). For more on thatdistinction,
seemy “TheMoral Authority of a Professional Code,”AuthorityRevisited:
York U. P.: New York, NY 1987), 302-337.
13. I am hedging because professions differ so much that there is
almost always at least one to refute any universal statement about
Iwould, however, like to take this endnote to dispose of one
popular counter-example to this claim that I do not regard as a refutation.
Clergy ingeneral (and theCatholic priesthood inparticular) are often listed
among the professions. If they are counted among professions, then they
This content downloaded from on Fri, 16 Jan 2015 12:39:27 PM
All use subject to JSTOR Terms and Conditions
Professional Responsibility
are exceptions: religious organizations like the Catholic Church are
certainly hierarchies. I, however, do not consider the clergy (in general) to
be a profession or set of professions. A profession, as I understand the
term, is a way tomake a living, though one subject to a discipline beyond
what law, market, and morality demand. For the clergy, their religious
service is not (in general) a way tomake a living; whatever income their
service brings in is simply a means of keeping body and soul together. That
iswhy no profession has avow of poverty,while parts of the clergy do. For
more on the definition of “profession,” see especially my: “Is There a
Profession of Engineering?,” Science and Engineering Ethics 3 (October
1997): 407-428, or “Professional Autonomy: A Framework forEmpirical
Research,” Business Ethics Quarterly 6 (October 1996): 441-460.
14. National Society ofProfessional Engineers, Code ofProfessional
Ethics (1997), II.2.
15. National Society ofProfessional Engineers, Code ofProfessional
Ethics (1997), II.2. The equivalent of thepreamble for corporate codes of
conduct is, of course, (often) thosemuch maligned “value statements” and
“vision statements.”
16. See, for example, Harris, Pritchard, and Rabins, p. 57:
Working against this idea, the Tristar and the 747 exceeded
FAA regulations in this regard, so themalpractice model of
responsibility was not violated. However, the reasonable care
model asks furtherquestions. Was therea reason tobelieve that
therewould be a servicing problem? . . .Curd and May main
tain that itwas reasonably foreseeable thatmaintenance crews
take shortcuts.
courts often defer to regulatory bodies like the FAA when
determining what due (or reasonable) care is, theyneed not. Lawyers are
always free to argue, and courts sometimes agree, that the regulatorybody
in question erred (especially where a danger is “reasonably foreseeable”).
The conflict Harris, Pritchard, and Rabins treatas occurring between “the
malpractice modelM and the Mreasonable-caremodel” is actually within the
malpractice model (and so,within the reasonable-care model too).
17. “The almost universal use of the phrase ‘due care’ to describe
conduct that is not negligent, should not be permitted to obscure the fact
that the real basis of negligence is… behavior which should be recognized
This content downloaded from on Fri, 16 Jan 2015 12:39:27 PM
All use subject to JSTOR Terms and Conditions
Business and Professional Ethics Journal
as involving an unreasonable danger to others.” William L. Prosser, Law
of Torts, 4thEd. (West Publishing: St. Paul, MN, 1971), 145.
18. Falling back on the term “gross negligence” to describe the
malpractice standard would, of course, only add to the confusion. Gross
negligence is (primarily) the standard of criminal negligence (and,
secondarily, thebasis forpunitive damages in tort).Malpractice need not
be grossly negligent to be malpractice.
19. Or, to be more exact, it ismalpractice if the other conditions of
negligence are also present (an unreasonable risk to others, a resulting
harm, measurable loss, and so on).
20. I owe the identification of accidental obedience toRobert Mc
Cutcheon, Davis and Elkins College.
21. What about tryingto save the truismbyweakening ita bit: justice
iswhat the just man tends to do? That depends on what “tends”means
It must, I think, either refer to a statistical regularity or to a
“mechanism” in the justman (whatmakes the justman’s actions justmost
of the time). The statistical regularitywould leave justice undefined: how
(without a definition of justice) are we to determine which acts are part of
the pattern and which are not? If,however, the tendency is defined by an
identifiablemechanism, then “tendency” and “mechanism” are just syno
nyms for “disposition.” We would know which acts belong to the pattern
and which do not, but only at the price of admitting that some of the acts
may be unjust. We cannot define justice even as what the just man tends
to do.
22. But (itmay be objected), the rules defining the disposition may
not be guides to conduct. That, of course, is true. Until we see the
description of the abstract disposition, we cannot know what kind of rules
theywill be. They may correspond to ordinary moral rules more or less
exactly; or be like the rules of generative grammar guides to conduct but
not guides one can consciously follow without having farmore time for
decision than life usually allows; or be like the laws of gravity, rules we
follow whatever we trytodo; or belong to some hitherto unknown category.
There isworkhereforvirtuetheorists.
But,untiltheyhavedone it,they
cannot know whether the rules theyembrace are friends or foes which is
enough, I think, tomake saving their theory in this way unappealing to
them for now at least.
This content downloaded from on Fri, 16 Jan 2015 12:39:27 PM
All use subject to JSTOR Terms and Conditions
Professional Responsibility
23. For some idea of how complicated interpretationof rules can be,
seeRonald Dvtotkin, Law’s Empire (HarvardU.P.: Cambridge, MA, 1986),
or any other good text in jurisprudence.
24. For example, engineering could have some such rule as this: “En
gineers shall be competent” or “Engineers shall care deeply about the
environment.” But how (itmight be asked) can a rule require one to have
a virtue? Mustn’t rules as guides to conduct require conduct? Well,
no and yes. Rules need not explicitly require conduct. They can simply
set qualifications (as our two examples do). Since those who cannot meet
the qualifications cannot be as the rule requires, they can only follow the
rule by avoiding coming under it, that is, by staying out of the profession
in question or, having got in before the lack of virtue was discovered, by
leaving. Rules explicitly requiring virtue implicitly require conduct (that
is, the not-getting-into-situations-where^
25. Lest my own words in Thinking Like an Engineer (Oxford U.P. :
New York, NY 1998), 59, be quoted against me, I should point out that I
am not here speaking (as I was there) of tasks professionals have “good
reason” to take on or assign, but of tasks they have taken on already in
virtue ofmembership in a profession having a certain code of ethics and
are therefore required of them.
This content downloaded from on Fri, 16 Jan 2015 12:39:27 PM
All use subject to JSTOR Terms and Conditions

Purchase answer to see full

Order your essay today and save 15% with the discount code: VACCINE

Order a unique copy of this paper

550 words
We'll send you the first draft for approval by September 11, 2018 at 10:52 AM
Total price:
Top Academic Writers Ready to Help
with Your Research Proposal