Students
This chapter discusses the philosophical foundations of ethics. Ethics is the study of moral judgement—that is, judgement about what is the ‘right’ thing to do in a given situation. Ethics is often conflated with the idea of morality, and often the two terms are used interchangeably. There is, however, some difference between them. When we use the term ‘morality’ we are usually referring either to social mores or personal convictions about the general kinds of behaviour in which people in society should engage. In other words, morality is a set of beliefs about what is good or bad. Ethics on the other hand, prescribes what we should do in a given situation. For example, lying is traditionally unacceptable in most societies. However, I may find myself in a situation where I must make a choice between lying and, say, saving a life. This chapter explores the nature of ethical dilemmas and provides an introduction to ethical theory. It explores ethical relativism, subjectivism and meta-ethics, and provides a brief overview of consequentialist and non-consequentialist theories.
Chapter 3 explores consequentialist theories in more depth, with a particular focus on ethical egoism and utilitarianism. It draws on the work of historically well-known utilitarian philosophers such as Jeremy Bentham, John Stuart Mill, A.J. Ayer, and Kenneth Arrow, and egoist theorists such as Frederich Nietzsche, and Ayn Rand. Examples of ethical dilemmas are drawn from seminal works by theorists such as Bernard Williams and J.J.C. Smart, as well as from current events around the globe.
This chapter explores non-consequentialist theories in depth, focusing on deontology and virtue ethics. It draws on historically well-known deontological philosophers such as Immanuel Kant and S.I. Benn, critics such as Michael Walzer, and theorists of virtue ethics such as Aristotle, C.S. Lewis and Alastair MacIntyre. It also explores seminal ethical dilemmas posed by these philosophers, such as whether it is ever ethical to lie, steal, or kill.;
The theories outlined in the previous two chapters provide frameworks for ethical decision-making processes. It is essential that we are able to fully justify an ethical decision and defend a particular course of action against critique, not only by using these theories, but also by supporting our position with facts and logical arguments. This chapter explores what constitutes critical thinking, how to assess the theories, and three methods of ethical discussion making. It describes and explains deductive logic and how to employ deductive logic to make an argument. It also provides a critique of the various methods employed by utilitarians, deontologists, egoists and virtue ethicists, and provides some practical guidelines for making ethical decision in everyday situations.
Part II: ethics in public life
Part II examines what constitutes justice and the good society. It examines the importance of maintaining a distinction between our private morality and the morality we express in public or as professionals. It also explores how society ought to be organized to produce the maximum benefit to its members. This is truly a question of social ethics, and is essential for justice professionals to consider, given that their professional activities surround the very idea of justice.
Chapter 6
The core question examined in this chapter is: How is our ability to choose between right and wrong affected by the kind of society in which we live? It examines how issues of individual moral responsibility are related to social responsibilities, as well as various understanding of how society should be organised. It asks questions such as:
“What is the good society?”
“Can I simply apply my personal ethics to public life?”
“Is a public morality possible?”
The question of whether there is a public morality is much debated. Certainly Western society seems to be based on certain social conventions and mores that suggest we hold a common set of values. However, there is some debate about what those values are or should be, and what they mean.
In the early twenty-first century, economic rationalism has taken a strong hold on society and this has led to some scepticism about public morality, the economic view suggests that society is run through the marketplace, where buying, selling, and trading of commodities provides the best modus operandi for all facets of life, including goods, occupations, services and leisure. When the market runs smoothly, life proceeds on the basis of supply and demand and ethical problems ostensibly do not exist. Public life, like science and the market, is a self-regulating, value-free domain. This view ignores some important characteristics of public and private life. This chapter reflects on those characteristics, exploring the concepts of institutions, public morality, community, and individualism. It also examines and critiques the ethical framework for liberal democracy as a basis for the good society.
Preston (2006, p. 29) states: “For a society or community to survive cohesively there must be some shared understanding and application of ‘justice’”. So, what does ‘justice’ mean within the Western context?
Justice is usually explained using terms such as equality, impartiality, fairness, reward and/or punishment (Preston, 2006, p. 29). Generally speaking, there are four major categories of justice:
- Procedural justice (which highlights the importance of fair procedures within the legal context such as upholding the ‘rule of law’);
- Retributive and Restorative justice (which articulate fair and just methods of punishment within the criminal justice system); and
- Distributive justice (which deals with the distribution of goods and services) (Preston, 2006, p. 30).
Chapter 7 focuses on distributive justice and how it impacts our thinking about how to produce a just society. It compares various theoretical frameworks for considering justice, including contractarian, libertarian, utilitarian, and socialist perspectives.
In the criminal justice system, the balance between enforcing the law and ensuring that its application is just and fair is generally very difficult. This chapter discusses the various forms of justice that are sought in the application of the law, and applies the ethical theories in the context of achieving justice in the legal system. It also provides example of how ethical issues, theories, and decisions play out in this context. It considers the relationship between justice and law, and the ways in which justice is sought through the law. However, it is important to remember that justice and law are not the same thing. Whereas law is objective, in the sense that it implements punishments and rules to resolve disputes, justice is more concerned with how fair we are in applying those rules and punishments. Law is a system of rules. Justice is the concept of fairness; a system of rules for human relations. Justice is “the whole field of the principles laid down, the decisions reached in accordance with them, and the procedures whereby the principles are applied to individual cases.” (Raphael, 1980: 74). This chapter explores the concepts of natural rights and legal rights, due process and how it might be violated, and whether justice may be tempered by mercy.
Chapter 9 compares and contrasts the adversarial and inquisitorial systems as a starting point for examining the relationship between law and morality. Moving from the procedures of the law and the way in which ethical perspectives are enshrined within them, this chapter considers the purposes of the law, and the ways in which the law expresses particular forms of morality. It also examines the historical influence of morality on the law and on society in general.
Morality does not necessarily coincide with the law, but it contributes to it. An act may be legal but nevertheless considered to be immoral in a particular society. For example, the use of pornography may be considered by many to be immoral. Nevertheless, the sale and distribution of non-violent, non-child-related, sexually explicit material is legal (or regulated) in many jurisdictions. Many laws are informed by, and even created by, morality (Carpenter and Hayes, 2009). This chapter explores the social construction of morality and addresses these issues through an examination of legal paternalism, legal moralism, the Harm Principle as theoretical frameworks for legislating morality.
Part III: Ethics in the criminal justice system
Part III examines ethical issues specific to a range of justice professions and institutions, including public officials, lawyers, policing, and punishment.
Chapter 10
This chapter explores issues in public sector ethics, corruption and official misconduct. It examines ethics issues such as conflicts of interest, fraud and bribery, and the cultural characteristics of organisations that foster corruption. The public sector performs a vital role in the implementation of an elected government’s policies and the delivery of a wide range of services to the community. In doing so they are entrusted with the responsibility for public spending and wield considerable power in doing so. These powers include the power to detain and sentence, to collect and store private and confidential information, and even which school our children may attend. Abuse of any of these powers might involve corruption, but also involve a significant breach of public trust. This chapter explores the notions of public trust and public good, how corruption occurs and strategies for prevention. It also examines whistleblower legislation and application and the development of codes of conduct.
This chapter explores issues in legal ethics and the legal profession. Traditionally, legal professionals have been subject to higher standards of conduct than most other professionals, for example, by being subject to stringent admission requirements such as requiring full disclosure of any criminal history including even minor traffic offences. Nevertheless, the legal profession is fraught with ethical dilemmas. Issues such as client confidentiality, duties owed to the court, duties owed to clients, conflicts of duty and negligence will be covered in this chapter. Comparisons will be made between professional practice in Australia, the UK, Canada, and the USA.
Chapter 12 focuses on the role of police in the criminal justice system and discusses the ethical issues related to policing. Police have an important and demanding duty: to protect the community against crime. It is often said that they are the ‘thin blue line’ between order and chaos. Police officers are permitted certain powers that other ‘regular’ citizens do not possess so that they can carry out their job. They are able to detain, question and charge citizens if they are suspected of committing a crime. While police responsibilities are governed by various acts of parliament, for example, the Police Powers and Responsibilities Act 2000in Queensland, the public must place a large amount of trust in them. While the majority of police officers are honest and ethical, some abuse their power for personal gain. This has sometimes led to large inquiries into corruption in various jurisdictions and also to the establishment of royal commissions that have attempted to expose and control corruption as well as address the underlying factors that lead to such corruption within police work (Hayes and Lauchs, 2009, p. 83). One example of widespread corruption was exposed in Queensland during the ‘Fitzgerald Inquiry’, which published its findings in 1989. This chapter explores the ethical issues facing law enforcement officers, comparing and contrasting how various jurisdictions in Western countries deal with corruption and misconduct. It also examines police oversight and the impact of independent oversight bodies on levels of corruption and misconduct.
Before we can understand the need for punishment, we need to look at why we have sentencing laws and what purpose laws serve. The law allows social control to be maintained and helps in regulating citizens’ behaviour. The purpose of the law is to prevent social chaos, like a social contract of sorts that helps to prevent harm being done. The state is the fundamental controlling body and exercises a monopoly on the right to punish. This chapter explores theories of punishment, including retributivism, just deserts, and deterrence, the role and impact of corrections, and what current research reports about the viability and utility of certain forms of punishment. It also examines the role of rehabilitation and considers current debates around whether certain groups of offenders are incapable of being rehabilitated. Finally, it explores alternatives to traditional criminal justice responses to crime, including restorative justice and indigenous justice.
Chapter 1: Introduction
Baier, Annette C. (1992). Chapter 1 : The Need for More Than Justice. In Jeffrey Olen, and Vincent Barry, Applying Ethics: A Text With Readings, (pp.39-47). Belmont: Wadsworth
Sherman, L. (1982). The Need for Ethics. In L. Sherman, Ethics in Criminal Justice Education, (pp.1–15). New York, N. Y.: The Hastings Center.
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Chapter 2: What is ethics?
Pojman, Louis P. (1990). Introduction: What is Ethics? In Louis P. Pojman, Ethics: Discovering Right and Wrong, (pp.1–17). Belmont, CA: Wadsworth Publishing Company.
Sadurski, W. (1985). Chapter 1: The Concept of Justice. In W. Sadurski, Giving Desert its Due: Social Justice and Legal Theory, (pp.9-56). Kluwer Academic.
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Chapter 3: Consequentialism
Gold, Jeffrey, Braswell, Michael C., and McCarthy, Belinda R. (1991). Criminal Justice Ethics : A Survey of Philosophical Theories. In M.C. Braswell, B.R . McCarthy, and B.J. McCarthy, Justice,
Crime and Ethics, (pp.3–23). Cincinatti: Anderson.
Hinman, Lawrence (2003). Chapter 5: The Ethics of Consequences: Utilitarianism. In Lawrence Hinman, Ethics : A Pluralistic Approach to Moral Theory, (pp.135–174). Belmont, CA: Wadsworth.
Preston, Noel (2001). Chapter 3 : Ethical Theory : An Overview. In Noel Preston, Understanding Ethics, (pp.41– 68). Leichhardt, N.S.W: Federation Press.
Walzer, Michael (1983). Complex Equality. In Michael Walzer, Spheres of Justice : A Defence of Pluralism and Equality, (pp.3–30). New York: Basic Books.
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Chapter 4: Non-consequentialism
Benn, Stanley, I. (1988). Ch. 3 : Reasons in Conflict: Quandaries and Consistency. In Stanley, I. A. Benn, Theory of Freedom, (pp.43-64). Cambridge: Cambridge University Press.
Campbell, Tom (2001). Justice as Rights : Dworkin and Minorities. In Tom Campbell, Justice, (pp.70-91). London: Macmillan.
Feinberg, J. (1984). Chapter 3 : Harming as Wronging. In Joel Feinberg, The Moral Limits of the Criminal Law : Vol. 1 Harm to Others, (pp.105-125). New York: OUP.
Gaus, Gerald, F. (2001). What is Deontology? Part One: Orthodox Views. Journal of Value Inquiry 1 (35) pp.27-42.
Hinman, L. (1998). The Ethics of Rights: Contemporary Theories. In L. Hinman, Ethics: A Pluralistic Approach to Moral Theory, (pp.243-290). Fort Worth: Harcourt Brace College Publishers.
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Chapter 5: Critical thinking and ethical decision making
Dewey, John. (1910). How We Think. Lexington, MA: D.C. Heath & Co.
Facione, Peter A. (2011) Critical Thinking and Why it Counts. Insightassessment.com. Available at http://www.insightassessment.com/CT-Resources/Teaching-For-and-About-Critical-Thinking/Critical-Thinking-What-It-Is-and-Why-It-Counts/Critical-Thinking-What-It-Is-and-Why-It-Counts-PDF#sthash.JtPWW0LJ.dpbs (accessed October 13, 2014).
Mulnix, Jenifer Wilson (2012). Thinking Critically About Critical Thinking. Educational Philosophy and Theory. 44 (5), pp.464-479. Available at http://www.tandfonline.com/doi/abs/10.1111/j.1469-5812.2010.00673.x#.VDsqAuflfZs (accessed October 13, 2014).
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Chapter 6: The good society
Hayden, Bill (1996). Politics, Public Life and the Ethical Imperative. Occasional Papers in Applied Ethics 5 (5) pp.1–30.
Lessnoff, Michael. H, (1999). Chapter 10 : John Rawls: Liberal Justice. In Michael. H. Lessnoff, Political Philosophers of the Twentieth Century, (pp.229–251). Oxford, UK: Blackwell Publishers.
Nagel, Thomas (1979). Chapter 6 : Ruthlessness in Public Life, pp. 75–90; Chapter 7 : The Policy of Preference, pp. 92–99. In Thomas Nagel, Mortal Questions, (p.75). Cambridge: Cambridge University Press.
Smandych, Russell, et al (1995). Chapter 11: Towards a Cross-Cultural Theory of Aboriginal Criminality. In K. M. Hazelhurst, Perceptions of Justice Issues in Aboriginal and Community Empowerment, (pp.245– 272). Aldershot: Avebury.
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Chapter 7: The just society
Charlesworth, Max (1993). Chapter 2: Autonomy and the Liberal Ideal. In Max Charlesworth, Bioethics in a Liberal Society, (pp.10-29). Cambridge: Cambridge University Press.
Kingwell, Mark (1998). Michael Walzer : Pluralism, Justice and Democracy. In April Carter, and Geoffrey Stokes, (eds.) Liberal Democracy and its Critics: Perspectives in Contemporary Political
Thought, (pp.135-154). Cambridge UK: Polity Press.
Pollock, Jocelyn (2007). Chapter 4: The Origins and Concept of Justice. In Jocelyn Pollock, Ethical Dilemmas and Decisions in Criminal Justice, (pp.95-123). Belmont, California: Thomson Wadsworth.
Sandel, Michael. J (1998). Chapter 1: Justice and the Moral Subject. In Michael. J. Sandel, Liberalism and the Limits of Justice, (pp.15-65). Cambridge: Cambridge University Press.
Uhr, John (1992). Duty Free Government. Social Alternatives 11 (3) pp.10–12.
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Chapter 8: Balancing law and justice
A’Amato, Anthony (2011). On the Connection Between Law and Justice. Faculty Working Papers, Northwestern University School of Law Scholarly Commons. Available at http://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=1001&context=facultyworkingpapers (accessed October 13, 2014).
Meyer, Linda Ross (2010). The Justice of Mercy. University of Michigan Press.
Orth, John V. (2003). Due Process: A Brief History. University Press of Kansas.
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Chapter 9: Ethics, law and morality
Carpenter, Belinda and Hayes, Sharon (2012). Chapter 9: Crimes Against Morality. In Hennessey Hayes, and Tim Prenzler, An Introduction to Crime and Criminology, (pp.141–154). Frenchs Forest, NSW: Pearson Australia.
Hayes, Sharon, Carpenter, Belinda, with Dwyer, Angela (2012). Sex, Crime and Morality. London: Routledge.
O’Brien, Erin, Hayes, Sharon and Carpenter, Belinda (2013). The Politics of Sex Trafficking: A Moral Geography. Basingstoke: Palgrave.
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Chapter 10: Public sector ethics and corruption
Callahan, Joan C (1988). Basics and Background. In Joan C. Callahan, Ethical Issues in Professional Life, (pp.3-25). New York: Oxford University Press.
Owen, Alex (1997). Chapter 3: Public Sector Ethics: Some Practical Implications. In Gordon L. Clark, Elizabeth Prior Johnson and Wayne Caldow, Accountability and Corruption: Public Sector Ethics, (pp.36-52). Australia: Allen & Unwin.
Preston, Noel (2007). Chapter 9: Public Responsibility and Political Ethics. In Noel Preston, Understanding Ethics, (pp.149-163). Sydney: Federation Press.
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Chapter 11: Regulating the legal profession
Corones S.G., Stobbs N., and Thomas M.N. (2008) Professional Responsibility and Legal Ethics. Sydney: Lawbook Co. O'Connor, Deidre (1993). The Judiciary, Ethics and Public Life. Occasional Papers in Applied Ethics 32 (No. 3) pp.1 –15. Rhode, Deborah L. (2004) Legal Ethics. New York: Foundation Press. Woolley, Alice (2014). Context, Meaning and Morality in the Life of the Lawyer. Legal Ethics, Volume 17, Number 1, June 2014, pp. 1-22(22). Available at http://www.ingentaconnect.com.ezp01.library.qut.edu.au/content/hart/legeth/2014/00000017/00000001/art00002 (accessed October 13, 2014) |
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Chapter 12: Ethics and accountability in law enforcement
Cohen, H., and Feldberg, M. (1991). A Social Contract Perspective on the Police Role. In H. Cohen, and M. Feldberg, Power and Restraint: The Moral Dimension of Police Work, (pp.23–38). New York: Praeger.
Hayes, Sharon and Lauchs, Mark (2009). Chapter 6: Oversight, Integrity and Ethics. In Roderic Broadhurst, and Sara E. Davies, Policing in Context : An Introduction to Police Work in Australia, (pp.82-101). Melbourne: Oxford University Press.
Kania, Richard R. E. (1988). Should We Tell the Police to Say 'Yes' to Gratuities? Criminal Justice Ethics 7 (2) pp.37-49.
Klockars, Carl B. (1984). Blue Lies and Police Placebos: The Moralities of Police Lying. American Behavioral Scientist 27 (4) pp.529 - 544.
Louthan, W. (1985). The Politics of Discretionary Justice Among Criminal Justice Agencies. In C. Pinkele, and W. Louthan (eds.) Discretion, Justice and Democracy: A Public Policy Perspective, (pp.13-19). Ames: Iowa State University Press.
Marx, G. (1985). Police Undercover Work: Ethical Deception or Deceptive Ethics? In W. Heffernan, and T. Stroup (eds.) Police Ethics: Hard Choices in Law Enforcement, (pp.83-115). New York: John Jay Press.
Marx, Gary T. (1992). Under-the-Covers Undercover Investigations: Some Reflections on the State's Use of Sex and Deception in Law Enforcement. Criminal Justice Ethics 11 (1) pp.13 - 24.
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Chapter 13: Ethics of corrections and punishment
Albanese, Jay S, (2008). Chapter 2 : Punishment and Corrections : What Should be Done with Offenders? In Jay S. Albanese, Professional Ethics in Criminal Justice: Being Ethical When No One is Looking, (pp.129-146). Boston: Pearson Education.
Huff, R., and Ayre, R., (1988). Convicted But Innocent: False Positives and the Criminal Justice Process. In E. Scott, and T. Hirschi (eds.) Controversial Issues in Crime and Justice, (pp.130-144). Newbury Park California: Sage Publications.
von Hirsch, Andrew (1990). The politics of 'just deserts'. Canadian Journal of Criminology 32 (3) pp.397-413.
von Hirsch, Andrew, (2003). Chapter 29: Giving Criminals Their Just Deserts. In Eugene McLaughlin, John Muncie, and Gordon Hughes, Criminological Perspectives: Essential Readings, (pp.341-349). London: Sage Publications.
Media
Hug Would Help Say Sorry (Article). Available at http://www.abc.net.au/news/2011-05-18/hug-would-help-say-sorry-fatal-crash-driver/2718094 (accessed October 13, 2014).
Man Escapes Jail Because of Gender Disorder (Article). Available at http://www.abc.net.au/news/2010-09-02/man-escapes-jail-because-of-gender-disorder/2245732?section=justin (accessed October 13, 2014).
Man to Face Tribal Punishment (Article). Available at http://www.abc.net.au/news/2012-02-04/man-to-face-tribal-punishment-over-girl27s-desert-death/3811510 (accessed October 13, 014).
TED Talk— Dan Reisel: The Neuroscience of Restorative Justice (YouTube). Available at https://www.youtube.com/watch?v=tzJYY2p0QIc (accessed October 13, 2014).
The Chaser –T-Short Punishment (YouTube). Available at https://www.youtube.com/watch?v=UW4gOmwOOgc (accessed October 13, 2014).