criminal law and common morality research paper

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12 Criminal Law and Civil Society: Law and Morality

• Published: January 2007
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This chapter reviews the most essential functions of law, including criminal law, within a contemporary constitutional state. It suggests that the most basic demand citizens ought to make of criminal law is that it contributes to securing the conditions of civility and social peace, thus sustaining civil society. This, however, cannot be a function of the criminal law alone, for without social justice the conditions of solidarity and civility are not capable of being achieved. Criminal law and public law have to work in tandem, and cannot work at all to these ends without background social conditions that the law does not establish, but which it can damage.

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Corruption and Anti-Corruption in Policing—Philosophical and Ethical Issues pp 1–22 Cite as

Criminal Law, Morality and the Institution of the Police

• Seumas Miller 2 , 3 , 4  
• First Online: 21 October 2016

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Part of the book series: SpringerBriefs in Ethics ((BRIEFSETHIC))

In this book a number of central philosophical and moral issues that arise in relation to police corruption are examined. In this chapter I elaborate a normative theory of policing according to which the principal institutional purpose of policing ought to be the protection of justifiably enforceable, legally enshrined, moral rights. Hence the close relationship between policing and the criminal law, on the one hand, and the protection of moral rights on the other.

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Earlier versions of the material in this chapter appeared in Chaps. 1 and 2 of Miller and Gordon ( 2014 ), Miller et al. ( 2005 ), Chap. 2, and Miller ( 2001 ), Chaps. 4 and 6.

At least ideally or by the lights of standard democratic theory. In practice, of course, many laws are in part reflective of powerful sectional interest groups who successfully lobby, or are otherwise able to influence, democratically elected governments.

Widely different circumstances might require (objectively speaking) different social norms. This relativisation of norms to context is consistent with objectivity and, therefore, needs to be distinguished from relativism with respect to truth. See main text below.

The idea, roughly speaking, is that (other things being equal) one’s action is morally wrong if one intentionally harms another (and one’s intention is under one’s control) or one knowingly causes harm to another (and could have done otherwise) or one unknowingly causes harm to another, could have done otherwise and should have known that one’s action would cause the harm in question. For a detailed recent account of causation and responsibility in the law and morality see Moore ( 2009 ). On the more specific notion of collective moral responsibility see Miller ( 2006 ).

Taxes typically provide for goods to which the citizenry have basic rights and goods to which they do not. On the view under consideration there would presumably be a different moral justification for the enforcement of taxes to provide for goods in respect of which the citizens did not have basic rights, i.e. to pay taxes above and beyond those required to ensure basic rights are respected.

The terminology used to refer to these various categories of legal and moral rights can be confusing.

Or at least rights to such assistance when it can be relatively easily provided.

The intuitive idea is that there are certain properties that individual human beings possess that are at least in part constitutive of their humanity. Naturally there is room for dispute as to what these properties are; indeed, some putative properties might be criteria rather than defining properties. Moreover, while some putative properties, e.g. the capacity to reason, are more salient than others, e.g. the capacity for bodily movement, I do not have a worked-out theory to offer. However, the main point to stress here is that the properties in question are ones that are held to have moral value, e.g. individual autonomy or life. This conception is consistent with a view of human beings as essentially social animals.

Note that a human right in my sense is not merely a right enshrined in human rights documents, such as those promulgated by the United Nations.

Typically, a distinction is made between so-called claim rights (e.g. one’s right not to be killed) and so-called liberty rights (e.g. a right to sit on a park bench in a public area). If A has a claim right to x then B has no right to x and, indeed, B has a duty to refrain from taking x (or otherwise interfering with A’s enjoyment of x). If A has a liberty right to x then B may well also have a liberty right to x. However, B has a duty to refrain from preventing A from exercising A’s right to x (other than incidentally by B exercising B’s right to x).

Note that we are here asserting a normative conceptual connection between human rights and enforcement. We are not making the more familiar (and controversial) claim that for something to be a moral right, it must be able to be enforced. Here it is also useful to distinguish between different orders of rights and duties. For example, arguably the right to life gives rise to the duty not to kill, but also the duty to protect someone from being killed.

No doubt the legal context, including other laws, plays a role here.

Naturally I acknowledge that many laws do not derive from moral rights, and also that those that do 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 yet the system remain recognizably a legal system. See Dworkin ( 1998 , p. 101). I am also assuming that for a legal system to express the admittedly problematic notion of the will of the community, it is 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 of individual laws they do not support—and support the procedures for generating laws, e.g. a democratically-elected legislature. (See Miller 2001 , pp. 141–151.) Finally, I am assuming that the fact that a party or candidate or policy or law secured (directly or directly) a majority vote is an important (but not necessarily decisive) consideration in its favour, and a consideration above and beyond the moral weight to be given to the existence of a consensus in relation to the value to be attached to voting as a procedure.

Moreover, community-based policing might reconstitute itself as problem-based policing, and thereby be more effective.

This point is consistent with lower echelon personnel, such as police constables, having a high degree of discretionary power vis-à-vis those subject to their authority, e.g. ordinary citizens.

In fact, in England and Wales police are subject to central government via the Home Office, as well as to local government via the Police Authority. However, the authority of local government has been diluted by the 1995 requirement that the Police Authorities have a significant number of members nominated by the Home Secretary.

The elected Mayor of London is the PCC.

Court of Common Council undertakes the role of PCC.

Alexandra, Andrew, and Seumas Miller. 2009. Ethics in practice: Moral theory and the professions . Sydney: University of NSW Press.

Google Scholar  

Bittner, Egon. 1980. The functions of the police in modern society . Cambridge, Mass.: Oelgeschlager, Gunn and Hain.

Bryett, Keith, Arch Harrison and John Shaw. 1994. Police and government in a democracy. In An introduction to policing , Vol. 2, 39–57. Butterworths.

Devlin, Lord. 1968. The enforcement of morals . Oxford: Oxford University Press.

Dworkin, Ronald. 1998. Law’s empire . Oxford: Hart Publishing.

Feinberg, Joel. 1987. Harm to others: The moral limits of the criminal law . Oxford: Oxford University Press.

Book   Google Scholar  

Goldstein, Herman. 1990. Problem-oriented policing . New York: McGraw-Hill.

Hart, H.L.A. 1961. The concept of law . Oxford: Clarendon Press.

Kleinig, John, Peter Mameli, Seumas Miller, Douglas Salane, and Adina Schwartz. 2011. Security and privacy: Global standards for ethical identity management in contemporary liberal democratic states . Canberra: ANU Press.

Kleinig, John. 1996. The ethics of policing . Cambridge: Cambridge University Press.

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Miller, S. (2016). Criminal Law, Morality and the Institution of the Police. In: Corruption and Anti-Corruption in Policing—Philosophical and Ethical Issues. SpringerBriefs in Ethics. Springer, Cham. https://doi.org/10.1007/978-3-319-46991-1_1

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