Moral authority in law and criminal justice: Some reflections on Wilson'sThe Moral Sense

Abstract

In his book The Moral Sense James Q. Wilson demonstrates the scope of people's moral concerns. His comments are striking for their range and for his compelling arguments about the centrality of moral concerns to people's lives. Wilson makes it clear that an important basis for people's evaluations of the authorities within organized groups is their assessment of the moral character of the authorities. His conclusion flows, in part, from an examination of research on legal authorities,[1] although the scope of his overall examination is much broader. Our goal in this comment is to explore some of the implications of Wilson's thesis in the area of law and criminal justice. We consider four areas: policing, juries, sentencing, and mediation. Each of these areas shares the common characteristic of being concerned about resolving social conflicts and regulating interactions among the members of society. Wilson's thesis is that these legal/criminal justice functions and the institutions and authorities who perform them will be judged by moral criteria. We accept this premise, but feel that it does not confront a further concern central to an analysis of the moral basis of social control: the sources of moral authority. Of course, we do not mean to suggest that legal authority is solely moral in character, and has no coercive elements.1 Rather, we support Wilson's thesis that there are important moral aspects to legal authority which need to be recognized and elaborated. Types of Moral Authority All societies recognize the need for authorities to establish and enforce social order. One important basis on which authorities operate is their moral legitimacy. However, moral authority is not always the same. We want to contrast two types of moral authority: personalized authority and professional authority. Our argument is that both are forms of moral authority, but that they represent two distinct and to some extent competing forms of moral authority. The two forms of authority involved differ in several ways (see Table 1). [TABULAR DATA OMITTED] The Basis of Authority The two forms of moral authority are distinguishable in terms of the basis of authority. Personalized authorities draw upon individualized knowledge about the person, their background, and their needs. This individualized knowledge flows from a background in the community and a knowledge of community norms. Typically, the community member subject to the authority personally knows or knows indirectly about the authority figure and that figure's history in the community. For example, in describing a highly regarded police officer in the community, Muir says that Marshall enjoyed what Tocqueville referred to as 'that respectable power which men willingly grant to the remembrance of a life spent in doing good before their eyes.'(3) In contrast, professional authority depends upon the knowledge and capacity to apply a body of specialized knowledge as well as knowing professional rules of conduct.(4) For example, sentencing guidelines provide rules for deciding how to punish those who commit various types of crimes. More broadly, it is knowledge of the law which indicates the appropriate response to various types of problems and which underlies the authority of judges. An example of the difference between these two sources of authority can be found in Elijah Anderson's discussion of life on contemporary ghetto streets.(5) Anderson says that ghetto youth are preoccupied with exaggerated concerns about receiving respect and deference from others, and are willing to enforce their demands in this regard with violence. This preoccupation has developed into a behavioral norm (a code of the streets) to which everyone in the community must respond. Personal appearance - dress and demeanor - are an integral part of this code and serve to display and enhance an image of fearlessness. …