Tuesday, December 28, 2004

Media Ethics: a case study

Media Ethics Codes and Beyond

By Robert Steele and Jay Black © 1999 American Society of Newspaper Editors

Codes of ethics can help newsroom staffers make sound decisions and build journalism credibility about the many ethical problems they may encounter in their work. The American Society of Newspaper Editors (ASNE) asked two leading media ethicists to analyze 33 current codes of ethics assembled by its Ethics and Values Committee. The goal was to highlight the most common and useful aspects of these documents to help editors evaluate their own code of ethics, if they have one, or help them create one, if they choose.
The recent flurry of code writing suggests that editors and news staffs are taking issues of ethics seriously. The process of drafting and redrafting and debating and implementing the codes has good therapeutic value in and of itself. Even better, newspapers with clearly enunciated principles and stated values, combined with strong ethical decision-making skills, can better serve their readers and the public interest. Therein lies an essential connection to credibility.
It is no surprise that the 33 codes of ethics offered by ASNE member newspapers include a wide range of approaches for handling moral dilemmas. Some are heavy on time-honored tradition, and others venture into the impact of the new technologies at the turn of the new century.
Most of the codes are long lists of "do's and dont's," salted with an occasional element on the decision-making process. Some take a decidedly user-friendly stance, reading like conversations between colleagues who respect one another's quests for excellence. Others are much more negative in tone, loaded with "thou shalt-not's" and infused with a paternalistic tone implying that staffers are inclined to get away with anything not specifically forbidden by the codes.
The most popular subject in these codes is conflict of interest, which includes issues ranging from accepting gifts and travel junkets to political involvement and community activity. About half of the codes we examined deal with the subjects of sources and matters of manipulation of photographs. Fewer deal with corrections and plagiarism.

Missing from many codes are standards or discussion of privacy, deception, identification of juvenile suspects, and racial stereotyping. Fewer than one in five codes address the subject of tensions between the editorial and advertising departments. Many codes ignore the subject of enforcement.

These 33 codes also vary greatly in length. The Daily Press of Newport News, Virginia, weighs in with some 8,000 words, while The Arizona Republic, Phoenix, among others, is a comparatively pithy 500 words.

This was not a random sample, since these were voluntary submissions to a general call. However, these codes reflect the various ways American newspapers address matters of ethics.
In looking at these 33 codes, we found that newspaper codes of ethics, like those of most professional institutions, try to serve at least two important functions: public relations and education. A good newspaper code promotes ethical thought and behavior within the newspaper, showing newcomers where the landmines are and reminding veterans of the newsroom's values and norms. It also justifies journalists' activities to the public at large, especially during times of diminished credibility and intensified public scrutiny. These functions are often reflected in the codes' preambles. Following are some excerpts and examples from the 33 codes submitted for our review.

Public Relations

Good examples of codes sensitive to public relations are the following:
The code of The News & Observer, Raleigh, North Carolina, states:
For The News & Observer to be the area's primary source for news and information, we must have the trust and confidence of our readers. Readers must know that the newspaper that arrives on their doorstep every morning is there to serve them not politicians of a certain stripe, not special interest groups. That puts the burden on us editors, reporters, copy editors, news researchers, photographers, designers, graphic artists, and support personnel to avoid conflicts of interest or even the appearance of such conflicts.
A newspaper code that eloquently seeks to remind its staffers of ethical decision-making, with an eye on public image, is Florida's Orlando Sentinel which states:

We stand for the journalistic values of truth, honesty, courage, fairness, compassion, balance, independence, credibility, and diversity.
We seek the truth and report it as fully as possible under deadline pressures, striving for clean, concise, complete reporting.
We seek out and disseminate competing perspectives without being unduly influenced by those who would use their power or position.
We seek to give a voice to the voiceless.
We seek to treat sources, subjects, and colleagues as people deserving our respect, not merely as a means to our journalistic ends.
We seek to inform our readers and to reflect fairly the breadth of our community.
Our first obligation is to our credibility -- that is, to the public at large and not to any other person, business, or special interest. Employees should avoid any activity that would impair their integrity or jeopardize readers' trust in us.

Conflict of Interest

As noted earlier, conflict of interest, including matters of independence and personal behavior, is the most popular element of the codes we examined.
Only one of the 33 newspapers did not address this issue -- one-fourth of the codes deal exclusively with issues of conflict of interest with no attention paid to any other issue. The San Francisco Chronicle (California) deals with many newsgathering issues in its 2,000-word statement on "Ethical News Gathering," but doesn't address conflict of interest.
The second-most common element of the codes we examined is news sources. Of the 33 codes, 18 deal with matters of source-reporter relationships and confidentiality agreements in some fashion. Some papers handle this issue in a few sentences, and others devote several pages of their policy to this matter.
Interestingly, the issue of manipulation and alteration of photos is included in about half of these 33 codes. One would not have found this matter addressed in most newspaper codes a decade ago.
Perhaps surprisingly, fewer than half of the 33 codes we examined address the issue of corrections. Only 13 of the 33 codes include anything on plagiarism.
Matters of deception and misrepresentation are included even less often. Only 11 of the 33 codes pay any attention to this matter. While several of the codes deal extensively with issues of privacy and set forth guidelines for newsgathering, only one-fourth of the codes address the issue at all. About the same percentage of codes address matters of handling quotes and issues of fabrication of characters or conversation. Only four of the codes include any guidelines on one of the tough issues newspapers face these days: identification of suspects, and juvenile suspects in particular.

Timeless Values

To be sure, these codes include considerable attention to journalism's foundational principles and the timeless values. Here are some of the better examples.
The Journal News of White Plains, New York, (formerly Gannett Suburban Newspapers) includes this in the section on fairness:
Allegations against an individual often require a response. If the person cannot be reached, say so -- but only after a serious effort to get to the person has been made. Consider delaying publication, if possible, to reach the other side; if that is not possible, consider continuing to try to get to the person for an insert for later editions or for a follow-up story. If publication of a story has been delayed, additional efforts to get to persons unavailable at the time of writing should be considered.

New Technology

The Journal Gazette (Fort Wayne, Indiana) is one of the few papers to even address matters of the Internet in its ethics policy:
Apply our high standards for accuracy and attribution to anything you find using electronic services. Make certain a communication is genuine and information accurate before using it in a story.

Raleigh's News & Observer also addresses matters of ethics in the use of the Internet. Its section on plagiarism reads:
Don't present other people's ideas or writing and pass them off as your own. With the explosion of the Internet, we have more access to more information from more sources, but we have to resist the temptation to use it without attribution. This policy is simple, and it's safe: Don't do it.

Sources and Reporters

The San Francisco Chronicle's code offers one of the clearest treatments on the always-thorny matter of dealing with sources that want confidentiality. It reads in part:
A reporter who pledges confidentiality to a source must not violate that pledge. If the reporter is asked by an editor for the identity of a source, the reporter should advise the source of the editor's request. If the source wishes to withhold his or her identity from the editor, then the reporter and editor must decide whether or not to use the information even though the source's identity remains known only to the reporter.

Editorial Independence

The Kansas City Star (Missouri) is one of the few papers in our survey to address possible tensions between the roles of the editorial and business sides of the paper. In its conflicts of interest section of the code of ethics, the policy reads:
Maintain a clear line between advertising and news. We are especially inviting as targets of threats to remove advertising if we don't write positive stories. In cases of special sections produced by the editorial department, editors will exercise sole judgment over content.
The newsroom ethics policy of the Statesman Journal in Salem, Oregon, has something to say about journalistic independence in an era of new approaches to reporting and community connections:

Take care when cooperating with government and other institutions on public journalism projects. Often, these efforts are worthwhile and in the readers' interest. But they can also compromise our independence.
Diversity Issues and Racial Identification
One of the most challenging issues faced by newspapers is dealing with matters of diversity, including the use of race as an identifier in stories and matters of racial stereotyping. Only five of the 33 papers address this issue in their codes.
White Plains' Journal News takes a more detailed approach in its "Standards of Professional Conduct" for news employees:
Do not describe a person by race, religion, or ethnic background unless it is pertinent to the story. Do not quote racial, ethnic, or religious jokes or slurs unless essential to the story (they rarely will be).
In descriptions of crime suspects, do not use racial or ethnic characterizations unless they are part of a fairly complete description of a fugitive suspect that could reasonably assist the public in helping police.
Be especially sensitive to nuances of using any references that may be offensive to a minority group. If there are inoffensive alternatives, use them.
Stories, illustrations, and photographs should be mainstreamed; that is, an effort should be made to include minority representation in routine ways so that our news coverage more accurately reflects the makeup of the communities we cover.
Be wary of racial stereotyping in photographs.

Enforcement

Of the 33 codes we examined, many do not address enforcement. Of those that do, the treatment is usually brief and general. Many of the codes contain some reference to the fact that no code can anticipate all problems, suggesting the need for consultation with supervisors whenever a potential problem arises. However, few spell out a systematic process for airing a grievance or resolving a conflict.
The code of ethics of The Dallas Morning News (Texas) merely states that "violating some guidelines could result in disciplinary action or termination."
The News Journal in Wilmington, Delaware, is the most expansive in its treatment of enforcement of its code. It includes seven specific points, one of which speaks to an honor code concept: "It is the obligation of staff members to bring any violation of this code to the attention of the supervisor or the editor."

Codes and Credibility

While all 33 codes we examined address specific standards of individual behavior generally in negative "thou shalt not" terms, only about half of them use positive terms to clearly enunciate journalists' roles, moral obligations, and professional responsibilities.
That red light tone emphasizing restrictions, as opposed to a green light tone emphasizing duties and responsibilities, may protect the paper in some ways, only to leave it vulnerable in others. We can only infer, from reading the codes, how many newsrooms have a well-oiled process for decision-making. But if our reading is correct, it seems that in most of these newsrooms and at least on the issues addressed in these codes, the solution to ethical dilemmas lies much more in deference to a rule book and the official voice of supervisors and less in critical thinking, discussion with peers, and effective protocols for decision-making.
Ethicists are fond of saying that reliance upon codes is the halfway point between visceral devotion to gut instincts and the application of ethical reflection and reasoning. Indeed, blind obedience to codified rules is about on a par with blind obedience to authority or to unquestioned tradition. At best, codes move us away from dogmatic behaviors and toward reasoned behaviors based on wisdom of the ages. Codes are not the panacea for all the ethical dilemmas in the news or any other business, nor are they the solution to the credibility crisis.
As we wrote in Quill, the official magazine of the Society of Professional Journalists (SPJ), after SPJ revised its code in 1996: "Carefully written codes highlight and anticipate ethical dilemmas so we don't all have to reinvent a decision-making process each time we face a new dilemma; they inspire us about our unique roles and responsibilities; they make each of us custodians of our profession's values and behaviors, and inspire us to emulate the best of our profession; they promote front end, proactive decision-making, before our decisions 'go public.'"

Robert Steele is director of the ethics program at the Poynter Institute in St. Petersburg, Florida. Jay Black is the Poynter-Jamison chair in media ethics at the University of South Florida, St. Petersburg.

Monday, December 27, 2004

Police Ethics PL 311

POLICE DEVIANCE & ETHICS

A thing won by breaking the rules of the game is not worth winning (Ida Tarbell)

Police work by its very nature involves the slippery slope (the potential for gradual deterioration of socio-moral inhibitions and perceived sense of permissibility for deviant conduct). In fact, the whole unspoken "dark" side of criminal justice work involves putting up with conditions that are at less than usual comfort levels; i.e., "slumming it". Police are routinely involved in undercover work which involves taking on false identities and inducing crime. Police are allowed to make false promises to hostage takers and kidnappers. Police feed disinformation to the media. Police are trained to be deceptive at interviewing and interrogation. Police make all kinds of excuses to get out of nuisance calls. Police trade or sell their days off and desirable work assignments. Police angle themselves into cases requiring court appearances and manipulate the overtime system to earn an average of $5000 more a year. Police strain the truth to protect loved ones and crime victims. Police routinely invade privacy via surveillance and other technological means. Police fighting the drug problem may encounter more loose cash than the gross national product of some small countries. And as with sting operations, there's something that's just plain sick about a system that condones the police making a product, selling the product, and then arresting people for buying the product.

Police deviance is a much broader term than corruption. It includes all activities which are inconsistent with norms, values, or ethics (from a societal standpoint or even from the police standpoint). A theorem in criminology is that it's always fruitful to study when people not only break society's norms, but the norms of their own social group too. The following definitions may be helpful:

Deviance -- behavior inconsistent with norms, values, or ethics
Corruption -- forbidden acts involving misuse of office for gain
Misconduct -- wrongdoing violations of departmental procedures
Favoritism -- unfair "breaks" to friends or relatives (nepotism)

Although this lecture is about deviance, it might be useful to take a brief look at a couple of these other terms. Corruption is criminal conduct that can involve underusing one's authority, overusing one's authority, or profiteering via one's authority. The key element is misuse of official authority; the gain can be personal or for the common good. Corruption is bad because it undermines integrity, the state of policing being whole or undivided. Corruption has been the target of numerous efforts at creating typologies. Here are three of the most popular typologies of corruption:

Knapp:
Larry Sherman:
Barker & Carter:

(1) Grass eaters(2) Meat eaters
(1) Rotten apples/pockets(2) Pervasive unorganized(3) Pervasive organized
(1) All the wrong reasons (Type I)(2) All the right reasons (Type II)

Police misconduct is impropriety of office, not misuse of authority. It's wrongdoing, the appearance of wrongdoing, or puzzling behavior that violates standards usually set down in departmental policies and procedures, for good reasons, that the employee may or may not be cognizant of. Misconduct is bad because it leaves the public free to speculate and draw sweeping generalizations about the profession of policing as a whole. The different types of misconduct are often classified as follows:
Malfeasance -- intentional commission of a prohibited act or intentional unjust performance of some act of which the party had no right (e.g., gratuity, perjury, use of police resources for personal use)
Misfeasance -- performance of a duty or act that one is obligated or permitted to do in a manner which is improper, sloppy, or negligent (e.g., report writing, unsafe operation of motor vehicle, aggressively "reprimanding" a citizen, improper searching of arrestees)
Nonfeasance -- failure to perform an act which one is obligated to do either by law or directive due to omission or failure to recognize the obligation (e.g., failure to file report, improper stop & frisk, security breach)

THE MYTH OF THE ROTTEN APPLE

According to the Knapp Commission (see boxed insert), which blew the whistle on the standard police explanation for corruption (he/she's a rotten apple in an otherwise clean barrel), "rotten apples" are either weak individuals who have slipped through the screening process or succumbed to the temptations inherent in police work or deviant individuals who continue their deviance in an environment that gives them ample opportunity. Police departments tend to use the rotten apple theory or some variation of the "rogue cop" story to minimize the public backlash against policing after every exposed act of corruption.

A functional explanation may be closer to the truth, and is indeed supported by almost every scholarly observer on the subject. A functional explanation is that corruption is inherent in society's attempt to enforce unenforceable laws. Another approach is the "occupational socialization" explanation, the polar opposite of rotten apple theory that is sometimes called "rotten barrel" theory. According to this view, the very structure of policing (exposure to unsavory characters, forgetting what you learned in the academy, clannishness, and overzealous, misguided approaches to crime control) provides plenty of opportunities to learn the entrenched patterns of deviant police conduct that have been passed down thru generations.

The Knapp Commission (NYPD) was formed in the early 1970s by Mayor Lindsay as a result of the publicity generated by renegade detective Frank Serpico. After months of hearings, the commission found widespread corruption in the NYPD, and made the following recommendations: (1) commanders should be held accountable for their subordinates' actions; (2) commanders should file periodic reports on key areas that would breed corruption; (3) field offices of the Internal Affairs division should be created at all precincts; and (4) undercover informants should be placed in all precincts. Commissioner Patrick Murphy was appointed to clean up the department, which he did by implementing proactive integrity checks, massive transfers of senior personnel, job rotation in key areas, ensuring sufficient funds to pay informants, and cracking down on citizen attempts at bribery.

Years later, in 1986, a scandal broke out in NYPD Brooklyn ("Alamo") precincts. Thirteen officers were indicted for stealing and selling drugs. It became known as the "Buddy Boys" scandal because all the officers stuck together and were tipped off in advance of any internal investigation. When the department tried to implement a job rotation plan in the patrol division, NYPD experienced a work slowdown which forced administrators to abandon the plan. The 1993 Mollen Commission, which was assigned to investigate the scandal, exposed the "Dowd test", a rite of passage in which the rookies are placed into "in or out" predicaments, and basically affirmed the impossibility of ever winning the drug war because of its inherent potential for police corruption. Drugs became a "major" source of graft, as opposed to the Knapp Commission view of it as "minor" graft.

TYPES OF POLICE DEVIANCE
POLICE GRATUITY

A gratuity is the receipt of free meals, services, or discounts. Nonfederal police usually do not regard these as forms of corruption ("not another lecture on the free cup of coffee or police discount"). These are considered fringe benefits of the job. Nevertheless, they violate the Code of Ethics because they involve financial reward or gain, and they are corruption because the officer has been placed in a compromising position where favors (a "fix") can be reasonably expected in the future. When there is an implied favor (a "wink and nod"), it's called "mooching". When the officer is quite blatant about demanding free services, it's called "chiseling".
Gratuities often lead to things like kickbacks (bribery) for referring business to towing companies, ambulances, or garages. Further up the scale comes pilfering, or stealing (any) company's supplies for personal use. At the extreme, opportunistic theft takes place, with police officers skimming items of value that won't be missed from crime scenes, property rooms, warehouses, or any place they have access to. Theft of items from stores while on patrol is sometimes called "shopping".

POLICE SHAKEDOWN

A shakedown is when the police extort a business owner for protection money. The typical scenario involves gay bars, which are considered the most vulnerable. In some cities (like Boston for example), police are still charged with the power to inspect bars for compliance with liquor regulations. Officers are then in a position to threaten bar owners with violations if they do not make payoffs, and promise to intercept ("fix") any other violation reports processed through department channels. In other cities (like San Francisco, for example), officers would promise extra protection against gay-bashing in return for extra payments. In still other cities (like New Orleans, for example), moonlighting officers would make extra money from "details" in liquor establishments, and be paid extra for overlooking open sex or drug violations. In some cities, police officers have complete control over liquor licenses and even own nearby parking meters. To deal with the gay bar issue, many police departments have tried hiring openly gay recruits.

Shakedowns are also common with strip bars, prostitution rings, drug dealing, illegal gambling, and even construction projects. In each case, the approach and modus operandi are somewhat variable, because each officer subjects the business operator and/or patrons to the shakedown differently.

POLICE PERJURY

This is usually a means to effect an act of corruption, leaving out certain pertinent pieces of information in order to "fix" a criminal prosecution. "Dropsy" evidence is typical, where the officer testifies untruthfully that he/she saw the offender drop some narcotics or contraband. Lies that Miranda warnings have been given, when they haven't, are also typical. Lying in court is called "testilying", and police can do it coolly; they're trained witnesses.

Other actors in the system, supervisors and even judges, are often aware of the perjury. They pretend to believe police officers who they know are lying. Everybody's happy with the system. The cop gets credit for a good bust; the supervisor's arrest statistics look good; the prosecutor racks up another win; the judge gets to give his little lecture without endangering his reelection prospects, the defense lawyer gets his fee in dirty money, and the public is thrilled that another criminal is off the street (Dershowitz 1996).

Most perjury is committed by decent cops who honestly believe a guilty defendant will go free unless they lie about something.

POLICE BRUTALITY

Brutality has been defined as excessive force, namecalling, sarcasm, ridicule, and disrespect (President's Commission 1967). Other commissions have simply used a vague definition as "any violation of due process". Kania and Mackey's (1977) widely-regarded definition is "excessive violence, to an extreme degree, which does not support a legitimate police function." When a citizen charges police brutality, they may be referring to a number of things, including:

profane or abusive language
commands to move or go home
field stops and searches
threats of implied violence
prodding with a nightstick or approaching with a pistol
the actual use of physical force

Only the last one of these (unreasonable and unnecessary actual use of physical force) can be considered police brutality. This is commonly expressed as "more than excessive force". Police perjury and police brutality go hand in hand, as officers who commit brutality will most likely lie on the stand to prevent the possibility of a lawsuit or departmental charges. The reasons why an officer might engage in this kind of conduct are many:

-a small percentage may have been attracted to police work for the opportunity to enjoy physically abusing and hurting somebody
-an officer may come to believe "it's a jungle out there"
-an officer may be provoked and pushed beyond their endurance

The most common reason is occupational socialization and peer support. One common belief is that it's necessary to come down hard on those who resist arrest because they may kill the next police officer who tries to arrest them (so you have to teach 'em a lesson). Another practice is the "screen test", police jargon for applying the brakes on a police vehicle to that the handcuffed prisoner in back will be thrown against the metal protective screen.

Police brutality has been found to be closely associated with riots ever since the Kerner Commission of the 1960s which practically blamed every riot in that decade on the police. Significant police-initiated riots since then include:

December 17, 1979 -- Arthur McDuffie, an African American, was riding his motorcycle in Miami, when according to police reports, he popped a wheelie, gave a cop the finger, and sped away. More than a dozen Miami patrol cars gave chase. When caught, at least six white officers jumped him, splitting open his skull. He died four days later. It came out at trial that the police fabricated an explanation that he fell, splitting his head, of his own accord, but an all-white jury acquitted the officers. Three days of racial rioting erupted.

March 3, 1991 -- Rodney King, an African American, was detected speeding on a Los Angeles freeway, and apparently refused to pull over for fear a ticket would revoke his probation. Over eleven LAPD units, including a helicopter, gave chase. When stopped, there were two passengers who exited and were taken into custody, but Rodney refused to exit the vehicle. He was savagely dragged out, tasered twice with fifty thousand volts, and kicked or beaten with nightsticks at least fifty-six times by four white officers while twenty-seven other officers stood around watching. Rodney suffered sixteen broken bones and permanent brain damage. The following day, an amateur photographer tried to surrender his videotape of the beating to officials, but instead sold it to KTLA television which aired the tape. The four white officers were acquitted of charges by a Simi Valley jury of ten whites, one Asian, and one Hispanic on April 29, 1992. Five days of racial rioting erupted. A federal trial in 1993 resulted in convictions for two of the four officers.

Criminal justice experts are divided over whether racial differences exist with respect to police use of force (Weisburd et. al. 2000). On the one hand, the Christopher Commission (1991) stated that white officers were somewhat more likely to use excessive force against African-Americans, and watchdog groups like the ACLU, Amnesty International, and Human Rights Watch have stated a pattern exists, but on the other hand, respected researchers like Adams (1996) and Tonry (1995) as well as the U.S. government itself have never unveiled a pattern.

POLICE PROFANITY

There are many reasons why a police officer would use obscene and profane language. Effective use of verbal communication is one of the skills expected in police work. Concepts such as "command voice" and "command presence" are routinely taught at police training academies. The FCC specifically condemns certain words on radio and television that are "patently offensive", but there's no such mechanism for determining what's offensive with interpersonal communication. The following typology exists:
- words having religious connotations (e.g., hell, goddamn)
- words indicating excretory functions (e.g., shit, piss)
- words connected with sexual functions (e.g., fuck, prick)

Generally, words with religious connotations are considered the least offensive and words connected with sexual functions are considered the most offensive. It's commonly the case, however, that use of such language by police officers is purposive and not a loss of control or catharsis.
- to gain the attention of citizens who may be less than cooperative
- to discredit somebody or something, like an alibi defense
- to establish a dominant-submissive relationship
- to identify with an in-group, the offender or police subculture
- to label or degrade an out-group

Of these, the last is of the most concern, since it may reflect the transition of prejudice to discrimination, especially if racial slurs or epitaphs are involved.

SEX ON DUTY OR DUTY-RELATED

Contacts with promiscuous females and minimal supervision are part of the job. Sooner or later, every police officer will be propositioned. There are a number of women who are attracted to the uniform or the aura of the occupation. Every police officer will be able to tell you stories about police "groupies". These are women who make the rounds by waving at officers, getting them to stop or pull over, and then set up meetings to have sex with them, or sometimes right then and there. A woman such as this typically has sex with whole departments and hundreds of police officers. Other situations involve:
traffic stops -- to get a closer look at the female or information about her
fox hunting -- stopping college girls to get the I'll do anything routine
voyeurism -- window peeping or interrupting lovers lane couples
victim recontacts -- consoling victims who have psychological needs
opposite sex strip searches -- touching and/or sex with jail inmates
sexual shakedowns -- letting prostitutes go if they perform sex acts

On occasion, one hears about "rogue" officers who coerce women into having sex on duty, "second rapes" of crime victims, and school liaison officers involved with juvenile females, but such instances are rare because of the penalties involved. When police sex cases come to the public attention, the department reaction is usually to reemphasize the code of ethics. Such was the case in the 1985 Rathskellar incident in San Francisco, where at a police academy graduation party, one bashful recruit was handcuffed to a chair, and a prostitute was brought in to perform oral sex on him.

SLEEPING ON DUTY

On the night shift, the police car is sometimes referred to as the "traveling bedroom". In police argot, a "hole" or "coop" is where sleeping takes place, typically the back room of someplace the officer has a key to and can engage in safe "cooping". Police officers who attend college during the day or moonlight at other jobs in order to make a decent living are often involved in this kind of conduct. Numerous court appearances during the day can also be a factor, along with the toll of shift work.

Sleeping on duty, of course, is just an extreme example of goldbricking, the avoidance of work or performing only the amount minimally necessary to satisfy superiors. Goldbricking can take many forms: from ignoring or passing on calls for service to someone else; overlooking suspicious behavior; or engaging in personal business while on duty.

DRINKING & ABUSING DRUGS ON OR OFF DUTY

There are endless opportunities to drink or take drugs while on duty (e.g., victim interviews, shakedowns, contraband disposal), and the reasons for it are many: to get high, addiction, stress, burnout, or alienation from the job. However, even in cases of recreational usage (which doesn't exist, since officers are never off-duty or have any of their "own time"), the potential is there for corruption. The officer must obtain the drugs from some intermediary, involve others in transactions, and open the door to blackmail, shakedowns, ripoffs, and coverups. It sets a bad example for public relations. It will affect judgment, and lead to the greater likelihood of deadly force or traffic accidents. Alcohol and drug use tends to become a systemic problem; others become involved, either supporting or condemning the user. Alcohol and drugs tend to be mixed by police officers because there's more subcultural support for alcoholism; thus the abuser covers up the drug use with alcoholism.

More intriguing is when the police become sellers or dealers of drugs. One occasionally hears stories of officers selling drugs at rock concerts. The motivation here appears to be monetary gain and greed, although there have been some attempts to claim stress or undercover assignment as a defense. In cases were such officers have been disciplined, plea bargained, or arbitrated, the courts have not upheld a job stress/drug connection, although there is some precedent in rulings that job assignment may be a factor in alcoholism.

With the exception of a few places (like Hawaii), police officer associations (POAs) have opposed random drug testing. They especially oppose drug testing after a shooting incident because it taints the officer. They are not generally opposed to drug testing of applicants or probationary employees. They do, of course, support strict discipline of any employee who is involved in dealing drugs.

MISUSE OF CONFIDENTIAL INFORMATION

This normally involves the jeopardization of ongoing investigations by "leaking" information to friends, relatives, the public, the press, or in some cases, directly to the criminal suspects or members of their gang. The officer may be unaware that they are even engaging in this kind of conduct which may involve "pillow talk" in some instances. Failed raids, for example, are often due to a leak in the department.

In other cases, department resources, such as computer systems, may be used to produce criminal history reports for "friends" of the department such as private detectives, consulting firms, or area employers. Passwords can also slip out, granting access to computer network information. In rare cases, police resources are put to use in blackmailing political figures. In general, however, cracking down on secrecy violations has produced more problems than it has solved. Part of the reason for the current fragmented condition of American law enforcement rests upon a false sense of security derived from overdone needs for secrecy.

POLICE ETHICS

Every criminal justice profession and association has "codes" of ethics, "canons" of professional responsibility, "statements" of values, "principles" of conduct, "standards" of practice, and "oaths" of office, along with "pledges", "vows", "maxims", "credos", "prayers", "tenets", and "declarations". Some are directed to God; others to superiors or the profession; and still others to society as a whole. Some are regulatory; others are aspirational; some adhere to utilitarianism; others to deontological ethics; but they all make promises that people commit to keeping as a standard of performance. A code of ethics, if it is to be used for occupational purposes, must set a standard above ordinary morality. Otherwise, there's no need for a code of ethics at all. This is especially relevant to police work, where it's going to take more than just a commitment to being an ordinary, decent human being. Further, it's going to take being a user of the code, not just being a promiser.

AVISION OF ETHICAL POLICING

The ethically ideal police system would be one with integrity and nothing puzzling about it (i.e., there would be no corruption nor misconduct). There would be no us-against-them and no disrespect for the limits of the law or how it's enforced. Everything done in private would be just as if it was done in public. Mistakes would be treated as learning opportunities, but there would be less of them because of widespread adherence to the values of probity, propriety, restraint, reasonableness, and caution. Recruitment, selection, and training mechanisms would be flawless, with promotion on the basis of merit, no one being without ample supervision, and the organization giving its personnel whatever resources they need to perform their work better. There would be "open door" policies to the public, academics, and the media. Nothing the police do or how they do it would come as a surprise to anyone. They would conduct themselves, as August Vollmer once said, in ways that make it impossible for anyone to make a joke about them.

Besides having the public on their side, the police desperately need to have politicians who care more about the public interest than their own political survival or advancement. Ethical policing works best in an ethical climate. However, even if the political leaders are a bunch of bunglers, and even if all society becomes a Sodom and Gomorrah, this is no excuse for the police to abandon their ethics. Their commitment to a code of ethics is unconditional. You don't lower your ideals (or revise your mission statement) just because circumstances in the environment have changed. The true test of character is keeping your faith in the face of adversity.

THE POLICE CODE OF ETHICS
There are few professions that demand so much moral fiber as policing. Police stand in "harm's way" not so much against enemies with bullets, but against enemies skilled in every form of trickery, deceit, feigned ignorance, and deception. That's why the Law Enforcement Code of Ethics, published by the International Association of Chiefs of Police, stands as a spirited reminder to the higher order of this calling:
As a law enforcement officer, my fundamental duty is to serve mankind; to safeguard lives and property; to protect the innocent against deception; the weak against oppression or intimidation; and the peaceful against violence or disorder; and to respect the Constitutional rights of all men to liberty, equality, and justice.

I will keep my private life unsullied as an example to all; maintain courageous calm in the face of danger, scorn, or ridicule; develop self-restraint; and be constantly mindful of the welfare of others. Honest in my thought and deed in both personal and official life, I will be exemplary in obeying the laws of the land and the regulations of my department. Whatever I see or hear of a confidential nature or that is confided to me in my official capacity will be kept ever secret unless revelation is necessary in the performance of my duties.

I will never act officiously or permit personal feelings, prejudices, animosities, or friendships to influence my decisions. With no compromise for crime and with relentless prosecution of criminals, I will enforce the law courteously and appropriately without fear or favor, malice or ill-will, never employing unnecessary force or violence, and never accepting gratuities.

I recognize the badge of my office as a symbol of public faith, and I accept it as a public trust to be held so long as I am true to the ethics of police service. I will constantly strive to achieve these objectives and ideals, dedicating myself before God to my chosen profession -- law enforcement.

PRINTED RESOURCE

SAdams, K. (1996) "Measuring the Prevalence of Police Abuse of Force in Police Violence" in W. Geller & H. Toch (eds.) Understanding and Controlling Police Abuse of Force. New Haven: Yale University Press.Barker, T. (1978). An Empirical Study of Police Deviance Other Than Corruption. Journal of Police Science and Administration 6(3): 264-72.Barker, T. & D. Carter (1990). Fluffing Up the Evidence and Covering Your Ass: Some Conceptual Notes on Police Lying. Deviant Behavior 11: 61-73.Barker, T. & D. Carter (Eds.) (1994). Police Deviance. Cincinnati: Anderson.DeLattre, E. (1996). Character and Cops: Ethics in Policing. Washington DC: AEI Press.Dershowitz, A. (1996). Reasonable Doubts. New York: Simon & Schuster.Fyfe, J. (1978). "Reducing the Use of Deadly Force: The New York Experience" in U.S. Department of Justice (ed.), Police Use of Deadly Force. Washington, D.C.: U.S. Government Printing Office.Human Rights Watch. (1998). Shielded From Justice: Police Brutality and Accountability in the United States. New York: Human Rights Watch.Independent Commission on the Los Angeles Police Department (the Christopher Commission). (1991). Report of the Independent Commission on the Los Angeles Police Department. Los Angeles: International Creative Management.Kleinig, J. (1996). Police Ethics. NY: Cambridge Univ. Press.Kania, R. & W. Mackey (1977). Police Violence as a Function of Community Characteristics Criminology 15: 27-48.Kappeler, V., R. Sluder & G. Alpert (1994). Forces of Deviance: Understanding the Dark Side of Policing. Prospect Heights, IL: Waveland Press.Kleinig, J. (1996). The Ethics of Policing. New York: Cambridge Univ. Press.Sherman, L. (1974). Police Corruption: A Sociological Perspective. Garden City, NJ: Doubleday.Stoddard, E. (1968). The Informal Code of Police Deviancy: A Group Approach to Blue-Coat Crime. Journal of Criminal Law, Criminology and Police Science 59: 201-13.Tonry, M. (1995). Malignant Neglect-Race, Crime, and Punishment in America. NY: Oxford University Press.Trautman, N. (1997). The Cutting Edge of Police Integrity. FL: Ethics Inst.Weisburd, D. et. al. (2000). "Police Attitudes Toward Abuse of Authority: Findings From a National Study." Washington, DC: National Institute of Justice: Research in Brief.
Last updated: 06/15/04

Virtue Ethics PL 311

Virtue Ethics

Virtue ethics is currently one of three major approaches in normative ethics. It may, initially, be identified as the one that emphasizes the virtues, or moral character, in contrast to the approach which emphasizes duties or rules (deontology) or that which emphasizes the consequences of actions (consequentialism). Suppose it is obvious that someone in need should be helped. A utilitarian will point to the fact that the consequences of doing so will maximise well-being, a deontologist to the fact that, in doing so the agent will be acting in accordance with a moral rule such as "Do unto others as you would be done by" and a virtue ethicist to the fact that helping the person would be charitable or benevolent.

Three of virtue ethics' central concepts, virtue, practical wisdom and eudaimonia are often misunderstood. Once they are distinguished from related but distinct concepts peculiar to modern philosophy, various objections to virtue ethics can be better assessed.


Virtue ethics' founding fathers are Plato and, more particularly Aristotle (its roots in Chinese philosophy are even more ancient) and it persisted as the dominant approach in Western moral philosophy until at least the Enlightenment. It suffered a momentary eclipse during the nineteenth century but re-emerged in the late 1950's in Anglo-American philosophy. It was heralded by Anscombe's famous article "Modern Moral Philosophy" (Anscombe 1958) which crystallised an increasing dissatisfaction with the forms of deontology and utilitarianism then prevailing. Neither of them, at that time, paid attention to a number of topics that had always figured in the virtue ethics' tradition -- the virtues themselves, motives and moral character, moral education, moral wisdom or discernment, friendship and family relationships, a deep concept of happiness, the role of the emotions in our moral life and the fundamentally important questions of what sort of person I should be and how we should live.

Its re-emergence had an invigorating effect on the other two approaches, many of whose proponents then began to address these topics in the terms of their favoured theory. (The sole unfortunate consequence of this has been that it is now necessary to distinguish "virtue ethics" (the third approach) from "virtue theory", a term which is reserved for an account of virtue within one of the other approaches.) Interest in Kant's virtue theory has redirected philosophers' attention to Kant's long neglected Doctrine of Virtue, and utilitarians are developing consequentialist virtue theories. (Hooker 2000, Driver 2001.) It has also generated virtue ethical readings of philosophers other than Plato and Aristotle, such as Martineau, Hume and Nietzche, and thereby different forms of virtue ethics have developed. (Slote 2001, Swanton 2003.)

But although modern virtue ethics does not have to take the form known as "neo-Aristotelian", almost any modern version still shows that its roots are in ancient Greek philosophy by the employment of three concepts derived from it.These are arête (excellence or virtue) phronesis (practical or moral wisdom) and eudaimonia (usually translated as happiness or flourishing.) As modern virtue ethics has grown and more people have become familiar with its literature, the understanding of these terms has increased, but it is still the case that readers familiar only with modern philosophy tend to misinterpret them.

2. Virtue, practical wisdom and eudaimonia

A virtue such as honesty or generosity is not just a tendency to do what is honest or generous, nor is it to be helpfully specified as a "desirable" or "morally valuable" character trait. It is, indeed a character trait -- that is, a disposition which is well entrenched in its possessor, something that, as we say "goes all the way down", unlike a habit such as being a tea-drinker -- but the disposition in question, far from being a single track disposition to do honest actions, or even honest actions for certain reasons, is multi-track. It is concerned with many other actions as well, with emotions and emotional reactions, choices, values, desires, perceptions, attitudes, interests, expectations and sensibilities. To possess a virtue is to be a certain sort of person with a certain complex mindset. (Hence the extreme recklessness of attributing a virtue on the basis of a single action.)

The most significant aspect of this mindset is the wholehearted acceptance of a certain range of considerations as reasons for action. An honest person cannot be identified simply as one who, for example, practices honest dealing, and does not cheat. If such actions are done merely because the agent thinks that honesty is the best policy, or because they fear being caught out, rather than through recognising "To do otherwise would be dishonest" as the relevant reason, they are not the actions of an honest person. An honest person cannot be identified simply as one who, for example, always tells the truth, nor even as one who always tells the truth because it is the truth, for one can have the virtue of honesty without being tactless or indiscreet. The honest person recognises "That would be a lie" as a strong (though perhaps not overriding) reason for not making certain statements in certain circumstances, and gives due, but not overriding, weight to "That would be the truth" as a reason for making them.

An honest person's reasons and choices with respect to honest and dishonest actions reflect her views about honesty and truth -- but of course such views manifest themselves with respect to other actions, and to emotional reactions as well. Valuing honesty as she does, she chooses, where possible to work with honest people, to have honest friends, to bring up her children to be honest. She disapproves of, dislikes, deplores dishonesty, is not amused by certain tales of chicanery, despises or pities those who succeed by dishonest means rather than thinking they have been clever, is unsurprised, or pleased (as appropriate) when honesty triumphs, is shocked or distressed when those near and dear to her do what is dishonest and so on.

Given that a virtue is such a multi-track disposition, it would obviously be reckless to attribute one to an agent on the basis of a single observed action or even a series of similar actions, especially if you don't know the agent's reasons for doing as she did. (Sreenivasan 2002) Moreover, to possess, fully, such a disposition is to possess full or perfect virtue, which is rare, and there are a number of ways of falling short of this ideal. (Athanassoulis 2000.) Possessing a virtue is a matter of degree, for most people who can be truly described as fairly virtuous, and certainly markedly better than those who can be truly described as dishonest, self-centred and greedy, still have their blind spots -- little areas where they do not act for the reasons one would expect. So someone honest or kind in most situations, and notably so in demanding ones may nevertheless be trivially tainted by snobbery, inclined to be disingenuous about their forebears and less than kind to strangers with the wrong accent. (This may be an exclusively British fault.)

Further, it is not easy to get one's emotions in harmony with one's rational recognition of certain reasons for action. I may be honest enough to recognise that I must own up to a mistake because it would be dishonest not to do so without my acceptance being so wholehearted that I can own up easily, with no inner conflict. Following (and adapting) Aristotle, virtue ethicists draw a distinction between full or perfect virtue and "continence", or strength of will. The fully virtuous do what they should without a struggle against contrary desires; the continent have to control a desire or temptation to do otherwise.

Describing the continent as "falling short" of perfect virtue appears to go against the intuition that there is something particularly admirable about people who manage to act well when it is especially hard for them to do so, but the plausibility of this depends on exactly what "makes it hard." (Foot 1978, 11-14.) If it is the circumstances in which the agent acts -- say that she is very poor when she sees someone drop a full purse, or that she is in deep grief when someone visits seeking help -- then indeed it is particularly admirable of her to restore the purse or give the help when it is hard for her to do so. But if what makes it hard is an imperfection in her character - the temptation to keep what is not hers, or a callous indifference to the suffering of others -- then it is not.

Another way in which one can easily fall short of full virtue is through lacking phronesis -- moral or practical wisdom.

The concept of a virtue is the concept of something that makes its possessor good: a virtuous person is a morally good, excellent or admirable person who acts and feels well, rightly, as she should. These are commonly accepted truisms. But it is equally common, in relation to particular (putative) examples of virtues to give these truisms up. We may say of someone that he is too generous or honest, generous or honest "to a fault". It is commonly asserted that someone's compassion might lead them to act wrongly, to tell a lie they should not have told, for example, in their desire to prevent someone else's hurt feelings. It is also said that courage, in a desperado, enables him to do far more wicked things than he would have been able to do if he were timid. So it would appear that generosity, honesty, compassion and courage despite being virtues, are sometimes faults. Someone who is generous, honest, compassionate, and courageous might not be a morally good, admirable person -- or, if it is still held to be a truism that they are, then morally good people may be led by what makes them morally good to act wrongly! How have we arrived at such an odd conclusion?

The answer lies in too ready an acceptance of ordinary usage, which permits a fairly wide-ranging application of many of the virtue terms, combined, perhaps, with a modern readiness to suppose that the virtuous agent is motivated by emotion or inclination, not by rational choice. If one thinks of generosity or honesty as the disposition to be moved to action by generous or honest impulses such as the desire to give or to speak the truth, if one thinks of compassion as the disposition to be moved by the sufferings of others and to act on that emotion, if one thinks of courage as merely fearlessness, or the willingness to face danger, then it will indeed seem obvious that these are all dispositions that can lead to their possessor's acting wrongly. But it is also obvious, as soon as it is stated, that these are dispositions that can be possessed by children, and although children thus endowed (bar the "courageous" disposition) would undoubtedly be very nice children, we would not say that they were morally virtuous or admirable people. The ordinary usage, or the reliance on motivation by inclination, gives us what Aristotle calls "natural virtue" -- a proto version of full virtue awaiting perfection by phronesis or practical wisdom.

Aristotle makes a number of specific remarks about phronesis that are the subject of much scholarly debate, but the (related) modern concept is best understood by thinking of what the virtuous morally mature adult has that nice children, including nice adolescents, lack. Both the virtuous adult and the nice child have good intentions, but the child is much more prone to mess things up because he is ignorant of what he needs to know in order to do what he intends. A virtuous adult is not, of course, infallible and may also, on occasion, fail to do what she intended to do through lack of knowledge, but only on those occasions on which the lack of knowledge is not culpable. So, for example, children and adolescents often harm those they intend to benefit either because they do not know how to set about securing the benefit or, more importantly, because their understanding of what is beneficial and harmful is limited and often mistaken. Such ignorance in small children is rarely, if ever culpable, and frequently not in adolescents, but it usually is in adults. Adults are culpable if they mess things up by being thoughtless, insensitive, reckless, impulsive, shortsighted, and by assuming that what suits them will suit everyone instead of taking a more objective viewpoint. They are also, importantly, culpable if their understanding of what is beneficial and harmful is mistaken. It is part of practical wisdom to know how to secure real benefits effectively; those who have practical wisdom will not make the mistake of concealing the hurtful truth from the person who really needs to know it in the belief that they are benefiting him.

Quite generally, given that good intentions are intentions to act well or "do the right thing", we may say that practical wisdom is the knowledge or understanding that enables its possessor, unlike the nice adolescents, to do just that, in any given situation. The detailed specification of what is involved in such knowledge or understanding has not yet appeared in the literature, but some aspects of it are becoming well known. Even many deontologists now stress the point that their action-guiding rules cannot, reliably, be applied correctly without practical wisdom, because correct application requires situational appreciation -- the capacity to recognise, in any particular situation, those features of it that are morally salient. This brings out two aspects of practical wisdom.

One is that it characteristically comes only with experience of life. Amongst the morally relevant features of a situation may be the likely consequences, for the people involved, of a certain action, and this is something that adolescents are notoriously clueless about precisely because they are inexperienced. It is part of practical wisdom to be wise about human beings and human life. (It should go without saying that the virtuous are mindful of the consequences of possible actions. How could they fail to be reckless, thoughtless and short-sighted if they were not?)

The aspect that is more usually stressed regarding situational appreciation is the practically wise agent's capacity to recognise some features of a situation as more important than others, or indeed, in that situation, as the only relevant ones. The wise do not see things in the same way as the nice adolescents who, with their imperfect virtues, still tend to see the personally disadvantageous nature of a certain action as competing in importance with its honesty or benevolence or justice.

These aspects coalesce in the description of the practically wise as those who understand what is truly worthwhile, truly important, and thereby truly advantageous in life, who know, in short, how to live well. In the Aristotelian "eudaimonist" tradition, this is expressed in the claim that they have a true grasp of eudaimonia.

The concept of eudaimonia, a key term in ancient Greek moral philosophy, is central to any modern neo-Aristotelian virtue ethics and usually employed even by virtue ethicists who deliberately divorce themselves from Aristotle. It is standardly translated as "happiness" or "flourishing" and occasionally as "well-being."

Each translation has its disadvantages. The trouble with "flourishing" is that animals and even plants can flourish but eudaimonia is possibly only for rational beings. The trouble with "happiness", on any contemporary understanding of it uninfluenced by classically trained writers, is that it connotes something which is subjectively determined. It is for me, not for you, to pronounce on whether I am happy, or on whether my life, as a whole, has been a happy one, for, barring, perhaps, advanced cases of self-deception and the suppression of unconscious misery, if I think I am happy then I am -- it is not something I can be wrong about. Contrast my being healthy or flourishing. Here we have no difficulty in recognizing that I might think I was healthy, either physically or psychologically, or think that I was flourishing and just be plain wrong. In this respect, "flourishing" is a better translation than "happiness". It is all too easy for me to be mistaken about whether or not my life is eudaimon (the adjective from eudaimonia) not simply because it is easy to deceive oneself, but because it is easy to have a mistaken conception of eudaimonia, or of what it is to live well as a human being, believing it to consist largely in physical pleasure or luxury for example

The claim that this is, straightforwardly, a mistaken conception, reveals the point that eudaimonia is, avowedly, a moralised, or "value-laden" concept of happiness, something like "true" or "real" happiness or "the sort of happiness worth seeking or having." It is thereby the sort of concept about which there can be substantial disagreement between people with different views about human life that cannot be resolved by appeal to some external standard on which, despite their different views, the parties to the disagreement concur.

All standard versions of virtue ethics agree that living a life in accordance with virtue is necessary for eudaimonia. This supreme good is not conceived of as an independently defined state or life (made up of, say, a list of non-moral goods that does not include virtuous activity) which possession and exercise of the virtues might be thought to promote. It is, within virtue ethics, already conceived of as something of which virtue is at least partially constitutive. Thereby virtue ethicists claim that a human life devoted to physical pleasure or the acquisition of wealth is not eudaimon, but a wasted life, and also accept that they cannot produce a knock down argument for this claim proceeding from premises that the happy hedonist would acknowledge.

But although all standard versions of virtue ethics insist on that conceptual link between virtue and eudaimonia, further links are matters of dispute and generate different versions. For Aristotle, virtue is necessary but not sufficient -- what is also needed are external goods which are a matter of luck. For Plato, and the Stoics, it is both (Annas 1993), and modern versions of virtue ethics disagree further about the link between eudaimonia and what gives a character trait the status of being a virtue. Given the shared virtue ethical premise that "the good life is the virtuous life" we have so far three distinguishable views about what makes a character trait a virtue.

According to eudaimonism, the good life is the eudaimon life, and the virtues are what enable a human being to be eudaimon because the virtues just are those character traits that benefit their possessor in that way, barring bad luck. So there is a link between eudaimonia and what confers virtue status on a character trait. But according to pluralism, there is no such tight link. The good life is the morally meritorious life, the morally meritorious life is one that is responsive to the demands of the world (on a suitably moralised understanding of "the demands of the world" and is thereby the virtuous life because the virtues just are those character traits in virtue of which their possessor is thus responsive. (Swanton 2003) And according to perfectionism or "naturalism", the good life is the life characteristically lived by someone who is good qua human being, and the virtues enable their possessor to live such a life because the virtues just are those character traits that make their possessor good qua human being (an excellent specimen of her kind.)

3. Objections to virtue ethics

(i) The application problem. In the early days of virtue ethics' revival, the approach was associated with an "anti-codifiability" thesis about ethics, directed against the prevailing pretensions of normative theory. At the time, utilitarians and deontologists commonly (though not universally) held that the task of ethical theory was to come up with a code consisting of universal rules or principles (possibly only one, as in the case of act-utilitarianism) which would have two significant features:
(a) the rule(s) would amount to a decision procedure for determining what the right action was in any particular case;

(b) the rule(s) would be stated in such terms that any non-virtuous person could understand and apply it (them) correctly.

Virtue ethicists maintained, contrary to these two claims, that it was quite unrealistic to imagine that there could be such a code (see, in particular, Pincoffs 1971 and McDowell:1979). The results of attempts to produce and employ such a code, in the heady days of the 1960s and 1970s, when medical and then bioethics boomed and bloomed, tended to support the virtue ethicists' claim. More and more utilitarians and deontologists found themselves agreed on their general rules but on opposite sides of the controversial moral issues in contemporary discussion. It came to be recognised that moral sensitivity, perception,imagination, and judgement informed by experience -- phronesis in short -- is needed to apply rules or principles correctly. And so many (though by no means all) utilitarians and deontologists have explicitly abandoned (b) and much less emphasis is placed on (a).

However, the complaint that virtue ethics does not produce codifiable principles is still the most commonly voiced criticism of the approach, expressed as the objection that it is, in principle, unable to provide action-guidance.

Initially, the objection was based on a misunderstanding. Blinkered by slogans that described virtue ethics as "concerned with Being rather then Doing", as addressing "What sort of person should I be?" but not "What should I do?" as being "agent-centred rather than act-centred", its critics maintained that it was unable to provide action-guidance and hence, rather than being a normative rival to utilitarian and deontological ethics, could claim to be no more than a valuable supplement to them. The rather odd idea was that all virtue ethics could offer was "Identify a moral exemplar and do what he would do" as though the raped fifteen year old trying to decide whether or not to have an abortion was supposed to ask herself "Would Socrates have had an abortion if he were in my circumstances?"

But the objection failed to take note of Anscombe's hint that a great deal of specific action guidance could be found in rules employing the virtue and vice terms ("v-rules") such as "Do what is honest/charitable; do not do what is dishonest/uncharitable." (Hursthouse 1991). (It is a noteworthy feature of our virtue and vice vocabulary that, although our list of generally recognised virtue terms is comparatively short, our list of vice terms is remarkably, and usefully, long, far exceeding anything that anyone who thinks in terms of standard deontological rules has ever come up with. Much invaluable action guidance comes from avoiding courses of action that would be irresponsible, feckless, lazy, inconsiderate, uncooperative, harsh, intolerant, selfish, mercenary, indiscreet, tactless, arrogant, unsympathetic, cold, incautious, unenterprising, pusillanimous, feeble, presumptuous, rude, hypocritical, self-indulgent, materialistic, grasping, short-sighted, vindictive, calculating, ungrateful, grudging, brutal, profligate, disloyal, and on and on.)

This response to "the action guidance problem" generated other objections, for example (ii) the charge of cultural relativity. Is it not the case that different cultures embody different virtues, (MacIntyre 1985) and hence that the v-rules will pick out actions as right or wrong only relative to a particular culture? Different replies have been made to this charge. One -- the tu quoque, or "partners in crime'response" -- exhibits a quite familiar pattern in virtue ethicists' defensive strategy. (Solomon 1988) They admit that, for them, cultural relativism is a challenge, but point out that it is just as much a problem for the other two approaches. The (putative) cultural variation in character traits regarded as virtues is no greater -- indeed markedly less -- than the cultural variation in rules of conduct, and different cultures have different ideas about what constitutes happiness or welfare. That cultural relativity should be a problem common to all three approaches is hardly surprising. It is related, after all, to the "justification problem" (see below) the quite general metaethical problem of justifying one's moral beliefs to those who disagree, whether they be moral sceptics, pluralists or from another culture.

A bolder strategy involves claiming that virtue ethics has less difficulty with cultural relativity than the other two approaches. Much cultural disagreement arises, it may be claimed, from local understandings of the virtues, but the virtues themselves are not relative to culture. (Nussbaum 1988.)

Another objection to which the tu quoque response is partially appropriate is (iii) "the conflict problem." What does virtue ethics have to say about dilemmas -- cases in which, apparently, the requirements of different virtues conflict because they point in opposed directions? Charity prompts me to kill the person who would be better off dead, but justice forbids it. Honesty points to telling the hurtful truth, kindness and compassion to remaining silent or even lying. What shall I do? Of course, the same sorts of dilemmas are generated by conflicts between deontological rules. Deontology and virtue ethics share the conflict problem (and are happy to take it on board rather than follow some of the utilitarians in their consequentialist resolutions of such dilemmas) and in fact their strategies for responding to it are parallel. Both aim to resolve a number of dilemmas by arguing that the conflict is merely apparent; a discriminating understanding of the virtues or rules in question, possessed only by those with practical wisdom, will perceive that, in this particular case, the virtues do not make opposing demands or that one rule outranks another, or has a certain exception clause built into it. Whether this is all there is to it depends on whether there are any irresolvable dilemmas. If there are, proponents of either normative approach may point out reasonably that it could only be a mistake to offer a resolution of what is, ex hypothesi, irresolvable.

Another problem for virtue ethics, which is shared by both utilitarianism and deontology, is (iv) "the justification problem." Abstractly conceived, this is the problem of how we justify or ground our ethical beliefs, an issue that is hotly debated at the level of metaethics. In its particular versions, for deontology there is the question of how to justify its claims that certain moral rules are the correct ones, and for utilitarianism of how to justify its claim that the only thing that really matters morally is consequences for happiness or well-being. For virtue ethics, the problem concerns the question of which character traits are the virtues.

In the metaethical debate, there is widespread disagreement about the possibility of providing an external foundation for ethics -- "external" in the sense of being external to ethical beliefs -- and the same disagreement is found amongst deontologists and utilitarians. Some believe that ethics can be placed on a secure basis, resistant to any form of scepticism, such as what anyone rational desires, or would accept or agree on, regardless of their ethical outlook; others that it cannot.

Virtue ethicists have eschewed any attempt to ground virtue ethics in an external foundation while continuing to maintain that their claims can be validated. Some follow a form of Rawls' coherentist approach (Slote 2001, Swanton 2003); neo-Aristotelians a form of ethical naturalism.

A misunderstanding of eudaimonia as an unmoralised concept leads some critics to suppose that the neo-Aristotelians are attempting to ground their claims in a scientific account of human nature and what counts, for a human being, as flourishing. Others assume that, if this is not what they are doing, they cannot be validating their claims that, for example, justice, charity, courage, and generosity are virtues. Either they are illegitimately helping themselves to Aristotle's discredited natural teleology (Williams 1985) or producing mere rationalisations of their own personal or culturally inculcated values. But McDowell, Foot, MacIntyre and Hursthouse have all recently been outlining versions of a third way between these two extremes. Eudaimonia in virtue ethics, is indeed a moralised concept, but it is not only that. Claims about what constitutes flourishing for human beings no more float free of scientific facts about what human beings are like than ethological claims about what constitutes flourishing for elephants. In both cases, the truth of the claims depends in part on what kind of animal they are and what capacities, desires and interests the humans or elephants have.

The best available science today (including evolutionary theory and psychology) supports rather than undermines the ancient Greek assumption that we are social animals, like elephants and wolves and unlike polar bears. No rationalising explanation in terms of anything like a social contract is needed to explain why we choose to live together, subjugating our egoistical desires in order to secure the advantages of co-operation. Like other social animals, our natural impulses are not solely directed towards our own pleasures and preservation, but include altruistic and cooperative ones.

This basic fact about us should make more comprehensible the claim that the virtues are at least partially constitutive of human flourishing and also undercut the objection that virtue ethics is, in some sense, egoistic.

(v) The egotism objection has a number of sources. One is a simple confusion. Once it is understood that the fully virtuous agent characteristically does what she should without inner conflict, it is triumphantly asserted that "she is only doing what she wants to do and is hence being selfish." So when the generous person gives gladly, as the generous are wont to do, it turns out she is not generous and unselfish after all, or at least not as generous as the one who greedily wants to hang on to everything she has but forces herself to give because she thinks she should! A related version ascribes bizarre reasons to the virtuous agent, unjustifiably assuming that she acts as she does because she believes that acting thus on this occasion will help her to achieve eudaimonia. But "the virtuous agent" is just "the agent with the virtues" and it is part of our ordinary understanding of the virtue terms that each carries with it its own typical range of reasons for acting. The virtuous agent acts as she does because she believes that someone's suffering will be averted, or someone benefited, or the truth established, or a debt repaid, or thereby.

It is the exercise of the virtues during one's life that is held to be at least partially constitutive of eudaimonia, and this is consistent with recognising that bad luck may land the virtuous agent in circumstances that require her to give up her life. Given the sorts of considerations that courageous, honest, loyal, charitable people wholeheartedly recognise as reasons for action, they may find themselves compelled to face danger for a worthwhile end, to speak out in someone's defence, or refuse to reveal the names of their comrades, even when they know that this will inevitably lead to their execution, to share their last crust and face starvation. On the view that the exercise of the virtues is necessary but not sufficient for eudaimonia, such cases are described as those in which the virtuous agent sees that, as things have unfortunately turned out, eudaimonia is not possible for them. (Foot 2001, 95) On the Stoical view that it is both necessary and sufficient, a eudaimon life is a life that has been successfully lived (where "success" of course is not to be understood in a materialistic way) and such people die knowing not only that they have made a success of their lives but that they have also brought their lives to a markedly successful completion. Either way, such heroic acts can hardly be regarded as egoistic.

A lingering suggestion of egoism may be found in the misconceived distinction between so-called "self-regarding" and "other-regarding" virtues. Those who have been insulated from the ancient tradition tend to regard justice and benevolence as real virtues, which benefit others but not their possessor, and prudence, fortitude and providence (the virtue whose opposite is "improvidence" or being a spendthrift) as not real virtues at all because they benefit only their possessor. This is a mistake on two counts. Firstly, justice and benevolence do, in general, benefit their possessors, since without them eudaimonia is not possible. Secondly, given that we live together, as social animals, the "self-regarding" virtues do benefit others -- those who lack them are a great drain on, and sometimes grief to, those who are close to them (as parents with improvident or imprudent adult offspring know only too well.)

The most recent objection (vi) to virtue ethics claims that work in "situationist" social psychology shows that there are no such things as character traits and thereby no such things as virtues for virtue ethics to be about (Doris 1998, Harman 1999). But virtue ethicists claim in response that the social psychologists' studies are irrelevant to the multi-track disposition (see above) that a virtue is supposed to be (Sreenivasan 2002 ). They are also amused to find writers willing to attribute the virtue of charity to inexperienced young men on, apparently, the sole ground that they are at theological college, and then being surprised to discover that their attribution fails.

4. Future directions

As noted under "Preliminaries" above, a few non-Aristotelian forms of virtue ethics have developed. The most radical departure from the ancient Greek tradition is found in Michael Slote's 'agent-based' approach (Slote 2001) inspired by Hutcheson, Hume, Martineau and the feminist ethics of care. Slote's version of virtue ethics is agent-based (as opposed to more Aristotelian forms which are said to be agent-focused) in the sense that the moral rightness of acts is based on the virtuous motives or characters of the agent. However, the extent of the departure has been exaggerated. Although Slote discusses well-being rather than eudaimonia, and maintains that this consists in certain "objective" goods, he argues that virtuous motives are not only necessary but also sufficient for well-being. And although he usually discusses (virtuous) motives rather than virtues, it is clear that his motives are not transitory inner states but admirable states of character, such as compassion, benevolence and caring. Moreover, although he makes no mention of practical wisdom, such states of character are not admirable, not virtuous motives, unless they take the world into account and are 'balanced', in (we must suppose) a wise way. The growing interest in ancient Chinese ethics currently tends to emphasise its common ground with the ancient Greek tradition but, as it gains strength, it may well introduce a more radical departure.

Although virtue ethics has grown remarkably in the last fifteen years,it is still very much in the minority, particularly in the area of applied ethics. Many editors of big textbook collections on "bioethics", or "moral problems" or "biomedical ethics" now try to include articles representative of each of the three normative approaches but are often unable to find any virtue ethics article addressing a particular issue. This is sometimes, no doubt, because "the" issue has been set up as a deontologicial/utilitarian debate, but it is often simply because no virtue ethicist has yet written on the topic. However, this area can certainly be expected to grow in the future.

Whether virtue ethics can be expected to grow into "virtue politics" -- i.e. to extend from moral philosophy into political philosophy -- is not so clear. Although Plato and Aristotle can be great inspirations as far as the former is concerned, neither, on the face of it, are attractive sources of insight where politics is concerned. However, Nussbaum's most recent work (delivered but not yet published as The Tanner Lectures, 2003) suggests that Aristotelian ideas can, after all, generate a satisfyingly liberal political philosophy. Moreover, as noted above, virtue ethics does not have to be neo-Aristotelian. It may be that the virtue ethics of Hutcheson and Hume can be naturally extended into a modern political philosophy, (Hursthouse 1990-91; Slote 1993.)

Following Plato and Aristotle, modern virtue ethics has always emphasised the importance of moral education, not as the inculcation of rules but as the training of character. In 1982, Carol Gilligan wrote an influential attack (In a Different Voice) on the Kantian-inspired theory of educational psychologist Lawrence Kohlberg. Though primarily intended to criticize Kohlberg's approach as exclusively masculinist, Gilligan's book unwittingly raised many points and issues that are reflected in virtue ethics. Probably Gilligan has been more effective than the academic debates of moral philosophers, but one way or another, there is now a growing movement towards virtues education, amongst both academics (Carr 1999) and teachers in the classroom.



Bibliography

A. Books
Annas, Julia, 1993, The Morality of Happiness, New York: Oxford University Press.
Baron, Marcia W., Philip Pettit and Michael Slote, 1997, Three Methods of Ethics, New York: Oxford University Press.
Crittenden, Paul, 1990, Learning to be Moral, New Jersey: Humanities Press International.
Dent, N.J.H., 1984, The Moral Psychology of the Virtues, Cambridge: Cambridge University Press.
Driver, Julia, 2001, Uneasy Virtue, New York: Cambridge University Press.
Foot, Philippa, 1978, Virtues and Vices, Oxford: Blackwell.
------2001, Natural Goodness, Oxford, Clarendon Press
Galston, William, 1991, Liberal Purposes: Goods, Virtues and Diversity in the Liberal State, New York, Cambridge University Press
Geach, Peter, 1977, The Virtues, Cambridge: Cambridge University Press.
Hudson, Stephen, 1986, Human Character and Morality, Boston: Routledge & Kegan Paul.
Hooker, Brad, 2000, Ideal Code, Real World, Oxford: Oxford University Press.
Hurka, Thomas, 2001, Virtue, Vice, and Value, Oxford: Oxford University Press.
Hursthouse, Rosalind, 1999, On Virtue Ethics, Oxford: Oxford University Press.
MacIntyre, Alasdair, 1985, After Virtue, London, Duckworth, 2nd Edition.
--------- 1999, Dependent Rational Animals, Chicago: Open Court.
Slote, Michael, 2001, Morals from Motives, Oxford: Oxford University Press.
Swanton, Christine, 2003, Virtue Ethics: A Pluralistic View, Oxford: Oxford University Press.

B. Anthologies
Carr, David and Jan Steutel (eds.), 1999, Virtue Ethics and Moral Education, New York: Routledge.
Crisp, Roger (ed.), 1996, How Should One Live? Oxford: Clarendon Press.
Crisp, Roger and Michael Slote (eds.), 1997, Virtue Ethics, Oxford: Oxford University Press.
Darwall, Stephen (ed.), 2003, Virtue Ethics, Oxford: Blackwell.
Flanagan, Owen and Amelie Oksenberg Rorty (eds.), 1990, Identity, Character and Morality, Cambridge, Mass: The MIT Press.
French, Peter A., Theodore Uehling,Jr., and Howard Wettstein (eds.), 1988, Midwest Studies in Philosophy Vol. XIII Ethical Theory: Character and Virtue, Notre Dame, Indiana, University of Notre Dame Press.
Statman, D. (ed.), 1997a, Virtue Ethics, Edinburgh: Edinburgh University Press.

C. Survey Articles
Annas, Julia, "Virtue Ethics", forthcoming in a collection of David Copp's
Oakley, J. "Varieties of Virtue Ethics", Ratio 9, (1996), pp.128-52
Statman, Daniel,1997b, "Introduction to Virtue Ethics", in Statman, 1997a: 1-41
Swanton, Christine, 2003, "75 Virtue Ethics", in International Encyclopedia of the Social and Behavioral Sciences, Elsevier Science, www.e-products.elsevier.com
Trianosky, Gregory Velazco y., 1990, "What is Virtue ethics All About?", American Philosophical Quarterly, 27: 335-44, reprinted in Statman, 1997a

D. Articles
Athanassoulis, Nafsika, 2000, "A Response to Harman: Virtue Ethics and Character Traits," Proceedings of the Aristotelian Society, New Series, Vol C, pp. 215-221.
Anscombe, G.E.M., 1958, "Modern Moral Philosophy", Philosophy 33:1-19
Badhwar, N.K., 1996,"The Limited Unity of Virtue", Nous 30:306-29
Doris, John M.(1998), "Persons, Situations and Virtue Ethics," Nous 32:4, 504-30.
Foot, Philippa, 1994, "Rationality and Virtue", in H. Pauer-Studer (ed.), Norms, Values , and Society, Amsterdam, Kluwer, 205-16
--------1995, "Does Moral Subjectivism Rest on a Mistake?", Oxford Journal of Legal Studies 15, 1-14
Galston, William, 1992, "Introduction", in J.W. Chapman and W. Galston (eds.) Virtue. Nomos 34: 1-14
Geach, P.T., 1956, "Good and Evil", Analysis 17: 33-42
Harman,G. (1999), "Moral Philosophy Meets Social Psychology: Virtue Ethics and the fundamental Attribution Error," Proceedings of the Aristotelian Society New Series Vol CXIX, 316-31.
Hursthouse, Rosalind, 1990-1, "After Hume's Justice", Proceedings of the Aristotelian Society, 91: 229-45
McDowell, John, 1979, "Virtue and Reason", Monist 62: 331-50
-------- 1980, "The Role of Eudaimonia in Aristotle's Ethics", reprinted in Essays on Aristotle's Ethics, ed. Amelie Oksenberg Rorty, Berkeley, University of California Press, 1980, 359-76
--------- 1995, "Two Sorts of Naturalism", in Virtues and Reasons, R. Hursthouse, G. Lawrence and W.Quinn (eds.), Oxford, Oxford University Press, 149-79
Nussbaum, Martha, 1988, Non-relative virtues: An Aristotelian Approach", in French et al. 1988, 32- 53.
---- 1990, "Aristotelian Social Democracy", in R. Douglass, G. Mara, and H. Richardson (eds.), Liberalism and the Good, New York, Routledge, 203-52
Pincoffs, Edmund L., 1971, "Quandary Ethics", Mind 80: 552-71
Slote, Michael, 1993, "Virtue ethics and Democratic Values", Journal of Social Philosophy 14: 5-37
Solomon, David, 1988, "Internal Objections to Virtue Ethics", in French et al, 428-41, reprinted in Statman 1997a.
Sreenivasan, Gopal, 2002, "Errors about Errors: Virtue Theory and Trait Attribution," Mind 111 (January): 47-68.
Stocker, Michael, 1976, "The Schizophrenia of Modern Ethical Theories", Journal of Philosophy 14:453-66
Swanton, Christine, 1995, "Profiles of the Virtues", Pacific Philosophical Quarterly 76:47-72.
------1998, "Outline of a Nietzschean Virtue Ethics", International Studies in Philosophy 30: 29-38.
Watson, Gary, 1990, "On the Primacy of Character", in Flanagan and Rorty, 449-83, reprinted in Statman, 1997a.

Literature on Aristotle and Virtue Ethics (Ethics Updates, Larry Hinman, U. San Diego)
Copyright © 2003
Rosalind Hursthouse
r.hursthouse@auckland.ac.nz


Ethics and Professions: Whistle Blowing

Ethics and the Professions: Blowing the Whistle on Crime1
by Lala CamererResearcher, Crime and Policing Policy Project, Institute for Defence PolicyPublished in African Security Review Vol 5 No 6, 1996

BACKGROUND

"Whistle-blowing is the disclosure by an employee of confidential information which relates to some danger, fraud, or other illegal or unethical conduct connected with the workplace, be it of the employer or of his fellow employees."2Business, Government and professional circles are increasingly disillusioned about the "ethical malaise" and the culture of corruption that currently haunt South African society. The variety of reasons provided for this state of affairs are mostly related to the corrupting nature of the apartheid state. In the business community, the breakdown of values is partly blamed on the sanctions-busting mentality that encouraged ingenious, but often immoral means to gain access to world markets. Attempts were praised rather than repudiated, and encouraged the development of a culture where unethical means in conducting business were valued.3 Among many other organisations, Government is also regularly dogged by claims of corruption. However, former deputy minister Holomisa's public attacks against his own political home may prove to be an example of how not to blow the whistle on alleged corruption and misconduct. With regard to the legal profession, it has been argued that the current lawlessness is partly due to the fact that many South Africans (especially the poor) have lost their respect for the law and the legal system that has been perceived as one of the main vehicles to enforce apartheid.4There have been several recent initiatives that attempt to address the growing concerns about corruption, a phenomenon that is in some sense more damaging to the nation's psyche than visible, violent street crimes. The Business Against Crime initiative, which aims to change the ethical climate in which business is conducted in South Africa, has established a working group on commercial crime that involves the relevant stakeholders. Upholding the code of ethics in the King report on corporate governance, this initiative urges organisations (both private and public) to adopt ethical codes which, if supported by effective communication channels and training, and is seen to be enforced, could contribute to the development of a moral business culture in South Africa.5 A publication called Beating Fraud: Commercial crime prevention, detection and response guide for the private and public sector has recently been published by the working group.Within Government, a code of conduct has recently been introduced for parliamentarians that call for the disclosure of their financial interests, in order to avoid possible conflicts of interest that may result in corruption. In introducing the code to the National Assembly, committee chairman Minister Kader Asmal described this as "the start of a process whereby an all-pervasive culture of disclosure, and therefore accountability can be achieved."6 Earlier this year, President Mandela appointed a national commission to investigate corruption, including allegations of irregularities in the administration and collection of taxes, customs and excise duties, and foreign exchange.7Reading through the latest issue of De Rebus, it appears that the legal profession is also concerned with such matters as the call for a national ethics conference to 'turn the tide' on unethical behaviour within the profession indicates.8 The conference is called to address professional behaviour and ethical rules, as well as discipline and complaints handling. This would include the localisation of initial disciplinary inquiries, the appointment of an independent inspectorate and the formulation of a more user-friendly complaints procedure.9 This article focuses on the latter area, namely a more user-friendly complaints procedure. A discussion of the concept 'whistle-blowing' is useful, as it is believed that making it easier for the ethical individual to blow the whistle on corruption is a key weapon in the fight against crime. The discussion will be preceded by a few notes on ethics and the professions.
ETHICS AND THE PROFESSIONS
Professions are distinct from occupations in that they exist to secure some fundamental end, for instance 'Law' and 'Academia' seek 'Justice' and 'Knowledge' respectively. Achieving this end requires specialised skills, knowledge and individual judgement. Ideally, members of professions internalise the fundamental ends that define their particular profession, and depend in part on their own capacity and sense of self-worth to realise these ends.10Professional ethics concerns itself with the rules that regulate professional conduct. In the legal profession, these rules aim to ensure the competent and professional ethical conduct of attorneys to protect the public against the consequences of misdemeanours. In other words, the public interest demands that a professional person must be an ethical one. The sole objective and guiding light of ethical conduct and the rule or rules prescribing ethical conduct must and can only be the public interest. Arguments have been put forward that, in a competitive market, a company's own enlightened self-interest dictates that it should behave in an ethical manner, as the adherence to high ethical standards in itself may be a key way of competing for a share of the market.11 The legal profession has also noted that "if we serve the public interest, we also serve our own interest."12Unfortunately, corruption can be found to a greater or lesser degree in most human activities, including those of members of the professions. It has been argued that this is perhaps more so in the legal profession, because of the morally ambiguous character of legal work. As it entails the use of the law and of deception, the tendency to become involved in corruption may be a basic occupational hazard.13 The corrupt official is thus one who not only abandons the fundamental end or goal of his/her profession, but also uses this professional position – or the skills and knowledge associated with it – for his/her own self-interest or for immoral ends. Mostly, corrupt individuals engage in interdependent corrupt activities, quite often at senior levels, with the corruption itself becoming a co-operative enterprise. It influences those who are not corrupt: it comprises and intimidates those who wish to avoid becoming corrupt themselves, and especially those who feel morally responsible to expose corruption.14In 'blowing the whistle' to expose corruption within organisations, those who choose this route face various dilemmas. The predicament of the potential whistle blower may in part be due to economic dependence and in part to legal obligations of confidence owed to employers.15 Besides the real fear of victimisation resulting from such disclosures, a primary dilemma involves the conflicting loyalties between the desire to follow one's moral beliefs and expose misconduct, and the organisational pressures to conform to a culture of loyalty and confidentiality, albeit misplaced. These notions will be looked at in some depth.

CONFLICTS OF LOYALTY AND CONFIDENTIALITY

Whistle-blowing in its most general form involves calling (public) attention to wrongful acts, typically in order to avert harm. It is often denounced as morally unjustifiable on the presumption that it violates the obligation to be loyal and the adherence to confidentiality owed to the business or profession. However, whistle-blowing that reveals genuine wrongs can be wholly consistent with personal, public and business/professional duties.16For various reasons, employees often experience confusion about their responsibilities towards managers or colleagues. In terms of loyalty in the work place, there is a culture of aversion towards the perception of being "sneaks, informers, rats and squealers." As such, there is considerable pressure on people to turn a blind eye on malpractice, to leave it to someone else to raise the matter, or to contact a regulator anonymously.17 Many organisations may also create a culture and procedures that deter employees from raising concerns through all-embracing confidentiality clauses to keep quiet in and outside the work place.18There are, however, many different kinds of loyalties.19 It is, for instance, inappropriate to demand friendly or familial loyalty from or to a business, since the limits of business or professional relationships are legal and contractual. While supplemental loyalties may develop as colleagues become friends, the loyalties owed to them as friends must be recognised as different in kind from the obligations that arise purely from a business or professional association. In effect, attempts to identify, avert and remedy organisational wrong doing will normally benefit a business, even if they temporarily reduce accounting profits. Stakeholders are therefore being loyal – not disloyal – when they criticise or attempt to prevent abuses. Not only is loyalty to corrupt professionals misplaced, it is an abrogation of duty, for loyalty is only warranted by those who embody the ideals of the profession and who are not corrupt.20Does the duty of confidentiality preclude whistle-blowing? Ordinarily not, for logically a business cannot bind its stakeholders to do, or to keep silent about, that which is illegal or contrary to its definitive purpose. The law has recognised this through the following judicial dictums: "fraud unravels all" and "there is no confidence as to the disclosure of iniquity."21 As long as the law of confidence has existed, there has existed alongside it a public interest exception. In 1743 it was found that, "[n]o private obligations can dispense with that universal one which lies on every member of the Society to discover every design which may be formed, contrary to the laws of the Society, to destroy the public welfare."22Under modern law, it is preferable not to speak about there being "no confidence in iniquity", but rather to recognise that there is always a balance to be struck between competing public interests. Thus, while there is the obligation of the law of fidelity owed by the employee to employer, and "a public interest that confidence should be preserved and protected by law", this kind of public interest may be outweighed by a countervailing public interest that favours disclosure. Therefore, the court has to undertake a balancing act to weigh the public interest in maintaining confidence, against a countervailing public interest that favours disclosure. This happened in the Spycatcher case where the court held that there was no obligation on an employee to keep information secret if it relates to such misconduct on the part of the employer or fellow employees that there is a public interest in its disclosure. For instance in the case of a crime, "the public interest in the maintenance of confidence may be overridden wherever there is a countervailing public interest in disclosure which is sufficient to override it."23With regard to the kind of disclosure that would be in the public interest, there is no hard and fast rule. However, the disclosure of gross mismanagement, illegal or unethical acts, fraud or conduct that puts the life or health of individuals or the safety of property or the environment at risk, is probably appropriate. The information must certainly be in the public interest, and not of mere interest to the public. The media have a private interest of their own in publishing what appeals to the public and "are peculiarly vulnerable to the error of confusing the public interest with their own interest."24 It is important that codes of professional conduct should explicitly recognise the public interest exception. Without doing any damage to the law of confidence, much greater use can and should be made of internal avenues of complaint and inquiry. In this regard, legal services can assist greatly in promoting communication of this kind.25High ethical standards include the creation of clearly understood procedures and channels of communication by business organisations so that employees who are aware of illegal or unethical conduct or practices in the work place are able to disclose it without fear of reprisal or victimisation. If that means altering a culture of misplaced loyalty to friends or to the organisation, of turning a blind eye, or of organisational concealment, high ethical standards require that this is done or at least attempted.26 Whistle-blowing properly understood, is not informing in a negative sense, but relaying essential information to those responsible to get things in order.27 As such, whistle blowers should be rewarded, rather than repudiated, for their efforts.

DISCLOSURE: INTERNAL, EXTERNAL AND ANONYMOUS

Whistle-blowing, and "relaying information to those responsible for getting it right", will ideally occur internally, if the right channels exist. However, as a last resort, whistle-blowers may use external methods of disclosure, such as a regulator or the media. Since the purpose of whistle-blowing is to stop, hinder or prevent perceived wrong doing, a disclosure method that has negligible prospects of achieving this result is self-destructive folly, not whistle-blowing. Therefore, to impose the damage of whistle-blowing on an organisation that cannot control the wrong doing is unfair and jeopardises the social value of the act, for to be implicated an organisation must be accountable and blameworthy for the disclosed wrong. Rather than confidentiality, fairness has been raised as the chief moral constraint of whistle-blowing. Those most closely responsible must be given the opportunity to rebut the charges or to acknowledge and remedy their mistakes.28Who would be the appropriate recipients of the disclosure? The general rule for whistle-blowing is that the disclosure causing the least damage is the appropriate route. Whenever possible, employees are advised to use internal mechanisms within their organisation to raise their concerns. This means generally that the charge is laid internally within the organisation and at the most appropriate level where the charge of misconduct can be addressed. It is therefore advisable for organisations to have internal reporting mechanisms, or what some have termed "critical information systems."29 The absence of such channels raises the likelihood of employees using other, more damaging channels that company may have less or no control over, for instance an external regulator or the media. Repercussions and expenses tend to mushroom when the timing and nature of corrections are determined by the media or the law, rather than by the business or profession itself.The whistle should thus normally be blown at the lowest hierarchical level that is likely to be efficacious. Where possible, established organisational procedures should be used to minimise damage and disruptions, in order to correct the situation locally and rapidly. Initial whistle-blowing will thus normally be internal. It should be noted, however, that 'open door' policies run by a corrupt management have typically worked against whistle blowers, and mainly served to identify the 'trouble-makers' to be ejected. External whistle-blowing, as a last resort, is justifiable if internal channels have been exhausted or are unavailable and unusable.30The question of anonymous disclosure also needs to be dealt with briefly. While anonymous helplines clearly aid in deterring crime and malpractices, they do little to encourage or reassert individual morality or any community ethic. They start from the premise that reporting misconduct is a shameful and embarrassing thing to do. An additional and real risk with this form of disclosure is that anonymity is the preferred cloak of the malicious and vindictive.31 While anonymous whistle-blowing may be more suspect and thus less likely to be efficacious than the acknowledged open kind, it can be perfectly justifiable, as long as the wrong doing is genuine.32

RESPONSES TO WHISTLE BLOWERS

Once the whistle has been blown, preferably through the available internal channels, or as a last resort to a regulatory body or the press, the whistle blower may experience negative, or more rarely positive responses to his or her action, depending on the culture within the organisation.Mostly, degradation ceremonies that punish and alienate resisters and protesters occur where the whistle blower suffers at the hands of colleagues who feel betrayed. Superiors who have the power to harass them, may punish whistle blowers by questioning their competence and judgement, terminating their employment, or even blacklisting them from other positions and effectively bring their career development to a halt. More rarely – but an approach that needs to be embraced by ethical institutions – ceremonies of status elevation may occur that reinforce the whistle blower's conviction that (s)he is acting in the right way.33Since rectifying a problem requires the acknowledgement that it is real and possibly taking direct or indirect responsibility for its occurrence, managers typically deny that problems exist even in the face of the most blatant evidence. They would rather spend time and money to cover it up, than to face what is wrong. Even though the organisation and other stakeholders will be better served by an ethical response of accounting for wrongful actions, instead of resorting to cover-ups or making a scapegoat of the whistle blower, to punish the messenger is a common (though hardly ethical) response to bad news. In practice, whistle blowers often suffer grievously for their efforts and as such, fear of retaliation is a major deterrent to potential whistle blowers.

PUBLIC CONCERN AT WORK

In response to these and other problems concerning whistle-blowing, a charity known as Public Concern at Work has been established in Britain. Here employees are able to seek professional and independent (confidential) advice on the most effective way to raise their concerns and can discuss all aspects of the matter without committing any actionable breach of confidence that they owe to their employer. The charity is classified as a legal advice centre, has a free helpline and is staffed by four lawyers who provide free legal advice to clients on whistle-blowing. The charity is usually contacted when clients have raised concerns and feel they are being victimised because they have raised it directly themselves. As such, Public Concern at Work mainly assists whistle blowers who may find themselves victimised at work after the event.Where disputes occur over whether conduct is unethical or not, the charity holds that where no clear consensus can be obtained, companies are ethically entitled to adopt a variety of practices that are within the law. The charity also distinguishes between protest and watchdog whistle-blowing. Protest whistle-blowing is where an employee takes exception to a lawful or transparent activity of his employer, for instance objecting to company policy on animal experimentation. Watchdog whistle-blowing rests on the premise that where an employee is the first or only person to know that something is going seriously wrong, and will endanger lives or damage a wider public interest, (s)he will often need particular help, as (s)he alone may have the most to lose by sounding the alarm.34The context for the establishment of Public Concern at Work may be of interest to South Africans. Following public inquiries into various scandals and disasters, it was found in Britain that employees often knew that something was seriously wrong, but turned a blind eye, or raised concerns that were ignored or channelled to the wrong people. Preventable disasters that come to mind include:
the Clapham rail disaster (where a supervisor had noticed loose wiring but did not want to "rock the boat");
the sinking of the Herald of Free Enterprise ferry (where on five separate occasions concerns were raised about sailing with bow doors open, yet the message got lost in middle management); and
the Challenger shuttle explosion (where engineers were aware of fault design).
After these events, those in charge have mostly said, "if only we had known."Public Concern at Work was set up to examine practical steps that organisations may take to ensure that serious concerns were both raised by employees and addressed by those in charge. They support the recommendation that each organisation should have some kind of mechanism that would enable employees to voice concerns about dangers, malpractices and other issues. Without safe and accepted ways to raise concerns at work when employees are confronted by seemingly serious illegalities or malpractices, they will face stark choices and dilemmas.

SELF-REGULATION AND THE LAW

Without these measures in place, it is unclear how far an organisation or sector can be left to regulate itself properly. Club-like and self-regulatory constraints have often proved to be inadequate protections of public interest, unless buttressed by law. In practice, higher ethical standards encouraged by whistle-blowing need further legal underpinning. Unfortunately, the law at present (in the UK) offers employees who are acting in the public interest no protection against victimisation through dismissals or otherwise. However, during the next parliamentary session, the Public Interest Disclosure Draft Bill, supported by leading businesses, unions and others, is to be introduced as a legal protection for whistle blowers.In order to secure protection (injunction, declaration or compensation) from this Bill, whistle blowers will have to show that they are being punished because they have sounded the alarm on some serious malpractice. Moreover, they will have to pass several additional tests. It will have to be established, among others that theydid not act in bad faith;had reasonable grounds to believe the information to be accurate; did not make the disclosure for money or personal gain; and could prove that it would have been ineffective to have raised the matter internally.35

It is hoped that the Bill, should it come into law, will become a real deterrent to misconduct. In theory, it will serve to deter malpractice and encourage organisations across the public, private and voluntary sectors to adopt more open and accountable cultures with codes of ethics that encourage the effective internal reporting of malpractice. Currently under consideration by the South African Government is the Open Democracy Bill that makes provision, among others, for transparency of Government actions; access to Government records; and the protection of whistle blowers. It is hoped that the Bill, should it become law, will be a real deterrent to misconduct. It will serve to deter malpractice and encourage organisations across the public, private and voluntary sectors to adopt more open and accountable cultures with codes of ethics that encourage the effective internal reporting of malpractice.

THE SOUTH AFRICAN LEGAL PROFESSION

In South Africa, specifically with regard to the legal profession, the Krugel Commission's report to the Transvaal Law Society found "that the present system of submitting complaints must be changed so that complainants can feel confident about lodging a complaint against an attorney with the law society."36 This finding is supported by conclusions from question 1637 in the Radloff questionnaire where "half of the respondents were reluctant to report unethical conduct to their provincial law societies because they believed that the law society would fail to take appropriate steps to curb such conduct, in fact 60% believed that even if the law society attempted to curb unethical conduct it would be unable to do so."The fact that "law societies find it increasingly difficult to act, simply because nobody is prepared to lodge a complaint or take a colleague to task" is obviously a serious matter in need of urgent attention. It raises the question: "How can we expect the public to have faith in our profession's ability to regulate itself properly if so many of us have doubts in this regard?" The fact is that the manner in which any law society is seen to exercise discipline against defaulting members, determines whether the public perceives it as being a self-protection outfit – a perception which would justify the imposition of discipline from outside – or a body that governs the profession in a manner sufficiently responsible to justify its being left to its own devices.38Various proposals have been made to address these issues, from a disciplinary body of retired judges to an independent legal services ombudsman. However, it is not the intention of this article to address these suggestions. Suffice it to note, before concluding, that the Law Society in Britain has recently announced the introduction of a confidential hotline to its Investigation Unit. in cases where a solicitor or employee suspects that fraud may be being perpetrated by someone in his/her firm or by another member of the profession.39 Could this be a solution for the South African legal profession?

CONCLUSION

To address these issues, there should ideally be a shift in culture away from a world where "it is not my problem" to one where individuals accept more responsibility, and where those privileged to be in charge and to enjoy the benefits this brings, are more accountable for their organisations. It should be more rewarding to identify and resolve problems, rather than to ignore them. As such, whistle-blowing UK-style is a positive and necessary development to be nurtured. Not only does it help to raise the standards of business and professional ethics, but also the standards of behaviour of the community in general. A key corporate governance responsibility should be to facilitate internal whistle-blowing mechanisms and ensure that justified whistle blowers are not penalised, but praised for their efforts on behalf of the organisation.Basic steps in reducing corruption in the private and public sector involve common sense and practical measures. For instance, when it comes to the recruitment of employees, effective screening mechanisms are required. Since crime occurs when opportunity and motive coincide, it is important to reduce the opportunities to commit crime, for instance by target hardening or environmental design. In addition to the constant reinforcement of the motivation to do what is right and to avoid doing wrong, effective detection and deterrence of crime through active enforcement of ethical codes are required. The good need to co-operate with each other if they are to drive out the bad, as institutional corruption can only be resisted successfully through collective action from those members who strongly identify with the ends of the institution and, equally strongly, reject corrupt practices.40
ENDNOTES
Address to the Association of Law Societies of the RSA, 21 August 1996.
G Borrie, Business ethics and accountability, Four Windows on Whistleblowing, Public Concern at Work, UK, 1996.
G Rossouw, Business ethics in South Africa: The State of the Nation, unpublished paper, 1996.
G Radloff, Professional Ethics – The Response of Legal Practitioners to a Questionnaire, De Rebus, August 1996.
Rossouw, op. cit.
The Star, 19 August 1996.
Business Day, 1 March 1996.
De Rebus, op. cit.
Ibid.
S Miller, Creating Good Policing, unpublished paper, 1995.
Borrie, op. cit.
Radloff, op. cit.
Miller, op. cit.
Ibid.
Borrie, op. cit.
E Sternberg, A Vindication of Whistleblowing in Business, Four Windows on Whistleblowing, Public Concern at Work, UK, 1996.
Borrie, op. cit.
Ibid.
Sternberg, op. cit.
Miller, op. cit.
Gartside versus Outram, (1869) 26 L.J. CL 113.
Annesley versus The Earl of Anglesea, 17 State Tr. 1139.
M Brindle and G Dehn, Confidence, Public Interest and the Lawyer, Four Windows on Whistleblowing, Public Concern at Work, UK, 1996.
Borrie, op. cit.
Brindle and Dehn, op. cit.
Borrie, op. cit.
Sternberg, op. cit.
Ibid.
Ibid.
Ibid.
Borrie, op. cit.
Sternberg, op. cit.
M Glazer, Whistleblowers.
Borrie, op. cit.
Ibid.
De Rebus, July 1996.
16: I am reluctant to report conduct which I consider to be unethical to my law society, becausea) I may lose support from either the financial institution or estate agent with whom my colleague is involved as I will be perceived by them to be obstructive.b) Even if I were to make the effort and take the time to do so, the law society will probably fail to take appropriate steps to curb such conductc) The law society will probably be unable to curb such conduct notwithstanding every effort on its part.
De Rebus, July and August 1996.
Sternberg, op. cit.
Miller, op. cit.