Ethical minimalism counters ethical absolutism and maximal moral codes. Ethical absolutism postulates that a moral truth has been established and that if the moral code is followed, individuals and society will benefit. Maximal moral codes are rules developed within the context of ethical absolutism. For instance, some Christians believe that it is not enough simply to attend church; one must believe in the teachings of Jesus and adhere to a code of conduct based on the doctrines of the church. For these individuals their entire lives focus on their religious beliefs.
The ethical minimalist argues that in a complex society not everyone is going to be able to adhere to any one maximal moral code. Ethical minimalists seek the fewest number of rules necessary for a society to operate while promoting equality and fairness. For instance, it is easy to recognize that every society should have provisions against murder, the unlawful taking of another human life, but not every society needs rules against taking oaths. Ethical minimalists believe there is a moral set of rules that each society must have to ensure the continued survival of that society. These include rules against murder, rules relating to property, rules regulating some type of economic system, rules about how knowledge is passed from generation to generation, and a host of other rules that preserve the society without laying claim that compliance to absolute rules is necessary or has been predetermined by society.
While ethical minimalists may seem to fall into the category of ethical relativism, this is not the case. Ethical minimalism is a metaethical principle that attempts to describe the needs of a society and then establish rules that will allow society to survive, though for no particular end, similar in position to ethical pragmatism. Ethical relativism is a metaethical theory that asserts that individuals may see morality differently based upon particular circumstances and that no one way of believing is better than another.
Ethical minimalism influences the criminal justice system by bringing forward the question of what kind of punishment and how much punishment is efficacious for society. Ethical minimalism also has much in common with the rule of law concept, establishing that laws promoting equality and fairness are critical to the survival of a society. Finally, for the purposes of criminal justice professionals, ethical minimalism limits the amount of judgment professionals can have within the law itself.
The concept of retribution brings the idea of punishment into the realm of legal thinking. Ethical minimalists view the law as being necessary for the continued existence of a society, but do not advocate that the ends will justify the means of continuing the society. Continuing the society for any purpose other than for promoting equality and freedom may not be justified. Punishing offenders may be necessary in a society, but the ethical minimalist wants evidence to determine whether the process of punishment is not actually harming society. For instance, if a law allowed the state to fine violators of traffic laws up to 15 percent of their annual income, the public would strongly object to such a severe penalty. A possibly violent reaction might cause not only an overthrow of the government, but also an upheaval in society so as to threaten an unhealthy change in society. Ethical minimalists would argue that standards for punishing offenders must be within the limits of the public tolerance, yet still achieve basic moral standards for the behavior and treatment of individuals based on the efficacy of society rather than on any particular ideology.
Punishment as severe as the death penalty would need to be assessed by how it affects society. This position seems similar to that of utilitarianism, the greatest good for the greatest number, but the ethical minimalist may not extend moral authority beyond that which is necessary to preserve society. A utilitarian may wish to invoke moral rules for the greatest good of society, extending beyond the necessary rule believed by the ethical minimalist. The ethical minimalist may ask how much punishment is necessary for specific crimes, but she may also ask if punishment is necessary for a society. If a society can preserve order that promotes freedom and equality without punishing offenders, then perhaps punishment is not necessary. Though few, if any, minimalists advocate the abolition of punishment, raising the question of what a society requires in terms of punishment for offenders can have a profound impact on the criminal justice system.
Rule of Law
That no one is above the law, a basic concept within the rule of law, has had dramatic influence on criminal justice theory and practice. From the rule of law stem criminal justice system procedures and policies that protect individual rights and ensure not only that these procedures apply to all citizens but also that criminal justice professionals are not above the law and must follow the procedures set forth by the law.
One reason for the rule of law is to protect the public from the abuses of those who make the law and may not wish to be subject to it. The rule of law fits into the schema of the ethical minimalists. Laws are necessary, and the minimalists are concerned not just with the mere creation of laws and punishment of offenders, but also with the process of enforcement. Most criminal procedures, from the ethical minimalist point of view, constitute minimal standards of conduct for criminal justice professionals. Police are responsible not only for obeying the law, but also for enforcing the law in ways that do not in themselves violate the law. When the police are required to obtain a search warrant before conducting a search, the ethical minimalist recognizes the police as not merely following the law, but also acting morally by recognizing the due process rights of a citizen whose person or property is to be searched.
Standards of American justice include procedural law, allowing each offender the right to know the charges against him or her, the right to legal representation, the right to cross-examine witnesses, and the right to subpoena witnesses. The ethical minimalist believes these standards to be necessary not because of metaphysical or ontological arguments, but rather because U.S. society demands such protections. The ethical minimalist believes that these protections are not absolute rules that must be followed to create a society in a particular image, but rather because without these protections the government is not upholding its moral responsibility to the people. Rule-oflaw supporters and ethical minimalists agree that the public can hold their governments to minimal standards for moral treatment.
Discretion Within the Law
Discretion for the ethical minimalist means discretion within the law. Criminal justice professionals cannot be allowed to go beyond legal and ethical boundaries when using their private judgment in the disposition of a criminal case. Ethical minimalists favor public moral decision making over private moral decision making in public policy because such openness discourages maximal moral codes being imposed by policy makers on their constituents. Also, if the public has adopted a minimal moral code, private judgment should exceed these minimums. In legal theory the imposition of a public moral code that overrides private moral codes has often been the position taken by social conservatives in an attempt to create a maximal moral code. In these cases, conservative policy makers discourage discretion by criminal justice professionals because the public morality may be violated. For ethical minimalists concerned with discretion within the criminal justice system, the problem is not the potential for violation of public moral codes, which, after all are minimal, but that private judgment by a criminal justice professional may call for maximal moral enforcement. Discretion within the law for the minimalist means that the criminal justice professional should internalize the minimal standards of the public and constrain his or her behavior in accordance with the law.
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