Vol. 11 No. 5 (May 2001) pp. 237-238.

PRACTICES AND PRINCIPLES by Mark Tunick. Princeton: Princeton University Press, 1998. 242 pp. Cloth $42.50. ISBN: 0-691-01560-0. Paper $19.95. ISBN: 0-691-07079-2.

Reviewed by Kenneth Ward, Department of Political Science, Southwest Texas State University.

In PRACTICES AND PRINCIPLES Mark Tunick examines the influence of social practices on ethical and legal judgments. He illustrates why we must consult practice as well as principle when we make these judgments. In so doing, he provides a concise and admirably clear discussion of complex issues.

Tunick's book is ambitious in scope. He connects specific issues of moral philosophy, legal theory and constitutional law to a broader metaethical debate that is rooted in Kant and Hegel. He discusses the ethical obligations we derive from promising as well as more concrete legal obligations that flow from the law of contracts. He also defends a principle that distinguishes reasonable and unreasonable expectations of privacy for purposes of interpreting the Fourth Amendment's proscription against unreasonable search and seizures. Tunick's analysis would provide a useful complement to law school or advanced undergraduate courses that deal with these issues. Yet, his book is primarily aimed at scholars who are interested in the metaethical debate. Although Tunick shows that social practices are relevant to legal and ethical judgments, he is less successful in wrestling with the issue at the heart of the debate--to what extent do these practices determine ethical obligations?

Tuncik sides with Hegel over Kant. He defends what he calls a theory of metaethical communitarianism that clarifies how social practices are an important constraint on the selection and application of ethical principles (pp. 49, 215). He begins by contrasting two approaches to ethics. One approach denies that social practices inform ethical obligations, and the other contends that such practices play an essential role. Tunick argues that both approaches are partially true. Although we cannot divorce ethical principles from social practices, we must also subject social practices to rational criticism. It is this position that he attributes to Hegel (pp. 48-49).

Tunick uses three case studies to illustrate how principles and social practices interact when we make ethical and legal judgments. He is particularly concerned to show that social practices influence our conception of promising, the law of contracts, and our expectations of privacy.

We see that social practice influences our judgments in different ways. On the one hand, social practices provide the intuitions that lead us to justify ethical principles. For example, the social conventions that make us think that it is wrong to break promises provide incentive to seek the grounds for the obligations that result (93, 137). On the other hand, social practices inform our application of ethical and legal principles (56, 97 104). Tunick illustrates how the legal enforcement of a

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contract might depend on the social meaning of the term promise as well as the expectations that we think would be created by particular promises (pp. 107-08, 135). An assessment of these expectations, in turn, will depend on the social context in which the promise was given. In addition, Tunick shows how various social structures-technological, physical and familial-influence our determination of whether an expectation of privacy is reasonable for purposes of limiting governmental searches (p. 137).

By clarifying how practice and principle interact, Tunick provides an important caution to those theorists who seek to divorce contingent aspects of social life from ethical deliberation. The argument, however, fails to sustain Tunick's most provocative suggestion, that practices sometimes contribute to the justification of ethical obligations (pp. 56, 137, 198). He links this suggestion to the claim that social practices sometimes determine ethical requirements (pp. 49, 90, 213 n. 83, 212, 215). This claim repeats Tunick's argument that we must regard social practices when we apply ethical principles, but it also obscures the primary role that ethical principles play in justifying our ethical obligations. The claim makes it easy to confuse the rational considerations that justify ethical obligations from the practical considerations that might limit the application of ethical principles.

Tunick believes that social practices sometimes trump the conclusions that follow from our deliberation on ethical principles. He contends that there are some practices that we should not subject to rational review notwithstanding the possibility that such inquiry would lead us to conclude these practices are deficient (pp. 214-15). He claims that "... sometimes it is reasonable to defer to existing practices and norms, for reasons having to do with fairness and the inherent reasonableness of acting in accordance with long settled norms" (p. 197). He believes, for example, that we should not challenge the authority of a police officer who-without acting in bad faith or unreasonably-comports with an customary practice, even if there were good reasons in principle to change the practice. Although these reasons might provide grounds for challenging the practice, they are not relevant to our assessment of the officer's actions (pp. 196-97).

Tunick concludes that practices are relevant to the justification of ethical obligations, because they sometimes limit the application of ethical principles. Yet, the argument that practice limits these principles presupposes higher order ethical principles to explain why it is fair or reasonable to respect the expectations that people derive from social practices. Also these principles are independent of the social practices in question. Moreover, Tunick's argument seems to assume that ethical principles have priority over social practices. He not only draws on a higher order principle to explain the limit on principle, he also uses the latter principle to criticize the customary practice that limits it. Tunick considers the officer's action deficient, even though the officer acted reasonably when he pursued a customary practice. It seems, therefore, that the ethical obligation at issue is ultimately grounded in considerations of principle.

Although PRACTICES AND PRINCIPLES provides a useful check on those who are prone to become carried away by abstract reflection, it does not challenge the privileged role that principle plays in ethical deliberation.