Ethical Issues in Policing

Seumas Miller, John Blackler

• Publisher: Routledge
• Year: 2017
• ISBN:
  9781351939041
• Edition: 1
• Topic: Law
• Subtopic: Criminal Procedure
• Index: Law

Police Studies constitute an important area of academic inquiry and policing raises a large number of ethical questions, yet to date there has been a paucity of research on the subject. This significant volume provides an integrated mix of ethico-philosophical analysis combined with practitioner knowledge and experience to examine and address the large number of difficult ethical questions involved in modern-day policing. Key features: ¢ Outlines a distinctive philosophical theory of policing which promotes the human rights dimension of police work. ¢ Analyzes the phenomenon of noble cause corruption and ways to combat it. ¢ Examines the role of restorative justice. ¢ Discusses the related notions of police authority and police discretion. ¢ Assesses the use of coercive and deadly force. ¢ Provides a detailed discussion of recent issues such as privacy and confidentiality in the context of new communication and information technologies, and entrapment. Philosophical in approach and written in an accessible style, the book will be a valuable guide for all those with an interest or involvement in Police Studies, Criminology, Philosophy and Ethics.

Chapter 1
A Theory of Policing: The Enforcement of Moral Rights

In this chapter, we discuss the relationship between moral rights and the institution of the police.¹ We argue that the protection of moral rights is the central and most important moral purpose of police work, albeit a purpose whose pursuit ought to be constrained by the law. So while police institutions have other important purposes that might not directly involve the protection of moral rights, such as to enforce traffic laws or to enforce the adjudications of courts in relation to disputes between citizens, or indeed themselves to settle disputes between citizens on the streets, or to ensure good order more generally, these turn out to be purposes derived from the more fundamental purpose of protecting moral rights, or they turn out to be (non derivative) secondary purposes. Thus laws against speeding derive in part from the moral right to life, and the restoring of order at a football match ultimately in large part derives from moral rights to the protection of persons and of property. On the other hand, service of summonses to assist the courts is presumably a secondary purpose of policing.²

It is important to state a number of things at the outset. First, this is a normative account of policing, not a descriptive account; it is an account of what policing ought to be about, not what it has been or is about. Moreover, it is a normative theory of the institution of the police, i.e. of the proper ends and distinctive means of the institution of the police. So it is not a theory about specific police methods or strategies; it is not a theory of, so to speak, best practice in policing. Accordingly, we will not here offer detailed arguments in relation to the disputes between "crime-fighter" and "peace-keeper" models of the role of police officers, or between "community-based" policing and "zero-tolerance" policing. That said, a normative theory of the institution of the police will have important implications for questions of police methods and strategies, though often these will not necessarily be straightforward or obvious. At any rate, such questions are not our concern in this chapter; rather, we take some of them up in later chapters.

Naturally, whether or not a descriptive theory of an institution is warranted depends on empirical facts. Moreover, the falsity of the descriptive theory would put pressure on the acceptability of any normative theory of institutions. If it turned out that no institution of that kind at any time or place in fact involved to any extent the pursuit of the moral good proposed in some normative theory of that institution, then this would make it implausible to claim that the institution, nevertheless, in general ought to aim at that good. That said, there is inevitably some mismatch or space between normative theory and descriptive theory. It is precisely this space that can and should be occupied by the work of those institutional designers seeking to apply or concretise an adequate normative theory of the institution in question.

Second, we are assuming a particular notion of moral rights. Moral rights are of two kinds. First, there are human rights; moral rights that individuals possess solely by virtue of properties they have as human beings, e.g. the right to life and the right to freedom of thought³Second, there are institutional (moral) rights; moral rights that individuals possess in part by virtue of rights-generating properties that they have as human beings, and in part by virtue of their membership of a community or morally legitimate institution, or their occupancy of a morally legitimate institutional role. Thus the right to vote is an institutional right, since it exists in part by virtue of possession of the rights-generating property of autonomy, and in part by virtue of membership of a political community. Again, the right to arrest and detain someone for assault is a moral right possessed by police officers. This right is in part dependent on membership of a morally legitimate police institution, but it is also in part dependent on the human right of the victim not to be assaulted.

Moreover, we are assuming the following properties of moral rights. First, moral rights generate concomitant duties on others, e.g. A's right to life generates a duty on the part of B not to kill A. Second, human rights, but not necessarily institutional moral rights, are justifiably enforceable, e.g. A has a right not to be assaulted by B, and if B assaults or attempts to assault A, then B can legitimately be prevented from assaulting A by means of coercion.⁴ Third, bearers of human rights, in particular, do not necessarily have to assert a given human right in order for them to possess it, and for the right to be violated, e.g. an infant may have a right to life even though it does not have the ability to assert it (or for that matter to waive it).

Third, the conception of policing that we are offering is a teleological conception; it is a conception in terms of the ends or goals of policing.⁵ Moreover, it is a teleological conception according to which the most important end or purpose of policing is the protection of moral rights.

Fourth, on the view that we are advocating, while police ought to have as a fundamental purpose the protection of moral rights, their efforts in this regard ought to be constrained by the law. In so far as the law is a constraint - at least in democratic states - then our view accommodates "consent" as a criterion of legitimacy for the police role.⁶ However, on our view legality, and therefore consent, is only one consideration. For we are insisting that police work ought to be guided by moral considerations - namely, moral rights - and not simply by legal considerations. This enables us to avoid the problems besetting theories of policing cast purely in terms of law enforcement, or protection of the State, or even peace-keeping.⁷ Such theories are faced with the obvious problem posed by authoritarian states, or sometimes even democratic states, that enact laws that violate human rights, in particular. Consider the police in Nazi Germany, Soviet Russia, or Iraq under Saddam Hussein. These police forces upheld laws that violated the human rights of (respectively) Jews, Soviet citizens, and Iraqi citizens (including Shi'ite Muslims' religious rights). By our lights, the officers in these police forces simultaneously violated human rights, and abrogated their primary professional responsibility as police officers to protect human rights.

Further, we reiterate that on the view that we are advocating, police engaged in the protection of moral rights ought to be constrained by the law, or at least ought to be constrained by laws that embody the will of the community in the sense that: (a) the procedures for generating these laws are more or less universally accepted by the community, e.g. a democratically-elected legislature, and; (b) the content of the laws are at least in large part accepted by the community, e.g. they embody general policies with majority electoral support or reflect the community's moral beliefs.⁸ So we are in part helping ourselves to a broadly contractarian moral constraint on policing, namely the consent of citizens; although by our lights consent is not the raison d'être for policing, rather it provides an additional (albeit necessary) condition for the moral legitimacy of police work.⁹ Moreover, we are refraining from providing police with a licence to pursue their (possibly only individually) subjective view of what counts as an enforceable moral right. What counts as an enforceable moral right is an objective matter. Nevertheless, some particular person or group has to specify what are to be taken to be enforceable moral rights and what are not to be so taken; and in our view ultimately this is a decision for the community to make by way of its laws and its democratically elected government. Here we take it that in a properly constituted democracy, the law embodies the will of the community in the sense adumbrated above. Moreover, we can further distinguish between local, regional and national communities, especially in states that have sub-national elected bodies such as local councils. This enables us to give substance to notions of community-based policing or partnerships between police and local communities. For at the sub-national level, and especially the local level, it becomes feasible for police to consult and work with communities to address law enforcement issues in a consensual manner.¹⁰

There is a further point to be made here. The law concretises moral rights and the principles governing their enforcement, including human rights as well as institutional moral rights. To this extent, the law is very helpful in terms of guiding police officers and citizens in relation to the way that abstract moral rights and principles apply to specific circumstances. For example, there is a human right to life that can be overridden in accordance with certain moral principles, such as self-defence or defence of the lives of others. However, it is the laws governing the use of deadly force by police officers that provide an explicit and concrete formulation of these moral rights and principles, and thereby prescribe what is to be done or not done by police officers in specific circumstances.

In short, in our view police ought to act principally to protect certain moral rights, those moral rights ought to be enshrined in the law, and the law ought to reflect the will of the community. Should any of these conditions fail to obtain, then there will be problems. If the law and objective (justifiably enforceable) moral rights come apart, or if the law and the will of the community come apart, or if objective moral rights and the will of the community come apart, then the police may well be faced with moral dilemmas. We do not believe that there are neat and easy solutions to all such problems.¹¹ Clearly, if the law and/or the citizenry require the police to violate moral rights, then the law and/or the citizenry will be at odds with the fundamental purpose of policing. Accordingly, depending on the circumstances, the police may well be obliged to disobey the law and/or the will of the community. On the other hand, what is the appropriate police response to a citizen violating someone else's objective moral right in a community in which the right is not as a matter of fact enshrined in the law, and the right is not supported by the community? Consider, in this connection, women's rights to (say) education under an extremist fundamentalist religious regime such as the former Taliban regime in Afghanistan.¹² Under such circumstances, an issue arises as to whether police are morally obliged qua police officers to enforce respect for the moral right in question. Again, we suggest that they may well be obliged to intervene to enforce respect for such a moral right.

Normatively speaking then, the protection of fundamental moral rights specifically justifiably enforceable moral rights - is the central and most important purpose of police work. As it happens, there is increasing recourse to human rights legislation, in particular, in the decisions of domestic as well as international courts. This is an interesting development. However, it must also be pointed out that the criminal law in many, if not most, jurisdictions already in effect constitutes human rights legislation. Laws proscribing murder, rape, assault and so on, are essentially laws that protect human rights. So it is clear that whatever the historical importance of a "Statist" conception of human rights - human rights as protections of the individual against the State - such a conception is inadequate as a general account of human rights. Human rights, in particular, and moral rights more generally, also exist to protect individual citizens from their fellow citizens, and individual citizens from organisations other than the organisations of the State. Moreover, tort law is also relevant here, e.g. tort law provides for compensation for the unintended infringement of human rights.

In this connection, please note that we do not say that the protection of (legally enshrined, justifiably enforceable) moral rights ought to be the only goal of policing; merely that it ought to be the central and most important goal, and that other important roles derive from it. Here it is important to note that we are rejecting the dichotomy sometimes offered between police as law enforcers and police as peace-keepers. Both roles are important, but our account shows why they are important. Law enforcement is important mainly because laws embody moral rights. Likewise, peace-keeping is important in large part because disorder typically consists of, or is a prerequisite for, violations of moral rights, including rights to security of person and of property.

Moreover, there are numerous service roles that police play, and ought to continue to play, because they consist of, or facilitate, their central and most important role of protecting moral rights. Consider, in this connection, police assistance in relation to missing persons who might have come in harm's way, or assisting drunks who might otherwise harm themselves ¹³ or be harmed.

Nevertheless, we do not hold that police are, or ought to be, preoccupied with seeing to it that all moral rights are secured. Roughly speaking, police are, or ought to be, engaged in moral rights work to the extent to which the moral rights in question are ones that justify and potentially require the use of coercive force for their protection.¹⁴ Some moral rights are not justifiably enforceable, e.g. a wife's moral right to the sex her husband promised her when they got married. Other moral rights do not necessarily, or in general, require the use of coercive force for their protection. For example, a physically disabled person might have a moral right to appropriate access to public buildings such as libraries and government offices, and such access might necessitate the provision of sloping paths as opposed to stairs. But the securing of this right for the disabled might call only for action on the part of the local council; there might be no need for the police to be involved.

Here the distinction made by Henry Shue is relevant. Shue distinguishes between three sorts of duties that correlate with what he calls "basic rights".¹⁵ These are the duties to: (a) avoid depriving; (b) protect from deprivation, and; (c) aid the deprived.

In relation to police work, (b) above, the duty to protect from deprivation, is especially salient. Police are typically engaged in protecting someone from being deprived of their right to life, liberty or property. Note that police...