Mc Naught & Co

The Law Versus Ethics

This article is not factually based, but instead an opinion piece on the eternal conundrum that arises between law and ethics.


What is the law?

Well, we all know that answer, its a set of “rules” which are found in three places:

  1. Legislation made by parliament;
  2. The common law – developed over time by custom and the courts; and
  3. Case law – decisions made by courts which set out how to approach and apply certain things.


The law in itself strikes to find a balance as to what is fair, responsible and affords equal protection to the parties found from time to time on either said of each relevant law.


This very balance though which the law seeks to strike often clashes with what is fair and ethical in the eyes of the community and its at these crossroads that we see law and ethics not following the same path.



Well, here we see essentially what the public at large and certain groups in the narrower sense believe to be moral, just and equitable. The very opinion based nature of ethics is what causes its clash on occasion with the law.


This crossroads in practice

Well, I am going to relate a personal experience to you.

I yesterday approached a property developer with a view to looking at a site in their new development. When looking at the pre-emption agreement, I came across a number of clauses which essentially stated that the required R50 000.00 deposit will NOT earn the buyer any interest, will be released to the developer even before the site legally exists, is forfeited by the buyer even if they are unable to secure their mortgage finance for the property and, if the developer breaches the contract, is refunded to the buyer with ZERO interest!

When challenged on this unfair set of provisions, the developer declined to deal further with me.


Now, this conduct and the clauses mentioned are substantially legal as regards conventional property, but most certainly don’t accord with what one would believe to be just, fair and ethical.


The Solution

This problem has existed for hundreds of years and will exist for hundreds more. When it comes to contracts, business dealings etc, we thankfully all have a choice as to whether or not we involve ourselves in something which, although legal, is not ethical or moral in our eyes. This freedom of choice is ultimately our saving grace in marrying the law and ethics.


Should you ever come across something which just does not feel right to you, contact us for an opinion on the legal aspects of it. You can then, in good knowledge and conscience, decide if you want to proceed down the path or not. All our staff, whilst legally trained, always try to find that common ground or point of intersection between the law and ethics.


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