A Normative Theory of Policing
Thus far I have distinguished law and morality, and have discussed the relationship between, in particular, the criminal law and moral principles. In doing so I have offered some candidate objective bases for criminal law and, therefore, the enforcement of the criminal law, namely, harms and needs-based deprivations which generate enforceable moral rights. I now need to turn to a consideration of the role of the police with respect to the criminal law (and, therefore, with respect to those moral principles that are and ought to be embodied in criminal law).
On the account proffered above, the criminal law exists to protect certain moral rights and, therefore, arguably the central and most important moral purpose of police work is to protect these same moral rights, albeit a purpose whose pursuit ought to be constrained by the law (Miller 2010, Chap. 9; Miller and Blackler 2005, Chap. 1, Miller et al. 2006, Chap. 3; Miller and Blackler 1995, Chap. 3). So while police institutions have other important purposes that might not directly involve the protection of moral rights, such as to enforce the adjudications of courts in relation to disputes between citizens, or indeed themselves to settle disputes between citizens on the streets, or to ensure good order more generally, these may well turn out to be purposes derived from the more fundamental purpose of protecting moral rights, or they may well turn out to be (non-derivative) secondary purposes. Thus laws against speeding derive in part from the moral right to life, and the restoring of order at a football match ultimately in large part derives from moral rights to the protection of persons and of property. On the other hand, service of summonses to assist the courts is presumably a secondary purpose of policing.
This conception of policing is a teleological conception; it is a conception in terms of the ends or goals of policing (Miller 2001, Chap. 6, 2010, Chap. 9). Moreover, it is a teleological conception according to which the most important end or purpose of policing is the protection of moral rights. On this view 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 my view accommodates “consent” as a criterion of legitimacy for the police role (Kleinig 1996, Chap. 2). However, on my view legality, and therefore consent, is only one consideration. For I am insisting that police work, including police investigations, ought to be guided by moral considerations, namely, moral rights, and not simply by legal considerations. This enables me to avoid the problems besetting normative theories of policing cast purely in terms of law enforcement, or protection of the State, or even peace-keeping (Kleinig 1996, Chap. 2; Bittner 1980; Neyroud and Beckley 2001, Chap. 2). Such theories are faced with the obvious problem posed by authoritarian states, or at times even democratic states, that enact laws that violate human rights, in particular—human rights being, as we saw above, a species of moral rights. The police officers in authoritarian states simultaneously violate human rights, and abrogate their primary professional responsibility as police officers to protect human rights. Here we need to keep in mind the distinction between normative and descriptive accounts. Normatively speaking, the professional role of police officers, whether they be in liberal democracies or in authoritarian states, is to protect human rights. Of course, in practice in authoritarian states (and, on occasion, in liberal democratic states) the de facto police role is to repress rather than protect human rights; in these states repression rather than protection is the correct description of what police in large part actually do. However, the point to be stressed here is that the police role morally ought not be to repress; it morally ought to be to protect, including in authoritarian states.
Further, I reiterate that on the view that I am 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.
So I am in part advocating a broadly contractarian moral constraint on policing, namely the consent of citizens; although by my 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. Moreover, I am 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 my view ultimately this is a decision for the community to make by way of its laws and its democratically-elected government. Here I take it that in a properly constituted democracy, the law embodies the will of the community in the sense adumbrated above. Moreover, I can further distinguish between local, regional and national communities, especially in states that have sub-national elected bodies such as local councils. This enables me 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 (Goldstein 1990; Brandl and Barlow 1996: 86).
There is a further point to be made here. The law concretises moral rights and the principles governing their enforcement, including human rights as well as institutional moral rights. To this extent, the law is very helpful in terms of guiding police officers and citizens in relation to the way that abstract moral rights and principles apply to specific circumstances. For example, there is a human right to life that can be overridden in accordance with certain moral principles, such as self-defence or defence of the lives of others. However, it is the laws governing the use of deadly force by police officers that provide an explicit and concrete formulation of these moral rights and principles, and thereby prescribe what is to be done or not done by police officers in specific circumstances.
In short, in my view police ought to act principally to protect certain moral rights, those moral rights ought to be enshrined in the law, and the law ought to reflect the will of the community. Should any of these conditions fail to obtain, then there will be problems. If the law and objective (justifiably enforceable) moral rights come apart, or if the law and the will of the community come apart, or if objective moral rights and the will of the community come apart, then the police may well be faced with moral dilemmas. There are no neat and easy solutions to all such problems. Clearly, if the law and/or the citizenry require the police to violate moral rights, or at least not to uphold them (e.g. health and safety legislation forbidding personnel to put themselves at risk to save the lives of others under some circumstances) then the law and/or the citizenry will be at odds with the fundamental purpose of policing. Accordingly, depending on the circumstances, the police may well be obliged to disobey the law and/or the will of the community.
On the other hand, what is the appropriate police response to a citizen violating someone else’s objective moral right in a community in which the right is not as a matter of fact enshrined in the law, and the right is not supported by the community? Consider, in this connection, the moral right of girls not to suffer female genital mutilation in a community in which this practice has widespread support and is lawful; or consider women’s rights to freedom of movement and to education under an extremist fundamentalist religious regime such as the former Taliban regime in Afghanistan or ISIS (Islamic State in Iraq and Syria) (Rashid 2001, Chap. 8). Under these kinds of circumstance, an issue arises as to whether police are morally obliged qua police officers to enforce respect for the moral right in question, notwithstanding that the moral right in question is not legally enshrined or socially accepted; indeed, police officers in such jurisdictions might be instructed by their superiors, or even legally required, to intervene to ensure that these moral rights are violated, e.g. to ensure that female genital mutilation takes place and to enforce restrictions on womens’ freedom of movement and access to education. Again, I suggest that police officers may well be morally obliged not to violate these moral rights and, indeed, to intervene to enforce respect for these moral rights.
Normatively speaking then, the protection of fundamental moral rights—specifically those justifiably enforceable moral rights enshrined in the criminal law—is the central and most important purpose of police work, including police investigations. As it happens, there is increasing recourse to human rights legislation, in particular, in the decisions of domestic as well as international courts. For example, in accordance with the European Convention on Human Rights and its enabling UK legislation, the Human Rights Act of 1998, police in the UK are now explicitly required to comply with the principle of proportionate use of force and this principle is enshrined in their use of firearms guidelines.
Recourse to human rights legislation is an interesting development. However, it must also be pointed out that the criminal law in many, if not most, jurisdictions already in effect constitutes human rights legislation. Laws proscribing murder, rape, assault and so on, are essentially laws that protect human rights, as are longstanding domestic laws governing the rights of suspects, e.g. with respect to police use of force. So, for example, prior to the above-mentioned UK Human Rights Act of 1998, there was an understanding and (at least) implicit commitment of UK police to the principle of the proportionate use of force.
I also note that whatever the historical importance of the “Statist” conception of human rights—human rights as protections of the individual against the State— such a conception is inadequate as a general account of human rights. As laws against murder, rape, assault and so on illustrate, human rights in particular, and moral rights more generally, also exist to protect individual citizens from their fellow citizens, and individual citizens from organisations other than the organisations of the State.
-  Naturally I acknowledge that many laws do not derive from moral rights, and also that those thatdo often do not do so in any straightforward manner.
-  I acknowledge that in common law countries the law reflects tradition, and therefore perhaps“consent” in another sense.
-  Here I am assuming that large fragments of a legal system can consist of immoral laws, and yetthe system remain recognizably a legal system. See Dworkin (1998, p. 101). I am also assumingthat for a legal system to express the admittedly problematic notion of the will of the community, itis at least necessary that the overwhelming majority of the community (not just a simple majority)support the content of the system of laws taken as a whole—even if there are a small number ofindividual laws they do not support—and support the procedures for generating laws, e.g. ademocratically-elected legislature. (See Miller 2001, pp. 141-151.) Finally, I am assuming that thefact that a party or candidate or policy or law secured (directly or directly) a majority vote is animportant (but not necessarily decisive) consideration in its favour, and a consideration above andbeyond the moral weight to be given to the existence of a consensus in relation to the value to beattached to voting as a procedure.
-  Moreover, community-based policing might reconstitute itself as problem-based policing, andthereby be more effective.