Oikonomia: domestic power or the police
“If you know what you are doing, if you know the law well enough…you can make it do wonderful and marvelous things.” -A New South Wales police officer (Quoted from Mark Neocleous’ The Fabrication of Social Order)
During and after the 4th Precinct occupation, we heard many denounce the police’s “excessive violence,” their growing stock of military grade weaponry, or their virulent and racist comments (like the one from a St Paul officer on Facebook recommending drivers hit occupiers with their cars). The denouncements often centered on police activity that went beyond “lawful” behavior. Many of these same people coupled their denouncement with the demand that more cops who live in the neighborhood or who are people of color be hired.
All of this implies that there is a way cops should behave in our neighborhoods, and further, that they need to be held accountable to the law, which they are supposed to enforce. Unfortunately, the typical analysis of police begins and ends with the assertion that the police are not upholding their duty to “protect and serve.” The textual tradition invoked to call attention to the role and legal status of the police is often merely a slogan printed on the side of their cars. And this despite the fact that the Supreme Court from 1855 (South et al. v. State of Maryland) to as recently as 2005 (Town of Castle Rock v. Gonzolas) has consistently ruled that the police have no constitutional duty to protect citizens. And yet the problem with police is said to be that police have overstepped their bounds. What bounds? Which laws are the police bound by, and with which do they justify their powers? What is their relation to constitutional law? What rights and limitations do the police have? Who really knows what the police power is, what the police officer’s job is, and where they came from? The police themselves often don’t know the extent or limitation of their role on the street, and neither do judicial functionaries, even at the highest levels. The police power does not derive its power from the constitution nor any other founding document in the American legal tradition, but is always assumed to have always existed.
That lack of a constitutional legal foundation ought to create major problems for jurists and citizens alike in the land where “LAW is king” (Thomas Paine). The ambiguity of the police power’s function and place in civil society stretches back to its first explicit legal formulations. Duchesne noted in his formative Code of Police of 1757, for example, that “the objects which it [police] embraces are in some sense indefinite.” The very few references to police power in the Supreme Court further confuse the object. The Supreme Court ruled in the License Cases that the police power encompassed the extraordinarily broad “power to govern men and things.” Supreme Court Justice Lemuel Shaw’s statement on the Slaughterhouse Cases declared that police power “is and must be from its very nature incapable of any exact definition or limitation” and yet, “upon it depends the security of social order, the life and health of the citizen, the comfort of and existence in a thickly populated community.” Ernst Freund, the first American to do a major study on the history of policing in 1904, called it “the most comprehensive and therefore necessarily the vaguest” of American political powers. More recently, the passage for “police power” in the journal American Jurisprudence called the police power “the most essential, the most insistent, and always one of the least limitable of the powers of government.” Given this persistent and structural lack of specificity concerning the police, where did we get the assumption that police act in relation to the law? What is the history and the nature of this expansive and formless power? These questions can only be answered by reexamining our assumptions about the police and their relation to what we call “law.” If what follows seems somewhat circuitous and repetitious, that is because it’s the nature of police power to be so.
The word and concept of police entered the American governmental lexicon in the post-revolutionary period with James Wilson, one of the original Supreme Court justices, who, at the federal constitution convention in 1787, fought for the preservation of state government to protect “their internal good police;” and Thomas Jefferson, who established the professorship in “law and police” at the College of William and Mary in 1779. It’s difficult to say from whom they adopted the term. By the time of the revolution, the word police had already been around for 400 years and the practices associated with it long predated that. The most likely direct source of inspiration would be William Blackstone’s definition in his Commentary on the Laws of England, which (quoted by jurists in this early period more often than any other definition) would be the foundation American Legislators used to structure their penal codes, and with which courts would regulate the scope of police power and create police offenses. Blackstone writes: “By the public police and economy I mean the due regulation and domestic order of the kingdom: whereby the individuals of the state, like members of a well-governed family, are bound to conform their general behavior to the rules of propriety, good neighborhood, and good manners.” In the history of the police, one will frequently encounter that phrase “economy or police…” and reference to the “great family” either of the state or the kingdom.
It’s odd that the text that formed the basis of American police discourse would equate it with the domestic sphere and not with the city, thus making “police” a domestic and not a political term, but this is the case in every theory of police up to today’s. Other direct sources make the same distinction. Vattel asserted that sovereign power “ought in every thing to appear as the father of his people” and adds that “the internal police consists in the attention of the princes and magistrates to preserve every thing in order.” American writers on police sometimes refer to Jeremy Bentham’s definition. Bentham makes a distinction between justice and police, which repeats the distinction between the autonomous mode of government and the heteronomic mode of government. The first is a remedial power, which treats the actors as responsible for acts they have committed or did not commit. The later is preventative and is considered an economical way to prevent “mischief” originating from internal adversaries: “police applies itself to the prevention both of offenses and calamities; its expedients are, not punishments, but precautions; it foresees evils, and protects against wants” (Jeremy Bentham). Like everyone else who encounters the police power, Bentham notes the impossibility of defining it: “The idea belonging to it seems to be too multifarious to be susceptible to any single definition.” Rousseau, one of the fathers of political contract theory and an influential figure in the development of a theory of police power, could state quite unequivocally that “The word Economy, or OEconomy, is derived from oikos, a house, and nomos, law, and meant originally only the wise and legitimate government of the house for the common good of the whole family. The meaning of the term was then extended to the government of that great family, the State.” The authors quoted here are all acting in accordance with the Greek distinction between polis, the city and sphere of political activity, and the oikos, the household where one looks after one’s necessities. It may seem to be a bizarre mistake to place the police solely in the household, but it is not. In fact, the police have never been strictly political in conception. A short history can illuminate this ambiguous development.
Any thorough exploration of the police must begin in ancient Greece with the oikos. We have already discussed the nature of the Greek householder’s order in an earlier section: the householder proves himself equal and thus capable of participating in politics by managing the objects in his household in an orderly fashion. Of those objects in need of management, Aristotle writes, “some are living, others lifeless.” The household is best defined as a tautology (“the household is everything being managed by the householder”) since the question of the household is not about origins, truth, or meaning, but power and functional relationships. The principles of the Roman household were virtually identical. The paterfamilias was the head of his household, the familia, which the second century jurist Ulpian defined as those persons and things who by nature or by convention are subject to the patria potestas, the power of the father. Interestingly, the paterfamilias, the father, was himself not a member of the familia, since he could not be subject to his own art of management. Despite that, the interest of the householder was said to be the interest of the household in general, so he stood both in and outside of his household.
The genealogy of American police must also include the Germanic Sippe, “the clan.” Jefferson in particular was fascinated by the proto-democracy of the ancient Saxons, calling it “government truly republican,” and “that happy system of our ancestors, the wisest and most perfect ever yet devised by the wit of man, as it stood before the 8th century.” Not much is new in the Sippe. The Germanic tribes made the same distinction between public governance where the male householding subjects governed themselves, and household governance where those same householders governed their property, children, wives, and slaves (the distinction between autonomy and heteronomy). The political realm of householding men also had to tend to interpersonal conflicts that become more complicated when they included the objects of household management. The chief of a household was responsible for any damage caused by a member of his household, often resulting in a situation where he must either give up the offending member or pay a wergild, a fine. Medieval historian Paul Hyams compares the status of the household offender to that of the dog today: they both enjoy very few real protections against maltreatment, they lack the means to enforce any protections they have alone (to whom could they complain? The master who theoretically committed the damage?), and when they act inappropriately, the master is liable for their misdeeds. Those interested in political history tend to focus on the self-organized public government of the householding men, but this was in reality an exceptional affair. Most people lived as members of households under the regulation and discipline of the householders, and most conflicts arose out of the household. Declaration of war, the change of leadership, or other consequential matters may have been collectively decided in the political public sphere, but the management of daily affairs and the reproduction of social life occurred within the household, and all the minor conflicts that arose from that continuing state of affairs were considered domestic issues to be administered out of existence rather than treated as legitimate public concerns.
The power of the householder over the household was called “mund” or “munt” in Frankish law. The word is from the proto-Germanic “*munto” which means something like “protection.” The power of the mund was conceived as the power to protect his household from threats within and without in order to maximize the welfare of the household. German law still has Hausfriedensbruch, “breach of the peace of the house,” laws today that come explicitly from this original power. These “offences against the public peace” include trespassing, breaching the “peace of the land,” and “disturbing the public peace,” a law America had until the 1960s. The authority of the householder to both define the scope of such a threat and to extinguish it were beyond question, and virtually unlimited. “Every ruler of a household, whether small or large,” writes Paul Vinogradoff in his article “Foundations of Society”, “had to keep his sons, slaves and clients in order and was answerable for their misdeeds. On the other hand he was their patron, offered them protection, had to stand by them in case of oppression from outsiders and claimed compensation for any wrong inflicted on them.”
The mund was shared, legally and practically, by various institutions in the West. The two most influential institutions in Europe outside the manor were the monasteries and the ascendant militaries. When we say that the religious orders were modelled as a mund or as households, we do not mean this analogically or metaphorically. On July 29th, 1014, we can read in the “Buchard of Worms: Lex Familiae Wormatiensis, Charter of Immunity for the Church of Worms,” that “The venerable man Buchard, bishop of the holy church of Worms,” was upset about “the frequent injuries and unjust laws imposed upon the familia of his church.” The church and its religious orders were not “like” households, they were real households on the level of their organization and legal status, with the ability to make complaints as households threatened by external forces to other households. Hence, the guidebooks of the monasteries provide a particularly well-organized and transparent view into the organization of the household. The Rule of Augustine, for example, under the heading “Governance and Obedience” defines the requirements of household obedience and the means available for enforcement:
1. The superior should be obeyed as a father with the respect due to him so as not to offend God in his person…
2. But it shall pertain chiefly to the superior to see that these precepts are all observed and, if any point has been neglected, to take care that the transgression is not carelessly overlooked but is punished and corrected…
3. He must show himself as an example of good works toward all. Let him admonish the unruly, support the weak, and be patient toward all (1 Thes. 5:14). Let him uphold discipline while instilling fear.
Such rules are typical of household governance. The householder has at his disposal a number of vague and yet expansive powers to punish. No words are wasted on what that punishment might be. The objects of household management are asked to uphold “good” behavior and observance, without defining what the limits of their “respect” must be. Transgressions are totally lacking a true limit. The householder holds the enormous power of defining what threatens the order of his household, not the limits of lawful and unlawful acts nor any ultimate truths about good and evil. The household continues to function well, and what continues to function well is good. In The History of English Law Before the Times of Edward I, Pollock and Maitland write that
The chief limit to [the power of a bishop] was set by the elementary rule that the church would never pronounce a judgement of blood. He could degrade the clerk from his orders and, as an additional punishment, relegate him to a monastery or keep him in prison for life. A whipping might be inflicted, and Becket, it seems, had recourse to the branding iron.
Execution of an offender was permitted in a mund as long as the offender was caught in the act of a theft or other more serious crime. The important thing was the ability to claim that the offender threatened the peace of the household. Through his act, the criminal sacrificed any protection he may have had from the mund and became “peaceless,” a universal criminal and enemy of society. Thus, anyone is permitted to kill him. This is the origin of the legal figure, the “outlaw.” There are a number of important features pertaining to this figure collected by Markus Dirk Dubber in his book The Police Power. Patriarchy and the Foundations of American Governance. First, “Outlawry is self-inflicted” and it is through his act that the outlaw makes himself lordless and exposed to death; second, “Outlawry is a status as much as it is a punishment” since the outlaw reveals himself to be or is transformed into an outlaw; third, “Outlawry is exclusion” in that the title “cements his status as an outsider.” In Anglo-Saxon law, the “lordless man” is a “suspicious threat if not dangerous person; if he has not a lord who will answer for him, his kindred must find him one; if they fail in this, he may be dealt with […] as a rogue and vagabond” (Pollock and Maitland). The status of outlaw is, like that of the householder, essentially tautological —he who has shown himself to be an outlaw is an outlaw; an outlaw is one who reveals himself an outlaw. There is no permanent threshold or marker for outlawry. Outlaws are in essence those who have shown themselves to be “a suspicious threat if not dangerous person.” The deserters of the military household, “forfeit all their privileges, and may be crucified or thrown to the beasts.” (Modestinus) Such limits are discretionary in that the authority decides in the moment what the correct and necessary course of action must be. It may be that, in one instance, the act of running away is not punishable by death, but rather whipping or confinement. Maybe this individual was hated by other household members, in which case their act of fleeing may appear unlikely to inspire copycat actions. The authority figure may, in this case and others, use his discretion to decide the correct course of action depending on the needs of the household considered as a whole.
Let us return to our “modern” definitions of police (still held to be modern by today’s standards) from Blackstone: “By the public police and economy I mean the due regulation and domestic order of the kingdom: whereby the individuals of the state, like members of a well-governed family, are bound to conform their general behavior to the rules of propriety, good neighborhood, and good manners.” And Rousseau: “The word Economy, or OEconomy, is derived from oikos, a house, and nomos, law, and meant originally only the wise and legitimate government of the house for the common good of the whole family. The meaning of the term was then extended to the government of that great family, the State.” The idea that the entire realm can be viewed as one giant household has a historical origin. One can locate it in the transmission of Roman patriarchal power into the Imperium after Augustus, but the spread of the “macro-household” of the Anglo-Saxon kings after the Norman conquest is most directly related to the production of Anglo-American law.
William the Conqueror was unique among kings in how far he spread his administrative web by collecting statistics and data on the micro-householders of his kingdom in the Domesday Book in 1086. The king was also the head of a household, namely, his realm, and, like any householder, he was permitted to protect his household from internal and external threats. But this power is not like that of the other householders because his kingdom necessarily includes other householders within it. According to Pollock and Maitland, all institutions of English law and government find their way back to this expansion of the king’s household: “All medieval governmental departments began as a division of the household, including chancery, exchequer, the chamber, the wardrobe, and the royal courts of law.” Previous to this, the relations between one mund and another resembled international relations. Under the great household of the kingdom, their distinction began to fade, and, since these smaller households were seen as equally inferior objects of the kingdom’s arms of administration and management, the previously significant differences between them were levelled. This is the imposition of the “macro-household,” which encompasses “micro-households.” Although the lords were able to run their estates in virtually the same way, they now answered to a mund as well. This was the status of the American colonizers when they arrived in the New World. Although it may have been difficult for the king to manage his household from so far, the plantation owners and governors of colonies in the New World arrived already exercising power under the jurisdiction of a macro-household. This sacrifice of ultimate authority was illustrated by the oath required in the Laws of William the Conqueror, which decreed that “Every freeman shall affirm by oath and compact that he will be loyal to king William both within and without England, that he will preserve with him his lands and honor with all fidelity and defend him against his enemies.”
It’s worth pausing here to make note of those enemies. When the king expanded his mund to cover all of England, he was also normalizing the law. Before him, there were guidebooks and agreed conventions among householders, but the ability to determine conduct within the household was generally under the discretion of the householder alone. The king’s decrees have a special character in that all minor householders were then required to conduct themselves in relation to a new system of norms. The original offence —and the one that defines the severity of all the rest— of Anglo-Saxon law was the “breach of the king’s peace,” which was to be determined in a discretionary way. The enemy of the macro-household was not just a lordless man or an outcast from his household —he was an outlaw of civil society itself, the enemy of the people. In such a circumstance, it becomes nearly impossible to distinguish between internal discipline and external war. Breach of the oath was called felonia, and technically anyone is capable of committing one. Committing violent or dreadful acts against a member of the household could generally be paid for with money, whereas the act committed against the lord, which breaks the oath of fealty, “Is compared to blasphemy against the Holy Ghost; it is punished by a death cruel enough to seem a fit beginning for the torments of hell” (Maitland and Pollock). This was still the case with the micro-householders of the American South. A 1740 South Carolina law stipulated that the killing of a slave could be remedied by paying a 700 pound fine, whereas the slave who killed his master was subject to public torture and execution. But with the expansion of the king’s household, the terms of the felonia were applied much more broadly. Any serious offense could be constituted as a felony, and the offender would be under the mercy of the king, who had the power of life or death over the offender. It was in the king’s discretion as to whether the offender’s continued existence threatened the good of the household or not. If they were deemed a threat, they were an outlaw and were condemned to death.
There is one very special crime that was formed at this time: treason, or the killing of the lord. Within the king’s mund, this crime is hardly possible —if one kills the master, who will punish the criminal? In the formulation of household management since Ancient Greece, completed treason was not just a disturbance of the household, it was its complete destruction. In such a case, the household must be reconstituted. Given the severity —or even the impossibility— of such a crime, treason was not punished, but was prevented. This makes treason the first inchoate crime (punished before it is committed) in the Anglo-American legal tradition. For instance, the Treason Act of 1351 holds that to commit treason means to “Compass or imagine the Death of our Lord the King,” or his family members. Killing the king was not outlawed, because that would amount to destroying the household itself. Treason doesn’t only refer to an attempt to kill the king. Imagining his death was enough to punish. The Treason Act also criminalizes the imagining of the murder of the king’s family, the rape of any member of the king’s family, “levy[ing] war against our Lord the King,” aiding his enemies, or counterfeiting money.
Treason was punished in the early days of the colonies, and most brutally against slaves and natives. In 1710, Salvador, a native, and Scipio, a slave, were convicted of high treason for planning a slave insurrection. They were quartered and the pieces of their bodies were sent back to England to be exhibited in various towns. Petit treason was punished when the plantation householder was threatened, and punishment was meted out by the courts if the master had been killed. Today, we have innumerable inchoate crimes, which ultimately go back to either a breach of the peace law or treason: possession, conspiracy, attempt, misprision, and solicitation are the most common inchoate crimes in the U.S.
The emergence of the macro-household administration reached a deeper stage in its imposition during the breakdowns suffered at the collapse of minor feudal estates throughout Europe. In the feudal household, political and legal power coincided with economic order. The economic structure of the household was also the management of political relations between subjects. According to the common story, that domestic paradigm of power remained unbroken —from the Greek to the Roman household, the Imperium, and finally in the feudal estate— until it was destroyed or at least bracketed by the liberal contract theories based on “natural law.” These contracts were explicitly conceived as a rejection of patriarchal and household rule. Norberto Bobbio wrote that for early modern theorists of natural law, “the principle of legitimation of political society is consent; this is not true of any other type of society. In particular, it is not true of domestic society, that is of the family/household.” But this misses the fact that, as the expansion of the capitalist market and nation-state constructs of civil society may have dissolved the powers of the feudal household and familial bonds, it did not eradicate domestic government in general. There was no clean break between feudalism and capitalism. What occurred was a displacement of domestic discretionary powers from the hands of feudal lords, kings, and bishops into a radically differentiated and diffuse force we call “police.” The Enlightenment and the American Revolution wrested the power to police from the hands of the king and laid it into the hands of slave owners and factory managers. Over time, police power was scattered across a plethora of bureaucratic and minute functionaries.
The word “police” first emerged in continental political discourse in the 15th century, but it’s nothing new. Its semantic relation to “policy” is clear. In order to conceptualize the genealogy of police, one must forget the boys in blue and the beat cops for a while. We’ll get back to them, but the conversation about police encompasses much more than just them —in fact, for now, they divert from our object. The term “police” in the 15th century meant the administration and management of a political community to increase welfare, regimentation, and order. Police (or policy) was a stand-in for “household economy” and took root at precisely that moment when power was leaving the hands of the “micro-householders” and was largely transferred to the “macro-householder.” Up through the 19th century, one would rarely see the word “police” on its own. It was most often used in phrases like “police and good order,” “regiment and police,” “police and glory,” or “well-ordered police state.” It encompassed a vast range of objects. In Delamare’s 18th century compendium of police ordinances in France, he specified some of the domains with which “police” were concerned: “religion, morals, health and subsistence, public peace, the care of buildings, squares, and highways, the sciences and the liberal arts, commerce, manufacture and the mechanical arts, servants and laborers, the theater and games, and the care and discipline of the poor.” As he writes in another passage, “police encompasses in its object all the things that serve as foundation and rule for the societies that men have established amongst themselves.”
Europe suffered a series of major breakdowns from the 14th through the 16th century. The old ways of life, so ingrained in the household, the commons, and the soil, were being uprooted. The first breakdown was the Black Death of the 14th century. Some estimate that around 100 million people died from the plague between the 13th and the 14th centuries. Land was suddenly plentiful, laborers in short supply, so wages were higher, and the power of the landowner was greatly diminished. The newly depopulated Europe became more mobile and more active, and everyone had their own ideas as to why the Black Death struck including prophets blaming the moral corruption of the princes and pope. The real coup de grace against anything resembling manorial micro-domestic power in central Europe was the series of peasant rebellions in the next few centuries. Wat Tyler’s peasant revolt in the 14th century against the imposition of a wartime tax was a first strike. Then, a long series of revolts would follow: the Comuneros in Spain, the German Peasants’ Revolts, and the growth of heretical and millenarian sects throughout central Europe. In the centuries following the Black Death, population spiked in England and Europe, and a new dissolute mass soon found themselves without work and without obligation. The growth of towns further distanced the European laborer from manorial authority, opening up new venues and spaces for meeting others. For the old powers of Europe, this new experimental class appeared as a “dissolute condition of masterlesse men, without subjection to Lawes, and a coercive Power to tye their hands.” (Thomas Hobbes) Outlaws and lordless men were now found everywhere, because the micro-households were collapsing, and their former members were enjoying their new “masterlesse” lifestyles. The reason why the Strasbourg police ordinance for 1628 could be something so broad as the correction of “disorder and contempt of good laws…all kinds of wrong-doing, sin and vice” is because the traditional systems of authority for maintaining good order had broken down.
The police power shares a mode-of-perception —a way of seeing— in all its historical variations. Every police project has as its aim the production and maintenance of order, and thus takes disorder as its starting point. The existence of police power presupposes the existence of disorderly individuals who need to be managed. That is the police vision. The same Strasbourg ordinance, for instance, dealt with the following:
moral questions such as Sunday observance, blasphemy, cursing and perjury, provided rules for the bringing up of children, keeping domestics, spending at weddings and christenings, and dealings between innkeepers and guests. It also dealt with sumptuary regulations, the status of Jews, rules governing funeral celebrations, the prevention of usury and monopolies, the condition for good trading, and contained rules concerning gaming, and breaches of the peace. (Mark Neocleous)
The police have a special relation to the literary device of the list. It is the paradigmatic tool of police taxonomy. Because they do not derive their power from any legitimate political source, and because they view their objects of regulation with the same view towards preventing danger, minimizing risk, and maximizing functionality, they merely list objects side by side, regardless of how different they are, with a view only of their functional relation. One of the first such lists, the imperial list of police offences from 1530, is characteristically expansive and vague. It includes the following titles:
- Of blasphemy and oaths
- Of drunkenness
- Of disorderly and Christian dress
- Of excessive expenses for weddings, baptisms, and funerals
- Of day laborers, workers, and messengers
- Of expensive eating in inns
- Of civil contracts
- Of Jews and their usury
- Of the sale of wool cloth
- Of the sale of ginger
- Of measures and weights
- Of servants
- Of carrying weapons on horse and on foot
- Of beggars and idle persons
- Of gypsies
- Of jesters
- Of flute players
- Of vagrants and singers
- Of sons of craftsmen and apprentices
We don’t quote this merely for fun, but to note some of its principal features, which continue on today. For one, human and inanimate objects are mixed. Second, status and act are mixed. Why these objects and not others? Simply because these are the objects that created problems to be managed or were perceived to be capable of creating problems in the future. Again, they have no relation to the primordial or actually existing constitutional rights of a citizen, but instead direct themselves toward objects to be managed. For those who believe the American tradition of policing offers something different, here is the list of the objects of police regulation passed by the New York state legislature between 1781 and 1801:
- Hawkers and peddlers
- The firing of guns
- The buying and selling of offices
- Beggars and disorderly persons
- Rents and leases
- Firing woods
- The destruction of deer
- Stray cattle and sheep
- Apprentices and servants
- Idiots and lunatics
- Counsellors, attorneys and solicitors
- travel , labor, or play on Sunday
- Cursing and swearing
- The exportation of flaxseed
- The inspection of lumber
- The culling of staves and heading
- Debtors and creditors
- The quarantining of ships
- Sales by public auction
- Stock jobbing
- The inspection of flour and meal
- The practice of physic and surgery
- The packing and inspection of beef and pork
- Sole leather
- Strong liquors, inns, and taverns
- Pot and pearl ashes
- Poor relief
- Quit rents
Any apparent absurdity of a list like this (and there were many others collected by William Novak), which claims authority and the ability to regulate differing objects apparently dissipates when the police power regulates them under different names. We laugh at a list like this, but accept that these objects need to be managed by someone else so long as the body that does it is sufficiently differentiated under titles like “Department of Transportation” or “Public Hygiene.” Some spaces still function with full and undifferentiated police power, like the military and the school where there is no need to pretend to make distinctions. The list we cited above (in the Homonoia section) from the St. Paul Public School’s Student Behavior Handbook displays this full police power.
If the objects that police encompass are in some ways infinite, as Duschesne said, it is because the disorder of the world is perceived to also be infinite. Police were involved in virtually everything in this new disorderly civic world, and thus they had to be virtually everywhere, even when they couldn’t be. Sartines, a French lieutenant of police under Louis XV, bragged that where three men were talking on the street, at least one of them worked for him. At the funeral service for the police officers murdered in Dallas in July, 2016, a partner of one of the murdered cops mused that when he gets to heaven, “God will look right at me and Brent. He will smile because the team will be back once again. I will hear him say ‘Kyser, Thompson. Two-man team. Keep the streets of heaven safe.’” For the police, even heaven in all its perfection is perceived to be in eternal need of management. Police are the mobile functionaries who labor to produce civic order in a world said to be in the process of eternal breakdown.
For those who wish to conceive of some kind of independence between “economic” relations and “political” relations (or who subordinate the political relations and imaginary to the “economic”), the police are the greatest stumbling block. If we have mostly refrained from talking about “capitalism” in relation to the tradition of management, it is because it is too often given the appearance of something necessary and eternal, as if it were the apex of a development or the final, and thus truest, form of managerial power. Anyone who historicizes the police will see how much trouble the capitalist class had in instituting capitalist relations, and also how capitalism was, from the beginning, conceived as a system capable producing good order among disorderly civic elements, and is thus inseparable from its political founding acts and the political imagination that surrounded it.
Sometimes naming the beast contributes to closing the field of discourse, assigning objects and vocabulary different levels of priority that make it difficult to conceive of the “processes” of capitalism rather than its “properties,” so we avoid doing so as much as possible. Those who talk of a bourgeois class “wielding” political power as if it were a pre-existent instrument are incorrect. The “economic,” insofar as it requires the internalization of its principles and a regularized system of order between subjects, is already completely political. In other words, there is no moment that the economic is not also a moment of the political. Consider the case of Lyons in the 16th century. Lyons’ population began to increase around the year 1500 as it developed into a prosperous commercial center in its transition to a capitalist economy. Many of the new inhabitants were absorbed by industry, but those who remained outside became mostly vagrants and beggars. When famine was bad, prices went up and hordes of peasants flooded the city. “In 1529 food riots erupted,” Piven and Cloward wrote in Regulating the Poor, “With thousands […] looting granaries and the homes of the wealthy; in 1530, artisans and journeymen armed themselves and marched through the streets; in 1531, mobs of starving peasants literally overran the town.” The result was that the authorities took over the task of almsgiving with the goal of regulating the behavior of the population receiving it. About 10% of the city was on the list of those needing consistent relief, while the patients in the hospital for the poor had tripled at this point. But the process did not end there. Those who were registered by the city were identified and watched over by rechters who were allowed to search their homes for “evidence of immorality” and who made sure they did not visit taverns or play cards. Schools were created for the the now-identified pauper children to teach them to read and write. Those who returned to begging “were chained and set to work digging sewers and ditches” (Piven and Cloward). The city officials did not brag about their charitable nature, but were happy to have made Lyons “a vision of peace.”
What leftists often fail to thematize is that capitalism is a question of the organization of the world. As Voltaire put it, “What? Now you are set up as a body of people, but you still haven’t found a way to force the rich to make the poor work? Evidently, you have not even reached the first elements of ‘police.’” The word “economic” refers to those things already “economized” or “depoliticized” by the political movement of capitalism and whose political capacities are being categorized and managed. Hence the primacy allotted to the word “capital” in both the economic and the political. In the political sphere, it denotes the sovereign’s power over life and death, and in the economic sphere the power of private property as the condition (the “stock”) of life. Mercantile or financial economies are not possible without the corresponding maintenance of the order of the world. The police are there to fulfill whatever tasks necessary for this maintenance. This is clear from the fact that work and wages were conceived not only as ways to increase capital for the state, but also to produce order among political subjects. It is obvious that “Any institution that distributes the resources men and women depend upon for survival can readily exert control over them” (Piven and Cloward). “The spirit of commerce,” Montesquieu wrote, “brings with it the spirit of order.” We do not believe, like Marx, that something like “labor power” lies dormant, waiting to be exploited by a capitalist class. Labor is an interpretation of variable activities, and their conceptualization as “labor” is part and parcel of a capitalist ontology.
With that in mind, we can understand why policing, a concept denoting the maintenance of civic relations and prevention of disorder, would be involved in something like grain regulation. As Leray de Chaumont, a French entrepreneur involved in financing and organizing the royal grain reserve for Paris, put it in 1766: “If 800,000 people [in Paris] were to lack bread for six hours, everything would blow up.” According to Adam Smith, the objects of police include: “The cheapness of commodities, public security, and cleanliness.” What we need to understand is that these objects are to be understood together, as comprising the organization of a possible social order. The beggars and vagrants were not only denounced because of their lack of productivity, rather, their supposed lack of productivity was also feared as possibly leading to potentially disorderly or rebellious behavior. One cannot separate the imperative of social order and the imperative of capitalist exploitation. “Society should demand that every citizen ought to work” was the 19th century German Jurist Sonnenfels’ ultimate maxim for civic order. The vagrant was not characterized by his unproductivity, but as a symbol for all the disorders the police were supposed to manage —he had no family, no civic identity, no work, he was dirty, and above all, dangerous. The importance of work for the vagrant was that it restructured his life according to increasingly internalized principles of rational order. The police, being tasked with producing a system of order and making it internal to political subjects, are barely distinguishable from the “citizens” that arise from this process. Both are inscribed in “good order,” and both are tasked with defending it.
The political structuring moment of the economic is also apparent in the connection between the concepts of “property” and “propriety.” Derrida used the phrase “metaphysics of the proper” to denote both the semantic and the conceptual closeness between owning property, conforming to good propriety, and cleanliness. If good order is associated with health and cleanliness, then disorder must be the source of dirt, disease, and garbage. The 19th century social reformer Edwin Chadwick was singularly concerned with the sanitary conditions of the city and of the laboring classes in his Report on the Sanitary Condition of the Labouring Population of Great Britain, written in the wake of the cholera epidemic. His official concern was to report on the state of open cesspools, garbage, and excrement in the city and river with the goal of finding the origin of the disease. Chadwick prescribed to the “atmospheric” theory of the disease, which held that the disease emanated from a mixture of the epidemic influence in the air with organic waste that made it malignant. This atmospheric emanation was known as “miasma” and was intimately connected with smell. “All smell is, if it be intense, immediate acute disease, and eventually we may say that by depressing the system and making it susceptible to the action of other causes, all smell is disease.” (Edwin Chadwick) With this in mind, it should come as no surprise that Chadwick would approvingly cite one reformer as saying “that the vitiation of the atmosphere by the living is much more injurious to the constitution than its impregnation with the effluvia from dead organic matter.” Immediately, the concern with “sanitation” in the city turns toward what Chadwick labels “human miasms” and the “secretions of poverty.”
Sanitation has to date never been conceived of as independent from orderliness characterized by Catharine Beecher’s maxim “A place for every thing, and every thing in its place.” The words “residuum,” “refuse,” or “offal” were used just as often to denote the sewage waste that constituted the sanitary problem as to refer to the human waste that constituted the social problem. In the eyes of police, the improvement of sanitation and order goes hand-in-hand. For instance, Chadwick remarks that the improvement of ventilation in the homes of the laborers has many “manufacturing advantages” where “the improved health of the work people [is] attended by more energy and better labour; by less of lassitude and waste from relaxed attention; by fewer interruptions from sickness, and fewer spare hands to ensure the completion of work.” To call the police “pigs” is structurally and historically correct. House pigs were kept in the Victorian household to eat and clear whatever was considered refuse and waste from domestic property. The police are similarly tasked with cleaning up the wild and unclean refuse of civil society. The police treat filth as something to be managed, thus creating a structural fluidity between disease and disorder. The fluidity between trash and disorderly elements and individuals is essential and cannot be separated. When sickness and filth are considered types of social wickedness, then “sanitation” is two-sided: it must heal the sick and control the wicked. According to Robert Cowan, the 19th century Professor of Medical Jurisprudence and Police at the University of Glasgow, “Powers should be given to remove filth of every description daily, and proper conveniences, constructed of durable materials and under the charge of the police, should be erected in the localities occupied by the working classes.” More recently, the Ottawa Charter for Health Promotion called for the creation of “health-promotive environments,” which would require political action: “Political change is a necessary component for the success of many multilevel behavioural change interventions.” The structural connection between sanitation and order explains the relative frequency with which one hears police officers talk about “criminal scum” and “dirtbags.” This language is structurally coherent with the fundamental tasks of the police: clearing the earth and its good order of those disgusting and diseased people who impede it.
c. law and order
It matters little where the Americans’ concept of police power originated. Despite claiming autonomy from the continental monarchies and basing their new form of governance on “independence,” the Americans uncontroversially imported the practice and notion of police from that same tradition, even making it the “widest” and “least limitable” power of governance. They came from a legal tradition where it had already been practiced in tandem with the notion of citizen autonomy since its founding in Greek democracy, and, like them, they claimed self-governance while the majority of their inhabitants lived highly regulated and controlled existences. Before Jefferson and James Wilson wrote down the word “police,” the country was already familiar with how policing was practiced on their slave plantations, in their religious communities, and at home, all of which are based on the principles of oikonomia, not politics. The American revolution, as we showed above, was not a revolution against policing, but a revolution against the macro-authority of the king’s police power. No longer did slaveholders have to account for killing their slaves, they were again the ultimate householder. “After the revolution,” writes Markus Dirk Dubber, “[the Americans] were truly free to police.”
The question of what that power was and how it was to be implemented rarely went beyond stating its obviousness. Judge Redfield’s opinion in Thorp v. Rutland & Burlington Railroad Company makes a classic defence of American police:
One in any degree familiar with this subject would never question the right depending upon invincible necessity, in order to the maintenance of any show of administrative authority among the class of persons with which the city police have to do. To such men any doubt of the right to subject persons and property to such regulations as the public security and health may require, regardless of merely private convenience, looks like mere badinage. They can scarcely regard to the extent of governmental authority come from those who have had small experience.
What a long-winded way to say you have no defence, no theory, and no justification. Pennsylvania’s Constitution of the Commonwealth written in 1776 illustrates this as well: “The people of this State have the sole, exclusive and inherent right of governing and regulating the internal police of the same.” Again, no reference to what that power consists of, its limitations, or what its relation to individual constitutional rights is. It’s simply asserted and assumed. The only attempt by a Supreme Court (Justice Shaw in the Alger case) to delineate a history and source of legitimation for the power to police places it directly in the passing of domestic power from the king to to the States:
When this country achieved its independence, the prerogatives of the crown devolved upon the people of the states. And this power still remains with them, except so far as they have delegated a portion of it to the federal government. The sovereign will is made known to us by legislative enactment. The state, as a sovereign is the parens patriae [parent of the nation].
The establishment of police power in the Twin Cities reflects all the components of policing we have highlighted so far. The book History of the Police and Fire Departments of the Twin Cities. Their Origin in Early Village Days and Progress to 1900, published at the close of the 19th century, and compiled and written by local journalists Frank Mead and Alix Muller, makes these connections clear. “Rapid growth coincident with disorder and crime” are said to be the primary factors for establishing a more organized urban police power. Here we read (in a list) that the first city marshal was tasked with those duties corresponding to our expansive definition of police, encompassing anything that encourages good order:
He was empowered and it was made his duty to execute all writs or other processes issued by the city justice, to collect by execution or otherwise all fines, forfeitures and penalties, to diligently enquire into and report to the city attorney all violations of the ordinances, criminal laws of the territory and breaches of the peace; to ferret out all suspicious and disorderly houses; to arrest with or without a warrant any person found intoxicated in the streets of the city or any person fighting, quarrelling, threatening, swearing, pilfering, or robbing, and to bring such offenders before the city justice — and generally to keep a strict watch over the disorderly elements of the city and prevent riotous proceedings. (Mead and Muller)
Later, we read that the main provision of the first major police ordinances in St. Anthony of 1858, after the establishment of the police, was “to take such measures […] for the preservation of the peace and good order of the city and the enforcement of its ordinances.” Most of these activities would not be considered “criminal law enforcement.” We must also consider that while a portion of the arrests made in the years before the 20th century were for typical crimes like theft, the majority were for the extremely vague “drunk and disorderly” and for “vagrancy.” Frequent reference is made to the “social evils” of vagrancy, prostitution, alcohol, and swearing and the “houses of ill fame” where such activities took place. One of the police force’s primary concerns was the “tramp nuisance.” Their solution to the nuisance was the ordinance of 1878 that “provided employment” (read: arrest and forced employment at work camps outside the city) for the “vagrants and disorderly.” The author marks the point at which Minneapolis “ceased to be a town and became a city” as the moment when Mayor Ames, who “manifested a disposition to take the bit in his teeth and run the city on what he thought the most approved of modern municipal principles,” increased the police force and began the practice of “detailing policemen for duty at railway stations […] all public halls and places of amusement; to be present at fires, etc. In short, strict attention to their duties and excellent discipline were inaugurated whenever possible.”
An obvious correspondence took shape: whenever the city grew and expanded, increasing in complexity and population, the police force was likewise expanded and differentiated. Perhaps it is the obvious nature of this correspondence that gives rise to the sentiment that “With more people, there is more crime, hence more police are needed.” Such a statement erases the way in which the police invented crime as a correlate to the production and proliferation of what was considered “normal civic behavior.” Minnesotans, like all citizens, were not born good citizens, they needed to be trained to internalize good order, and also, as the correlate, bad crime. They were trained in the forced work-houses, factories, and prisons. It is that internalization that creates the ambiguous threshold between the duties of the police officer and the duties of the citizens: “The good citizen will always seek to aid officers in the discharge of their duty, and no one but a secret sympathizer with crime will throw obstacles across the paths of the men in whose charge and keeping rests the responsibility of the city’s orderly well-being.” (Mead and Muller) Lastly, as the authors make clear, “Cleanliness in person and in morals are elements which are also firmly insisted upon by the official managers of the Minneapolis police force.” The authors go on to correlate the lack of alcoholics in the department (their cleanliness of health) with the lack of bribe-takers (their purity in civic morals). In the figure of the filthy “secret sympathizer with crime,” the police face that old spook, the outlaw, who must be eradicated for the sake of “the city’s order and well-being.”
The creation of the “social” must be situated in this wider domestic context of an expanding of the macro-household, and the gradual disappearance of most micro-households. Society and the social are generally thrown about as if they were eternal human conditions, but they, like rights or revolution, have a finite history and form part of the political strategy of a small group of people in a particular place and time. What is the “social” that the governor of North Carolina is so anxious to protect that he would warn during the September 2016 riots in Charlotte that “the state won’t tolerate efforts by those who ‘want to cause harm’ to basic society [sic] norms and democratic processes?”
The word “social” stems from the Latin socius, ally, which has no corresponding word in Greek thought. A societas originally had a strict and defined political limit. It denoted those who organized among themselves to achieve a goal. There were “societies” of thieves organized for a big steal and “societies” of slave-owners organized to put down a slave revolt. Not every association was a “society,” only those that required a temporary alliance. This remained true up to the 17th century, when “society” was used to denote a commercial association with an organizational logic distinct from that of the growing state discourse. None of these justify the application of “social” to every human form of interaction. This was still far from the totalizing extremes theorists of the next century proposed.
It wasn’t until the 18th century that the word “social” would become an independent field of study, thus creating the possibility of positing sociality as a fundamental human condition. But it still represented a single part of the human experience, and not its totality. Only religious and legal thought could lay claim to a truly totalizing worldview. It was in the 19th century that the social would be maximized and applied universally. According to this fanatical maxim, all human interaction and association could be called “social,” and that humans tended primarily to basic life needs. The idea that the social is the “really real,” the deepest and truest bond between human beings, has its origin in this development. There is great danger in this ahistorical claim. “Never before,” Arendt wrote, “had any political organism sought to encompass all those who actually lived in it.” We must consider why the “social” became an independent realm 200 years ago. Who needed society and why?
The crises of 19th century gave birth to society. If we plan to rediscover the history of the social, we must examine how household governance transformed into society as an explicit strategy of counterinsurgency. The first proper “social” question in the 19th century was: “Is there a way to manage the welfare of the new laboring class and colonial subjects such that everything continues to function?” That was essential as the revolts of workers, women, natives, and peasants became increasingly violent and unmanageable. In 1831, 1834, and 1848, there were major revolts in Lyon, France led by silk workers. In 1871, the Paris Commune was established by a terrifying assemblage of increasingly radicalized workers, hardened radicals like Blanqui, criminals, warring factions, spies, and petroleuses (female arsonists). The Commune was soon obliterated in bloodshed and turmoil. No doubt, Otto von Bismarck, the employer class, and the liberals wanted to avoid such a situation at any cost. Plus, they had their own radicals to deal with. If you took Bismarck at his word, you could assume that the Social Democrats were his greatest enemies, but this would be a mistake. They were the political rivals he deemed worthy of mention in political settings. He was afraid of the radicals, whom the Social Democrats also ousted from their party. It is absolutely essential to remember that the first welfare laws under Bismarck were passed simultaneously with his “anti-socialist” laws, which censored material from radical authors. As Karl Marx was predicting the end of capitalism at the hands of the workers, there were multiple notorious murders and attempted murders by anarchist radicals who were involved in the labor movement. Max Hödel and Karl Nobiling tried to assassinate the Emperor Wilhelm in May and June of 1878, and then in 1885, the anarchist Julius Lieske stabbed and killed the Frankfurt chief of police.
Fully identifiable with neither polis nor oikos, the social was conceptualized as “housekeeping” provided by bureaucratic functionaries. Society appeared when the administration of life-processes (oikonomia) burst out from the private or semi-private sphere of micro-households (church, military, family, plantation) into its own independent public sphere to be managed by official state and unofficial non-state actors. In “society,” the public is no longer the common space where different people can gather and make decisions —it is a field of government where behavior is tracked, transformed into predictable data, and subject to intervention. For this reason, the public space of society requires surveillance devices, which would ideally be voluntary (e.g. the census) or even fun and whimsical like those on social media platforms. Barring the possibility of surveilling a population with these easy and participatory means, social managers will just as quickly resort to security cameras, phone tapping, and data mining.
When society appears, the micro-householders begin to disappear —not immediately and all at once, but over time. Society was nothing other than the implementation of domestic forms of rule applied as counterinsurgency. To say “society” is to say “police.” The only question the social is capable of asking is “How should this population interact such that everything functions properly?” The social question is always a question of social imperialism, or of implementing social relations. In order to implement this social imperialism, multiplicities must first be recast and understood as “populations.” Bismarck created the first modern social insurance system with the understanding that:
. . .the actual complaint of the worker is the insecurity of his existence; he is unsure if he will always have work, he is unsure if he will always be healthy and he can predict that he will reach old age and be unable to work. If he falls into poverty, and be that only through prolonged illness, he will find himself totally helpless being on his own, and society currently does not accept any responsibility towards him beyond the usual provisions for the poor.
Forget any political agency, you workers are merely tired and hungry, you have necessities we would be happy to furnish, provided you all get back to work. The American Social Security Administration’s website has a short passage on Bismarck, which states “Bismarck was motivated to introduce social insurance in Germany both in order to promote the well-being of workers in order to keep the German economy operating at maximum efficiency, and to stave-off calls for more radical socialist alternatives,” a tactic they would employ in the New Deal. Bismarck made novel promises to the populations in Germany in a series of new laws including health insurance, a pension, a minimum wage, workplace regulation, vacation, and unemployment insurance. Bismarck later told his American biographer William Dawson: “My idea was to bribe the working classes, or shall I say, to win them over, to regard the state as a social institution existing for their sake and interested in their welfare.” With every wave of “socialization,” every wave of worker protections, and factory regulations, or occupation and relocation, came a strict and regulated reproduction of newly normalized relations. “Do not doubt that we are acting honorably to strengthen the domestic peace,” Bismarck assured the Reichstag in a speech on his new Law for Worker’s Compensation in 1884, “and particularly the peace between worker and employer, and to arrive at the result that we will be in the position to renounce […] continuing this emergency law, which we refer to as the Socialist Law, without exposing the commonwealth to new dangers.” Frederic Howe, an American proponent of the Welfare State, wrote that such a state:
. . .has its finger on the pulse of the worker from the cradle to the grave. His education, his health, and his working efficiency are matters of constant concern. He is carefully protected from accident by laws and regulation governing factories. He is trained in his hand and in his brain to be a good workman and is insured against accident, sickness, and old age. While idle through no fault of his own, work is frequently found for him. When homeless, a lodging is offered so that he will not easily pass into the vagrant class.
The Laroque Report of 1984, published by the International Labour Office, states unequivocally that social security “. . .has wider aims than the prevention or relief of poverty…It is the guarantee of security that matters most of all.” Social security and the more neutral sounding “welfare” are visions of security in a world system founded on insecurity.
Sociological interventions respond to, but also shape and mold, the identity and desires of the “targeted population,” first of all by separating them from their surroundings. The historical precedent for this is the Domesday Book of William the Conqueror. In 1085, William ordered bureaucrats to note his stock of resources in his realm, in what was effectively the first census. The purpose of this huge endeavour was to impose his new system of taxation in a regular way across the kingdom. In terms of real experiences, such statistics levelled the differences between groups living there, taking no note or interest in local differences between people. The production of populations constituted by their statistics considered as fiscal data, behavioral patterns, or physical properties transforms them into objects of management under a new administrative household.
The Domesday Book is an early example, but the real prioritization of “population data” emerged in the 19th century with so-called “sociologists” like Comte. In the 1830’s, a mathematician in France named Adolphe Quetelet realized that one could apply the principle of calculated averages primarily in use in Astronomy and apply it to sets of people. His first set was a group of 5,000 Scottish soldiers. He measured their chest size and then averaged it, finding that the “average” chest size, already for him the “ideal” chest size, was 39 ¾ inches. For Quetelet, the average was always already a moral mandate. People who shared the same environment must be striving for an ideal state, which can be found in the average. With this idea, he quickly moved on to “average” rates of divorce and suicide, which, at the time, was rightly considered scandalous. What is the “ideal rate” of suicide? Naturally, his method also applied to criminology and crime statistics. His statistics found that young, poor, uneducated males with few prospects had highest rates of crime, especially when surrounded by wealth. Rather than questioning the basis of that distribution and the source of that wealth, he concluded that crime was due to both “moral defectiveness” and “biological abnormality,” which could be seen, for example, in a physical body type that deviated from the average. Thus, his policy recommendations tended toward “investment in savings banks, assurance societies, and the different institutions which encourage foresight,” or teaching moral rectitude to help those deformed deviants learn some civility.
The two great social welfare expansions in America occurred in response to the crises of the 1930s and those of the 1960s. In August 1931, over eight million citizens were unemployed. By 1933, that number would be closer to 15 million. The production of a relief system to absorb this growing mass was slow and widely resisted in America. This was the country where one was supposed to pull themselves up by the bootstraps. The New Deal in the 30s and the Great Society programs of the 60s both had “the preservation of capitalism at all times in view” as a Time magazine article about the New Deal put it. But what exactly threatened capitalism at these times? The fear was in the dissolution of civility and good morals among the unemployed. Having no work, men wandered. It became less likely for them to marry and settle down. They may turn to crime or riots to take what they want or need. Even worse, they may meet with other disenfranchised unemployed and simply begin organizing to get what they need. It took the Great Depression and millions to be unemployed together on the street for the sentiment to change from individual shame at being unemployed to recognizing it as an inherent and desired part of a capitalist economy. In Chicago, a group of around five-thousand unemployed organized a march on relief offices demanding free meals, free lodging, tobacco, and the right to hold Council meetings. When the relief funds were cut by 50%, they marched again and the cut was rescinded. There were rent riots in New York and Chicago’s primarily black neighborhoods. Groups would gather to return an evicted tenant’s furniture back into their apartment, even if that meant fighting landlords and police. After one riot in Chicago in 1931 during which three cops were injured, evictions were temporarily suspended and work relief was doled out to the rioters.
Communist, anarchist, and socialist groups were beginning to look a lot more attractive to the unemployed and with riots becoming more common and unemployment still on the rise, one could speak of a “mass disorder” by the mid-30s. The New Deal (though it made some concessions that more hard-line American ideologues were uncomfortable with) was designed to steal that thunder and return the unemployed to work where they would become stable again. Roosevelt put it in simple terms: “I am fighting Communism, Huey Longism, Coughlinism, Townsendism,” he told an emissary of William Hearst in 1935, “I want to save our system, the capitalistic system; to save it is to give some heed to world thought of today. I want to equalize the distribution of wealth.” Direct relief is never the goal. By 1934, Roosevelt was calling for its dissolution. “Continued dependence upon relief” he said to Congress in 1935, “induces a spiritual and moral disintegration.” Direct relief may even have the opposite of the intended result that workers might begin to realize that there is no need to work if they can extract a living from relief agencies.
That is why so much more effort was placed into developing the Works Progress Administration, which provided jobs directly to the unemployed. Harry Hopkins was appointed administrator of the WPA, and, since he was also the administrator of the direct relief fund, one of his first jobs was to transfer as many millions over to the work relief program as possible. He set as his task the elimination not of want, but of that “still further destructive force, that of worklessness.” Along with a job (typically in infrastructure), the worker also came under the surveillance of the agency, who could suddenly take the job away were it discovered that he (or a woman receiving direct aid) had “immoral habits” or belonged to a radical group. They could also be mobilized as a reliable (because extremely dependant) political force when necessary. Many WPA officials were charged with passing out pre-filled ballots to their constituents. But most of all, work relief eliminates free time, situates and fixes the worker in a space, and provides regularity for his life style. Many of the jobs provided were economically “bad investments” in the sense that they did not produce profit. It was much cheaper to just give out direct relief. Work relief was intended to train a workforce by acclimating it to difficult and regular work.
If welfare had as its goal the elimination of the suffering and want necessarily created by a capitalist economy, then the expansion of the welfare rolls following Northern migration and unemployment of black laborers should have been dramatic. America’s five largest urban counties experienced black population increased of up to 97%, but, outside of Chicago, the rise in welfare rolls was nowhere near that number (only 4% in Philadelphia, and New York by 16%). In the 1960s, there was a dramatic rise in disorders, and hence, a dramatic rise in welfare. Vandalism was on the rise, inner-city gangs were forming, and there were destructive riots in New York, Los Angeles, Philadelphia, Newark, and Detroit. The denunciatory climate of the Black Power movement and the more radical wings of the Civil Rights movement threatened to provide more focus to these rising disorders and potentially threaten the white civic order of the day. And so it is only after 1964 that welfare rolls increased at an exorbitant rate. The largest five urban counties experienced an expansion of 105%. Most of those receiving direct relief were and are women, who, contrary to the many slanderous myths about them, often have to work extra jobs just to scrape by. But more importantly, they come under direct surveillance by regional and federal institutions who manage social discontent arising from its most marginal members. Rudy Giuliani wanted to create a new work relief program in New York, but this would have been merely for show, especially after Bill Clinton’s Personal Responsibility and Work Opportunity Act. This act withheld welfare benefits from immigrants for five years, required recipients to find work within two years, and often required work training or occupational seminars for those on the rolls. Here is the pattern: social disorders multiply due to the crises of the social order, welfare is doled out to placate the most dangerous and get them and other potential threats under permanent surveillance and control, degrade and demean those now on welfare for being “entitled dependents,” and reduce the rolls in times of social peace, forcing as many as possible to take the worst-paying and demanding jobs.
The production of statistics that are used to mark “real properties” of these populations must be viewed as a foreign and aggressive instrument, a way of distributing information that depoliticizes that which is categorized by treating everything as neutral information. The Enlightenment thinkers, Physiocrats, and imperial policy makers of the 19th century did not “discover” some deep, hidden truth about humanity in “society,” but initiated a new phase in the project “of depoliticization, a multilayered attack on political philosophy and, more importantly, political action, whether understood as authoritarian states or the politics of the dispossessed in both metropole and colony” (Patricia Owens). When bureaucrats consider a population based on its behavior, they attempt to capture some amount of routine conduct that they can regulate and normalize. To summarize, the production of a social population consists in a series of interventions targeted at potentially insurgent or actively insurgent groups, which seek to reconstitute them at the level of biological necessity and demand in order to suspend any political possibility of contact. This armed social work has a dual face: it must often reconstitute these groups using violence, relocation, or the manipulation of necessities (privation of food or water) to sever the possibility of clinging to a previously strong bond, while presenting itself as a benevolent power, providing everything you might want to make you happy in life. Certain forms of life have been deemed permanent objects of management and effectively incapable of political life, including the mentally ill, the “handicapped,” the terminally ill, children, refugee camp inhabitants, and prisoners.
With all this talk of welfare, we do not mean to overlook the fact that the United States was founded in the extra-legal violence of counterinsurgency and has never escaped that lineage. The strategies of pacification and control in the Philippines, on slave plantations, and in Vietnam, Iraq, and Afghanistan are more instructive case-studies of American governmentality than spectacular election campaigns and corruption. The techniques of domestic production and control “are being practiced in the streets of Ferguson, Missouri, the Pine Ridge Indian Reservation, [and] the drone routes of the Federal Administered Tribal Areas of Waziristan” (Jairus Grove). The armed police are a permanent reminder of these colonies’ origins in the extermination, expropriation, reeducation, and pacification of natives and slaves. In addition to the wars of extermination against natives in the mid 1800’s, there were also mass relocations in the 1830s, accompanied by the promise of services and “education.” Uprisings like the Minnesota Dakota War of 1862 were common responses to the failure of the Indian Agents to provide the food and money guaranteed by the treaty, or simply in refusal to be removed from their land. Federal boarding schools, where “by complete isolation of the Indian child from his savage antecedents […] he [will] be satisfactorily educated,”, were established in the 1850s, but the practice preceded that date in the Christian reform schools (John B. Riley, Indian School Superintendent). Some of these were run by Christian missionaries, and others by the Bureau of Indian Affairs. It was also during this time that one of the first federal bureaucracies, the Bureau of Indian Affairs, was created by and administered by the War Department. This was one of the first federal bodies to be endowed with police powers.
Seeing counterinsurgency in governmentality makes it clear that progressivism, pacification, and war are three aspects of the same domestic paradigm. We do not need to prioritize the “positive” participatory aspect of policing above the brutal violence of the concentration camp. The domestic paradigm shows that the prison, the school, and the drone are aspects of a single —yet manifold and heterogenous— organizational pattern. Educate the young, offer selected groups some resources, kill and starve the agitators, often all at the same time —the task always being to train a population perceived to be a danger to the growing world-view of the counterinsurgents. It’s interesting that political writers today like Michael Knight of the Washington Institute for Near East Policy would react to ISIL’s counterinsurgency strategy in the following way: “ISIL’s current vision of counterinsurgency seems to be built on the extraordinarily dark premise that the citizens of its self-declared caliphate will undoubtedly revolt unless they are actively prevented from doing so. From the very outset, ISIL has viewed its own purported citizens as the greatest threat to its regime security.” Interesting because, despite his claims that American counterinsurgency differs by “working with the locals,” the goal and premise, and often the tactics, when necessary, are exactly the same.
If civil war destabilizes the difference between inside-outside and between war-peace, it also destabilizes the difference between police-counterinsurgency. By reinscribing the political with civil war (and thus preventing the positing of an “actual center”), the “internal good order” of the police more often resembles the hostile and cynical maneuvers of a counterinsurgent force directed at a potentially dangerous civilian population. If they aren’t strictly the same, they are at least part of the same domestic paradigm and have deeply informed each other since their earliest formulation. Britain’s imposition of colonial law and penal system was simultaneously instituted with the founding of its national network of police, courts, and prisons and was thought of as a neutral experimental ground for new managerial techniques. Counterinsurgency texts ranging from Charles Gwynn’s Imperial Policing to the current U.S. Army and Marine Corps counterinsurgency manuals explicitly link policing and counterinsurgency, implying that each practice can fluidly draw on the other.
This fluidity is possible because the police did not arise as a solely repressive apparatus, nor have they ever been exclusively or even primarily one. That particular misunderstanding comes from seeing police only in discourse on law and punishment. This favoring of crime and punishment increases the distance between the “regulative” and “preventative” powers associated with police power, making both seem natural and necessary in comparison with the brutality of a minority of police officers. We are not suggesting that the riot police of today should be held against an older and purer standard of how police should act, but that the administering and regulation of necessities and desires should be seen first as a form of policing —as the manufacture and control of manageable depoliticized life-forms. Reappraising the actual legal status and textual tradition of police means questioning who the police really are. Are the uniformed officers the only police? What about security guards? The plains clothes detectives? The government employees who check our taxes? The social workers? Imperial soldiers? Counterinsurgency street patrollers in Iraqi villages? The teachers? The king has long been dead, but with the rise of “society,” police power is no longer encumbered by a single body and its extensions. Instead, we are faced with diffuse and often contradictory functions, operations, and practices, all of which aim toward the maintenance of order and belong under the title “police.”
The common “crime and punishment” legal perspective on street police officers and beat cops —the archetypal images of police— holds that their primary task is to locate and arrest criminals. This obfuscating myth propagated both by the police (the vanguard in their imaginary war on crime) and the Left (who merely critique the exceptional transgressions of this function) has contributed to a confusion around the term “police.” Surely this is a result of the differentiation of police functions in the 20th century, which demarcated new legal distinctions between the different aspects of “police.”
The activities and objects previously subsumed under “police” (including refuse, welfare, road cleansing, health and the administration of poverty) were passed on to new bureaucrats like public health officials, social security and welfare officers, city cleaners. The tasks of the “medical police,” for example, would continue under the auspices of “public health” and then as the medical arm of social security. As concerns those who carry the official title of police, criminal law enforcement barely takes up a fraction of how they spend their time. In fact, they spend the vast majority of their shifts patrolling, and not necessarily in search of criminals, but merely to deter or to regulate. Egon Bittner, a criminologist who wrote for the Department of Justice as well as the National Institute of Mental Health, wrote that arrests are extremely rare in proportion to the officer’s entire shift and that, “Those arrests that do occur are for the most part peacekeeping expedients rather than measures of law enforcement of the sort employed against thieves, rapists, or perpetrators of other major crimes.” All this should not lead to the conclusion that there was a narrowing of the police function, but rather that it experienced a functional differentiation, a radical diffusion where its processes were seen as increasingly neutral and necessary aspects of civic life.
This differentiation led to the present confusion around “legal” order and “police” order. We don’t need to provide evidence for the fact that police are most often viewed as the vanguard of the eternal war on crime. This is an image we are all familiar with, whether from an officer’s statement or Law and Order reruns. In this war on crime, the police are presented as subservient to this thing called Law, which structures and regulates the scope of their activities and infractions against it. The Law, we are told, is created by the Legislature, which is independent from the police and thus untainted by personal motivations and interest. We are upset when the police officer oversteps his bounds by not following the Law, when he shoots an unarmed teenager or beats a protester. Such critiques accept at face-value the idea that the police are responsible for taking care of crime and are responsible to the Law.
It is this understanding we need to dismantle, because, as Egon Bittner has noted, “No human problem exists, or is imaginable, about which it would be said with finality that this certainly could not become the proper business of police.” The idea that police need to be understood against the law is a self-serving and limiting myth. Walter Benjamin says it in the clearest possible words:
The assertion that the ends of police…are always identical or even connected to those of general law is entirely untrue [… ] The police intervene ‘for security reasons’ in countless cases where no clear legal situation exists, when they are not merely, without the slightest relation to legal ends, accompanying the citizen as a brutal encumbrance through a life regulated by ordinances, or simply supervising him.
Some will claim that because the police are primarily tasked with social services, we should formalize this function and train them with this in mind, making the police into a group of social workers. This would integrate those officers into the administrative bodies that already exist without changing anything fundamental about how police function. This view also obfuscates the fact that whether police are using force or services, their main task is the production and maintenance of order.
The spectrum in which the police function is not Law-Crime, but Order-Disorder. The fog obscuring the meaning and the difficulty in demarcating the limits and functionality of Law and Crime can be cleared by viewing the spectrum of Law-Crime in the way it follows and reflects the spectrum of Order-Disorder. To those who insist that such-and-such officer did not act within the bounds of the law, we point out that the police are not obliged or even expected to. Bob Kroll, the Minneapolis Police Union President, recently noted that it was neither “unjust” nor “unlawful” that no criminal charges will be brought against the officers, Ringgenberg or Schwarze, involved in the shooting of Jamar Clarke because they followed procedure and training protocols “while acting within the scope of the law responding to a dangerous situation.”
Legally, he is correct. This case, like all the now-famous cases at cop-related deaths ultimately hearkens back to the Roman distinction between the discipline (often execution) of an offender that was necessary to maintain good order, and discipline administered out of “malice.” The present debate around police culpability revolves around this now ancient concept of household governance. In Ancient Rome, householders who were shown to have acted out of “malice aforethought,” were held to be liable for punishment or discipline, but if they could prove that it benefited the safety and welfare of the household, they would not be held liable. This emphasis on “fitness” and “unfitness” as revealed by “malice” remains central to the government of the household. One can find the same language centuries later in the Virginia Law Register in a law titled “Right of the Husband to Chastise Wife:”
But where the batter was so great and excessive to put life and limb in peril, or where permanent injury to the person was inflicted, or where it was prompted by a malicious and wrongful spirit, and not within reasonable bounds, the courts interposed to punish, for as was said in one case, ‘there is no relation which can shield a party who is guilty of malicious outrage or dangerous violence committed or threatened.
An American case in 1887 stated this in clearer terms: “A public officer, invested with certain discretionary powers, never has been, and never should be, made answerable for any injury, when acting within the scope of his authority, and not inflicted by malice, corruption, or cruelty.” Recently, the U.S. Supreme Court ruled that prison discipline does not violate the constitutional prohibition against “cruel and unusual punishments” unless the discipline reflects “malice and sadism.” In 2011, King County prosecutors did not pursue criminal charges against Seattle officer Ian Birk after the shooting of John T. Williams on the grounds that “there was no evidence to show malice.” What was important in such cases was not the shooting, the beating, or the whipping, but the “malice” revealed by its excessive application.
Unfortunately, the discourse that centers on police excess tends to double-down on their commitment to “legitimate violence” as long as it can be proven that the officer acted in good faith, with a good heart, to protect good order, or save us from serious threats. That the same good order is ultimately discretionary and thus necessarily vague and ill-defined gets swept under the rug. There is no “legitimate” violence of the police. Policing is the paradigm of fundamentally illegitimate force. It is necessarily so if it is to preventatively protect the political community from threats that it cannot foresee. The critique of excessive violence is compatible with the daily exercise of disciplinary measures, spatial controls, and discretionary execution by an arm of a power claiming to have legal status.
In 2008, St. Paul hosted the Republican National Convention —and had reason to expect large protests and disruptions, or, in other words, disorderly behavior. The Republican National Committee came up with the novel idea that they could draft a deal that “required the Republican Party’s host committee to buy insurance covering up to $10 million in damages and unlimited legal costs for law enforcement officials accused of brutality, violating civil rights and other misconduct.” In so doing, a new legal space was constructed where the police did not uphold the law, but systematically transgressed it in order to maintain good order. This situation hits upon the very essence of police power, —that it itself is not at all a legal entity. It is extralegal and operates in its own parallel domain, only intersecting with legal discourse when necessary.
The supposed connection between police power and law arises from the fact that legal discourse retroactively reconstitutes repeated patterns of disorder as illegalities. “Since the rule of law comes to stand for social order, any challenge to it is a sign of social disintegration – of social disorder,” Mark Neocleous writes, “It is for this reason that the bourgeois class tend to dismiss as ‘illegal’ all forms of order which appear to pose a threat to class society.” It’s interesting to note that, in the Twin Cities, the first criminal prosecution of a murder was in connection to a murder committed at the frontier by men from a Chippewa tribe. The first criminal prosecution of a capital crime in the state of Minnesota happened outside the physically defined state of law and was carried out against people who were not legal citizens (those possessed of a “barbarous” and “fiendish” spirit according to the public meeting on June 17th, 1856). Law begins by acting outside of itself as an agent of order; it must stake its claim in our affairs. The legal order must maintain a constant relation to its extra-legal capacities in order to be effective. It is in this way inherently transgressive and works primarily to produce a social or domestic order. The popular chant “no justice, no peace” only makes sense when it is seen as a statement of fact and not as a demand: there is no justice that is not founded in extra-legal force; there is no peace that is not merely the management of civil war.
The fact that police spokesmen tend to highlight their “discretionary” powers and capacities speaks to this uneasy relationship between police practice and ordinance —between Order and Law. “They did what they thought was right..” or “given the circumstances, they did the right thing…” are cliches when it comes to public police reports. Vaguely defined offences like “drunk and disorderly,” or “vagrancy,” reveal the central vision of police power. Who decides what is “disorderly?” And how can a criminal law be created around something so vague and subjective? Police, in this case and so many others, do not derive their power of acting from the Law. “Discretion” is the actual basis of the legitimate power of the police and it runs on the Order-Disorder spectrum.
In 1953 Chief Justice Robert H. Jackson called for a major study of criminal justice agencies by the American Bar Association. It was decided early that the study would focus on the “daily operation” of the criminal justice system and not official statistics given by the police themselves. The study focussed on the police, prosecutors, judges, and corrections officers working in Kansas, Wisconsin, and Michigan. Some of their major findings included that:
Discretion was found to be used at all levels of criminal justice organizations. The idea that police, for example, made arrest decisions simply on the basis of whether or not a law had been violated—as a generation of police leaders had led the public to believe—was simply an inaccurate portrayal of how police worked.  Low-level decisionmaking by line personnel in light of practical and real-life considerations was found to be a significant contributor to the crime control and problem-solving capacity of criminal justice agencies. This was true not only for police but for prosecutorial and other decision making personnel as well.  Criminal law was used to solve many social problems, not just serious crimes.  Behaviors designated as unlawful in criminal codes, such as assault, were found to be extraordinarily diverse in nature and included everything from private debt settlement and spousal abuse to attacking strangers. The policies of each criminal justice agency were found to have an impact on other criminal justice agencies.
In his introduction for the National Institute of Justice and the Department of Justice’s 1999 report on “‘Broken Windows’ and Police Discretion,” Jeremy Travis writes about how “an officer’s sensitive role in order maintenance and crime prevention extends far beyond just arresting lawbreakers—how discretion exists at every level of the police organization.” In the introduction, George Kelling, who, along with James Q. Wilson, developed the “broken windows” strategy of policing, is well aware that “the idea of police as ‘crime fighters,’ or merely ‘law enforcement officers,’ was the cornerstone of an ideological view of police that dismissed, ignored, or was oblivious to actual police functioning [because] politicians and media representatives often are so caught up in the simple—minded slogans of ‘wars on crime,’ the ‘thin blue line,’ and so forth, that they are not prepared (whether intentionally or not) to hear about the real world of policing.” “The perception of police work as simple and under administrative control was shattered,” he writes, “by research conducted in the 1950s by the American Bar Foundation, which showed that police work is complex, that police use enormous discretion, that discretion is at the core of police functioning, and that police use criminal law to sort out myriad problems.” Anyone actually involved with the police or the Department of Justice knows and has known that the police serve the needs of good order (defined by whom?), which only sometimes intersects with what we call law and criminal procedure.
Given our expansive idea of police, it should come as no surprise that the legislature and the judiciary are also endowed with police powers. As one can see above, criminal law is frequently used as a discretionary preventative tool and not as a responsive form of justice. There is no justice for those considered objects of management —there is only prevention, treatment, categorization, or elimination. But how is this possible? This is a major contradiction in American policing: citizens are supposed to be treated as autonomous individuals, who, if suspected of committing a crime, can have a trial. Once their innocence or guilt has been satisfactorily proven, the courts may impose whatever disciplinary or punitive measures are deemed fitting and within the bounds of constitutional rights. This is called “due process” and “justice.” But police do not operate along these lines. They follow the principle of expediency, not justice. Theoretically, the American judiciary and legislature should have no such powers. And yet, American courts not only uphold executive police regulations and applied police measures, they also apply and test some of their own, namely by creating the broad categories of nuisance and common law misdemeanor.
Nuisance was the first common law police offense, defined by Blackstone as “. . .a species of offenses against the public order and oeconomical regimen of the state; being either the doing of a thing to the annoyance of all the king’s subjects, or the neglecting to do a thing which the common good requires.” The police core of the offense is still apparent in the 1909 New York Criminal Code that defines nuisance as “a crime against the order and economy of the state […] in unlawfully doing an act, or omitting to perform a duty.” Common nuisance (eavesdropping, having rabid dogs, obscenity, owning a dangerous structure) was difficult to differentiate from private nuisance, and was not as easy to police as that superior device of judicial police: misdemeanor. The challenge is always to connect the behavior or conduct of a person, or the person him- or herself, to the policing of the community. In the 1909 New York penal code, for instance, a misdemeanor was “any act which seriously injures the person or property of another, or which seriously disturbs or endangers the public peace or health, or which openly outrages public decency, for which no other punishment is expressly punished.” Here is where the police power of the courts enters in. They get to decide whether an act “endangers public peace” or “outrages public decency” and should thus qualify as a police preventative measure. As Maine’s Supreme Court put it in 1939, the courts are obliged to “give expression to the changing customs and sentiments of the people.” In this way, “courts could expand the definitions of offences to reach ever wider circles of conduct, and of people” (Markus Dirk Dubber).
The legislature has more indirect but wider police powers. The legislature has the power to pass preventative police measures and relies on the courts to interpret them and carry them out. In the few theories and histories that trace American police power, the distinction is generally made between “justice (maintenance of private right) and police (promotion of public welfare)” (Ernst Freund). The first is supposed to be the jurisdiction of the legislature and judicial branches of government, and the second of the executive branch. Lawmaking and law-applying are supposed to require the consent and participation of citizens or their representatives. In Democracies, the subject and object would ideally coincide, so that those who write the laws, consent to them, and carry them out are the same as the objects to which they will apply. With police, as you know, this is not the case. Justice Shaw set the tone for the legislature’s relationship to police power in his decision in the Commonwealth v. Alger case. Alger was about a legislative police regulation from 1837, the “act to preserve the harbor of Boston, and to prevent encroachments therein.” Any structure that extended into the water would be removed as a public nuisance by the state. His decision read:
All property in this commonwealth […] is derived directly or indirectly from the government, And held subject to those general regulations, which are necessary to the common good and general welfare. Rights of property, like all other social and conventional rights, are subject to such reasonable limitations in their enjoyment, as shall prevent them from being injurious, and to such reasonable restraints and regulations established by law, as the legislature, under the governing and controlling power vested in them by the constitution may think necessary and expedient […] The power we allude to is the police power, the power vested in the legislature by the constitution [of Massachusetts], to make, ordain and establish all manner of wholesome and reasonable laws, statutes and ordinances, either with penalties or without, not repugnant to the constitution, as they should judge to be for the good and welfare of the commonwealth, and of the subjects of the same.
Given the fact that the judiciary and the legislative branches are both endowed with limitless police powers, it follows that criminal law is actually police law. There is no justice anywhere —just police measures. Some of them may be slightly contaminated with the veneer of “justice,” but this is a mere obstacle to the unlimited police powers in the domestic order of the United States. “The state has control over its internal affairs,” according to a 1918 opinion from the Minnesota Supreme Court, and “in the exercise of its police power may prescribe rules of conduct for its citizens, and may forbid whatever is inimical to the public interests.” The status of the vagrant is a case in point. The legislature passes laws against “vagrancy,” the police officers decide who they are and capture them, and the courts categorize them and place them in work camps, almshouses, and prisons. Threats don’t have “rights” —they are dealt with in an economical fashion as befits their status.
“Be there,” says Kilcullen, a counterinsurgency strategist. The counterinsurgency force must seek to identify themselves with the local environment by making themselves ubiquitous or potentially so. This “presence” has always merged with surveillance. The police must make it clear that, though they may not be there presently, they could be just around the corner. The massive stores of data we regularly dispense with constitutes a new field for this global surveillance network, muddling the difference between social constitution and forensic or biometric evidence. In this information era we are told we don’t have to worry if we aren’t doing anything wrong. The internalization of the necessity of order seems to have finally coincided with social production, and with that comes a deeper blurring between citizens and official police. This blurring seems also to be the goal of so-called “community policing.” The “911” model, which, as we’ve noted, has never existed, is characterized by the 911 call, cops speeding to the incident, tending to the problem, and finally leaving the involved to their business.
The “community policing” model or the “preventative interventionist model,” is more focussed on the integration of order into basic care. George Kelling highlights a typical example of “community policing:” “When a shooting occurs in New Haven, Connecticut, the Department of Police Services immediately sends a team of Yale Child Study Center clinicians and police officers to help children and families cope with the social and psychological consequences of violence.“ When asked to describe his efforts in Academy Homes, Officer Jack Fee of the Boston Police Department shrugged and said “I suppose I’m doing social work.” Are police becoming “soft?” “Nicer,” even? We assert that their tactics have simply become more complex and less encumbered by legal and criminal procedure than ever before.
Complex use of civil law and citations to deal with criminal or abnormal behavior has become more common. So, for example,
Civil remedies such as Boston Police Department Officer Jack Fee applied, include efforts to deal with domestic violence, drug trafficking, racial harassment, disorderly behavior, and weapons possession. Civil remedies include injunctions, restitution, forfeiture, and civil fines that can be used either alone or in tandem with criminal law, as in the case of use of property forfeitures to deal with drug dealing.
Those who are managed daily by the police have long been familiar with this truth. The rapper Kemba remembers an instance when “Homie couldn’t get a rap on me, try to hit me with a citation.” Mary Cheh, member of the council in Washington D.C., said that “Civil remedies offer speedy solutions that are unencumbered by the rigorous constitutional protections associated with criminal trials, such as proof beyond a reasonable doubt, trial by jury, and appointment of counsel.” Consider also that the vast majority of criminal trials today end in a plea bargain (about 94%). This is a classic police strategy. Trials are expensive, long, and difficult. Plea bargaining is much more efficient, and is able to capture many more people in its net when coupled with the threat of jail time. The public still imagines an archtypal image of the court of justice, but what plea bargaining shows us is that the courts are not interested in individuals nor their rights, but in managing social situations and eliminating threats. Is this softer? If you think sweeping the “disorderly” into a web of processes difficult to understand and with few legal protections is “soft,” then yes, community policing is a “softer” form of dealing with social undesirables.
The Third Policeman by Flann O’Brien reads like a symbolic mosaic of police power as we’ve defined it. The narrator plots to kill his neighbor and steal his money to print his critical edition of the works of de Selby, his favorite philosopher. Betrayed by his co-conspirator, he dies in the process and ends up in hell, which is a police station. Besides exhibiting obvious disdain for the police, there is also historical truth to this symbolic affinity. O’Brien grew up a devout Catholic and was thus well-versed in the doctrine of the Trinity of the Father, the Son, and the Holy Ghost. In Catholicism, the Trinity was governed according to the principles of oikonomia, or economic relations. The Christian Church could not establish a theory of political power, force, or domination in the relationship between the elements of the Trinity, lest they open the door to heretical doctrines. When every word is followed literally, the reader must make a choice between various contradictions presented by the canonical texts, and will come into conflict with different interpretations. Oikonomia meant that the church leaders would use their discretion to decide when it was okay to deviate from the letter of the law to facilitate the good management of the flock. According to Christian dogma, oikonomia was to continue only from creation until the Last Judgement, when it would resolve itself in the final redemption of all, with one major exception: hell. While the angels will abandon all their power and never again administer government on the Last Day, the demons will continue on forever managing the infinite disorders of hell.
When the narrator of the novel arrives in this afterlife, he finds that normal laws of physics do not apply. If one rides a bicycle for too long, the bicycle will begin to take on human traits, and the human riding it will begin to resemble the bicycle. The police in this world are intensely interested in bicycles, their construction, and their artificiality. One of their most successful crime-fighting ventures involves stealing a bicycle, hiding it somewhere, and finding it. Over and over again, round and round, like the bicycle wheel itself. The police eventually take the narrator to an underground passage called Eternity where we can produce anything we desire, where there are no physical limits and no time. The police solemnly enter with notepads in hand to record random numbers and promptly leave. With these few episodes and symbolic devices, O’Brien describes the entire power of the police and its legitimation: a mode-of-perception obsessed with regulating the infinite disorders of the world. This is the closest we will come to a definition of the police: 1) a bicycle in hell. 2) a notepad in Eternity.
The “political” history of the West does not lie in its solemn procession of managers, nor in its feudal lords, emperors, kings nor princes, and later police, Indian Officers, husbands, nor welfare functionaries. Those are figures in the history of the various attempts to suspend the political —the history of the techniques and principles of domestic management. If there is a political history in the West, it is in the resistance to these methods. Surely, any political grouping must take into account the management of their life processes, but what’s at stake in the governmental paradigm is the reduction of all political possibility to mere oikonomia, household administration. This transforms political difference into technical issues to be worked out by a team of experts, savvy economists, and technocrats. As long as we confront the police with the language of law, we will continue to be disappointed with our losses when they subordinate the law to order. We need to dispense with the idea that the police enforce or even impose the law. The police do not have a consistent relation to law. Law is a tool used to dispose men and things. It is a question “. . .of employing tactics rather than laws, and even of using laws themselves as tactics —to arrange things in such a way that, through a certain number of means, such and such ends may be achieved” (Michel Foucault).
To depose the police, the depoliticization of life, the smallest details of life can be illuminated to expose what is unstable about them, to open up spaces of political confrontation. It’s a matter of developing ways of caring for one another that increases someone’s power rather than neutralizing it. The father who tells his children, “I pay for everything here. My house, my rules!” provides a care for them that also pulls them down to the ground, denying them their own possibilities through the very thing that keeps them alive; likewise the social worker who pities those who can’t feed or change themselves neutralizes any possible political capacity of the cared—for through their aid, transforming them into a “cripple.”
Our highest respect goes to the street medics who work to repair bodies bashed down by batons and tear gas so they can fight again. Surely, we need care. All of us. The approach that sees the police as violent brutes who need to be fought in the street or in the court ignore the degree to which police power offers functional services and creates dependences. Urban violence is unlikely to decline given the savage inequalities of American cities. As it stands, the police reproduce that distribution, maintain its functioning, and tend to its excessive outbursts. Disruption and breakdown, the elaboration and intensification of civil war, opens up to us the possibility of harm, fatigue, and death. Our lives are increasingly managed by the same forces that allow us to live. When we oppose the police, they make that fact clear. During the 4th Precinct occupation, when five occupiers were shot, police officers neglected to call an ambulance, derisively calling out that they “got what they deserved.”
And yet that same opening also reveals new paths and possibilities for organization that do not involve managing undesirables, but empowering them. There is no great battle in store for us, but a precarious dance of forces. We need the care that only friends can provide, the kind that offers bread in one hand and a stone in the other. A political care for the friend empowers their ability to affect their environment, and to have a role in shaping it and their relations in it. This necessitates the spread of care networks capable of making the police’s domestic power unoperational. As we run relentlessly ahead, let us keep one eye open for new pastures with which to feed one-another, and another eye open for new weapons to use as we run.
All present and future attempts to build power will come up against police. Whoever fights for their life must ask: How can we make it impossible to police? Everything else is chatter.