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Power and Restraint: The Moral Dimension of Police Work.

Howard Cohen and Michael Feldberg are pioneers in the study and application of police ethics. They have collaborated for more than a decade in developing programs for training police in philosophical ethics, and their programs have been used in several different regions of the country. They have also collaborated with many police officers and agencies in trying to devise an ethical theory which will unify and illuminate the whole range of moral issues encountered by police in their work. Their book, Power and Restraint: The Moral Dimension of Police Work, is a result of this scholarly and practical collaboration.

In this book Cohen and Feldberg have chosen to focus on the moral issues most often encountered by municipal police performing patrol work. Their explanation for this narrow focus is that most police resources, public and private, are dedicated to peacekeeping and protection rather than to more technical forms of law enforcement and undercover work. However, they advocate an ethical theory which can be applied more broadly to all the moral issues that may arise in the exercise of power by police, by other agents of criminal justice, and by governmental officials generally. Cohen and Feldberg contend that the ethical theory which has proven to be most nearly adequate for this purpose is one they have adapted from the social contract theory of John Locke.[1] They consider Locke's theory all the more appropriate because of its powerful influence on the Declaration of Independence and the Constitution and thus on the moral, political, and legal values of the United States. One of the merits of this social contract theory, they argue, is that it leads us to ask: "What responsibilities do governmental officials incur in consequence of accepting the authority to govern?"[xv][2]

Cohen and Feldberg devote the first half of their book to answering this question by expounding their social contract theory of the ethical standards governing responsibilities of police. The title of their book is an acknowledgement and reminder of the extraordinary power typically granted to police, and of the need to hold police to demanding ethical standards for exercising this power. Cohen and Feldberg appear to assume, with good reason, that formal legal restraint can never be more than a reinforcement for making police morally responsible for the power they exercise in their work. An important reason for the limitations for formal legal restraint is that empowerment of police must involve the granting of both extraordinary power and extraordinary discretion in the exercise of this power. To their credit, Cohen and Feldberg emphasize the need for discretionary freedom, judgment, and even creativity, which cannot be effectively restrained by rules and codes of conduct without also being stifled.[4] At the same time they recognize the unusual authority exercised by police: "Police have considerably more authority over others than most people in society and, consequently, have more opportunities to use that authority in impermissible ways." [7] These considerations make it all the more imperative for both the police and the public to subcribe to ethical standards that can effectively restrain the discretionary power of the police while also encouraging their justified exercise of it.

How can this restraint and encouragement be achieved? Are there ethical standards to which police and the public can subscribe, and how may these standards serve both to restrain and to encourage police in the exercise of their discretionary powers? The answer to these questions defended by Cohen and Feldberg is that we should think of all members of a society as parties to a hypothetical social contract to which each has at least tacitly consented. Strictly speaking, only those who have reached the age of consent could be considered to be parties to this contract in their own right. The moral rights and obligations which are socially ratified by this contract are the basis for the political society and government by which all members are governed. Among the rights inherent in this contract are individual rights to safety and security of life, liberty, and property. Among the obligations are the obligation of government to protect these individual rights and the obligation of members of society to obey government, which provides such protection through exercise of its legislative, executive, and judicial powers.[24-34]

From these fundamental rights and obligations inherent in the social contract just described, Cohen and Feldberg derive five ethical principles that together define and prescribe the moral responsibilities of the police. This is their summary statement of these standards: (1) "As a social resource, police must provide fair access to their services." (2) "Citizens, having limited their right to enforce their own rights, have made police work a public trust." (3) "Police must undertake law enforcement within the framework of maintaining safety and security." (4) "Police are part of a system that includes legislators, other law enforcers, prosecutors, and judges, so their behaviour must meet the tests of teamwork: coordination, communication, and cooperation." (5) "Police work is a social role that often requires the officer to set personality and feelings aside, and demonstrate objectivity."[43] Cohen and Feldberg supplement these five principles with a unifying conception of police as having moral responsibilities analogous to those of a referee or umpire. They offer this as a heuristic analogy to help make the moral responsibilities of police more intelligible: Like referees in sports, police must have the power to maintain order, enforce the rules, protect the players, and prevent players from taking the rules into their own hands while always being entirely free of favoritism, prejudice, and self-interest. [35-37]

In the second half of their book Cohen and Feldberg demonstrate how to apply these ethical standards and the referee analogy in making and evaluating moral decisions in police work. They present a series of hypothetical cases or scenarios which raise complex issues of moral responsibility typical of those encountered by municipal police on patrol. These cases range from maintaining safety and security and enforcing drug laws at a large rock concert to exceeding police authority in taking a child molester into custody. Thus the two parts of the book complement one another. The second half provides a detailed practical test of the adequacy of the social contract theory and ethical standards defended by philosophical argument in the first half. In a brief concluding chapter Cohen and Feldberg consider such general issues as why police and the public should subscribe to the proposed ethical standards, whether police can actually live up to these standards in their work, and what practical difference our subscribing to these standards will make in the quality and accountability of police work. They argue that an additional benefit of subscribing to the ethical standards they propose is that it will reveal how "morally perilous," and thus how professionally challenging and satisfying, police work can be.[156]

This brief description of the book will have suggested, I hope, that it has much to recommend it. It is, even today, one of surprisingly few comprehensive philosophical studies of police ethics. It also has the merit of being nontechnical and readily accessible both to police officers and to members of the public. Its detailed exposition of ethical standards of police responsibility can, with study and reflection, be understood and applied by the broad readership for whom it is intended. "Armed with these standards," Cohen and Feldberg rightly contend, "it is possible for a police recruit, or anyone thinking about the moral dimensions of police behavior in morally complex situations, to work through a variety of possible responses to those situations, and determine better and worse courses of action to take."[xv-xvi] The authors make no claim that applying these ethical standards will always yield the best moral decision, or even a satisfactory one. They contend only that these standards, taken together, provide an adequate basis for making reasoned moral decisions in police work, and for justifying, criticizing, and improving on those decisions.

Admirable as this book is, it invites criticisms on several different grounds. Perhaps the least serious of these criticisms is that it sometimes misrepresents Locke's conception of a social contract as the basis for responsibilities of governmental officials generally and of police in particular. An example is this statement: "The Founding Fathers took from Locke the idea that, when a government no longer protects the individual's rights to life, liberty, and property, it breaks its contract with the citizenry."[27] This is an interpretation of Locke's social contract that Locke himself would have rejected because it would give government the status of an independent contracting party rather than being dependent for its very existence on the consent of the governed. Locke's view is that government exists only in, through, and for the community created and maintained by a compact among its individual members. On this view, serious failure of police or other governmental officials to fulfill their moral responsibilities would thereby negate their authorization to govern, not merely constitute a breach of contract on their part.[3] This makes an important difference in judging how police or other officials should be empowered and restrained. What matters in such judgments are not the responsibilities which police are obligated to perform by virtue of their oath of office. Much more important is their proven ability to accept and fulfill the moral responsibilities without which they forfeit their authority to exercise the power granted them.

Even if the Lockean conception of social contract is accurately interpreted, it is still open to the criticism that it does not provide an adequate basis for police ethics, and for several different reasons. First, a Lockean social contract depends for its power to justify the moral responsibilities of police on a doctrine of the moral law of nature that has become increasingly difficult to defend. This doctrine has suffered from the gradual replacement of Locke's philosophical view of nature by other views that are less anthropocentric and more secular and morally neutral. The result of this change is to make much less plausible the alleged option of members of society to withdraw their consent, dissolve the community and government created by the social contract, and revert to a state of nature governed by natural law. The fundamental rights, obligations, and responsibilities that Locke thought were based on a social contract among "men [who are] ..., by nature, all free, equal, and independent,"[4] must be explained and justified in some other way.

Related to this first criticism of a Lockean social contract is a second one: as the words of Locke just quoted suggest, the parties to this contract are viewed abstractly and statically as if they had no dependent and interdependent social relations to other people but existed as free, equal, independent, and completely self-determining individuals. It is no wonder that in Locke's time most members of society were considered to be incompetent to become parties to the contract in their own right. Thus the social contract would give these members a weaker derivative claim to the protections it was supposed to provide without at the same time imposing weaker obligations on them to abide by the terms of the contract. This raises a serious question about the fairness of a social contract as the basis for allocating rights and obligations among members of the community and delegating the responsibilities to govern them. Cohen and Feldberg acknowledge this objection only in passing when they point out that "certain groups in society would question whether all members of society benefit equally from the bargain."[34] Even if each generation is free to reexamine the terms of the social contract, as they suggest, the unfairness will remain if government gives evidence that it can no longer protect some members of society from violation by pervasive crime of even their most fundamental rights. The evidence for this inability of government to fulfill even its most basic responsibilities is growing rapidly in many urban areas, especially among blacks and other minorities.[5]

Another kind of unfairness resulting from reliance on a hypothetical social contract is that it emphasizes governmental responsibilities in the public sphere at the expense of responsibilities in the private sphere, such as in marriage and the family, raising children, work, leisure, health care, housing, and other institutions which profoundly affect the quality of private social life. Leaving the private sphere of social life primarily to the authority of parents, private companies and organizations, the professions, churches, and private markets has in practice made a mockery of the equality of rights and obligations which a Lockean social contract is supposed to establish. One of the many results of this public neglect of the private sphere is an appalling rate of abuse of women, children, adolescents, workers, the elderly, and other vulnerable groups in our society. By encouraging governmental neglect of the private sphere, a Lockean social contract tends to undermine the responsibilities of police to uphold the equal rights and obligations of all members of society.

A further criticism not only of a Lockean social contract but of the whole social contract tradition is that it emphasizes process at the expense of the substance of government's moral and legal authority. Martha Minow has recently described the influence of the social contract tradition on the prevailing conception of governmental responsibility in the United States: "Individuals in this country cannot claim, because the government is not bound by, any set of substantive values beyond those reduced to writing in the founding document of the polity--the U.S. Constitution."[6] Even thinkers who have employed the idea of a social contract as a heuristic device to arrive at the fundamental rights, obligations, and responsibilities governing a society tend to emphasize process over substance. "These theorists," Minow argues,

treat legal rights as the principles and norms that people would agree to if we all engaged in the kind of process signified by the image of the social contract. Asking what rational people would consent to--what the "rational consensus" would be--becomes the touchstone for analysis of this sort, as developed by such theorists as John Rawls, Robert Nozick, Ronald Dworkin, and Bruce Ackerman. Because people are likely to disagree about many important values, the rights established by reference to the hypothetical "rational consensus" will be basic ground rules for ordering society--and for conducting future disagreements.[7]

What is obscured by these hypothetical procedures is the need to encourage the sharing of some substantive values by members of society while also encouraging the diversity of substantive values to which they subscribe, especially in a society as culturally pluralistic and rapidly changing as the United States. Another shortcoming of these hypothetical procedures is that they give the appearance of including all members of society as equal participants when, in fact, they exclude or subordinate many members who are considered to be "different" in ways that affect their competence to participate. This is how Minow explains the exclusive and inegalitarian implications of such ethical theories: "Social contract theories do not exclude only those people who lack the requisite mental competence and capacity for reason; any who would identify themselves as members of groups first, rather than as autonomous individuals first, would also find their point of view excluded."[8] As she points out, it is not only that any sign of difference such as being disabled, female, gay, or a member of a racial, ethnic, or religious minority may threaten exclusion or subordination; some types of people and their points of view are tactily adopted as the norm for society, and all others are assigned the status of being different. The allocation of rights and the delegation of governmental responsibilities reflect this pattern of socially assigned similarity and difference, of inclusion and exclusion. This is why such ethical theories are seriously flawed as a basis for the moral responsibilities of government and of the police in particular.

The greatest moral challenge that police and most other officials now face is how to respond to what Minow calls "the dilemma of difference": "The dilemma for decision-makers ... is how to help overcome past hostilities and degradation of people on the basis of group differences without employing and, in that sense, legitimating these very differences."[9] This dilemma is legacy of the traditional emphasis on individual rights and obligations, especially within the social contract tradition. Such theories create the pretense of equality by portraying individuals as isolated subjects of fundamental rights and obligations, detached from the social relations that make them who and what they are. This impoverished view of social relations obscures the importance of those relations in determining the socially significant differences among people and the inequalities that flow from them. Depending upon which differences are socially significant at a given time, and the importance given to each, those inequalities take the form of inclusion and exclusion, dominance and subordination, or sometimes even dominance and degradation. The dilemma of difference is thus how to acknowledge and to help overcome the effects of these socially determined differences among people without at the same time reinforcing these very same differences. Now and for the foreseeable future, overcoming this dilemma is central to the moral responsibilities of governmental officials generally, and of the police in particular.

If the various versions of social contract theory are not adequate to the task of explaining and justifying such moral responsibilities, what alternative kind of ethical theory is available for this purpose? Although I cannot offer a detailed defense here of such a theory, I would argue that what Minow has described as a rights-in-social-relations theory holds the most promise in this regard. This theory defends an alternative conception of rights as embedded in changing social relations among individuals and groups. In keeping with this conception of rights, the theory represents a rejection of the traditional view of individuals as independent and autonomous subjects of fundamental rights.[10] It emphasizes instead social relations such as dependence, mutual dependence, inclusion, exclusion, unequal power, vulnerability, trust, distrust, care, and hostility that give rise to claims of right. The conception of rights as dependent on changing social relations and social arrangements helps to expose two prevailing kinds of pretense: the pretense that people are already free and equal, and the pretense of neutrality and impartiality on the part of police and other officials. I find compelling Minow's argument that only by acknowledging the partiality of each person's point of view, including the point of view of police and other officials, can we come to appreciate the dangers of pretended impartiality.[11]

Among these dangers of pretended impartiality is an intolerance on the part of officials for difference among people and points of view. This reflects as well as reinforces attitudes of intolerance for difference in the community itself. Intolerance masquerading as impartiality is related to another danger, namely, that government will claim to act in the name of the community or the public without being subject to any challenge of this claim. Without effective challenge and, if necessary, rejection of such claims made by governmental officials, what is lacking is a community that, in Minow's words, "acknowledges and admits the historical uses of power to exclude, deny, and silence--and commits itself to enabling suppressed points of view to be heard, to making a covert conflict overt."[12] Only in such a community can claims of right grow from existing social relations and achieve community recognition for the points of view of people who have been neglected. Not only must members of such a community learn to take the point of view of others who have been socially defined as different; they must come to acknowledge the relational character of people's selves and their social connectedness to one another through their fundamental similarities as well as differences.

This ethical theory of rights-in-social-relations points the way to overcoming the dilemma of difference by emphasizing the moral responsibility to take the point of view of others, and especially of those who have suffered the various forms of exclusion, subordination, or degradation resulting from socially defined difference. In negative terms, this is a moral responsibility not to view members of society either as independent subjects of relatively fixed rights or as individuals lacking this status. More positively, it is a responsibility to recognize that all members of society may have claims of right that grow out of their social relations to one another and to their community. These claims of right are no less real for being subject to change and to varying degrees of recognition and legitimation by the community. Minow suggests that we think of these claims of right as a form of discourse which "affirms a particular kind of community; a community dedicated to invigorating words with power to restrain, so that even the powerless can appeal to these words."[13] Here it is well to remind ourselves that the category of the powerless encompasses a wide spectrum of people, including children.

Taking the point of view of others thus involves placing oneself in their position within patterns of changing social relations reflecting socially defined difference among people. This imaginative exchange of social positions and even social selves enables one to appreciate the force of the question, Why should these socially defined differences make a difference? To take this question seriously is also to take seriously claims of right to freedom and protection from the injurious effects of these socially defined differences. In this way members and officials of a community can acknowledge and help to overcome the effects of socially defined differences without employing and thereby reinforcing those differences in the process. They can both reject the assumptions which have provided the basis for defined differences and recognize the rights claims of those who have suffered the effects of these differences.

If we now return to the earlier question--How should the police be empowered and restrained?--we can see that the ethical theory of rights-in-social-relations would justify a quite different answer from the one given by social contract theory. Police would share with other governmental officials and other members of society the broad moral responsibility to take the point of view of others in exercising the power and discretion granted to them. Clearly the police must be granted the discretionary power that is necessary for peacekeeping, maintaining safety and security, enforcing laws, investigating crime, and the many other services involved in police work. However, their exercise of this power must be restrained by an acknowledgement on their part of the relations of mutual dependence that shape the self and the point of view of each member of the community. The changing relations of mutual dependence between parents and their children or between teachers and their students are only two of many examples of patterns of such relations that tie individuals and groups together as a community. Only in a community based on broad acknowledgement of the mutual dependence of its members can individuals, including the powerless, be free to make claims of right against unequal social relations that are injurious to them. Were the police to adopt and act on this conception of the community they serve, it would constitute a vital restraint on their exercise of power.

Another moral restraint on the police could lie in their responsibility to be alert to patterns of relations among members of the community that are based on socially defined differences. Particularly suspect are patterns of this kind that tend to isolate, exclude, intimidate, subordinate, or degrade those members and groups who are socially defined as different. In such cases the police have a moral responsibility to ask why the defined differences matter, and to limit as far as possible the injurious effects of these differences on people and the community. Reinforcing these restraints on the exercise of power by police is the recognition that they cannot justifiably claim neutrality and impartiality for their point of view. This, incidentally, is an argument against the analogy drawn between the police and referees in sports. Police must consider themselves members of the community they help to regulate, and not impartial referees above the fray.

These moral responsibilities of the police and the moral restraints on their power call for closer, more personal working relations between police officers and their organizations, on the one hand, and the communities they serve, on the other. Police cannot fulfill their responsibility to take the points of view of others in the community unless they are personally aware of how diverse these points of view are. Moreover, the police organizations through which they work should reflect as fully as possible the nature and diversity of the community or communities they serve. This policy would encourage the kind of loyalty and trust within police organizations, and between these organizations and the communities they serve, that are essential for morally responsible police work. It would also sustain the kind of commitment to morally sensitive, creative, and courageous police work that is the strongest justification of all for the exceptional power and discretion granted to the police.



[2] Bracketed numbers in the text refer to pages in Cohen and Feldberg's book.

[3] Among Locke's statements in the SECOND TREATISE that support this interpretation are the following: "For wherever the power that is put in any hands for the government of the people, and the preservation of their properties, is applied to other ends, and made use of to impoverish, harass, or subdue them to the arbitrary and irregular commands of those that have it: there it presently becomes tyranny, whether those that thus use it are one or many" (Section 201, 400). "And whosoever in authority exceeds the power given him by the law, and makes use of the force he has under his command, to compass that upon the subject, which the law allows not, ceases in that to be a magistrate, and acting without authority, may be opposed, as any other man, who by force invades the right of another" (Section 202, 400-01).

[4] LOCKE, SECOND TREATISE, Section 95, 330.

[5] See Lawson, Crime, Minorities, and the Social Contract, 9 CRIMINAL JUSTICE ETHICS, Summer/Fall, 1990, at 16-24, for a discussion of this growing challenge to the fairness of a Lockean social contract.


[7] Id. at 149.

[8] Id. at 151.

[9] Id. at 47.

[10] Among the many arguments for this rejection are these by Minow: "Autonomy, if defined as the condition of an unencumbered and independent self, is not a precondition for any individual's exercise of rights" (Id. at 301)." The important questions about any given person's autonomy are these: With whom is the person connected, to what degree, for what purposes, and in relation to what other connections? How much latitude is there for self-assertion, and how much self-control over the boundaries forged in connection with others?"(Id. at 301n.)

[11] Id. at 389.

[12] Id. at 299.

[13] Id.
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Author:Doyle, James F.
Publication:Criminal Justice Ethics
Article Type:Book Review
Date:Jan 1, 1992
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