■■ topic paper – police practices
General – AT K police = illegitimate
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- (Seumas John, Charles Sturt University, Australia
- MILLER BLACKLER
_General – AT K police = illegitimatePolice are not mere statist enforcers of abstract/tyrannical law – especially in a democracy they are (should be) constrained by contractarian consent of citizensMILLER & BLACKLER professors @ centre for applied philosophy & public ethics @ Charles Sturt University 2005 (Seumas & John, Charles Sturt University, Australia, Ethical Issues in Policing, p.8-9 , note://// indicates par. breaks)[AR SPRING16] 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'etre 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 democraticallyelected 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 Evaluate police in terms of best possible method to achieve their broader societal purpose. Methods are open to revision and change (thus the plan), but some use of coercive force is morally permissible as an inevitable function of policingMILLER & BLACKLER professors @ centre for applied philosophy & public ethics @ Charles Sturt University 2005 (Seumas & John, Charles Sturt University, Australia, Ethical Issues in Policing, p.25-27 , note://// indicates par. breaks)[AR SPRING16] Bittner's account of policing is inadequate because it fails to say anything about the goals or ends of policing. Moreover, coercion is not the only means deployed by the police. Other typical means include negotiation, rational argument, and especially appeal to human and social values and sentiment. Moreover, whole taxonomies of police roles have been constructed on the basis of different mixes of methods, e.g. negotiation, and proximate ends of policing, e.g. maintaining peace. Consider Kleinig's taxonomy in terms of peace-keepers, crime-fighters, "social enforcers" and "emergency operators".3 7 Here we need to stress that we are not advocating one or other of the possible configurations of these mixes. Hitherto, we have spoken of the ends of policing, and especially the fundamental purpose of ensuring the protection of justifiably enforceable moral rights. Now we are speaking of the means by which to achieve that purpose, and also of different roles (comprised of means and proximate ends) by means of which that ultimate purpose might be realised. Clearly there are different ways to achieve a given end; and there are different means, including different roles, by which to realise the fundamental and ultimate end of policing as we have described it. Whether to emphasise the crime-fighter or the peace-keeper role, for example, ought to be settled in large part on the basis of which is the most efficient and effective means to ensure the protection of (justifiably enforceable) moral rights. To this extent, our theory of policing is - at least in principle - neutral on questions of police methodology, and in relation to disputes between advocates of law enforcement roles and service roles for police.//// To return to Bittner: in drawing attention to coercion, he has certainly identified a distinctive feature of policing, and one that separates police officers from (say) criminal justice lawyers and politicians.//// Further, in stressing the importance of coercion, Bittner draws our attention to a fundamental feature of policing, namely its inescapable use of what in normal circumstances would be regarded as morally unacceptable activity. The use of coercive force, including in the last analysis deadly force, is morally problematic; indeed, it is ordinarily an infringement of human rights, specifically the right to physical security and the right to life. Accordingly, in normal circumstances the use of coercive force, and especially deadly force, is morally unacceptable. So it would be morally wrong, for example, for some private citizen to forcibly take a woman to his house for questioning or because he felt like female company.//// Use of coercive force, especially deadly force, requires special moral justification precisely because it is in itself at the very least harmful, and possibly an infringement of human rights; it is therefore in itself morally wrong, or at least, so to speak, a prima facie moral wrong. Similarly, locking someone up deprives them of their liberty, and is therefore a prima facie moral wrong. It therefore requires special moral justification. Similarly with deception. Deception, including telling lies, is under normal circumstances morally wrong. Once again, use of deception requires special moral justification because it is a prima facie moral wrong. Intrusive surveillance is another prima facie moral wrong - it is an infringement of privacy. Therefore, intrusive surveillance requires special moral justification. And the same can be said of various other methods used in policing. The point here needs to be made very clear lest it be misunderstood. Police use of coercion, depriving persons of their liberty, deception and so on, are morally problematic methods; they are activities which considered in themselves and under normal circumstances are morally wrong. Therefore, they stand in need of special justification. In relation to policing there is a special justification. These harmful and normally immoral methods are on occasion necessary in order to realise the fundamental end of policing, namely the protection of (justifiably enforceable) moral rights. An armed bank robber might have to be threatened with the use of force if he is to give himself up, a drug-dealer might have to be deceived if a drug ring is to be smashed, a blind eye might have to be turned to the minor illegal activity of an informant if the flow of important information he provides in relation to serious crimes is to continue, and a paedophile might have to be surveilled if evidence for his conviction is to be secured. Such harmful and normally immoral activities are thus morally justified in policing, and morally justified in terms of the ends that they serve.//// The upshot of our discussion thus far is that policing consists of a diverse range of activities and roles, the fundamental aim or goal of which is the securing of (justifiably enforceable) moral rights; but it is nevertheless an institution the members of which inescapably deploy methods which are harmful; methods which are normally considered to be morally wrong. Other institutions which serve moral ends, and necessarily involve harmful methods, or prima facie wrongdoing, are the military - soldiers must kill in the cause of national self-defence - and political institutions. Australia's political leaders may need to deceive, for example, the political leaders of nations hostile to Australia, or their own domestic political enemies.///// We have suggested that policing is one of those institutions the members of which need at times to deploy harmful methods; methods which in normal circumstances are morally wrong. In response to this, we need first to ask ourselves why it is that morally problematic methods such as coercion and deception are inescapable in policing. Why could not such methods be wholly abandoned in favour of the morally unproblematic methods already heavily relied upon, such as rational discourse, appeal to moral sentiment, reliance on upright citizens for information, and so on?//// Doubtless in many instances morally problematic methods could be replaced. And certainly overuse of these methods is a sign of bad police work, and perhaps of the partial breakdown of police-community trust so necessary to police work. However, the point is that the morally problematic methods could not be replaced in all or even most instances. For one thing, the violations of those moral rights which the police exist to protect are sometimes violations perpetrated by persons who are unmoved by rationality, appeal to moral sentiment, and so on. Indeed, such persons, far from being moved by well-intentioned police overtures, may seek to coerce or corrupt police officers for the purpose of preventing them from doing their moral and lawful duty; hence the truth of the claim that the use of coercive force in particular remains the bottom line in policing, no matter how infrequently coercion is in fact used. For another thing, the relevant members of the community may for one reason or another be unwilling or unable to provide the necessary information or evidence, and police may need to rely on persons of bad character or methods such as intrusive surveillance. So the use of harmful methods cannot be completely avoided. It remains important to realise that these methods are in fact morally problematic; to realise that coercion, depriving someone of their liberty, deception, invasion of privacy and so on, are in fact in themselves harmful. Indeed, these methods constitute prima facie wrongdoing, and some of them constitute - under normal circumstances - human rights violations. In the final section of this chapter, we consider some of the elements of this means/end problematic in policing. Anybody – citizen or police – has a right to kill in self-defense. Police have an even stronger obligation to kill in order to protect innocent lives: they are trained and take an oath for this.MILLER & BLACKLER professors @ centre for applied philosophy & public ethics @ Charles Sturt University 2005 (Seumas & John, Charles Sturt University, Australia, Ethical Issues in Policing, p.69, note://// indicates par. breaks)[AR SPRING16] Police have a right to kill in self-defence and to kill in defence of the lives of others. In this respect, they are no different from ordinary citizens. But a further point that needs to be stressed is that police on occasion have a legal and moral duty to kill to protect innocent lives. Indeed, they can be held legally liable if they fail to take the opportunity to shoot dead an armed and dangerous criminal who then goes on to (say) take the lives of innocent citizens. What of ordinary citizens? Do they have a moral - as opposed to legal - obligation to kill to protect others, at least in cases where the threat to life is immediate, certain and there is no alternative to using deadly force? The answer is a qualified affirmative. The qualifications are twofold. Firstly, the obligation of ordinary citizens to kill to protect others is only triggered in the absence of police; in the first instance, it is the duty of police to protect threatened lives. Secondly, not having been trained, and not having accepted a special responsibility, to protect the lives of others, ordinary citizens ought not to be expected to go to the same lengths or take the same risks as police officers are obliged to. Police use of force operationalizes the right to self-defense superseding the right to life (assumes appropriate application, etc)MILLER & BLACKLER professors @ centre for applied philosophy & public ethics @ Charles Sturt University 2005 (Seumas & John, Charles Sturt University, Australia, Ethical Issues in Policing, p.9 , note://// indicates par. breaks)[AR SPRING16] 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. Download 1 Mb. Share with your friends:
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