by Markus D. Dubber and Mariana Valverde (eds). Stanford, CA: Stanford University Press, 2008. 288pp. Cloth. $55.00. ISBN: 9780804759328.
Reviewed by Jack E. Call, Department of Criminal Justice, Radford University. Email: jcall [at] radford.edu.
I am not a political theorist, and I do not read much political theory literature. This is an important point, because it puts my comments about POLICE AND THE LIBERAL STATE, edited by Markus D. Dubber and Mariana Valverde, in context. Political theorists might well view this book differently. The book was written, I think, with political theorists (and legal philosophers) in mind. (Unfortunately, I am not a legal philosopher either). The book’s appeal should be greatest for those with an interest in the concept of police power.
A few months ago, I reviewed another book that focused on this topic, POLICE POWER: PATRIARCHY AND THE FOUNDATIONS OF AMERICAN GOVERNMENT, written by one of the co-editors of POLICE AND THE LIBERAL STATE. I found that book difficult reading and swore never to read another book like it. Nevertheless, I agreed to review POLICE AND THE LIBERAL STATE, probably because the title did not tip me off that this book was another excursion into the nebulous world of the police power. (Why the identity of one of the co-authors did not suggest to me that the police power might well be the subject of the book is beyond me).
I re-read my review of POLICE POWER to see if it would help me better understand POLICE AND THE LIBERAL STATE. To my great surprise, I discovered not only that it did, but also that I had learned much more from POLICE POWER than I had remembered.
Nevertheless, what I said in that book is equally true of this one. The reading is difficult, at least for someone like me who is not accustomed to reading works of political theory or legal philosophy. Because it is an edited book, the topics of each chapter vary greatly. Some chapters focus more clearly on the police power than others. Some chapters will undoubtedly appeal to some readers while not appealing to others.
There were a few chapters in the book that I did not find appealing or helpful. Chapter One, “Police, Sovereignty, and Law: Foucaultian Reflections,” by Mariana Valverde is primarily a discussion of Michel Foucault’s 1978 lectures on security and governmentality at the College de France. Dubber and Valverde indicate in their introduction that the chapter is a “contribution that will interest Foucault specialists, while at the same time providing an accessible introduction to the uninitiated” (p.8). I am confident that the chapter will appeal to Foucault specialists, but I am one of the uninitiated and I did not find it very accessible. [*84]
Chapter Two, “The Supreme Sovereignty of the State: A Genealogy of Police in American Constitutional Law from the Founding Era to LOCHNER,” by Christopher Tomlins, attempts to put police power in historical context. It demonstrates that even though the Constitution does not extend a power to act for “the protection, safety, prosperity, and happiness of the people” (p.37) explicitly to Congress, Congress has in effect frequently exercised such authority both through its power to regulate commerce and through reliance on its capacity to act as a sovereign state.
Chapter Four, “Limited Liberty, Durable Patriarchy,” by Mark Kann, ties the use of the police power to the movement in the late eighteenth and early nineteenth centuries to incarcerate individuals to protect society and insure their reformation. This chapter will undoubtedly be of interest to sociologists and students of criminal justice who teach corrections, but its contribution to a better understanding of the role of police power, while not insignificant, is not as great as the contribution made by some other chapters.
Three chapters were of greater interest to me, although not always because they helped me develop a better understanding of the police power. Chapter Three, “Police Power and the Hidden Transformation of the American State,” by William Novak, traces the use of the police power to radically change the role of government in the United States in the period between the end of the Civil War and the beginning of the New Deal. One theme of this chapter is the transition from viewing government in the United States as a necessary evil to be limited in scope as severely as possible to a new view of government as not just a needed but a desirable “mover and shaker” in shaping social and economic structures. Many of us probably view this transition as a product of the Depression and the New Deal. Novak argues forcefully that it is a product of the Civil War and Reconstruction. A second important contribution of the chapter is to link the rise of the administrative state to this transformation of government (grounded on reliance on the police power).
Chapter Six, “Work and Authority in Policing,” by David Sklansky, is a fascinating call for greater participation by police officers in the decision-making processes of their departments (in other words, greater participatory management). Sklansky puts the reluctance to engage in participatory management in policing in historical context, explains the reasons for the persistence of this reluctance, and suggests several benefits to be derived from greater participatory management by police officers. I strongly commend the chapter to students of policing generally and to senior level police administrators particularly. However, its contribution to a better understanding of the nature of the police power is minimal.
Chapter Seven, “The Elusive Line Between Prevention and Detection of Crime in German Undercover Policing,” by Jacqueline Ross, discusses efforts in Germany to place controls on the police use of undercover policing tactics. In particular, Germany has attempted to separate the use of undercover tactics to develop evidence to be used in prosecuting individuals for criminal activities (“repressive powers”) from the [*85] use of those tactics to develop information that can be used more generally to prevent future harm (“preventive powers”). This chapter demonstrates (through the use of empirical evidence) the difficulty in attempting to draw such a distinction. The chapter will be of interest to people concerned with issues about the use of law to control police behavior, but again, its contribution to a better understanding of the nature of the police power is, to me at least, minimal.
This brings us to the three chapters that most significantly advanced my understanding of the police power (again, keeping in mind that my understanding of the concept was at a relatively low level). The first of these is Chapter Five, “Criminal Police and Criminal Law in the Rechsstaat,” by Markus Dubber. While exercise of the police power extends well beyond substantive criminal law, it is the legitimacy of that body of law on which Dubber focuses. He views upholding the autonomy of the individual as the basis for legitimizing any government. Since substantive criminal law establishes rules that interfere with the exercise of autonomy by individuals, how can that interference be justified?
Dubber first examines the acts that have been criminalized. Government is justified in criminalizing certain acts because they can be viewed as a conflict between two autonomies – the autonomy of the offender to act as he pleases and the autonomy of the victim to be free from the interference, a freedom that is frustrated by the offender’s actions. Given the conflict in autonomies and the necessity to choose between the two, government is justified in coming down on the side of the victim. Government may do so, however, only where the offender acts autonomously. This gives rise (properly) to the requirements in American criminal jurisprudence that the act criminalized be a voluntary act and that the offender acted intentionally. It also justifies defenses such as insanity, infancy, and consent because where these defenses apply, either the offender did not act autonomously (insanity and infancy) or the victim relinquished his autonomy (consent).
Chapter Eight, “Vulnerability, Sovereignty, and Police Power in the ASBO,” by Peter Ramsay, is an insightful discussion of the recently enacted Crime and Disorder Act of 1998 and its controversial provision dealing with Anti-Social Behaviour Orders (ASBOs). This provision permits government officials to obtain an ASBO against a person who officials can demonstrate “has acted . . . in an anti-social manner . . . that caused or was likely to cause harassment, alarm or distress to one or more persons not of the same household as himself” under circumstances where “such an order is necessary to protect persons . . . from further anti-social acts by him” (p.160). The magistrate who issues an ASBO may include in the order any prohibitions deemed necessary to insure the protection of the endangered person such as “exclusion zones, restrictions on associating with named individuals, communicating with other named individuals, using offensive language, wearing certain items of clothing, drinking alcohol, and so on” (id.).
While Ramsay discusses some of the publicly expressed sentiments behind this legislation and includes a very [*86] interesting comparison of ASBOs with the centuries-old British “bind over” (a judicial order requiring a person to keep the peace or be of good behavior), the most interesting aspect of the chapter is a discussion of whether the ASBO is likely to survive scrutiny by the European Court of Human Rights (ECtHR). He concludes that it will. The ECtHR has held that an Austrian statute prohibiting conduct “likely to cause annoyance” does not violate the European Convention on Human Rights because the statute’s reference to the causing of annoyance describes an effect of the defendant’s behavior that must be proved by the government. Such a requirement eliminates the problem with the bind over for good behavior. In another case, the ECtHR found that British provision improper under the European Convention on Human Rights because it failed to describe any behavior that was prohibited. To use American jurisprudential language, the British bind over was “void for vagueness.”
Thus Ramsay concludes that this extremely broad expression of the police power in the ASBO provision is likely to withstand review by the ECtHR. Interestingly, Ramsay also argues that the ASBO provision actually cuts both broader and deeper than the bind over for good behavior. Broader, because the ASBO requirement to prove conduct that “causes harassment, alarm or distress” reaches behavior not reached by the bind over for good behavior, since it extends to behavior that “offends anyone, including people more sensitive to particular conduct than the majority” (p.169). (British case law has held that the bind over for good behavior only extends to behavior that is “wrong rather than right in the judgment of the vast majority of fellow citizens” (id.)). Deeper, because the ASBO results in a specification of the precise behavior which the subject of the ASBO must avoid and thus regulates the subject’s behavior more closely.
One of the (alleged) paradoxes of the police power is that it can be used to justify virtually unlimited power of the state, even in a society that purports to be committed to the rule of law. Ramsay’s chapter provides strong support for this assertion.
Chapter Nine, “Loitering in the City That Works: On Circulation, Activity, and Police in Governing Urban Space,” by Ron Levi, is an analysis from the police power perspective of the U.S. Supreme Court’s decision in CHICAGO v. MORALES. In that case, the Court struck down (6-3) a Chicago anti-loitering ordinance that gave police the authority to give an order to disperse to any person an officer “reasonably believes to be a criminal street gang member loitering [remaining in one place with no apparent purpose] in any public place with one or more other persons” (p.187). It was the failure to comply with the order to disperse that was criminalized by the ordinance, not the loitering itself.
Levi provides some interesting analysis of the majority, plurality (concurring), and dissenting opinions in this case, but his most interesting points deal with the majority’s failure to grasp adequately the purpose behind the Chicago ordinance. Citing Foucault’s lectures on the proper governing of cities, Levi argues forcefully that critical to the successful governing of cities is maintenance of [*87] “the circulation and activity of the urban population” (p.182). Healthy cities require vibrant commercial and social interaction. It was precisely the curtailment of such activity at which the Chicago ordinance was aimed. Levi presents strong evidence that the ordinance was passed in response to complaints from citizens who were not just concerned about drug activity in their neighborhoods, but about the inability of citizens to move freely about their neighborhoods because of the pervasive presence of gangs engaged in this drug activity.
The power to control this kind of behavior is textbook police power. What I found most interesting about the Levi chapter is that he just about convinced me that the MORALES case was wrongly decided. I say “just about” because it is Levi’s emphasis on the need to protect activity in the community that I find compelling. The only problem is that the importance of movement is at this point more of an intuitively appealing philosophical assertion than it is an empirically proven proposition. Provide empirical proof of the importance of movement in the community and I will be persuaded.
The other interesting aspect of the Levi chapter is that the MORALES decision seems to demonstrate that courts will indeed impose limits on the exercise of the police power. One of the central tensions in the police power discussions in this book is that some commentators assert that once an exercise of government power is found to be based on the police power, it is not subject to legal control while other commentators assert that the police power is subject to judicial review.
Indeed, this book suggests that the two most pressing matters facing the police power discussion are defining police power (which the editors concede “has tended to resist definition” (p.4)) and clarifying the extent to which the courts can or cannot limit it.
Several authors in this book indicate that the police power went decades without scholarly attention, but the contributors generally attempt to rectify that problem. Those efforts are to be commended. However, if this book and POLICE POWER are any indication of the general state of the evolving discussion, it is one that is lacking in cohesion and focus. Perhaps that is inevitable when such an ambiguous concept is finally addressed after years of neglect. One can only hope that as this body of literature expands, more dialog will ensue, resulting in greater clarity.
Dubber, Markus D. 2005. THE POLICE POWER: PATRIARCHY AND THE FOUNDATIONS OF AMERICAN GOVERNMENT. New York: Columbia University Press.
CHICAGO v. MORALES, 527 U.S. 41 (1999).
© Copyright 2009 by the author, Jack E. Call.