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A question of loyalty.

Like George Fletcher,(1) my thinking about loyalty has been prompted by practical considerations. But whereas his focus was on patriotism and the grand themes of national identity, mine has been on the experience of serving police officers who, in the course of their work, find themselves in the grip of dilemmas about misplaced, misguided, divided, and conflicting loyalties. For better or worse, the character of contingent starting points often sets the direction for subsequent developments. Mine has led me to form a far less sanguine view of loyalty than Fletcher, who has both widened its scope and narrowed its application in ways that do little to make the difficult dilemmas which arise in the police context more tractable. I should add that I write as a European, and wonder whether George Fletcher would have arrived at the same conclusions had he pondered the world that his immigrant forbears left for what is, indeed, a brave new world, which long ago was inevitably set to tragically repeat many of the mistakes of the old.

I propose to consider some of the dilemmas which cluster around the notion of loyalty within the British police service, indicate why loyalty's inherent ambiguity causes difficulties, and why the perspective suggested by Fletcher, whatever its merits in a larger arena, provides no remedies. But first some groundwork is in order.(2)

The Nature of Loyalty

In common with such words as "education," "law," "motivation," and "rationality," "loyalty" is ambiguous. And ordinary usage merely points the way to getting clear the different senses in which it is used. By elaborating what I believe to be a core, if not the core, meaning, I hope to provide a foil with which to dispute the practical relevance of other meanings, not least Fletcher's. Let me, then, both contest Fletcher's explanation of loyalty and try to polish at least one of its surfaces to render it less obscure.

Human relationships are human creations. Their requirements and conditions have been, and are being, contrived as the work of many hands in the process of human living, and they are the most significant of human achievements. Some relations, such as friendship, family, and marriage are of great antiquity, while others, like citizenship and professional association, are of relatively recent origin. Thus, there are many sorts of relationships, each specifiable in terms of its own conditions, and each promising to secure for those in the relationship all manner of wants, needs, interests, and satisfactions, most of which, it should be noted, are not intrinsically moral in character. Moreover, people engage in a multiplicity of such relationships. Indeed, most of a person's identity--the "I" is virtually transparent without the "We"--may be characterized in such terms as parent, child, lover, friend, worker, player, member, patriot, and so on. And it is in this manner that the language of roles gets its meaning. Each person plays many parts, relates to others in all sorts of ways (which includes relating to one person in all sorts of ways as well) usually moves between relations with practiced dexterity, and enters into each part aware of its scripted conditions. Roles in this sense may be accepted or rejected, and people are in roles rather than just having roles, valuable though this latter usage is for the social sciences.

Hence, a person who is in a particular relationship with others is subject to distinct and exclusive conditions, and may be said to be in a role in respect of being related to others in terms of those conditions. Thus, two people might stand in relation to each other in the roles of lovers, friends, husband and wife, professional colleagues, soldiers and co-religionists, each with its own conditions of relationship. And each set of conditions, be it formal, informal, or a mixture of both, must be acknowledged, either implicitly or explicitly, each must be felt as mutual obligations, and generally upheld for the relationship, and hence for the corresponding role, to subsist.

It is in this function of upholding the conditions of a relationship, and hence the relationship, that I believe a core meaning of loyalty is to be found. Beyond indicating its affinity with such notions as faith, trust, and devotion, ordinary usage provides little guidance in this respect. Indeed, ordinary usage is permissive in allowing that a person can be loyal to his or her principles as readily as to the subject of a relationship.

So I, like Fletcher, must have recourse to a stipulative definition, and this, even if it is seen to capture and elucidate an aspect of practice, is as good as allowing that its exclusive adoption is unlikely. Such a definition rules out the use which allows loyalty to principles on the grounds of economy and the excising of confusion. There are words enough to describe a person's adherence to his or her principles without recruiting "loyalty" to that duty, and since principles are often among the conditions which define a relationship, it is all too easy for confusion to arise about the focus of loyalty: principles or a relationship.

The word "loyal" will therefore be taken to refer to a person's disposition to act in such a way that the conditions which define the relationship into which s/he has willingly entered with another person or persons is upheld. Like the classicist and moral philosopher W.D.Ross in his nugatory search for the necessary emotional content of good, I can find no feelings which necessarily attach to loyalty. It seems to me that the disposition could well be in place and working in the presence of feelings which run stronly counter to it. Fletcher's example of Robert E. Lee's resolution to fight for the Confederacy--indeed as one of its most distinguished and resolute leaders in spite of his strong and principled antipathy to slavery--will serve for me too. It follows that I can make little of Fletcher's maximum condition for loyalty which "... is an element of devotion, an affirmative feeling toward the object of loyalty" [9].

Loyalty also admits of degrees. A person can be more or less loyal for the very good reason that loyalty has to serve the dynamic of human relationships, whose conditions too may be more or less realized. Indeed, relationships that are premised solely on transactions aimed at satisfying wants in the form of goods or services form and dissolve with the completion of the transactions, and loyalty, with rare exceptions, is neither appropriate nor is there "space" for it. For Fletcher, "[t]he prediction that the loyal will reject temptation provides the minimal condition for loyalty [9] and "[t]he foundational element in loyalty is the fact not present--the counterfactual conditional statement that if the competitor appears and beckons, the loyal will refuse to follow" [8].

Surely the minimal grounds for loyalty are that the conditions which provide the terms of a relationship are more or less honored by those in the relationship. And those can change for reasons besides those of external competition. For example, and sadly, people often waken to the realization that through the processes of mutual change estrangement has taken the place of love or friendship. It is Fletcher's neglect of this internal dimension of loyalty that makes his examples of betrayal, divorce, and emigration, seem almost bizarre [10].

To the question posed by Fletcher, "Need we act loyally toward the groups and individuals that have entered into our sense of who we are?" [16] I have to answer "No." A large part of one's education in maturity is about unlearning false "truths" and disentangling oneself from the intellectual and emotional associations which gave rise to them. But it is in his attempt to construct an answer to his key question, If we do act loyally, do we do so as a matter of inclination or habit or by virtue of a well grounded duty of loyalty? ...whether our personal histories entail duties of loyalty...[16] that I experience real difficulties with his position. His answer in brief is that ...the historical self generates duties of loyalty toward the families, groups, and nations that enter into our self-definition. These duties may be understood as an expression of self-esteem and self-acceptance. To love myself, I must respect and cherish those aspects of myself that are bound up with others. [16] He adds that the mere fact of my biography I incur obligations toward others, which I group under the general heading of loyalty. [16]

What I find difficult to see is how Fletcher's notion of the historical self, as such, explains loyalty or defines what it is. We are told that we do not choose our historical selves in any direct or immediate sense [16], that the responsibility for our initial sense of historical self is with those who have a formative effect on our upbringing [17], that we have a limited control over our historical selves [17], that our range of choice and freedom is circumscribed by the culture within which we find ourselves [17]. Although Fletcher does not draw an explicit distinction between the dominant senses of "loyalty" as an uncountable and as a countable noun, I shall do so. He writes about "loyalty" as an uncountable noun, meaning being true and faithful, that outsiders cannot claim equal treatment with those who are the objects of loyal attachment [7], that the personal, historical dimension of loyalty breeds a faity in the country and the Constitution [8]. And then about "loyalty" as a countable noun, with the sense of a bond that makes a person faithful to somebody or something, that all forms of loyal bonding presuppose friendships rooted in shared histories [7], that loyalties crystallize in communal projects and shared life experiences, that we define ourselves in the way we draw the lines of our loyalties, and they play an active part in setting us apart and making us distinctive [7], and, puzzlingly, that "[p]eople bring their histories to their loyalties, which implies that the reasons for attachment to a friend, family, or country invariably transcend the particular characteristics of the object of loyalty [7].

I am concerned here with the meaning of "loyalty" in its countable sense as a particular sort of bond. In writing about personal histories and the historical self, Fletcher confuses the processes through which people become loyal with what loyalty is, and in so doing gives far too much emphasis to the role of history conceived as a process of some duration. In short, he commits a version of the genetic fallacy. Surely loyalty, the bond, is properly the necessary servant of relationships, and it may require considerable history or next to no history to develop it--some report feeling loyalty for the loved one the moment they fall in love. Loyalty is an analytic part of most human relationships since without it they would not work: without a disposition to be loyal to most relationships, what would they amount to? Thus loyalty may be distinguished but not separated from our understanding of what it is to have, to be in, a great variety of human relationships. I should add that I am not denying that we need time to learn about, and enter into, the experiences which give meaning to loyalty, but that once we have learned its significance in practice we can engage in relationships that require little time, and hence next to no history, for the obligations of loyalty to hold. Fletcher's position would be unexceptional were it not that he is led into the sort of ambiguity, with its undercurrent of blind emotions, that gives substance to Alasdair MacIntyre's charge that loyalty is a "permanent source of moral danger" [quoted by Fletcher at 11]. And it is this ambiguity that enables him to transform a useful servant into a poor master. His position also causes him to dismiss as tangential exactly the sort of loyalty with which I am concerned: the loyalty of police officers.

Fletcher's pathway to what he regards as tangential cases runs something like this. He tells us that the logical relationship between the historical self and loyalty runs two ways, but he then immediately follows this assertion with another that puts the historical self firmly in the driver's seat. Apparently, the historical self both inculcates a sense of loyalty and is its exclusive source of origin. And it is clear that the historical self is the product of complex social processes through time [17]. Armed with this perspective, Fletcher then feels able to assert that a Frenchman fighting in the American Revolution was not capable of loyalty because he fought as an outsider. It matters not that "he believes firmly in his heart that the Americans should win" and the "soundness of his cause influences how hard he fights," his fighting neither expresses nor confirms his historical self [18]. If this is not problematic enough, Fletcher cites Americans fighting in the Spanish civil war and American Jews fighting in the 1948 Israeli-Arab war as allowable examples of loyalty to foreign causes [18]. Evidently the historical self is in place when it is Americans rather than Frenchmen who fight in foreign wars. Or is it that Fletcher trades on his ambiguous use of the "historical self" as meaning either the history of a self engaged in a particular sort of human relationship or the history of the self as part of a particular culture to try to have it both ways?

By page 20 Fletcher informs us, as a not unreasonable, broad generalization, that loyalty to the group qualifies insiders to count for more than outsiders and, having restated his belief in the historical self as providing the basis for this, he goes on to explore what he labels "Divergent Senses of Loyalty." The section opens with a reaffirmation of his position: give an account of the core sense of loyalty as an obligation implied in every person's sense of being historically rooted, in a set of defining familial, institutional, and national relationships. [21]

Fletcher then considers his first divergent case of loyalty. In fact, it is just the sort of hard case which any explanation or theory of loyalty needs to confront. It is the McCarthy anti-Communist scare of the 1950s. I think it would not be unfair to claim that Fletcher's account of this infamous episode in American democratic life is slightly chilling. Certainly, his account does nothing to demonstrate the power of his "historical self"' to help us address hard cases: it is not mentioned once. It would seem that it is a contractual sense of loyalty rooted in an excessive reliance on the loyalty oath which causes Fletcher to label McCarthyism as involving a "deviation from the central ethic of loyalty." If so, there is no explicit analysis on these lines and, I suspect, for good reason. The loyalty oath--the commitment to uphold the Constitution of the United States--is just the sort of element of social practice which goes towards building the historical self. It enters into the practice of national loyalty, helps build that practice, and is a partial abridgment of it. It is, in other words, intrinsic to that sense of historical self with which Fletcher wishes to explain loyalty. And when it comes to a formidable test, Fletcher's "historical self" is unable to help him identify and explain a glaring and tragic example of misplaced loyalty. Instead, and this is what I mean by chilling, he rehearses the fears of those gripped by the McCarthyite stance both in general and specific terms: to be, or to have been, a member of the Communist Party, or someone like the physicist J. Robert Oppenheimer, who helped a friend cover up his political past in the face of possible persecution, is to be "presumptively disloyal." Fletcher then lists Jews, Catholics, and homosexuals as the kinds of outsiders who excite suspicion and passion about their possible dual loyalty with insiders, allows that this makes us dubious about loyalty as a virtue, and then concludes, somewhat lamely, that this divergent sense of loyalty is "persistently troublesome" and "best understood as a deviation from the central ethic of loyalty."

As I have intimated, loyalty is for me an instrumental virtue which draws its moral worth from the relationships it serves. Moreover, the exercise of choice is a requirement both of morality and of the relationships which concern us here. When considering the minimum conditions for loyalty above, I alluded to the fact that with a change in the character of a relationship the obligation of loyalty to that relationship necessarily changes too. Loyalty is loyalty to something, and without the something to act either as an explicit or implicit referent, loyalty loses its purchase on meaning. And this is exactly what happens with the "historical self" notion of loyalty employed by Fletcher. Instead of showing the partial, and distorted, representation of the American tradition of civil pluralism portrayed by McCarthyism, and concluding that loyalty to such a caricature is misplaced, Fletcher is forced by the enmeshment of his historical self in some of the processes that gave rise to McCarthyism to offer what is tantamount to an apology for it.

Just as I find Fletcher's first tangential sense of loyalty of little help with a particularly important, hard case, so I find his exclusion of professional loyalty from his core meaning just as problematic. As before, no plausible arguments are put forward. But this time his exclusionary moves threaten my own enterprise. However, he marshals no arguments for his position. He stipulates that "professional loyalties derive solely from contract ... not from an historical self" [22], that they are "expressed in the intensity of care and attention to the client or patient," and that they have "nothing to do with friendship, with the historical self, with bonds that run deeper than contract." As might be expected, I have no quarrel with this characterization, and in the next section I will endeavor to show that professional loyalty, as exemplified by the British police, is far from being a tangential case.

Loyalty and the Police

On entry into the police service in the United Kingdom, a police officer pledges him- or herself to uphold the duly constituted law of the land and maintain the Queen's peace, and to do so in a particular way: "without fear or favour," as the eloquent Victorian language puts it. For each officer, this marks the beginning of an engagement with a complex occupational role, an office, which is difficult and exacting. Recently the fundamental purposes of British policing have been restated in a form that provides a framework of general rules and principles, which, taken together, define the office of police constable in its modern guise. The conditions and obligations of the office are formidable. A police officer is expected to uphold the law, prevent crime, pursue and bring to justice those who break the law, keep the Queen's peace, protect, help, and reassure the community, reduce the fears of the public, reflect the public's priorities when taking action, respond to wellfounded criticism with a willingness to change, and fulfill all these conditions in a morally acceptable manner.(3) Besides making clear the conditions of office and the most general requirement for gaining the consent and cooperation of the public for policing (that of policing towards worthwhile ends in a morally acceptable manner), these conditions also define the formal, core character and requirements of police occupational relationships.

It follows, according to my definition, that for a police officer qua police officer to be counted as loyal he or she must be disposed to uphold the formal conditions of his or her office, which define his or her occupational relationships. And were we to dwell in Kant's kingdom of ends, a sort of terrestrial paradise, there would be very little to add. But a problem immediately arises upon the adoption of such a position, to which I have already referred. Ordinary usage does not distinguish between loyalty to a relationship and loyalty to principles; nor, for that matter, does Fletcher [9]. And this is unfortunate both for moral practice and for police officers, who, as I shall try to make clear, are in an occupation where loyalty counts.

The British police service is a disciplined organization and loyalty works upwards, downwards, and sideways. Although it is far from being a military organization, there are many situations, such as natural disasters, civil emergencies, and serious crime, in which effective police leadership and management require a hierarchy of command and compliance with top-down orders to secure an appropriate, collective response by officers. Once disloyalty enters into a chain of command, things can go badly wrong. A self-fulfilling outcome is set in train whereby orders and requirements are communicated half-heartedly or flatly, and publicly contradicted, with the result that officers responsible for emergency or professional action behave less resolutely than they might have done, and the operation is jeopardized, fails, or is carried out in an inappropriate manner. Thus disloyalty may have dire consequences, and police discipline proceedings often focus on the question of an officer's loyalty. On these occasions senior officers exercise a quasi-judicial function, and their task is not helped by the ambiguity of "loyalty." In one of its senses it relates to a properly constituted professional relationship, often with strong personal undertones, and in another it regularly focuses upon the very principles which comprise the defining conditions of that relationship. It takes little imagination to envisage two situations involving misplaced loyalty: one in which an officer defends his or her actions by pleading loyalty to principle, which, probably unbeknown to him or her, invalidates, or blunts the force of, the professional relationship of junior to senior officer, and hence the charge of disloyalty; the other which, conversely, involves an officer pleading his or her loyalty to a senior officer that should properly have been resisted because of its abrogation of a fundamental principle of policing, and, less obviously, the consequent removal of the grounds of the professional relationship which loyalty sustains. In the first instance it is the discipline inquiry that risks upholding misplaced loyalty while in the second it is the accused officer. These distinctions are clearly difficult enough to maintain outside the cut and thrust of an accusatorial environment but, given the ambiguous reference of "loyalty," almost impossible to sustain inside it. Fair proceedings are likely to be the casualty, a state of affairs which is replicated all too often in the many less formal situations involving command relationships in which such issues inevitably arise.

Thus, even while it works to sustain critical professional relationships, loyalty, because of the ambiguities of its meaning, generates moral dilemmas. I want now to describe one of loyalty's major routes into police practice, and thereby illustrate why it is both necessary to, but morally problematic for, policing. This, in turn, requires that I indicate the connection between morality and policing within a liberal, democratic state in order to make explicit why loyalty is a permanent source of moral danger to the police. I mentioned that human relationships are human creations. But so too are morality and the arrangements which make up modern policing. They are complex human constructs, and we are in principle able, given sufficient sapience, and not without difficulty, to take them apart in order to see how they work.

To take morality first, it has evolved in response to what we believe ourselves to be. And we can recognize that it has a number of different, but related, purposes, which I shall group into three. At what is, perhaps, its deepest level, morality operates to counteract certain basic human characteristics, such as excessive competitiveness, intense partiality, malevolence, deviousness, and insensitivity to the view and feelings of others, all of which are inimical to communal activity. Morality also works reflexively to support its own necessary conditions, which are also those of human individuality: of a self among other selves. It supports the belief in human capacity for choice and the freedom necessary for the exercise of choice and, when acting in this guise, sponsors conditions of mutual tolerance. Lastly, morality upholds those arrangements which are seen to be in the interests of all, that is, for the common or social good. Among such arrangements are all manner of human relationships. I have rehearsed what I take to be the cardinal purposes of morality because I believe them to be intrinsic to the practice of policing in the modern, liberal state, and a glance at the purposes of British policing previously referred to should make it clear why this is so. It is, therefore, no accident that criticism of police practice is invariably couched in moral terms. Nor should this be surprising when it is remembered that the police, together with legislatures, courts, and other law enforcement officials, are responsible for upholding the rule of law, which is itself a form of moral association. The police might do well, therefore, to think twice before fostering any disposition that is morally problematic, such as loyalty. Their dilemma is that, unlike most contemporary occupations, in which loyalty features minimally, they cannot do without it.

The new police were founded by Sir Robert Peel as a response to a number of social circumstances, not the least of which was the need to replace the military in maintaining public order. And, according to one historian, between the passing of the Metropolitan Police Act of 1829 and the end of 1833, London's "bobbies" had effectively proved that they could combat rioting without military aid.(4) But if police were to replace the military in the discharge of a function which involved coping with riotous aggression and violence, then they needed to adopt at least some of the characteristics of the military, and it is not without significance that a distinguished soldier, Colonel Sir Charles Rowan, was one of the two pioneer commissioners of the Metropolitan Police. One of the required characteristics was loyalty.

From the perspective of most other occupations, especially in times of peace, and when measured against the broad range of human wants, needs, and interests, the occupation of soldiering looks decidedly odd: it involves a willingness to lay down one's life in the pursuit of military goals. Moreover, it does not require an anthropological imagination to see that when viewed in this way the elaborate arrangements of military life, such as the ceremonial parades, regimental traditions, and music, the military honors system, the rank structure, social strata, and discipline, the strong links with religion and state, and, importantly, intense dispositions of loyalty, establish a frame of mind without which the military enterprise would be impossible: that of acting counter to one's normally perceived self-interest in being prepared to die for a cause.(5) Police officers, too, are expected to risk limbs and life--sadly physical and psychological injury is a sine qua non of modern policing --in wide-ranging circumstances, but without anything like the same preparatory pomp and circumstance. Nonetheless, the police have evolved an organizational culture that places great weight on loyalty. Let me by use of a paradigmatic example, and by having recourse to a soft version of games theory, illustrate why this must be so.

Two police officers, Jack and Jill, are confronting a hostile crowd in an attempt to maintain public order. If both remain at their posts, they have a fairly good chance of holding the crowd in check until reinforcements arrive, and so of both fulfilling their duty to maintain public order and escaping injury. If they both run away, the crowd will advance immediately, and the chance of either of them not being seriously injured is markedly less. But if one stays at his or her post while the other runs away, the one who runs will have an even better chance of avoiding injury than each will have if both remain, while the one who stays will have an even worse chance than each will have if they both run. Suppose that these facts are known to both officers, and each calculates in a thoroughly rational way with a view simply to his or her own well-being. Jack reasons: if Jill remains at her post, I shall have a better chance of avoiding injury if I run than if I stay but, also, if Jill runs away, I shall have a better chance if I run than if I stay. So whatever Jill is going to do, I would be well advised to run. Since the situation is symmetrical, Jill's reasoning is exactly similar. So both will run. And yet they would each have a better chance of avoiding serious injury, and, coincidentally, of doing their duty, if both remained at their posts.(6)

There are countless policing situations which are analogous, either strongly or weakly, to this one. And the best symmetrical results, and therefore the best which all parties could freely accept, is that, with such situations, all should "stay at their posts." But how can this be achieved? How can their actions be bonded together? One possible way would involve the introduction of some external discipline, if each knew that any individual who ran away would be severely punished. But such a measure would hardly bolster group morale and would be effective only to the extent that the coercive threat was real, which, because much police activity is necessarily unsupervised, is not very likely. The stigma of cowardice, with the disgrace and shame associated with it, can also be an effective external penalty. But again, this would do little for the self-esteem of the people involved.

Fortunately, for police purposes, there are effective psychological substitutes for external penalties. And one of these is loyalty. The disposition to be loyal to fellow officers serves to bond actions together in just the way that is required. If this seems too simple, it should be remembered that loyalty embraces, as part of the conditions which define the relations between police qua police, principles and duties. Loyalty is clearly preferable to external coercion provided that others in one's occupation are bound by it too. Also, and even from a purely selfish point of view, to be a member of a disciplined team with good morale is better than being part of a disorganized group, and this is so the greater the external threat. For these reasons the police seek to foster loyalty within their ranks. They do so formally by initiating newcomers into their tradition of service and by emphasizing the conditions and principles which define their role. Informally, they do so through the wide repertoire of social devices in the possession of a highly developed occupational culture. These include fostering a strong sense of comradeship, membership in an exclusive "family," insider status, and pride in doing a socially necessary, difficult, and demanding job. In short, everything is done to build and reinforce relationships, to give a sense of belonging and attachment of members for each other so that under conditions of "comrades in adversity" each adheres to his or her appointed duty, and the bond of loyalty is in place.

It will not have escaped notice that I have flirted here with what looks very much like Fletcher's "historical self." But this is only superficially so. He conflates loyalty and the relationships it serves to the point that its purpose is lost, and it becomes the dominant characteristic: an end in itself and morally problematic. As I have argued, he also confuses what loyalty is with the processes through which it developed. What I have attempted to illustrate with this example is how loyalty serves the kinds of relationships that are necessary for the performance of those police duties, such as public order, kidnap, hostage, and armed fugitive incidents, that are "winnable" for as long as ranks are closed. And I have provided a thumbnail sketch of how I believe such relationships are built to the point that they excite loyalty.

Once in place, loyalty does motivate officers to conceive of their self-interest as bound up with those of fellow officers in the pursuit of hazardous operational purposes. Time and again worthwhile outcomes are achieved, some of them against all odds and in the face of awesome threats. On occasion, however, such operations go badly wrong. In the emotion-charged field of action either the end achieved or the manner of its achievement may be highly questionable. The use of excessive force is a case in point. These are the situations which lead to ranks being closed for a different purpose: to thwart both the investigation of the offense and the apprehension of suspects. Although highly regrettable, this is just what we should expect if my characterization of the purpose of loyalty and the way it is put into place is correct. It is rooted, probably necessarily, in a way that tends to blur its ultimate purpose, and consequently it works as a double-edged sword. Because loyalty is inculcated and, consequently, directed intuitively, there tends to be a reluctance on the part of officers to be disloyal towards those who are undeserving of loyalty.

Having disagreed with George Fletcher on so much, it gives me some satisfaction to find an issue on which I am in firm agreement. He is surely right when he claims that "...letting loyalties intrude into the proper realm of justice brings about its own form of corruption" [163]. I have risked belaboring a point to show what is, I believe, the principal route of loyalty into policing. But the functions of police are wide-ranging and include far more than upholding public order and the like. The police are charged with the fair application of the law through, ideally, the wise exercise of the art of discretion.(7)

Put differently, one of the organizing principles of the British police is nothing less than that of working with their fellow citizens to uphold the rule of law. The rule of law is an abstract concept, and consequently, worth defining. It is a form of state in which no power can be exercised except according to procedures, principles, and constraints contained in the law, and in which any citizen can find redress against any other, however powerfully placed, and against the officers of the state itself, for any act which involves a breach of the law.(8) I should add that the rule of law is a remarkable achievement, involving as it does a form of moral association exclusively in terms of the recognition of laws, which impose obligations to subscribe to conditions that qualify the performance of the self-chosen actions of all who fall within their jurisdiction.(9) Clearly, what is required when one is working to maintain the rule of law is a cool disposition so that claims made in its name by citizens are adjudicated impartially and fairly. It is to the credit of police officers that, in millions of transactions with the public, they manage this. The partiality of loyalty has little place unless it is towards that somewhat abstract collectivity who comprise the moral association of the rule of law. Certainly, the sort of loyalty which is appropriate to the maintenance of public order travels badly into this area but, unfortunately, travel it does. I want now to show how it does so in the critical area of pre-trial procedure.

In a consideration of pre-trial procedure two dominant perspectives are discernible which, when in conflict, produce some of the most acute moral dilemmas in policing.(10) The first perspective lays emphasis upon what is referred to as "due process." It gives prominence to the need to control governmental interference in peoples' lives. It claims that abuse is especially frequent by those who uphold the law and those who apply it. Thus, it stresses the need for clear and narrow guidelines regulating the use of confessions, the conduct of searches and arrests, the availability of legal aid and advice to people accused of crimes, and the protection of individuals against self-incrimination. It argues most strongly that it may be necessary to support those guidelines by letting guilty persons go free, as a price for upholding the principles of judicial procedure. It also supports this view by maintaining that there are values in society, such as freedom, privacy, and the integrity of the law, which may rightly override the minimization of crime. The second perspective, which has been labeled the "crime control" perspective, simply takes as its objective the streamlining of pre-trial procedure to facilitate a greater number of convictions, and so deter crime through securing a higher conviction rate. This perspective is less sensitive to the rights of the individual in relation to the state largely because it is more trusting of governmental powers and believes them to be used, on the whole, for the general good. It is worthy of note that there is a Royal Commission on Criminal Justice currently, sitting under the chairmanship of Lord Runciman of Doxford and due to report in June 1993, that is wrestling to achieve the necessary balance between these two perspectives.

A glance at the purposes that create the conditions of the police office will serve to explain why it is that police officers have traditionally tended to place greater weight on the crime control perspective. And this is particularly the case with detective officers. Theirs is an occupation which is particularly victim and villain oriented, and this tends to tilt the balance. What is more, they are expected to get "results." Thus the crime control perspective, or its implications, is a recurrent feature of detectives' justifications for nominally immoral behavior, such as the practice of deception. Using deception as an example, Sissela Bok notes that the reasons most commonly used to defend deception appeal to four principles: that of avoiding harm, that of producing benefits, that of fairness, and that of veracity.(11) Nor is such a procedure by any means peculiar to police officers. Within conventional morality deception, either by commission or omission, is both practiced and justified in terms of such moral principles, which are seen as overriding the requirement to be non-deceptive. So, detective officers who practice elaborate deceptions when questioning a person suspected of sexual assault, say, might argue that the innocent suspect suffers no harm but that to omit such "regularly successful techniques" would be to risk the possibility of releasing the sort of offender who would be likely to repeat the offense. Secondly, the officer who perjures him or herself in court, because s/he swears to have administered a caution when s/he did not, might well argue both for the relative lack of significance of the caution in the pretrial procedure, and hence the triviality of the harm done, and for the benefits of getting a conviction that might otherwise have been lost because of a mere "technicality." Moreover, an officer might justify including in his or her testimony before the court things that are "not quite true" partly for the practical reason that otherwise the testimony would lack coherence and credibility but also on the grounds that the adversarial procedures of the court could not be relied upon to secure a just or fair outcome.

Thus police officers, in the grip of the crime control perspective, have tended to advance "noble cause corruption" arguments to justify their practices. Strenuous efforts have been made, including the introduction of elaborate new procedures and codes of practice, to curb such conduct, but the occupational culture has proved resistant to them. And group loyalty has played no small part in this. It has worked to reinforce collaborative resistance to attempts to secure the sort of balance between crime control and due process that is more in keeping with the rule of law. Yet again loyalty betrays itself because of the ends its serves. Looked at from the viewpoint of one committed to the values and ideals of the police service, and concerned only with strictly professional, and rather abstract, relationships, misplaced loyalty might pose few problems. But, as I have indicated, loyalty is an essential part of a complex construct, with all the untidiness of concrete experience.

I might also have explored the conflicts of loyalty which arise for police officers because of their loyalty to friends, relatives, and family, or because of their membership in another organization. But I believe I have written enough to indicate why I have misgivings when Fletcher can write that "... the ethic of loyalty is itself a species of morality" [161].


(1)All page references are to G. FLETCHER, LOYALTY (1992). Bracketed numbers in the text refer to pages in Fletcher's book.

(2)My thinking has been influenced by many writings on social, political and moral philosophy, but in this context I am most conscious of the influence of the following: R.S. DOWNIE, ROLES AND VALUES (1971); D. EMMET, RULES,ROLES AND RELATIONS (1966); M. OAKESHOTT, The Rule of Law in ON HISTORY AND OTHER ESSAYS (1983).



(5)I owe this insight to a conversation with Field Marshall Sir John Stanier about leadership.




(9.)M. OAKESHOTT, supra note 2.


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Title Annotation:Loyalty
Author:Richards, Neil
Publication:Criminal Justice Ethics
Date:Jan 1, 1993
Previous Article:The ethics of parts and wholes.
Next Article:Fletcher on loyalty and universal morality.

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