Ethical pragmatism is an often misunderstood topic because many people misunderstand the meaning of pragmatism. While pragmatism is often thought of as meaning “as long as it works,” or even “trial and error,” pragmatic thought actually is closely aligned with scientific reasoning. However, one cannot make ethical decisions simply on the basis of science, though one can use the same reflective and deliberate processes used in science and apply them to ethics. Ethical pragmatism attempts this very process and differs from other forms of ethics by focusing on the consequences a particular behavior will have upon the society. If people did not live in a society, then ethics would be meaningless. The basis of ethics here is not rights or virtue or goodness. Pragmatists approach ethics from a problem-solving point of view. If there is no conflict, then there is no ethical situation. One more important idea for the pragmatist is that what one believes to be ethical today may not necessarily be ethical tomorrow because one has new knowledge to apply to the problem-solving situation. Pragmatists can adopt ethical principles, but they also realize that these principles may be abandoned upon reflection and deliberation. Ethical pragmatism can have a significant impact on the application of criminal justice. A review of ethical pragmatism in the field of punishment will demonstrate the unique effect ethical pragmatism has on criminal justice. Before considering individual ethical decision making, reflection upon a pragmatic criminal justice system in relation to the rule of law will add insight into how ethical pragmatism applies in a social context. Finally, the ethical decisions criminal justice professionals make routinely should not be allowed simply as a matter of course, but rather criminal justice professionals should be held accountable for the quality of their deliberation and reflection and not just compliance to rules.
The question of punishment as addressed by professionals in criminal justice is a moral issue whose validity is assessed not on the individual level but on the social level. When considering the severity of the punishment, the pragmatist focuses on the effect on society and not just the individuals involved. If the effect on society is harmful, then the offense may be considered criminal; offending sensibility is an insufficient reason to make an action criminal. Name-calling may be offensive to the one being called the name, but unless actual physical harm is experienced, the pragmatist questions whether punishment is necessary. If in anger, one calls one’s sister a foul name it is unlikely that society has been harmed. If one uses a racial epithet to describe a group of people, the consequences could impact the rest of society, and therefore, this behavior deserves some societal rule to protect society and allow the individual, in this case the name-caller, to obtain full maturity. The same consideration is given to more serious offenses, such as murder. The problem of murder for the ethical pragmatist is not that some sacred rule has been violated, or that a society that allows murder will not obtain some meaningful end, but rather that the act of murder is detrimental to society’s improving its living conditions. Society, for the pragmatist, does not have a goal, that is, to make heaven on earth or to follow some political ideology. Instead, society should be self-determining, and ethical considerations are based upon the reflection and deliberation as to whether or not particular behaviors help or hinder society in becoming more self-determined without adhering to any particular ideology.
Ethical pragmatism does not necessarily endorse retribution or deterrence theories. While in individual cases retribution and deterrence may seem justified, the question is whether these practices can be justified in society. Usually retribution has the motivations of deterrence, rehabilitation, incapacitation, and punishment, and the ethical pragmatists look upon retribution by first determining whether retribution will solve the social problem. If the problem can be better solved through restorative justice rather than retributive justice, then an application of restorative justice is called for. However, which type of justice is to be applied is not automatic because it will depend on which form of justice will produce the best result for society. Deliberation and reflection, intelligent thinking, are more critical than adhering to orthodoxy. Deliberation and reflection upon retribution reveals to the ethical pragmatist that retribution may not lead to the growth of the individuals or the society. In some cases the administration of punishment may lead to rehabilitation. For example, an habitual traffic offender may rehabilitate her driving behavior if her driving privileges are suspended.
Deterrence, either general or specific, seems to have questionable value based on the great number of repeat offenders in American society. An ethical pragmatist looks at the deterrent motivation of punishment and questions whether it is of any value in retribution theory. Of course, while the theory may have value, the problem may be that the punishments imposed on the offenders are not actual deterrents, especially to the specific individual to whom the general deterrent is applied. Focused deterrence, applying a specific deterrence to a specific individual, offers some promise to the ethical pragmatist; again, evidence demonstrates the success with this concept. A few communities have attempted to use focused deterrence as a means of reducing crime in the community as well as addressing the needs of the offenders. Though less than perfect, this focused deterrence is viewed by the ethical pragmatist as an effective means of improving living conditions in a community and tending to the offenders by giving them meaningful alternatives to criminal behavior. While focused deterrence is not the achievement of ethical pragmatism, it fits into the scope of alternatives that pragmatists find acceptable.
Punishment for the ethical pragmatist does follow a prescription based on a diagnosis of motivation and intent. The ethical pragmatist challenges the criminal justice system to reflect upon the goals and the means of punishment. How are the goals of the criminal justice system achieved through punishment? Can the goals of criminal justice be achieved through punishment? The ethical conclusion will be based upon the improvement in society, not upon how compliant society can be to a particular method of treating offenders.
Rule of Law
No one is above the law, a basic concept within the rule of law, has had dramatic influence on the criminal justice system. From the rule of law stems criminal procedures, processes that protect individual rights and ensure that these procedures not only apply to all citizens but also that criminal justice professionals are not above the law and must follow the procedures set forth by the law.
The relationship of criminal justice to the law is critical to the administration of justice in any society. Adopting the rule of law within a society has a profound impact on the role of law in that society, and consequently, the criminal justice system. While the exact meaning of rule of law is not universally adopted, for the purpose of understanding the relationships of ethical positions to criminal justice, three concepts should be kept in mind: (1) Every government in the world supports the rule of law, including the United States; (2) the rule of law means that government officials, including all criminal justice personnel, must obey the law; and (3) the law has legal limits. What these points illustrate is that the ethical position one brings to the law cannot override the law.
The law should not become a means for any one person or group to use the law for maliciousness or for personal gain. Ethical pragmatism offers an ethical foundation to the law and to criminal justice practice that respects the rule of law. Unlike ethical absolutism, which may be necessarily constrained by the rule of law, ethical pragmatism operates in conjunction with the rule of law without resorting to rule by law. Because the pragmatic method has no set objective as to how society ought to be, but rather calls upon the processes of reflection and deliberation to assess the quality of ethical decision making, it can enhance the growth of society in freedom and equality.
Those who make and apply the law are subject to the law as well as the ordinary citizen. In modern American society this rule of law is often taken for granted. However, criminal justice professionals should take into special consideration the application of the rule of law. Ethical decision making in criminal justice is done in the context of the rule of law. Consequently, the law prescribes behaviors that criminal justice professionals must follow for the criminal procedure to be considered legal within the law. For instance, all of the criminal procedures applied to law enforcement extending from the exclusionary rule describe the limits of legally sanctioned police behavior. The ethical pragmatist’s expectation is that police officers not only follow these procedural rules, but also understand the need for these rules and recognize on an individual level that each police officer is not above the law.
Following ethical pragmatism’s interpretation of the rule of law, discretion for criminal professionals must be discretion within the law. For instance, a police officer using his personal judgment to make an arrest when the probable cause exists, but is rather weak, is still acting in accordance with the law. A police officer cannot make an arrest without probable cause because the officer would then be acting outside the law. Unfortunately, not all situations are that clearly demarcated within the law. Criminal justice professionals often use discretion when the law is not clear or internal policy does not provide a clear course of action for the criminal justice professional. The discretionary decision being rendered by a police officer, for example, is not merely a legal decision, but is also a moral decision. The ethical pragmatist considers this a moral decision because of the effect the decision has on society and the individual. If the decision has no effect, then it is not a moral decision.
Relying upon the powers of reflection and deliberation, the ethical pragmatist is comfortable with the police and other criminal justice professionals making decisions within the law to enhance the freedom and equality of society. Following the value of education as prescribed by John Dewey, the ethical pragmatist would expect criminal justice professionals to become more fully educated on ethical decision making, rule of law, and the importance of discretion within the law. This education would ultimately improve the society by improving the criminal justice professional’s ability to enhance the freedom and equality of the society through law. The degrees of freedom given to criminal justice professionals adopting the ethical pragmatic position make accountability a perpetually recurring problem.
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- James, William. The Writings of William James: A Comprehensive Edition. James McDemott and John McDemott, eds. Chicago: University of Chicago Press, 1975.
- Posner, Richard. Law, Pragmatism, and Democracy. Cambridge, MA: Harvard University Press, 2003.
- Tamanaha, Brian. On the Rule of Law. New York: Cambridge University Press, 2004.
- Tamanaha, Brian. Realistic Socio-Legal Theory: Pragmatism and a Social Theory of Law. New York: Oxford University Press, 1999.
- Tamanaha, Brian. “The Rule of Law for Everyone.” Current Legal Problems, v.55 (2012).
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