Putting law before ethics risks fosters compliance rather than true professional integrity

Excessive regulation reduces professionals to mere functionaries, following rules without engaging in the ethical reasoning central to their roles.

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The recent push to create legislative frameworks for various professions, such as the Insurance Professionals Bill 2024 and the Bankers Professionals Bill, reflects a growing trend in the country to regulate professional conduct through legal means.

While these frameworks aim to enhance professional standards, protect consumers, and maintain public trust, they raise significant concerns about their broader impact.

Are these proposed regulatory frameworks truly geared towards promoting professional integrity, or are they simply going to create and entrench a culture of compliance?

Roscoe Pound, an influential American legal scholar, argued that a profession is defined not just by specialized knowledge or technical competence but by its service orientation toward the public good.

According to Pound, the essence of professionalism lies in ethical responsibility and moral integrity, elements that cannot be legislated. A legal framework can enforce certain standards, but it cannot create the intrinsic moral commitment essential to true professionalism.

The Insurance Professionals Bill and the Bankers Professionals Bill are part of a broader effort to regulate professions in the country. Advocates of these bills argue that regulation is necessary to ensure professionals' competence and integrity and to protect the public.

However, the focus on legal frameworks overlooks a critical reality: professionalism cannot be legislated. Regulatory frameworks can set minimum standards of practice and create accountability mechanisms, but they cannot cultivate the ethical values that underpin genuine professionalism.

By prioritising legal enforcement over ethical cultivation, we risk fostering a culture of compliance rather than one of true professional integrity. Excessive regulation can stifle innovation, creativity, and the professional autonomy needed for professionals to make informed ethical decisions.

In fields like insurance and banking, where ethical dilemmas are common, professionals need a degree of independence to balance their duties to clients, employers, and the public. When legal frameworks over-regulate, this autonomy is eroded, leading to a bureaucratic approach that prioritizes adherence to rules over moral judgment.

The push for regulatory frameworks also reflects a broader societal issue: the belief that laws can solve moral or ethical problems. Issues like professional integrity, accountability, and public trust are fundamentally ethical in nature.

Attempting to address them through legal mechanisms oversimplifies the complexity of these issues. For instance, ethical dilemmas in the banking or insurance sectors—such as conflicts of interest or fairness in service provision—require nuanced moral reasoning, not just compliance with legal rules. Legal frameworks can provide guidelines, but they cannot replace the moral judgment that is essential in such situations.

Moreover, an overreliance on regulation risks creating a bureaucratic culture where professionals are more concerned with following procedures than with making decisions that serve their clients or the public. This bureaucratization undermines one of the key attributes of a profession: autonomy.

Professional autonomy allows professionals to make independent judgments based on their expertise and ethical considerations.

Excessive regulation reduces professionals to mere functionaries, following rules without engaging in the ethical reasoning central to their roles. This loss of autonomy can have serious consequences, especially in fields like banking and insurance, where ethical dilemmas are common.

For example, a banker may face a situation where strict adherence to regulatory requirements conflicts with the best interests of a client. In such cases, the ability to exercise moral judgment is crucial. If over-regulation stifles this autonomy, the profession risks becoming dehumanized, with professionals losing sight of their public service role.

Rather than relying solely on legal frameworks to regulate professions, Kenya should adopt a more balanced approach that emphasizes the cultivation of ethical responsibility alongside regulatory oversight.

Professional organisations, educational institutions, and employers all have roles to play in fostering a culture of ethical professionalism. Regulatory frameworks can establish accountability, but they must be accompanied by efforts to instill moral integrity and ethical reasoning in professionals.

Drawing on Roscoe Pound’s definition of a profession, it becomes clear that true professionalism cannot be legislated. While legal frameworks can set minimum standards, they cannot cultivate the ethical values necessary for genuine professionalism. The current regulatory obsession risks creating a culture of compliance rather than one of moral responsibility.

To truly serve the public good, we must focus not just on legal regulation but also on fostering ethical education and professional autonomy. This balanced approach would ensure that professionals in fields like insurance and banking uphold the ethical values essential to their roles, as envisioned by Pound.

Brian Otieno is a Legal and Public Policy Practitioner. Email: [email protected]

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