Professor Luciano @Floridi has recently introduced the concept of Soft Ethics. He wants to make a distinction between ethical judgements that go into laws, regulations and other norms, which he calls Hard Ethics, and ethical judgements that apply and extend these codes of practice in practical situations, which he calls Soft Ethics. The latter he also calls Post-Compliance Ethics – in other words, what you should do over and above complying with all applicable laws and regulations.
The labels “hard” and “soft” are used in many different domains, and carry diverse connotations. Some readers may interpret Floridi’s use of these labels as implying that the “hard” ethics are clear-cut while the “soft” ethics are more fuzzy. Others may think that “hard” means difficult or tough, and “soft” means easy or lax. But even if the laws themselves were unambiguous and definitive (which obviously they aren’t, otherwise lawyers would be redundant), the thinking that goes into the law-making process is complex and polyvocal, and the laws themselves usually represent a compromise between the interests of different stakeholder groups, as well as practical considerations of enforcement. (Floridi refers to “lobbying in favour of some good legislation or to improve that which already exists” as an example of hard ethics.) For this reason, regulations such as GDPR tend to fall short of the grand ethical vision that motivated the initiative in the first place.
In some quarters, the term “pre-normative” is used for the conceptual (and sometimes empirical) work that goes into the formulation of law and regulations. However, this might confuse those philosophers familiar with Peirce’s use of the term. So my own preference is for the term “upstream”. See my post on Upstream Ethics (March 2019).
Floridi suggests that soft ethics are most relevant “in places of the world where digital regulation is already on the good side of the moral vs. immoral divide”, and seems to think it would be a mistake to apply a soft ethics approach in places like the USA, where the current regulation is (in his opinion) not fit for purpose. But then what is the correct ethical framework for global players?
For example, in May 2018, Microsoft announced that it would extend the rights at the heart of GDPR to all of its consumer customers worldwide. In most of the countries in which Microsoft operates, including the USA, this is clearly over and above the demands of local law, and therefore counts as “Soft Ethics” under Floridi’s schema. Unless we regard this announcement as a further move in Microsoft’s ongoing campaign for national privacy legislation in the United States, in which case it counts as “Hard Ethics”. At this point, we start to wonder how useful Floridi’s distinction is going to be in practice.
At some point during 2018, Floridi was alerted to the work of Ronald Dworkin by an anonymous reviewer. He therefore inserted a somewhat puzzling paragraph into his second paper, attributing to Dworkin the notion that “legal judgment is and should be guided by principles of soft ethics” which are “implicitly incorporated in the law”, while attributing to H.L.A. Hart the position that soft ethics are “external to the legal system and used just for guidance”. But if soft ethics is defined as being “over and above” the existing regulation, Floridi appears to be closer to the position he attributes to Hart.
Of course, the more fundamental debate between Dworkin and Hart was about the nature of authority in legal matters. Hart took a position known as Legal Positivism, strongly rejected by Dworkin, in which the validity of law depended on social conventions and customs.
The legal system is norms all the way down, but at its root is a social norm that has the kind of normative force that customs have. It is a regularity of behavior towards which officials take ‘the internal point of view’: they use it as a standard for guiding and evaluating their own and others’ behavior, and this use is displayed in their conduct and speech, including the resort to various forms of social pressure to support the rule and the ready application of normative terms such as ‘duty’ and ‘obligation’ when invoking it. (SEP: Legal Positivism)
For Floridi, the authority of the law appears to rely on what he calls a normative cascade. This is a closed loop in which Ethics constrains Law, Law constrains Business/Government, Business/Government constrains People (as consumers or citizens), and the People (by deciding in what society they wish to live) can somehow bring about changes in Ethics. Perhaps Professor Floridi can explain which portions of this loop are Hard and which are Soft?
Julie Brill, Microsoft’s commitment to GDPR, privacy and putting customers in control of their own data (Microsoft, 21 May 2018)
James Feibleman, A Systematic Presentation of Peirce’s Ethics (Ethics, Vol. 53, No. 2, January 1943) pp. 98-109
Luciano Floridi, Soft Ethics and the Governance of the Digital (Philos. Technol. 31:1–8, 17 February 2018)
Luciano Floridi, Soft ethics, the governance of the digital and the General Data Protection Regulation (Philosophical Transactions of the Royal Society, Volume 376 Issue 2133, 15 November 2018)
Jack Hirshleifer, Capitalist Ethics–Tough or Soft? (The Journal of Law and Economics, Vol 2, October 1959), pp. 114-119
Scott J. Shapiro, The Hart-Dworkin Debate: A Short Guide for the Perplexed (5 March 2007)
Bucks County Courier Times, Getting Tough on Soft Ethics (10 February 2015)
Stanford Encyclopedia of Philosophy: Legal Positivism