BACKGROUND LESSON 2023/2

BACKGROUND LESSON

MORAL DISCOURSE

Before we begin with the lesson, we want you to take a few moments to think
about an important yet controversial moral decision which you made, which had
either a positive or negative outcome. This decision may perhaps be about
assisting someone who was in a dangerous situation, or a direct response to a
moral problem.

1) How did you reach your decision?

2) Did this decision reinforce or challenge your moral beliefs, values, or
principles? If so, in what way?
3) Following this experience, what lessons did you learn about the basis
upon which opinions are formed on controversial moral issues?

1. Overview of the Lesson

In this Lesson we shall briefly deal with the conditions for constructive
ethical debate, in particular, how moral talk should be conducted in order
to advance your position in a clear and rational manner. We also want you
to consider a few important issues on what is termed right, and good
behaviour.

Although law and ethics are not coextensive terms, there seems to be a desire
to see law and ethics as similar terms. The delineation between law and ethics
is easy to confuse, and we shall attempt to discuss the distinguishing
characteristics of these terms.

2. The nature of moral discourse - Constructive ethical reasoning

For every moral argument that we make, we are required to try to find valid
reasons. For example, we cannot merely say "abortion is morally right and that
is final". It must be kept in mind that people already have certain attitudes
based on their culture, traditions, religion, etc, which will inform their answer

Open Rubric
 BACKGROUND LESSON 2023/2

on whether a particular issue (e.g. abortion) is right or wrong. Nevertheless,

a philosophical approach to ethics requires one to think critically about moral
ideas as well as to endorse or contest those ideas with convincing arguments
and be ready to explain the reasons in which their arguments are rooted.
Moral talk is therefore not about our beliefs, values or principles; rather, it
is about the reasons underlying them.

The actual value of debating and discussing moral questions is in providing very
carefully constructed arguments, that have well-qualified conclusions that
back up our ideas. In so doing we allow for a balanced as well as a deeper
understanding of the reasons underlying our opinions, beliefs, ideas as well as
our attitudes.

In ethical reasoning, the idea is not to win the argument, we also do not mean
an earsplitting argument or dispute, but rather a rational discussion in which
the participants allow each other to put forward their respective cases.
Importantly, this entails careful listening to other participants, analysing
their views and gaining from their opinions. Mutual respect, in addition to the
skill of contributing a well thought out argument for the position that one
stands for, challenges others to engage in discussions in a more constructive
way. The ideal is consensus or at least a workable conciliation, and the outcome
may also be that we may have opposing ideas but tolerate each other; meaning
the matter remains open for further discussion.

3. Difference between moral talk and legal talk

Let us consider the discussion on abortion in the Background to Tutorial

Letter 501. The discussion attempts to explain some of the aspects of that
part of our lives which has to do with right and wrong. The discussion
particularly focuses on the rights as well as the wrongs of aborting a fetus
thereby ending a life prior to birth. The principal question arising from a
discussion on the morality of abortion is whether abortion is morally right
or wrong? When we reflect on whether abortion should be performed on a
person, we enquire if it is an ethically right thing to do. You should specifically
here note the evaluation of the reasons that one can base one’s moral
arguments on.
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Let us take a moment to think about the following questions:

• How does one know what conduct is right and wrong?

• Can we say conduct is right if it gives one a gratifying feeling?
• Can we say conduct is right if it reflects awareness of others?

Culture, traditions, education, religion, our values, principles as well as our

purpose are some of the aspects which help us in pointing to what is right,
good and meaningful in our lives. These values and principles serve as a point
of reference for most of the decisions that one might make. In other words,
we ask if performing a particular action is consistent with our moral views and
values on the matter. Such a question cannot be answered with reference to
legal precedent or our laws.

One cannot merely accept that because abortion is legal, it is morally

right. In a moral discussion, the significant questions that we are challenged
with cannot merely be answered by conceding to what our laws state on the
issue. Eventhough abortion is legal in South Africa (under specific
circumstances), it remains a problematic, contentious and unresolved issue in
most churches. Some religious organisations instruct their members to view
abortion as morally wrong.

Although the creation of laws may be influenced by society’s ethics or moral

beliefs, this does not mean that a moral argument can merely be resolved by
reference to the law. Because the law in South Africa permits abortion does
not mean that moral talk should not be advanced.

Although laws are influenced by a wide range of factors, the influence of

morality on law is evident in several different laws. An example which comes
to mind, is the commercial world, where bribery and fraud are criminalised
and where company directors exemplify what is generally regarded to be the
moral manner to do business.
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Take a moment to think of other laws which are generally based on the
moral principles of our societies.

With the background information provided above, think critically and

discuss the differences and similarities between law and ethics.

In conclusion, it should be noted that lawyers are not primarily concerned

with ethics, but they cannot avoid it. Possibly, the legal profession compared
to any other profession is every so often challenged with moral issues which
cannot merely be resolved by laws or statutes.

We want you to consider the following ethical scenario and decide

what your decision would be. You should be able to motivate your decision
in an ethically acceptable way. We will return to this question in a later
Learning Unit, so keep your answer at hand.

Attorneys practise under a code of conduct. Part of this code is the prescribed
fees an attorney may charge for services rendered. For example, for a phone
call on behalf of a client an attorney may charge R109. Imagine that you are an
attorney making a phone call on behalf of your client. The call took you less than
a minute because the person you were looking for was not in. Telkom will charge
you about R3 for the call. What will the amount be on your client’s account? R3
or R109?