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Abstract
Why does institutional police brutality continue so brazenly? Criminologists and other social scientists typically theorize about the causes of such violence, but less attention is given to normative questions regarding the demands of justice. Some philosophers have taken a teleological approach, arguing that social institutions such as the police exist to realize collective ends and goods based upon the idea of collective moral responsibility. Others have approached normative questions in policing from a more explicit social-contract perspective, suggesting that legitimacy is derived by adhering to (limited) authority. This article examines methodologies within political philosophy for analyzing police injustice. The methodological inquiry leads to an account of how justice constrains the police through both special (or positional) moral requirements that officers assume voluntarily, as well as general moral requirements in virtue of a polity’s commitment to moral, political and legal values beyond law enforcement and crime reduction. The upshot is a conception of a police role that is constrained by justice from multiple foundational stances.
Notes
[This article draws from and distills some of the central ideas in my two books on policing. I am grateful to Jonathan Jacobs for his thoughtful comments throughout an early draft.]
[Disclosure Statement: No potential conflict of interest was reported by the author(s).]
Notes
1 Many of the events surrounding Floyd’s death were captured on video and can be viewed on the internet.
2 See Gourevitch, “Why Are the Police Like This?”
3 See McGerr, Fierce Discontent.
4 See Adegbile, “Policing Through an American Prism,” 2232.
5 See Berman, Police Administration and Progressive Reform.
6 See Balko, Rise of the Warrior Cop; and Friedman, Unwarranted.
7 Like Floyd’s death, the police’s killing of Castile was captured on video and can be viewed on the internet.
8 See Smith & Williams, “Minnesota Police.”
9 See Kleinig, Ethics of Policing. More holistically, Kleinig has characterized the police as social peacekeepers. This conception of the police focuses upon the responsibility of maintaining security (or peace) in a way that is consistent with the limits of the state’s legitimate power. In other words, keeping the peace involves building trust by the appropriate use of discretionary power, including discretionary law enforcement power.
10 See Ray, “What does ‘defund the police’ mean?”
11 See Simmons, “Ideal and Nonideal Theory.”
12 Rawls, Law of Peoples, 90.
13 I have raised Rawls’s transitional nonideal theory (in other words, constraints requiring us to address actual injustices in the world by pursuing policies that seek transition to an ideal of justice), which is methodological in nature. The underlying methodology might be relevant to a variety of substantive commitments, so we need not dwell upon Rawls’s substantive commitments of justice (or the voluminous literature regarding those commitments). Nevertheless, one might still have reservations about whether an idea such as “overlapping consensus” is as important as the state simply protecting one’s ability to lead a life shaped by values one regards as crucial. The extent to which such ideas converge is disputed, and the issue is beyond the scope of this paper.
14 See Rawls, Law of Peoples, 89.
15 See ibid.; Rawls, Theory of Justice, 267.
16 See Hunt, Retrieval of Liberalism in Policing, chapter 3.
17 I thank Jake Monaghan for raising this worry during my talk at the American Philosophical Association, Central Division meeting, in Chicago in February 2020.
18 See Hunt, Police Identity Crisis, Epilogue.
19 See Locke, Two Treatises of Government, 330–33; Hunt, Retrieval of Liberalism in Policing, 106–14.
20 See Wellman and Simmons, Is There a Duty?
21 Jacobs, “Civics, Policy, and Demoralization,” 41.
22 See Fuller, Morality of Law; Raz, Authority of Law.
23 Hunt, Retrieval of Liberalism in Policing, 85–90.
24 See Dworkin, Law’s Empire, 225, where Dworkin argues that the process of determining the truth value of legal and political propositions requires an interpretive reasoning based upon both facts and moral principles of the community. See also Hunt, “What the Epistemic Account,” 40–46, for an analysis of Dworkin’s law as integrity and right answer thesis.
25 Jacobs, “Civics, Policy, and Demoralization,” 41.
26 Hunt, Retrieval of Liberalism in Policing, 77–8.
27 See Miller, Moral Foundations, 153.
28 See Kleinig, Ends and Means.
29 See Sreenivasan, “Health and Justice,” 221.
30 Rawls, Political Liberalism, 19.
31 Rawls, A Theory of Justice, 97–9.
32 Graham v. Connor, 490 U.S. 386 (1989).
33 See Harmon, “Problem of Policing”; Joh, “Breaking the Law.”
34 Federal Bureau of Investigation, “What is the FBI’s policy on the use of deadly force by its special agents?” https://www.fbi.gov/about/faqs/what-is-the-fbis-policy-on-the-use-of-deadly-force-by-its-special-agents#:~:text=FBI%20special%20agents%20may%20use,the%20agent%20or%20another%20person
35 See Hunt, Police Identity Crisis, chapter 4.
36 Goldstein and Schweber, “Man’s Death after Chokehold.”
37 See Hunt, Police Identity Crisis, chapter 4, for a more comprehensive discussion of the role of human rights in policing.
38 See Rawls, Theory of Justice, 97–9.
39 See Waldron, Dignity, Rank, and Rights. One might ask whether concepts and values such as dignity, liberty, privacy, equality, and so on, need to be conceptualized in an ideal manner in order to discern their full importance. Although such questions are beyond the scope of this paper, it seems reasonable to think that we know enough about a broad outline of an ideal theory of justice to permit coherent nonideal theorizing, e.g., an ideal theory of justice would include some commitment to human dignity, even if we cannot yet agree upon a fully worked-out theory of human dignity. Relatedly, questions about how human dignity is connected to human rights (and whether human rights are grounded in human dignity) is a disputed issue, as I note in this paper. Many have argued that human rights are primarily about issues in international political philosophy, such as the justification and legitimacy of a state intervening in the affairs of another state. It thus seems right to say that civil rights are most directly related to policing, though it also seems plausible that they overlap with more basic human rights that are relevant to moral questions in policing.
40 See Simmons, “Human Rights, Natural Rights.”
41 Schroeder, “Dignity: Two Riddles,” 230–38.
42 See Hunt, Retrieval of Liberalism in Policing, chapter 4.
43 See Waldron, “Is Dignity the Foundation?”
44 See Simmons, “Human Rights, Natural Rights.”
45 Other accounts of human rights include Rawls’s implicit critique of foundational theories, suggesting a “practical” conception of human rights based upon the pressing concerns of domestic and international politics (rather than historical, pre-institutional natural rights). See Rawls, Law of Peoples; Beitz, Idea of Human Rights.
46 See Hohfeld, “Fundamental Legal Conceptions.”
47 See Hunt, Retrieval of Liberalism in Policing, 22–3.
48 See Wellman & Simmons, Is There a Duty?
49 See Hunt, Police Identity Crisis, chapter 2 and 4.
50 See Hunt, Police Identity Crisis, Epilogue.
51 See Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971); 42 U.S.C. Code § 1983. More generally, public tort law governs civil wrongs by officials resulting in harm or loss by a claimant.
52 See Michelman, “Branch Best Qualified.”
53 See Stern, “Tort Justice Reform.”
54 See Hunt, Police Identity Crisis, chapter 2.
55 See Jackman, “New Orleans police pioneer.”
56 See Hunt, Police Identity Crisis, which provides a comprehensive analysis of various understandings of the police role and identity.
57 See Greenhouse, “How Police Unions Enable.”
58 See Shelby, Dark Ghettos.
59 Raz, The Authority of the Law, 218.
60 I thank Jake Monaghan for alerting me to this issue during my talk at the American Philosophical Association, Central Division meeting, in Chicago in February 2020. I also thank Jonathan Jacobs for making a similar point. I address these issues to some degree in Hunt, Police Identity Crisis, chapter 2, which generally follows Rawls, who states in A Theory of Justice: “The injustice of a law is not, in general, a sufficient reason for not adhering to it any more than the legal validity of legislation (as defined by the existing constitution) is a sufficient reason for going along with it. When the basic structure of society is reasonably just, as estimated by what the current state of things allows, we are to recognize unjust law as binding provided they do not exceed certain limits of injustice” (308). Of course, the tricky part is explaining “certain limits of injustice,” which I pursue further in The Police Identity Crisis.
61 See Hunt, Police Identity Crisis, chapter 2.
62 Hunt, “Ice Cube and the philosophical foundations”; Hunt, Police Identity Crisis, chapter 4.
63 Graham v. Connor, 490 U.S. 386 (1989).