By now everybody has heard of the college fraud, bribery and cheating scandal. In case you haven’t: a bunch of rich folks paid a sketchy dude to find ways to cheat on college entrance exams and college applications, including lying and flat-out bribery to get their kids into high-ranked colleges that they would not have been able to get into on their academic or athletic merit.
We could say a lot about it, but one thing that really jumped out at me was a pair of statements made by Gordon Caplan, one of the parents caught cheating, and what they tell us about the nature of morality and rules.
Caplan is one of the parents charged in the criminal complaint filed this week. He’s co-chairman of Willkie Farr & Gallagher, a large, well-known law firm. He was caught in recorded phone conversations agreeing with William Singer, the aforementioned sketchy dude who ran the scam, to pay Singer to have him find ways to cheat on college entrance exams. At one point in the conversations with Singer, Caplan appears to have some hesitation about the consequences if they get caught and he says this: “…keep in mind, I am a lawyer. So I’m sort of rules oriented.” See Affidavit filed in Support of Criminal Complaint, at p. 29, United States v. Abbot, No. 19-mj-06087 (D. Mass. filed March 11, 2019), available here.
I’m also a lawyer, so I’m especially attentive to stories in the news about lawyers behaving badly. (Once, while waiting to argue a motion in a civil case, I watched a man get sentenced to a long time in prison for making false statements in an sworn declaration; and as somebody who signs declarations and affidavits pretty regularly, it was sobering.) My first reaction to Caplan’s statement was sardonic laughter at the irony of a lawyer claiming to be “rules oriented” at the very moment of committing serious violations of the rules that govern lawyers, as well as of bribery laws. It’s kind of funny to say “I’m sort of rules oriented,” when you’re breaking the rules.
But as I thought about it more, I think Caplan unintentionally hit on something important about the nature of morality and rules: if have a “rules oriented,” sense of morality, then morality isn’t a question of whether something is intrinsically wrong or right, it’s only a question of whether it’s against The Rules. And if you believe The Rules are the sum total of what’s right and wrong, then the only thing keeping you from doing bad things is fear of breaking The Rules. More sinisterly, if you just don’t care about what’s right or wrong, then the only thing keeping you from doing bad things is the fear of punishment for breaking The Rules.
And that brings me to Caplan’s other statement: in an earlier conversation he was caught on the phone saying this to Singer: “It’s just, to be honest, I’m not worried about the moral issue here. I’m worried about the, if she’s caught doing that, you know, she’s finished.” See Affidavit filed in Support of Criminal Complaint, at p. 28, available here.
So while at first glance, the claim to be “rules oriented” might sound laughably hollow, if you look a little closer, Caplan’s statement that he had no moral scruples about the lying and cheating, and his statement that he’s “rules-oriented” are tragically consistent.
And this is why it’s important to move beyond a “rules-oriented” sense of morality.
A “rules-oriented” sense of morality can’t really grasp the difference between actions that are malum in se–intrinsically wrong–and actions that are malum prohibitum–wrong in the sense that they are against The Rules. To a purely “rules oriented” conscience, overstaying a visa, or speeding is not clearly morally distinguishable from lying or stealing. Or in the context of the BYU honor code, to a purely “rules oriented” conscience, cheating on a test or plagiarizing an assignment is not clearly distinguishable from wearing a tank top, or growing a beard. All are equally against The Rules.
Now, I’m not saying “let’s throw out the rules.” Rules are important. Rules can be very good. For lawyers, keeping the ethical rules that govern our profession can provide “safety and peace” from disciplinary action or worse consequences. Keeping the law will usually keep you out of jail. And it’s important that people competing for finite things, like a spot at a university, or the share of a market for something, play by the same rules, because that’s just fair. Following The Rules can be like training wheels to help us to learn the difference between right and wrong. Most of the time, things that are against The Rules are bad things that we shouldn’t do.
But sometimes things that are against The Rules are good, as the stories of Daniel, and of Meshach, Shadrach and Abed-Nego teach us–and the stories of David eating the consecrated bread, or Jesus healing on the Sabbath. And sometimes, things that are permitted by The Rules are still evil, and not actively resisting them can itself be evil, as Martin Luther King, Jr. and the other heroes of the civil rights movement taught us. And sometimes, the rules conflict, and it is impossible to keep them all, as Eve in Eden, and Abraham on Mt. Moriah teach us. In such cases, a “rules oriented” conscience won’t get the job done. We need something more. We need to “worry about the moral issue here,” not just the consequences, and not just fear of breaking The Rules. Keeping The Rules will make you a rule-keeping person, but it won’t make you a moral person. Keeping The Rules can provide safety and peace, but not salvation.
It can be tempting to dismiss the stories of Daniel and others I listed above as mere exceptions to the rules that don’t apply most of the time and can therefore be safely disregarded, but the thing about such stories–especially Eve’s and Adam’s story–is that it is the story of all of us. We cannot escape the inevitability that each of us will find ourselves in a situation where The Rules demand one thing, but conscience demands something else. Developing strong moral reasoning and a healthy conscience can be hard work. It requires introspection, humility, moral clarity, resistance to self-justification, and above all, love for all people. And it requires practice. And, lest we become paralyzed out of fear to break The Rules, it requires faith in God’s power and willingness to redeem our inevitably rule-breaking actions. It’s hard work, but it’s work we must do, because rules alone can’t save us.
By Common Consent, a Mormon Blog 
This is a good post for this week’s Sunday School lesson. Matthew 12 shows Jesus and his disciples breaking the rules on the Sabbath. Some of the more rule-oriented Jews objected to Jesus healing a man on the Sabbath, and Jesus essentially tells them that people are more important than rules.
Hard concepts to live by at all times. Thank you for the post.
Thanks for this. People are fascinated by this situation, so it is a good teachable moment.
A bit of a thread jack maybe, but I think this is what irks me the most about the BYU Police/Honor Code office situation. While supporting legislation to require BYU Police to be subject to Utah’s public records law, and simultaneously refusing to comply with a subpoena and investigation into past practices, they’re playing The Rules game. It’s so ironic that they violated ethical guidelines to enforce the Honor Code, then stonewall to cover up. BYU should be leading by example in the moral development of its students, and these actions don’t support the Honor Code in any way.
https://www.sltrib.com/news/2019/03/12/legislature-has-spoken/
I had a history teacher in high school who started every class by giving us a moral/ethical dilemma to think about. Many of the dilemmas were of the kind mentioned in the OP above. We were then asked how we would solve this dilemma. No pat “Sunday School” answers were allowed. Mr. B often would often become the devil’s advocate if he felt that our thinking was sloppy or shallow. At the time I remember thinking “Why are you doing this? We’re good Mormon kids who will never face situations like these in a million years.” Wrong! Over the years I’ve encountered dilemmas big and small that were exactly like the ones presented in my history class. Because of the serious thought my teacher required me to give these issues I was able to handle the dilemmas in a way that was morally congruent with my conscience and spiritual beliefs. I bless him for teaching our class this vital skill. BTW the one class member who complained about this thinking exercise every day and called it a colossal waste of time was busted for money laundering and fraud.
Whenever I hear of someone being “rules based”, it’s always someone who believe the rules should be strictly enforced for people they consider below them, but for those above them or for themselves, there are “extenuating circumstances” (a.k.a. They really needed to break the rules, so it’s ok this time)
My brother was interested in calligraphy growing up. He hung a poster in our bedroom that listed the 10 Rules of Calligraphy. I can’t recall the first nine but #10 was Know When to Break the Rules. I think it’s important to have that instruction last and not first. Rules are important and before you can understand when you need to break them you have to understand why you usually need to keep them.
Thank you JKC. I’m reminded that my rules-oriented “obedience is the first law” Church upbringing was not helpful in my development of sound moral reasoning; I had to figure that out on my own, sometimes the hard way. I still occasionally hear lessons in church about obedience in which the teacher essentially tries (unknowingly) to argue the validity of the Nuremburg defense. Its hard to counter that position without invoking Godwin’s Law, but this post helps.
I’m also reminded of the cognitive dissonance I experienced early in my career when, as an idealistic, honest do-gooder, I was routinely trampled on by colleagues who had no reservations about bending (sometimes breaking) rules to their own advantage. The culture of the time rewarded them as “innovative risk-takers” and considered the rest of us expendable. I was upset, not only by the fact that they were climbing the ladder at my expense, but also with a bit of jealousy that they were living a prosperous life playing by an alternate set of rules that I was never taught in the first place. It’s a complicated set of emotions, I know, but these are things you think about when you end up losing your supposed dream job during a recession. I recovered eventually, but with a much more jaded, cynical view about how the world works. Which is why this newly uncovered college admissions scandal, wrong as it is, is not the least bit shocking.
I appreciated Anon’s post and tend to support his observation about the past BYU Police/Honor Code.
“Developing strong moral reasoning and a healthy conscience can be hard work.”
Yes. And it is harder work than positing moral reasoning as the higher law and rules as the lesser. It is pretty clear to me that no such rank ordering is possible, that one is not the subset or the superset of the other. They are different. I don’t know (and don’t care to spend time on) the ins-and-outs of the college cheating situation, but I feel like I confront every day issues where there is a perfectly legitimate and maybe even correct moral position that is contrary to the rules. And a rule-based position that would be immoral. It’s hard work.
In my view, Caplan’s comments are completely consistent with the prevailing (and increasing) mode of “lawyer-morality” I’ve found in the legal profession. Attorneys deal in rules, but seem to forget that law is not identical with moral rules (and, as the OP points out, they may diverge completely). This confusion results, I think, from the instrumentalist sophism lawyers are trained in – from our duty to “make the weaker argument the stronger.” So when I hear Caplan talk about being “rules-oriented,” I hear him saying that he is just laws-oriented, and I don’t understand his statement as a comment on his moral views (though maybe his moral-legal distinction illuminates those views a bit).
All this brings the philosophy student in me to the surface, so I ask: when we think of “moral reasoning” as an antidote to myopic rule following, are we presupposing a certain variety of moral reasoning? Rule utilitarianism, for example, is a variety of moral reasoning that is composed *only* of rules. And the moral reasoning required by ethical egoism might produce exactly the kind of statement that Caplan makes: I generally like rules, but will break them here because I believe I can do so undetected and thus avoid sanction. This question – what is moral reasoning, really? – is important because without addressing it, we risk unreflectively adopting whatever framework of moral reasoning we happen to be swimming in. As a Christian, Mormon inheritor of the post-post-modern, positivist, secularist, worldview, I feel the need to be much more specific about what *sort* of moral reasoning is justified.
“The Rules” and the Law. I remember being in Woody Deem’s first-year Criminal Law class at the BYU Law School and hearing the mantra “We aren’t interested in Justice. We are interested in enforcement of the law.” Of course, that led to the side issue of getting the law changed when it was unjust, which he strongly supported. He loved telling stories, and told stories about times he championed changing the law when it was unjust.
I also remember a few years ago at the Ethics block of the Continuing Legal Education course during BYU’s Education Week, where the discussion focused entirely on compliance with The Rules. I was disappointed, and gave feedback accordingly, that not once during an Ethics discussion at BYU was it mentioned that one reason to do the Right Thing was that it was the Right Thing. Sure, compliance with The Rules is important in and of itself, but compliance because it is also the Right Thing to do is also important.
All this reminds me of a quote from the Dalai Lama (from the recent Time): “So if some teaching goes against reason, we should not accept it.” Within reason, I agree.
I respect the fictional Robin Hood. But there are always issues. In a system skewed toward the rich, how far should we go (in the way of rule breaking) to assist the poor, damaged, incapacitated, mentally afflicted, etc. I tend to want to push the system.
If you don’t like the rule to pay your tithing because of the way the funds are probably allocated, is it okay to pay 5% and give the rest to Doctors without Borders, Oxfam, or a similar humanitarian organization? Robert Kirby suggested that he paid a full tithe, but it didn’t all go to the Church. I agree with this rebellion. However, there are obvious drawbacks (ie. loss of a TR).
I few years ago, I retired from working for the federal government. I was frequently discouraged with the way money was allocated. Federal assistance seemed to gravitate toward the haves at the expense of the have-nots. I tried to compensate by pushing the boundaries of programs to assist those in the most need. I certainly didn’t violate the founding principles of the organization I worked for, but I did liberally interpret modern “rules.” Some might argue, I broke them.
The founder of one of America’s premiere humanitarian articles admitted in a bestselling book that he sometimes stole from the organization he worked for so he could help his medical projects in Haiti. I believe that it is important have an inspired conscious when dealing with important social issues. But to each his own.
Interesting post, JKC. I’d push back a little on the idea that his statements consistently show his rules orientation, though. If by “rules-oriented,” we mean he complies with rules, he is absolutely not rules oriented. If by “rules-oriented,” we mean he’s aware of the rules and worried about the consequences if he’s caught breaking them, then I’d grant him being rules oriented. As is, though, his rules orientation means, at best, that he was aware of the rules but didn’t care about them.
What you’re getting at, though, I’d argue, is critical. There are very clear situations where we can follow rules to the letter, and use the gaps and ambiguities and mistakes in those rules to achieve a bad purpose. (I’m naturally thinking about tax shelters that technically comply with the literal meaning of the law.) Using the rules to achieve an unjust purpose is, I’d argue, a significant bad thing, on par with breaking the rules to achieve a bad purpose. And if our orientation is that rules are the sine qua non of morality, we’re definitely in a bad place, morally and ethically, a place, I’d argue, basically just as pernicious as Caplan’s ignoring the rules to do bad things.
What’s interesting to me is how closely this post mirrors Paul’s argument in Romans, right down to the idea of Rules as paidagogos.
Yeah, Sam, there’s rules-oriented, meaning that you believe in rules, and therefore obey them out of fear of breaking them, and then there’s rules- oriented meaning that you know the rules and the penalties for breaking them, so you obey them out of fear of punishment. But with the latter, if you’re assured that the punishment can be avoided, there’s nothing to keep you keeping the rules. Caplan’s statements demonstrate, to me, a rules-oriented-ness of the latter kind.
Oh wow, Jason, now that you mention that, yeah. I didn’t consciously paraphrase Romans, but I definitely had Paul in mind as I was writing it.
This is really good. Thank you.
We are talking about being good at rules but not understanding morality. Recently had a p’hood lesson based on a conference talk by a new GA whose name I didn’t recognise so I looked him up.
The person was a political lobbyist for big oil. He was big oils man in Washington from 2008. He fought against the oil company whose oil well leaked into the gulf of mexico having to pay for the clean up. He set up and funded protest groups which claimed to be grass roots, and as he required would protest and attack online against politicians.
So to get someone to vote as he wanted, first he contributed to re election funds (80% to republicans), if that didn’t work he could organise a protest in their electorate, and a social media campaign by supposed constituents. He was very successfull.
It seems that it is immoral to persuade politicians by undermining them, but not telling them who is doing it. The information these groups spread were not true. Number of jobs likely to be created way over, blaming Obama for fuel price rises proven false but still repeated, and much more.
He also spied on environmental groups and used his groups to undermine them. He saw it as his job to undermine all environmental legislation.
Politicians are supposed to represent their voters, if you persuade them to ignore them and represent big oil, are you not undermining democracy, and respect for the system? Is it moral to use groups that you don’t admit funding and organizing to do your lobbying for you?
This man is obviously good at following church rules, because he is now a GA, but moral?
Billy Possum, good questions. Thanks for commenting. I’m not a philosopher, but I’ve read a bit about ethics and philosophy. I’d say, from my perspective, that the idea moral reasoning is going to be somewhat eclectic and is going to draw on multiple theories, but that from a Christian and specifically Latter-day Saint perspective, it’s driving features are going to be that it’s based on love, a conviction that all people are made in the image of God, and most importantly, a conviction of the reality of the light of Christ/Holy Ghost. For that reason, it’s not going to be a purely rational system, but is going to be highly intuitive as well. I know that’s not very philosophically satisfying, but there it is.
christiankimball, that’s a great comment. I totally agree. Rereading the OP, I can see that it might look at time like I’m exalting moral reasoning over rules, but I think you’ve hit on a really important point that it’s not a matter of putting one over the other, but a matter of recognizing that they speak to different things, and of balancing both together.
Actually, JKC, I think your description of a Christian/LDS moral reasoning framework is spot on. Virtue ethics is a close approximation (which stems from the “image of God” concept), but ultimately, I think it has to be a kind of ethical particularism (as opposed to a rule-based approach), reliant on both reason and intuition, as you say. There’s just no other way to make it flexible enough to account for, as an example, Christ’s behavior as described in the New Testament. I think it’s worth noting how much this approach differs from other prevalent moral systems: it is equally at odds with utilitarianism and egoism, either of which you might catch as easily as a cold (and the latter of which Caplan clearly has).
Mormonism exhibits a strange split between identifying and valuing conscience as the seat of moral right-versus-wrong thinking (see Moroni 7:16-19) and the rule-driven approach we hear so often in church on Sunday. Few Mormons really seem to sense any inconsistency here, and I think it’s because we are sort of taught to find a way to subordinate pangs of conscience to the institutional imperative of Following The Rules.
The fact that we retell Nephi’s encounter with Laban so frequently, as a moral exemplar, shows how screwed up Mormon moral thinking is, celebrating a guy who struggles a bit with his conscience but then goes on to kill a defenseless and unconscious man, then take his property.
Three thoughts:
1) Jesus never broke any rules. He was the lawgiver and healing on the Sabbath wasn’t breaking the rules but setting corrupt practices right.
2) The scriptural examples listed (Daniel, Shadrach, etc.) weren’t breaking spiritual rules but putting one’s love and devotion to God above worldly laws. Yes, they “broke” a temporal law but they put the Lord first–something that many commenting on this post don’t seem to grasp.
3) Finally, Dave B, Nephi didn’t break any rules by killing Laban. His actions were fully justified per the rules of the day. His actions are fully justified in the D&C.
Regarding the idea of “exalting moral reasoning over rules”, it’s clearly never that simple is it?
Rules are generally made from some kind of moral reasoning. The idea of moral intuition being above the rules ignores the reality that such a statement is a rule itself. Chicken or egg?
Of course, the purpose of the rule is to codify and share (vote/argue/persuade/force) others to the rules we’d prefer based on personal (or collective) moral reasoning.
But ultimately, when Jesus said the Sabbath was made for man, not man for the Sabbath, he was applying moral reasoning. When he said these you ought to have done and *not* leave the other undone, he was exalting both the rules and moral reasoning. He understood this. It’s never “ignore the rules, follow the spirit” — following the spirit is itself a rule. “Keep the commandments” is not a lazy traditional latter-day saint answer when one firmly understands the totality of what that means.
Dave B – your comment about Nephi is either really sloppy “Mormon” thinking or coming from someone who is fairly ignorant of the surrounding narrative. Nephi is indeed a moral exemplar, but I’ve almost never heard the Laban beheading as practical evidence for disregarding rules. Rather to demonstrate how he wrestled with something very serious — I guess you argue he was wrong, but that puts you against scripture, revelation, and all the prophets. It also puts you outside the text and historical culture. OK…
Oddly enough for your example of sloppy Latter-day Saint thinking, in the example of Nephi it was expressly his moral reasoning that led him to kill Laban. There was not a codified Rule that said Laban should be put to death that Nephi followed. He was following revelation-intuition.
So if anything, you should be arguing that revelation is bad and we should only follow the rules (thou shalt not kill would have been pretty familiar to Nephi; to which latter-day revelation adds, nor do anything like unto it — so much for sloppy reasoning)
Again, we often hear Laman and Lemuel being portrayed as the deuteronomist-like rule followers by commentators who try to portray them with sympathy. Of course, it’s likely that to the degree it’s true, like most flawed humans they seem to have no problem disregarding rules when it got in the way of what they wanted to do and creating their reasoning ad hoc.
Re Nephi: I don’t think I’ve ever heard anyone use Nephi killing Laban in a talk in church as a moral exemplar. Once every four years or so it comes up in Sunday School, but that’s it, in my experience. No doubt there are bishops and teachers in the church that like to use this story, but just speaking for myself, in the wards I’ve been in, it’s not a big part of my Latter-day Saint experience at all. And the issues that the story raises are not exactly uniquely Mormon concerns. The Abraham story raises very similar issues and there’s a long tradition in Jewish, Christian, and Muslim communities of wrestling with it.
I don’t think it’s so cut-and-dried that Nephi was right to kill Laban. There’s a pretty significant difference, to my mind, between D&C 93, which says that after certain conditions are met (they have attacked you three times without you provoking or retaliating, and you have warned them in the name of God not to come against you again), killing another person may be justified, but that if you choose to show mercy you will be more blessed, and the spirit telling Nephi not only that killing Laban was justified, but commanding him to kill him. So the D&C 93 defense doesn’t really work for me. I think if we are going to treat Nephi as a real person, not a fictional character, we have to recognize the possibility that he was confusing his own feelings–his understandable desire for revenge against the man that had tried to kill him and whose refusal had led to his two older brothers assaulting him, all in the context what was already a pretty traumatic and stressful situation–with the spirit. I am not saying that Nephi was definitively wrong, but I’m not comfortable concluding that there’s no possibility he was wrong, either. The point of the story, as I read it, is to force us to wrestle with it and recognize that there isn’t any easy answer.
James, I think it’s clear that Jesus broke rules. You can argue that those rules were man-made, not God-given, and they were corrupt, but the point Jesus was making is that the rules were corrupt precisely because they exalted obedience to rules over love for our brothers and sisters made in God’s image. You can reduce Jesus’ teachings to principles and rules, but to say “no he wasn’t breaking the rules he was just restoring the real rules” seems to me to miss the point.
JKC, I came to make those same two points (re: Jesus breaking rules and Nephi) and you made them both better than I would have.
Echo Ryan Mullen. In fact I’m going to copy the JKC’s Nephi-Laban response for the next time in the four year cycle.
JKC at 10:48 – the best brief analysis of the Nephi-Laban story I’ve seen! and better than some lengthy analyses trying to conclude definitely that Nephi was right or that he was wrong. Thanks.