There is an important distinction between law and ethics in that the latter lacks law’s properties and binding characteristics. Law, which always consists of a universal body or set of rules, is, according to Judith Butler, coercive (Butler 2006, 203), and, as Jacques Derrida (1930-2004) saw, always enforceable: there is no such thing as non-enforceable law (Derrida 2013).
There is an important distinction between law and ethics in that the latter lacks law’s properties and binding characteristics. Law, which always consists of a universal body or set of rules, is, according to Judith Butler, coercive (Butler 2006, 203), and, as Jacques Derrida (1930-2004) saw, always enforceable. There is no such thing as non-enforceable law (Derrida 2013).
Those living under a government are obliged to obey law or violence of a kind (physical and/or losing one’s freedom) will be acted out upon them (Benjamin 1996, 244-245). In the Study of Religion and the humanities, ethics, as a branch of moral philosophy, is far less coercive in that it does not confront the state and because it acts to guide researchers on basic human conduct. However, because disregarding ethical principles is not analogous to disregarding law, there is no legal punishment for violating ethics.
This distinction underscores the importance of Diebel-Fischer’s mode of external research ethics where scholars and researchers of religion are held accountable by the academic community. This mode sees ethicists evaluating the researcher’s work often as the result of negative or unwanted consequences of research activities resulting from a researcher untrained in ethics or who has (un)knowingly ignored ethical principles (Diebel-Fischer 2018, 12). Many within the academic community no doubt fear that the reputations of good, ethical scholars can be marred by the unethical activities of less ethical researchers associated with various scholarly institutions.
Because of the unethical practices of many early nineteenth-century scholars, notably the classical anthropologists of sociologists, that were entangled with discriminatory colonial activities and harsh value-laden discoures, scholars of religion today generally feel all the more compelled to follow ethical and lawful direction and remain mindful of historical immoralities that lie at the foundation of their discipline(s) and subsequent development. Indeed, the foundation and development of the discipline of the study of religion have been interrogated by scholars in various sub-disciplines such as in the post-colonial and decolonial areas and much else.
In moral philosophy, humans are generally considered moral agents who have some level of freedom of choice (unless one is a hard determinist) and therefore should be bound by an ethical and law-based commitment to one another (Diebel-Fischer 2018, 17). As such, research must always be within the bounds of the law. But not being ethical is not necessarily the same as an act being illegal. It is, for instance, ethical to report data honestly but it is not illegal to not do so, which is why in the realm of academia Diebel-Fischer highlights the importance of promoting awareness of ethics where needed (Diebel-Fischer 2018, 9).
Academic research of any kind, especially where human and animal subjects are involved, is subordinate to legislative principles and regulations in various ways. According to the Constitution of South Africa, “Everyone is equal before the law and has the right to equal protection and benefit of the law”. Everyone has the right to have their “dignity” protected. Research cannot therefore violate these basic human rights and legislative regulations by undermining a subject’s dignity by, for example, putting the subject’s life or identity in jeopardy.
Both ethical and lawful concerns are especially pressing in a digital age that has “generated new research areas and questions” (Diebel-Fischer 2018, 16). Law is often unclear on digitality and tends to evolve and revise when encountering unique events regarding it. One case involved an American man who used a shotgun to shoot down his neighbor’s drone for what he perceived to be a violation of his privacy. Although later arrested, the court found him not guilty because the drone transgressed upon his private property and hence his rights. At the time, this was a unique circumstance for the court.
Equally, it is imperative that scholars across the fields of the study of religion, sociologist, and anthropology remain considerate of how the information provided by their subjects is stored, compiled, and analyzed. It is possible that further unique events in this age of digitality will occur that could conceivably become relevant to matters of law.
Ethical principles, while not coercive like law, are important to heed, especially within the digital age where the law is sometimes murky concerning digitality, hence the importance of academic communal accountability of researchers and their research projects.
Walter, Benjamin. 1996. Walter Benjamin: Selected Writings: 1913-1926. Massachusetts: Harvard University Press.
Butler, Judith. 2006. Critique, Coercion, and Sacred Life in Benjamin’s “Critique of Violence.” Political Theologies: Public Religions in a Post-Secular World, edited by Hent de Vries and Lawrence E. Sullivan. New York: Fordham University Press.
Derrida, Jacques. 2013. Force of Law: The “Mystical Foundation of Authority.” Acts of Religion. New York: Routledge.
Diebel-Fishcer, Hermann. 2018. “Research Ethics in the Digital Age: Fundamentals and Problems.” Research Ethics in the Digital Age: Ethics for Social Sciences and Humanities in Times of Mediatization and Digitalization. Wiesbaden: Springer.