Ethics, Law and Politics
Interview by Richard Marshall.
‘I see loyalty – roughly perseverance in relational commitments despite the cost of such perseverance – as an important human value/virtue. Think of it as a kind of relational glue. It is odd that a value/virtue that plays such a central role in dramatic literature has played such a small role in philosophical writing. There are probably a number of reasons, but I think that a predilection for a certain kind of individualism is a major one. Others might include the fashionability of consequentialism, the idea that loyalty has more to do with sentiment than reason, as well as its proneness to corruption. The revival of interest in virtue/character as distinct from rules/principles has also created space for a renewed, if hesitant, interest in loyalty.’
‘Morality/Ethics is fine as a mediator of relations but, as an informal matter, too contentious for the purposes of something as dense as society. And so – as a matter of ethics – our broader social life needs to be constrained by law and other devices – resolving at the societal level matters that should not be left for individual ethical negotiation. What is important – in the end – is that we are enabled to flourish in ways that acknowledge our dignity.‘
John Kleinig is Professor of Philosophy in the Department of Criminal Justice, John Jay College of Criminal Justice, and in the PhD Programs in Philosophy and Criminal Justice, Graduate School and University Center, City University of New York. He is also Strategic Research Professor at Charles Sturt University and Professorial Fellow and Program Manager in Criminal Justice Ethics at the Centre for Applied Philosophy and Public Ethics (Canberra, Australia). Here he discusses issues of legal, ethical and political philosophy, loyalty, the ethics of criminal justice, over-criminalisation, the ethics of policing, whether criminal justice requires a different ethics from elsewhere, valuing life and why he has so many different philosophical interests.
3:AM: What made you become a philosopher?
John Kleinig: Rawlsian life plans don’t give a large place to serendipity. They probably should. In high school I was obsessed with experimental chemistry but in the last two years had to confront the fact that more mathematics were required than I had desire or talent for. Serendipitously, I had a charismatic (and crazy: think Dead Poet’s Society) English and German teacher who appealed to my somewhat philosophical inclinations (which were mostly focused on the Kantian big three: God, Freedom and Immortality – I think The Bridge Of San Luis Rey was our major English text at the time). My mother thought my inclinations would do well in Law, but I was too shy and deliberative – slowfooted – for that, so I determined to be an English and German high school teacher. In my first year of university I had one subject to “fill in” and chose philosophy against the advice of my counselor. My university teachers in English and German were totally uninspiring; philosophy was wonderful and my results showed it. After the second year, the university began an experiment whereby people could apply for a two-year dedicated honors program in philosophy. I chose it and basically backed into a situation in which only a philosophy career seemed a viable option. Fortunately I was offered a full time tutorship after I completed the honors and my course was more or less set. I’ve never regretted it, but there was a lot of serendipity.
3:AM: You’re a philosopher who has written widely on both legal and ethical and political philosophy. How do you see the relationship between ethics, law and politics as it seems to be a relationship that needs to be borne in mind as we follow your thinking, in particular how you separate legal and moral requirements because they often parallel each other in the domains you examine.
JK: Although my earliest interests were in philosophy of religion, my masters and doctoral dissertations were on topics in moral/social/legal philosophy (conscience and punishment, respectively). That more or less set the course for my subsequent career. The interest in political philosophy came a bit later, though my main doctoral supervisor – Stanley Benn – had made significant contributions to the revival of political philosophy in the 1960s. However, I remember him remarking that one needed to be a certain age to engage with problems in political philosophy – I think he had in mind a certain breadth of understanding and experience – and so my political interests developed more slowly than the others.
As for the ethics, law, and politics relationship, there has always been a tension for me as I try to keep them distinct while recognizing their interactions. A valuable contribution to my thinking there and elsewhere was Ellen Meiksins Wood’s Mind and Politics, which reinforced for me the ways in which seemingly disparate philosophical endeavors were/are interconnected, and although I have tended to give a certain priority to ethical considerations as part of practical reasoning, I am reminded often enough that this position makes some contentious presumptions . In separating out, say, legal and moral requirements, I tend to work with paradigms rather than strict divisions – eg, paradigmatically, legal requirements are jurisdictionally bound whereas ethical requirements are aspirationally universal; ethical requirements focus especially on intentions whereas legal requirements focus primarily on conduct; ethical requirements take priority over legal requirements; and so on. One starts there, but then has to kick away the ladder with qualifications – to accommodate ethical obligations to animals, environmental objects, criminal excuses, etc. I guess something like that is true in most disciplines – we step off the ladders we necessarily construct to deal with more complex understandings.
3:AM: Your most recent book investigates what you see as a problematic virtue: loyalty. Can you first sketch what you see as its problems?
JK: I grew up in a home in which loyalty to family was central to my father’s outlook. Adolescent changes to my outlook (which set me against parental values) made me very critical of loyalty, reinforced by certain religious writers I found influential at that time, esp. Harry Blamires, The Christian Mind. But I remained conflicted about loyalty. In later years, when I started working in police ethics, I was professionally drawn back to the topic but as well was better able to see two sides to loyalty – its importance for certain central human relations such as friendships, but also its corruptibility in the sense that loyalty could be invoked against (other?) moral constraints: it sometimes function as something of a moral Trojan horse, undermining other moral considerations. Whistleblowing constitutes a nice test case for the evaluation of loyalty. Loyalty also appears at the intersection of many major philosophical debates: general ones such as those between consequentialism and deontology, reason and feeling, virtue and principle, as well as more specific ones such as nationalism and patriotism, morality and obedience, particularism and universalism. The book on loyalty took many years to sort out. Since the book on loyalty came out, I followed it up with a jointly-authored book on patriotism.
3:AM: You take loyalty to be no marginal or phony virtue but one with a central place in many contemporary ethical issues. What’s at stake with the issue of virtue and why do you think that apart from a few exceptions such as Royce there have been few treatments of the subject in the mainstream of ethical philosophy?
JK: You raise more than one issue here. Insofar as I think that humans are social/relational beings and that some human relations are central to our being the persons we are (our identities), I see loyalty – roughly perseverance in relational commitments despite the cost of such perseverance – as an important human value/virtue. Think of it as a kind of relational glue. It is odd that a value/virtue that plays such a central role in dramatic literature has played such a small role in philosophical writing. There are probably a number of reasons, but I think that a predilection for a certain kind of individualism is a major one. Others might include the fashionability of consequentialism, the idea that loyalty has more to do with sentiment than reason, as well as its proneness to corruption. The revival of interest in virtue/character as distinct from rules/principles has also created space for a renewed, if hesitant, interest in loyalty. I think that understanding it as an executive rather than a substantive virtue helps us to see what is both important as well as problematic about it – a point you raise again in the next question.
3:AM: How should we best understand loyalty as a virtue and are there enough positives to rescue it from the opprobrium of those who’d agree with Mark Twain that in the balance its negatives outweigh the positives?
JK: Loyalty saves us from the self-advantaging compromising of important relations – such as friendship, marital and professional commitments, group memberships, and so on. But as the Aristotelians would put it, its expression requires phronesis – wisdom not to allow it to compromise other important virtues (there is something to the ancient doctrine of the unity of the virtues). I believe that is true of all virtues, but especially of the executive virtues – such as industriousness, sincerity, conscientiousness, and courage – which may become detached from substantive goods. Also, one of the real dangers of loyalty is that it may become associated with certain types of group-think (chauvinism, jingoism) and thus become socially destructive in ways that many other virtues are not likely to be when they are corrupted. Nationalism and patriotism are especially prone to misguided excess.
3:AM: Another area that you’ve looked at is the role of ethics in criminal justice. You think that these ethical issues are fundamental in two senses: they’re about a basic currency of human interaction and they are a basic tool for assessing other social norms. Could you flesh out your thinking about this notion of the fundamentality of ethics here?
JK: My view of ethics and of its priority is connected to my view that we are fundamentally relational beings – both the product of human interactions (families, schools, churches, social organizations), as well as committed as part of the expression of our own humanity to various social involvements (friendships, memberships, joint activities/projects). I see ethics as having two places in the maintenance of these relational activities – first as providing the basic coinage of our interactions qua humans (which includes motives, attitudes and intentions) and second as mediating the various roles we assume as humans (inter alia, we need business and medical and legal ethics). Partly because of this, I see ethical considerations as having a certain priority in our interactions – passing judgment on our political and legal processes. None of this is simple and straightforward, for reasons I mentioned earlier.
3:AM: One area where ethics and criminal justice is a big issue is on the limits of criminalization. The US seems to criminalize too many people – indeed many governments don’t seem to have the right level of constraints on them – how should we approach this notion of the limits of criminalization and constraints on governmental agents in terms of ethics?
JK: Morality/Ethics is fine as a mediator of relations but, as an informal matter, too contentious for the purposes of something as dense as society. And so – as a matter of ethics – our broader social life needs to be constrained by law and other devices – resolving at the societal level matters that should not be left for individual ethical negotiation. What is important – in the end – is that we are enabled to flourish in ways that acknowledge our dignity (elsewhere I have talked a bit about connections between flourishing, dignity and rights). The view that societally we should formally interfere first and foremost with certain harms to others is a good start – though it raises many questions about the nature and kinds of harm, appropriate mechanisms for responding, and so on. Some would stop there, though I do not wish to rule out a priori other bases for social interference (say, offense and harm to self). However, as I think we move from harm to others, which has a more tangible connection with the recognition of others’ dignity, we have to work much harder to justify societal constraints.
Overcriminalization, however – something I believe to be a serious problem – isn’t simply a matter of expanding the range of reasons for interference. Even harm to others is a source of overcriminalization. For example, a single act by Fred might contravene 10 different laws, and Fred is charged with all 10 offenses – subsequently to be offered a plea bargain in which 8 will be dropped if Fred pleads guilty to 2. I find this standard situation (most convictions are pleabargained) unconscionable. Plea bargains are often coercive, mostly undersupervised, and have future effects that are not appreciated at the time.
3:AM: Policing is a particularly toxic area at the moment: the role of the police, the burdens of discretion and coercion and deception are all topics you’ve discussed. Do the police have extra ethical constraints that go beyond just ‘common morality’ or are they constrained by the same ethics that constrain us all, colored by the circumstances under which they operate? And for the police does the law articulate the bounds of what’s morally permissible?
JK: Police have both extra constraints and extra permissions – on the one hand, they can’t dodge involvement in social disorder as the rest of us can and they may be required to conduct themselves privately in a way that does not undermine their public authority; on the other hand, they have permission to engage in deceptions, invasions of privacy and uses of force that are forbidden to the rest of us. But this does not put them beyond common morality. What we have to ask is this: what can we morally expect of and allow to people whom we deploy to fulfil this or that social role (police officer, school teacher, physician)? This may sometimes lead to difficult social decisions – e.g. should police be permitted to illegally import drugs as part of a sting operation? In the end, I think “common – that is, critical –morality” should determine the limits of the police role.
3:AM: You see police as servants of the community so how should we handle the potential conflict between communal and individual values – are we in the same terrain as, for example, doctors when making life threatening decisions?
JK: There will always be situations in which conflicts arise between individual and communal values – Catholic police officers deployed to enable women to enter abortion clinics without harassment and doctors who oppose performing abortions. No social role is free of such potential conflicts. Sometimes we can – and should find ways to accommodate such clashes (e.g. not scheduling people to teach on certain days). At other times, it may be an individual’s responsibility not to take on a social role if it is likely to result in conflicts with individual belief (a pacifist police officer?). But not all conflicts will be anticipatable or easily manageable, and then what might be most important is how we set up acceptable mechanisms in advance for resolving them. Obviously there is much more to be said here.
Structurally I don’t see a fundamental difference between what we may reasonably expect of police and doctors – though obviously the fact that doctors are generally pursuing life-saving activities and police may be engaged in life-threatening activities may lead to differences in how we construe the moral limits to their roles.
3:AM: You argue that many of the ethical issues of policing have their genesis not in the interface with their communities but at the managerial, organizational level. Can you explain your thinking here?
JK: Police do not work at the immediate direction of the communities they serve, but through their institutional connections. Police departments may develop structures, modi operandi, and cultures that are ethically problematic. At the broadest level, is a police department focused on community policing or simple crime fighting? More narrowly, does it give all its officers tasers or specialized members? Does it have mechanisms for accommodating mentally disturbed persons? What is the quality of the training it provides? Is it organized in a strongly hierarchical fashion or more democratically – top-down v. bottom-up? What are its policies regarding the wearing of body cameras and the release of visual records. And so on. I don’t want to suggest that there are simple or single answers to such questions, but they illustrate ways in which organizational factors may be ethically important.
3:AM: Another key area you investigate in the interface between ethics and criminal justice is the role of the courts and you discuss prosecutors, defense lawyers, judges and juries in terms of the ethics of these roles – prosecutors seeking justice through truth, defense lawyers and zealous advocacy, the impartiality of judges and juries shining the lamp of liberty. Are these positions that require a new understanding of ethics or are they just transposition?
JK: The various roles we incorporate into the criminal justice system as well as the ways in which we construe such roles, lend themselves to the kind of ethical reflection that is open to us all. That said, once we have determined roles and their contours, those who act within them may have special duties and privileges that others may lack. Specific roles may generate ethical inquiries with novel forms, just as new technologies may push us in new directions. And roles evolve over time: juries once made determinations about law; nowadays, they are supposedly limited to making factual determinations. A good move? All along, however, we will, be employing and refining “established” values in new contexts, with the possibility of restructuring them in some way.
3:AM: You’ve written about the value of life, noting that the usual approach to questions of valuing life is negative – ie when are we permitted to terminate life. You resist that approach – so how do you approach the question and why?
JK: At the time I was thinking fairly intensively about matters of life and death – as part of a larger bioethical interest – and I was struck by the fairly unwavering focus on the conditions under which we could legitimately kill living things – plants, animals, and humans. That seemed a bit premature – we first needed to say something about the nature and value of different forms of life before we ruled too firmly on the conditions under which that life could be terminated (that’s a bit quick, but it captures something of my motivation at the time). So I started with some general reflections on what constituted something as living or alive and then what differentiated different “forms” of life and whether/what normative claims might be made a propos life/different forms thereof. It led me into literatures that were often marginal to the philosophical mainstream (Schweitzer, Jonas, Gaia) and that was good and interesting. Of course I had to touch on issues such as abortion and euthanasia, and even one issue that, twenty-five years later, is now getting a lot of attention – human enhancement.
3:AM: You find all sorts of ambiguities with the term ‘life’ in how it’s used in this context – what’s the most helpful way to understand the term, and ‘value’ as well? How do you disentangle the ambiguity and the arguments for valuing all sorts of life – have you a coherent morality of life?
JK: Ha, this is a little like asking for a summary of Valuing Life. I will respond with no more than teasers, though I think it’s fair to say that I don’t have anything as grand as a coherent “morality of life.” What I attempted to do in that book was to start from a very simple understanding of biological life as a self-regulating and self-renewing structure, which I then argued to be represented in different ways and degrees of complexity in plants, animals, and humans, recognizing that these categories were not rigidly differentiated. About each of them, as well as about bare organismic life, I inquired concerning its value. Value I thought of as something attributed by “valuers” – particularly agents – hence my focus on valuing rather than value. As much as anything, I wished to articulate the complexities of the issue rather than push for some particular conclusion. My project – as is the case with most of my projects –started off with puzzlement and confusion rather than a thesis that I wished to establish. There were (and are) a lot of loose ends, and the human/animal distinction has been given much more attention in the years since I wrote the book.
3:AM: Do your reflections on flourishing, the value of life and your work on ethics in relation to the criminal law also govern your thinking about education?
JK: I confess to being something of a philosophical butterfly. The world is full of so many interesting questions, and although my greatest passion is for some form of applied ethics, that leaves me with oodles of possibilities, many of which I have never had the time or opportunity to explore in great depth. For example, I have folders on cannibalism, espionage, and electronic monitoring that will probably never get the attention I once hoped to give them. The selection of topics for intensive research has often been a function of serendipitous opportunity. My forays into philosophy of education were largely in response to the prompting of friends and my dissatisfaction with much of what – at that time – passed for philosophy of education. I cannot honestly say that there has been either continuity or an overarching schema, though I suspect (or at least hope) that someone who looked at my oeuvre might conclude that there was a philosophically integrated author. From time to time I have wished to do more work in philosophy of religion, but the demands and challenges have been such that it needed more work than I had time for. I sneaked a chapter into my book on loyalty that touched on some issues in the area. Maybe in the future I will try responding to Philip Kitcher’s excellent critique: Life After Faith: The Case for Secular Humanism – it gets closer to me than much of what is produced in the field.
3:AM: And finally for the readers here at 3:AM, are there five books other than your own that you could recommend to take us further into your philosophical world?
JK: These are not books that I recommend because they represent my views, but books that have stimulated and informed much of my thinking.
Roger Mehl, The Condition of the Christian Philosopher ( 1963). I might have said The Christian Bible, but as a philosopher I came to think of Mehl as a lens for possibilities that were largely opposed by my earlier experience.
Aristotle, Nicomachean Ethics. Kovesi (below) would probably not have approved, but Aristotle captures much of what continues to challenge in the ethical realm.
John Stuart Mill, On Liberty (1863). Although some of my views have been developed using Mill as a foil, On Liberty offers something of an ethical high point.
Jacques Ellul, The Ethics of Freedom (1976) and The Technological Society (1964)). More by form than content, these volumes freed me from a religious and ethical tradition that I might have found stifling.
Julius Kovesi, Moral Notions (1967). Kovesi was a mentor who was writing on the fact/value distinction in the heyday of RM Hare and JL Austin. I have remained entranced by his take on this issue, even as I moved beyond the questions on which he focused.
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First published in 3:AM Magazine: Saturday, December 17th, 2016.