Morally Justifiable Noble Cause Corruption?
Noble cause corruption is obviously not morally justified if there is some lawful means to achieve the morally desirable outcome. But are there cases in which the only way to achieve a morally obligatory outcome is to act immorally? In order to enable us to explore the philosophical issues associated with noble cause corruption further, and to focus our discussion, let us consider the following case study (Miller 1998, 2004; Miller et al. 2005).
Case Study 1—Noble Cause Corruption
A young officer, Joe, seeks advice from the police chaplain. Joe is working with an experienced detective, Mick, who is also Joe’s brother-in-law, and looked up to by Joe as a good detective who gets results. Joe and Mick are working on a case involving a known drug-dealer and paedophile. Joe describes his problem as follows:
Father - he has got a mile of form, including getting kids hooked on drugs, physical and sexual assault on minors, and more. Anyway, surveillance informed Mick that the drug-dealer had just made a buy. As me and Mick approached the drug-dealer’s penthouse flat, we noticed a parcel come flying out the window of the flat onto the street. It was full of heroin. The drug-dealer was in the house, but we found no drugs inside. Mick thought it would be more of a sure thing if we found the evidence in the flat rather than on the street - especially given the number of windows in the building. The defence would find it more difficult to deny possession. Last night, Mick tells me that he was interviewed and signed a statement that we both found the parcel of heroin under the sink in the flat. He said all I had to do was to go along with the story in court and everything will be sweet, no worries. What should I do Father? - perjury is a serious criminal offence.
In this scenario, there are two putative instances of noble cause corruption. The first one is Mick intentionally unlawfully loading up the evidence and committing perjury in order to secure a conviction. As it is described above, this instance of noble cause corruption is not morally sustainable. For there is a presumption against breaking communally-sanctioned ethical principles enshrined in the law, and this presumption has not been offset by the moral considerations in play here. Indeed, it is by no means clear that in this situation, Mick’s unlawful acts are even necessary in order for the drug-dealer to be convicted. Moreover, achieving the good end of securing the conviction of the drug-dealer is outweighed by the damage being done by undermining other important moral ends, namely due process of law and respect for a suspect’s moral rights (Cohen 1987: 57).
Nor is there anything to suggest that this is a one-off unlawful act by Mick, and that he had provided himself with what he took to be a specific and overriding moral justification for committing it on this particular occasion. Indeed, the impression is that Mick loads up suspects and commits perjury as a matter of routine practice. Further, there is nothing to suggest that police powers in this area—at least in Australia—are hopelessly inadequate, that police and others have failed in their endeavours to reform the law, and that therefore police officers have no option but to violate due process law, if they are to uphold so-called “substantive” law. Of course, it is a different matter whether or not current Australian anti-drug policies are adequate to the task. Evidently they are not. But this in itself does not justify an increase in police powers in particular. For if anything is clear, it is that a policy of crimi- nalisation is by itself inadequate. Accordingly, Mick, and like-minded detectives, do not have available to them the argument that noble cause corruption is justifiable because there is a discrepancy between what police powers ought to be, by the lights of objective ethical principles, and what they in fact are. In the first place, there is no such discrepancy; although arguably current anti-drug policies are failing. In the second place, loading up suspects, perjury and the like, could never be lawful procedures grounded in objective ethical principles. Lastly, if in fact an increase in police powers were morally justified, then the appropriate response of the police ought to be to argue and lobby for this increase, not engage in unlawful conduct. It might be the case that an irredeemably obstructionist political system—one that consistently failed to provide police with adequate powers in spite of sustained and well-put arguments and lobbying by police and others—might justify police exercise of unlawful de facto powers of a kind that ought to be lawful. An example of this might be police officers detaining a suspect for a period of time that is reasonable given the nature of the crime in question and the quantum of incriminating evidence in their possession but a period of time that is, nevertheless, longer than is lawful.
There is a second putative instance of noble cause corruption in our scenario that is more morally troublesome. This is Joe committing perjury in order to prevent a host of harmful consequences to Mick, Joe, and their families. Let us assume that if Joe does not commit perjury, Mick will be convicted of a criminal act, and their careers will be ruined. Moreover, the friendship of Mick and Joe will be at an end, and their respective families will suffer great unhappiness. This second instance is a candidate for morally justified, or at least morally excusable, unlawful behaviour on the grounds of extenuating circumstances. Let us now assume, at least for the moment, that were Joe to commit perjury in these circumstances his action would be morally justified, or at least morally excusable. The question to be asked now is whether it is an act of noble cause corruption.
Certainly, such an act of perjury is unlawful. But here we need to distinguish a number of different categories. Some acts are unlawful, but their commission does not harm any innocent person. Arguably, such unlawful acts are not necessarily immoral. The drug-dealer will be harmed in that he will go to prison, but he is not innocent; he is a known drug-dealer and paedophile who deserves to go to prison.
But the fact that the drug-dealer is guilty of serious crimes does not settle the issue. Consider Joe’s actions. Some acts are unlawful, but their commission does not infringe anyone’s moral rights. Joe’s act will certainly infringe the drug-dealer’s moral rights, including the right to a fair trial based on admissible evidence. Moreover, perjury undermines a central plank of due process law; without truthful testimony, the whole system of criminal justice would founder. Thus perjury is a species of institutional corruption. Accordingly, considered in itself, the act of perjury is a serious moral wrong, and an act of corruption.
Unfortunately, as we have already seen, the moral costs of Joe not committing perjury are also very high—perhaps higher than those involved in perjury. We can conclude that Joe faces a genuine moral dilemma; he will do moral harm whatever he does. Does it follow that we have found an instance in which noble cause corruption is justified? Here there are really two questions. Firstly, is Joe’s action an instance of noble cause corruption? Secondly, is his action morally justified? The distinction between corruption—including noble cause corruption—on the one hand, and immorality on the other, is a fine distinction in this context; but it is no less real for that.
As we have seen in earlier chapters, corruption is a species of immorality, and corrupt actions are a species of immoral actions; nevertheless, not all immorality is corruption, and not all immoral actions are corrupt ones. Most corrupt actions have a number of properties that other immoral actions do not necessarily possess. First, corrupt actions are typically not one-off actions. For an action to be properly labelled as corrupt, it has to in fact corrupt, and therefore is typically a manifestation of a disposition or habit on the part of the agent to commit that kind of action. Indeed, one of the reasons most acts of noble cause corruption are so problematic in policing is that they typically involve a disposition to commit a certain kind of action. Acts of noble cause corruption are typically not simply one-off actions; they are habitual. Now Joe’s action is not habitual. However, some acts of corruption are one-off (Miller 2011). So the fact that Joe’s action is a one-off, non-habitual action does not settle the question as to whether it is corrupt or not.
Secondly, most corrupt actions—involving as they do a habit to act in a certain way—are not performed because of a specific, non-recurring eventuality. Rather, they are performed because of an ongoing condition or recurring situation. In the case of noble cause corruption in policing, the ostensible ongoing condition is the belief that the law is hopelessly and irredeemably inadequate, not only because it fails to provide police with sufficient legal powers to enable offenders to be apprehended and convicted, but also because it fails to provide sufficiently harsh punishments for offenders. Accordingly, so the argument runs, police need to engage in noble cause corruption; that is, they need to develop a habit of bending and breaking the law in the service of the greater moral good of justice, given the irremediable features of the criminal justice system.
Now although Joe is motivated to do wrong to achieve good, or at least to avoid evil, he is responding to a highly specific—indeed extraordinary—circumstance he finds himself in, and one which is highly unlikely to recur (Delattre 1994, Chap. 11). He has not developed a disposition or habit in response to a felt ongoing condition or recurring situation. However, again the point has to be made that some corrupt actions are one-off, non-habitual actions that are responses to a highly specific, non-recurring circumstance. Accordingly, we cannot conclude from the non-recurring nature of these circumstances that Joe’s action is not a corrupt act.
Third, corrupt actions are typically motivated at least in part by individual or narrow collective self-interest. In the case of policing, the interest can be individual self-interest, such as personal financial gain or career advancement. Or it can be the narrow collective self-interest of the group, such as in the case of a clique of corrupt detectives. Certainly, Joe’s action is not motivated by self-interest. However, it is a defining feature of acts of noble cause corruption that they are not motivated by self interest (or narrow collective self-interest), and so this feature of Joe’s action does not prevent it being an act of corruption—and specifically, an act of noble cause corruption.
Given that Joe’s act of perjury undermines a legitimate institutional process, and given the possibility of one-off acts of noble cause corruption, it might seem that Joe’ s act is corrupt. But this move is a little too quick. Certainly, Joe’s action undermines a legitimate institutional process. However, as noted in Chap. 2, for his act to be corrupt, Joe typically has to be morally culpable in some degree. Now Joe is aware that his act of perjury will undermine a legitimate institutional process; it is not as if he is ignorant of the institutional damage that he is doing. On the other hand, he is well-motivated; he is aiming at the good, albeit by doing what is pro tanto morally wrong. Note that many actions are pro tanto morally wrong without being morally wrong all things considered. Thus an act of telling a lie is morally wrong considered on its own, i.e. pro tanto; however, this act of telling a lie if it were performed in order to save someone’s life might, nevertheless, be morally right all things considered (i.e. taking into consideration that telling the lie saved a life).
It might be thought that Joe’s act of perjury is an instance of noble cause corruption. In order for his action to be an act of noble cause corruption it has to be corrupt, and in order for it to be corrupt it must fulfil the following three conditions identified in Chap. 2: firstly, it must corrupt something or someone—in the case of Joe, a legitimate institutional process, viz. the process of giving testimonial evidence is corrupted; secondly, there must be a corruptor or a corrupted and, if the former, the agent normally must be morally responsible for the act, i.e. he must have performed an act which has a corrupting effect, and one that he knew would have this effect, or which he ought to have known would have this effect, and; thirdly, assuming no person is corrupted, then the corruptor must be an institutional actor. If any of these three conditions are not met, then the action is not an act of corruption. In the case of Joe’s action, all three conditions are met. So Joe performs an act of corruption, albeit—given his motivation—an act of noble cause corruption.
Note that it is possible for the action to be corrupt, and yet for the agent not to be culpable. This might be so, for example, in the circumstance that although the action was corrupt in itself, it was not morally wrong, all things considered. So Joe’s action was corrupt, but the question remains as to whether Joe’s action was morally wrong all things considered. Further, it is even possible for an agent who performs an action that is both morally wrong pro tanto and all things considered, nevertheless, not to be culpable, i.e. not to be morally blameworthy. For the agent might have a valid excuse for performing the morally wrong action in question. For example, perhaps the agent could not reasonably be expected to know that the action in question was morally wrong all things considered, albeit the agent knew that it was pro tanto morally wrong.
Joe faces a genuine moral dilemma. Obviously Joe knows that committing perjury is pro tanto morally wrong. Moreover, it might be the case that it would be morally wrong for him to commit perjury all things considered, e.g. even taking into consideration the harm it would do to his Mick and Joe’s family if he did not commit perjury. However, even if this is so, arguably Joe would not be morally culpable, i.e. blameworthy, if he committed perjury in these circumstances. For the dilemma is such that we cannot confidently claim that Joe ought to have known that committing perjury in these circumstances would be morally wrong all things considered. I conclude that irrespective of whether or not Joe’s act of perjury in these circumstances would be morally wrong all things considered (obviously it was pro tanto morally wrong), Joe would not be morally culpable in performing it.
Before summing up our discussion of noble cause corruption in policing, I would like to present another example of noble cause corruption in which the corruptor appears to be morally justified. Consider a police officer in India whose meagre wages are insufficient to enable him to feed, clothe, and educate his family, and who is prohibited by law from having a second job. Accordingly, he supplements his income by accepting bribes from certain households in a wealthy area in return for providing additional surveillance and thus greater protection from theft; this has the consequence that other wealthy households tend to suffer a somewhat higher level of theft than otherwise would be the case. The police officer is engaged in corruption, and his corruption has a noble cause, viz. to provide for the minimal wellbeing of his family. However, arguably his noble cause corruption is morally justified by virtue of the more stringent moral obligations he has to provide for the basic needs of his family. That is, his noble cause corruption is morally justified all things considered.
We have seen that corrupt actions, including acts of noble cause corruption, are typically, but not necessarily or invariably, habitual actions; typically, they are not one-off actions performed in accordance with moral principles that have been applied to a particular non-recurring situation. So in most cases of noble cause corruption, the motivating force is in part that of habit, and there is no attempt to perform a rational calculation of the morality of means and ends on a case-by-case basis. Accordingly, there is an inherent possibility, and perhaps tendency, for such acts of noble cause corruption not to be morally justified when individually considered. After all, the police officer who has performed such an individual act of noble cause corruption has simply acted from habit, and has not taken the time to consider whether or not the means really do justify the ends in the particular case. Moreover, given a presumption against infringing communally sanctioned and legally enshrined ethical principles, this failure to engage in moral decision-making on a case-by-case basis is surely morally culpable by virtue of being, at the very least, morally negligent.
What we have said thus far points to the morally problematic nature of doing wrong to achieve good as a matter of unthinking routine. This does not show that noble cause corruption is after all motivated by individual (or narrow collective) self-interest. Rather noble cause corruption remains noble in the sense that it is motivated by the desire to do good. However, there is a weaker claim to be made here, namely that most acts of noble cause corruption are motivated, or at least in part sustained, by a degree of moral negligence. The officer who habitually performs acts of noble cause corruption does not feel the need to examine the rights and wrongs of his (allegedly) ends-justified immoral actions on a case-by-case basis. Yet given the presumption against infringing communally-sanctioned ethical principles enshrined in the law, surely decision-making on a case-by-case basis is typically morally required. Moreover, as we saw above, acts of noble cause corruption have not been communally sanctioned; they are actions justified, if they are justified at all, only by some set of moral principles held to by the individual police officer or group of officers. Further, this set of alleged ethical principles is typically not objectively valid; it is not a set of principles that ought to be enshrined in the law. Rather, these allegedly ethical principles are in fact typically spurious; they are the kind of principle used to justify actions of the sort that Mick commits, viz. loading up suspects and perjury.
Accordingly, there is a strong possibility of, and perhaps tendency to, moral arrogance, moral insularity, and the application of unethical principles inherent in noble cause corruption. Accordingly, noble cause corruption is both dangerous in its own right, and likely to be at least in part self-serving. In short, while acts of noble cause corruption are by definition not motivated by individual (or narrow collective) self-interest, in so far as they are habitual actions, they are likely to be indirectly linked to, and in part sustained by, self-interest. Indeed, this conceptual claim of an indirect connection between noble cause corruption and self-interest seems to be supported by empirical studies. It appears to be an empirical fact that police who start off engaging in noble cause corruption often end up engaging in common or garden, out-and-out corruption (Wood 1998).