Police Authority in Liberal-Consent Democracies: A Case for Anti-Authoritarian Cops
Abstract and Keywords
In this essay, the grounding of police authority in consent is revisited in a call for anti-authoritarian policing. A longstanding tenet of the legitimate exercise of authority is its foundation in democratic processes and institutions. Yet, it is often assumed that police discretion will support powerful interests even when these offend democratic necessity. Police are urged not to abandon classical liberal doctrine to maintain an order of widening disparities, but to call upon their discretion to support their own longstanding institutional interest in plural governance.
A phalanx of police officers in body armour with shields and expandable riot batons extended are poised to advance on a group of demonstrators who have mobilized a sit-in in a public square to express grievances against an American government that they say is “owned” by the top 1 percent of American society. Behind the demonstrators is the First Amendment, “the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” Behind the officers, inched out in increments of police action, lies the destiny of American liberal democracy.
The grounding of police authority is a matter of longstanding development. Emerging after the French and American Revolutions and the development of liberal theories that alternately proposed that authorities should be animated by positive and negative rights, modern police systems have shifted between intrusive and cautious practices of social and political control. It is via the executive branch that police in liberal democracies enforce both negative (protective) and positive prescriptive rights. Police may deploy due process protections for crime control (McBarnett 1979). In a “policing by exception,” and more prosaic forms, they may also deploy a prescriptive or preemptive capacity to co-produce the serious crime problem or existential risk that they are normally vigilant to oppose. This shiftiness or accommodation to expectations in changing political and socio-cultural contexts is no accident, as police have been adapted to absorb or rebuff emergent movements in a long view of legitimacy. Rights are crucial restrictions on executive and police authority, but they are also enablers of police warrant or mandate. In this dual function and double potential they offer police actors and actions exceptional sovereign decision-making capacity that is at the same time grounded in liberal limits.
(p. 218) In this essay, we will explore the traditional liberal doctrine—particularly the principle that policing authority must be grounded on earned consent—as a tenet that must not be vacated. At the same time, we will also push the idea that a police authority that is too rigid and resistant to considerable take-up of democratizing political and cultural forces is on the cusp of police authoritarianism. If policing is informed by political philosophy, including social contract liberalism and natural or positive rights, a requirement of a consent authority is that it must be continuously refreshed from below.
Section 10.1 of this essay reviews police authority in liberal democracies as a balance of negative and positive rights. Section 10.2 examines the new geography of authority post-9/11 with particular emphasis placed on the fusions or plural authorities as well as the mediated formats that drive police applications. In Section 10.3 the essay argues the importance of police discretion (institutional authority) as an open-ended check on political and other authorities, which is noted and further developed in Section 10.4, where the argument that policing as a dialogical enterprise also implicates it in anti-authoritarian movements or forces like Occupy Wall Street.
The points raised in this essay may be summarized:
• Law enforcement is understood traditionally in terms of a balance of negative and positive rights.
• Added to these authorities is the mediated environment of police work that requires that justice and security is what is seen to be done.
• The fusion of law enforcement and security intelligence in preventive or precautionary forms of intervention threaten this classical balance.
• This and other developments would appear to take the authority of police steps closer to authoritarianism.
• However, the argument presented is that police legitimacy will continue to require police discretion in a context of plural authorities.
• Institutionalized through plural authorities, police in liberal democracies are existentially an anti-authoritarian agency.
• At this historical moment, police must be credited when they are active in deploying the legacy of those institutional authorities and capacities to resist the authoritarian impulse.
10.1 Police Authority in Liberal Democracies
The authority asserted by public police is a determinant of both the liberalism and democracy in liberal democracies. From the Anglo-American viewpoint, we contrast (p. 219) types of government with reference to the relationship between partisan politics, republican values, and police capacities or powers. If we are citizens or denizens in liberal democracies, we expect policing to be reflective of practices and values that make this more than wishful thinking, and we contrast our policing with that of the police state, a synonym for authoritarianism.
That being said, few of us really view public police as being quite as fluid as the politics and values that they are authorized to uphold. To some extent we push a self-fulfilling prophecy that assumes that police reflect not authority but authoritarianism and then wonder why it is that this is what we (expect to) find. To correct this it is necessary to remind ourselves that police authority is both a normative idea and an empirical fact: it is an idea about how to arrive at a condition of proper order; it is an observation about the real workings or experience of the world as it is. We will begin with the normative idea. This requires a brief sojourn into how we have institutionalized police authority, including how liberal authority is structured by negative and positive rights.
Weber argued famously that there are three types of authority: traditional, legal-rational, and charismatic. Much traditional analysis of policing concentrates, to a large extent rightly, on police authority as stemming from the “foundational” or “original” prerogatives of the state’s negative power and on police as exercising legal-rational authority in the necessary capacity to monopolize violence.1 In constituting authority, the first consideration, following Giddens (1985) and Tilly (1985) among others, is to ensure both the capacity and reach of sovereign occupation. It is not just the ability to “take” a site from others but the ability to hold captured ground that is important. As Westley (1970) and Bittner (1970) make plain, public police officers bring to the interstices or quotidian of society a coercive capacity backed by the state. They literally carry the flag of state will and capacity where they tread. To keep that power requires some quotient of legitimacy. Put another way, the preferred view of liberal democrats is that states are more robust where the practice of power retention (holding ground) is consistent with a liberalized rule of law, or where, through law’s reference to universality, the pastoral claim to order, included among people is continuous with the sovereign claim to demarcate frontiers and keep outsiders without law or legal protections.
This view has found support in the study of so-called failed states (O’Donnell 1999; Rodgers 2006).2 It also accords with comparative studies of police work within liberal democracies (Bayley 1985; Weitzer 1995). It is consistent with Wilson’s Varieties of Police Work (1968), where sovereignty is more definitive or less widely contested where police authority may upgrade from defensive deterrence to a compliance or service approach that is calibrated more precisely to population or popular needs.
10.1.1 Negative Rights
Influenced by natural rights theory, a tradition of negative rights runs through liberalism and impacts police authority. Accordingly, the relationship between government (p. 220) authority and the individual citizen was conceived in terms of rights and duties, the idea being to conserve for the individual citizen the maximum “original authority” of self-government possible. Social contract theorists3 attempted to give individuals adequate tools to battle government action on an equal footing.4
Political and human rights were devised to negate excessive governmental power and inveigh against unbridled authority by institutionalizing a counterforce in the consent of the governed. According to legal principles developed from this thinking, individuals are invested with rights of privacy and may engage in corporate enterprises covered by freedoms of association, while the administration of government, and particularly justice, is expected to be public, visible, contestable and offered through representative decision-making bodies (Lustgarten and Leigh 1996). And while individual citizens enjoy a wall of privacy, public authority is to be open to citizenry scrutiny. Parliament as “government by discussion” (Laski 1921) forces authorities to declare positions openly. Similarly, actionable information is to be vetted in the quintessentially public forum of the adversarial court. These challenge the natural tendency toward power maximization in the executive. This basis of limited self-government and its reference to public debate and discussion in checks and balances is evident in liberal democracies everywhere and reflected in the American Constitution.
To generalize much distinct literature that has criticized this liberal legacy (in answering problems of government generally and of authority in policing specifically), the institutionalization of liberal values offers a normative discourse but does not resolve the basic challenge of the power relationship between governments and individuals. With respect to self-government in politics, liberalism and specifically parliamentary democracy received one of its sharpest criticisms from Carl Schmitt, who saw a “modern political machine” in the Reichstag or German parliament of the early 1920s that was not characterized by openness and discussion but by “small and exclusive committees” who would make decisions “behind closed doors” (Schmitt 1988, 49–50).5 This criticism that the most deliberately liberal institutions cannot function in the manner hypothesized has only become more robust. In the United States, C. Wright Mills coined the term “the power elite” in recording the circulation of people between the top echelon of government, military, and private industry. The Supreme Court’s Citizens United decision6 is one of countless recent examples of the interpretive subordination of common negative rights to corporate interests.
In sum, far from providing adequate institutional means for self-government or government by consent in a powerful deterrent to authoritarianism, the development of modern political institutions has been attended by a persistent systemic disenfranchisement and discrimination against an underclass of persons who are challenged continuously on their “citizen” bona fides. Majorities are denied access to goods and services and cannot acquire the necessary means to present a robust adversary to state authority. Put another way, instead of celebrating liberalism as a means of fostering social equality, critics have pointed out that even democratic liberal institutions have been adept at maintaining and even exacerbating structural inequalities and have done so by indoctrinating authorities into stratifying practices.
(p. 221) 10.1.2 What’s in the Balance?
In classic liberal thought much is achieved by distinguishing and separating government into relatively equal and separate branches, as per Montesquieu’s famous influence on the drafting of the American Constitution. This produces the necessity, among other positive outcomes, that policy and action by one branch must be explained as a matter of constitutional jurisdiction, consistency, and intention. Following the logic of the division of institutional interests in liberal government—or in the idea, also advanced by Locke, among others, that liberty depends on a separation of powers so that each institution may prevent the other from acting tyrannically—Herbert Packer (1968) argued in The Limits of the Criminal Sanction that police as well are bifurcated between institutional forces: the necessities of sovereign efficiency and constitutional legality. Packer compared the tension between the urge to control crime and the need to uphold legality and due process by reference to the metaphor of the assembly line versus the obstacle course. With the former, there is urgency to clear up criminal cases quickly and efficiently; with the latter, there is a deliberation and parsing of each stage of the process through contest: to provide teeth to “reasonable doubt,” to sort out false positives, to provide for alternative resolutions, et cetera.
Following up on Packer several studies in the post-civil rights era of the 1970s and 1980s were attracted to the intriguing question of how practitioners actually negotiate the subsystems of the criminal process (e.g., Reiss 1971). Drawing on practitioner observation to clarify the interaction of due process and crime control, studies found practices that fall afoul of the public profile of law, going so far as to find that due process may be for crime control, thus turning Packer on his head (McBarnett 1979; Ericson 1981, 1982). As learned from these and recent studies, everyday practical considerations may overcome inter-agency and inter-institutional checks and balances (Stuntz 2006). In short, one can make too much of the negative role in practice and of legality as a limitation on “crime control” or law enforcement.7
10.1.3 Positive Rights
A contrasting response to the problem of the grounding of authority tracks legitimacy in the development of second- and third-generation rights (from negative to positive; from group and sovereignty), some of which respond to the interplay of domestic and international orders. Accordingly, there is a positive duty for the maintenance of wellbeing (health, security) that allows for the decolonization of the oppressed from tyranny (something Locke had also offered). For instance, a justification for intrusive action beyond self defense is found in the harm principle of John Stuart Mill (1859, 21–22): “the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others. His own good, either physical or moral, is not sufficient warrant.”
(p. 222) The right or duty to prevent harm to others is a powerful invitation to those in authority to make a prediction about the relative harm that may be prevented with this or that course of action. Consequently, intimately connected to the idea of positive rights is the other strand of Locke’s classical liberal thought, the idea of governmental prerogative. This forms the basis of a positive duty to security as a “common good” and, the life and vitality of the sovereign capacity, without which government itself has no legitimate basis. By the concept of prerogative, Locke understands a “[p]ower to act according to discretion, for the public good, without prescription of the law, and sometimes even against it.” Prerogative power by the sovereign authority is permitted “where the law is silent” and also where law is insufficient (Locke, Two Treatises II, Sections 159, 160, 164, in Hay 1823).
So here we have both an affirmative and proscriptive capacity that is resident in both negative and positive rights. The sovereign must be vital and strong enough to preserve the peace, and it must take prerogative action to project, and perhaps even to maintain, that vital power. Also of key importance, that prerogative action is carried out not by a hypothetical heuristic invention, but by flesh and blood people making decisions. As we shall see, it is the police who often act as the sovereign authority and sometimes assert the exception.
10.2 The New Geography of Authority: Who’s Who in Policing?8
Post-9/11 there has been enormous pressure on domestic law enforcement to find a new metaphor, to move away from the constraining imagery of due process and crime control as outlined by Packer (McBarnett 1979; Ericson 1981). We are now situating police authority against the positive and social rights that have emerged in the past half-century and collapsing the distinction between frontier and external and domestic or internal orders. In current configurations of justice and security, liberal democracies are increasingly permissive of authoritarian state practices.9 In the “fusing” of criminal justice and (national) security actions, we are witnessing a reversal of the separation between domestic law enforcement and security intelligence or political policing (Brodeur 1983). The preemptive, preventative, and precautionary mode (de Lint et al. 2007; Monaghan and Walby 2011) is entrenching itself well beyond the traditional reserves for such exceptional measures. In the wake of the expanding “security” practices, many analysts are expressing concern over the emergence of a state of “exception,” “surveillance,” or “control” (Agemben 1998; Garland 2000; Lyon 2007).
To understand this transition, it is important to recognize the distinction between the optics and practices of government. Governmental authority is seen to be carried out in liberal democracies with the consent of the governed through information sufficient for informed decision making that may buttress effective policies, and by individuals (p. 223) with rights, particularly privacy rights, that stem from the protection of private property. Ideally, this gives citizens the ability to provide or deny consent, which is required because de facto authority, or authority by raw force, is anathema to the liberal doctrine, with the restriction on public police representing that limitation in negative liberal government.
However, as Holquist (1997) and others have argued, the emergence of modern nation-states in France, Germany, the Soviet Union, and Great Britain featured the growth of propaganda and governmental public relations for the manipulation of consent: population information, the liquid of government (Holquist 1997), is collected, interpreted, and acted on by governmental authorities to demonstrate the relationship between the so-called necessities of executive action and requirements of liberal legitimacy. Modern states now conduct pre-democracy exercises in opinion polling and propaganda. In the meantime, and quite contrary to the ideal of openness that is expected of liberal democracies, a “wider security agenda” will continue to be ordered via the economic values of capitalism and neoliberalism (Buzan 2000, 17), making the idea of pre-crime increasingly reasonable. Official secrecy buttressing a wider security agenda (Neocleous 2008; de Lint and Bahdi 2012) in a national security infrastructure that has been spreading within and between states ensures that information necessary to provide informed consent is possessed by those few people who also “need to know.”
Foucault deepens this observation by contending that neoliberalism turns the principle of self-limitation against government itself: “It is a sort of permanent economic tribunal confronting government” (Foucault 2007, 247). What this means, as also argued by his student, Donzelot (2008, 131), is that under neoliberal practices, regulatory interventions can only be justified where they can serve competition (as opposed to reducing inequalities), a point in accord with current interventionism. Following Foucault (1977, 1988), O’Malley (1999), Garland (2000, 2002), and Rose (2000) have argued that the stratifying practices of liberalism maintain what has been referred to as the “powers of freedom” (Rose 1999) or liberal “intelligence” (Donzelot 2008).10 Policing and security are deployed to uphold the vitality of enterprise (Donzelot 2008) because under neoliberal and neoconservative government policy it is the “resilient entrepreneurial subject” (O’Malley 2011), and not the rights-bearing citizen,11 that is the well-spring of liberal power.12 That police act with the consent of the governed, then, is not an empirical fact, but a belief or affirmation stemming from a particular way of universalizing the individual and world, a way of talking up a very rare person, perhaps even just 1 percent, the resilient neoliberal entrepreneur. From this interpretation liberalism is simply a style of power relations that continuously support ongoing ideological or discursive subordinations (Foucault 1980).13
10.2.1 Brokering Access
While neoliberal doctrine has supported the protection of a sphere of economic vitality, neoconservative doctrine has tempered this protection with prudential authoritarianism (p. 224) (O’Malley 2011). Locke was concerned to couple liberty with market vitality or free enterprise, but he was also keen to preserve the vitality of the state by reference to the prerogative (Arnold 2007; Neocleous 2008). In Arnold’s view, the War on Drugs and the War on Terror are explained as consistent with Locke’s thinking that prerogative power may be exercised through bureaucracy, allowing the rule of law to lead directly to the suspension of law (see also Ericson 2007). Neoconservatives have been keen to pursue a wide-ranging deterrence strategy against drugs and terrorism inasmuch as this is targeted at non-vital “overflow” populations both within and without the borders of the nation-state. Stimulated by anxiety over rising crime and disorder and penal populism (Pratt 2007), prudential authoritarianism finds expression in order maintenance policing and “zero-tolerance” campaigns that target overflow, or non-vital, population groups.14
The neoconservative position overlaps with thinking on objectivity and power associated with the left that discredits with equal fervor the ideal of a restrictive (negative rights) or affirmative (positive rights) policy agenda. According to post-critical accounts of the social world, it is no longer reasonable to assume an objective unitary observer to a power relation (Digeser 1992)—one who may claim to know the relative disadvantages of two parties conflicted over a clearly observable interest or objective.15 On the contrary, there are multiple canvasses upon which an inscription of the dynamic interaction may be written. The role of the audience—and of several audiences—is now part of the reflexive concatenation of power flows.16 As a consequence, critics on the left are faced with a choice: to “do nothing” for fear of doing harm that cannot be predicted (once described as “impossibilism” (McMahon 1990)) or to persist to presume to know better (in a form of neo-colonial/expert interventionism). Consequently, the position to the left of center has been to act with little confidence in the legitimacy of the action. A reluctant attitude towards certainty in matters of security is also the pedigree of the classic conservatism, but neoconservatives do not shirk the necessity to choose, and to choose boldly.
Less radical opinion also rallied against adversarial or oppositional constructions of crime and crime policy. Moderates questioned the efficiency and effectiveness of public policing and wondered if progress could be made following the recipe of an accord between crime control and due process. There was widespread concern that rising crime rates could not be countered by rising public expenditures on security and social services (despite evidence collected subsequently that showed they could (Levitt 2004)). Consequently, under the new public management in the 1990s, public police were to account more exactingly for public expenditures and choose to conserve only those core functions that could not be offloaded (Posen 1994). By applying the new business models, reformers also sought to disrupt moribund (unionised) rank and file solidarities (cf. Brogden and Shearing 1993; Bayley and Shearing 2001; Deukmedjian and de Lint 2007).
10.2.2 Plural Policing and Fusions
Neoliberal policy options were reflected in steps to open up the “public monopoly” of policing. It would be commodified (Loader 2000), and providers and citizens divided (p. 225) into “responsibilized partners,” “third parties,” “active clients,” or consumers of policing service products. In lobbying for privatization and civilianization, reformers supported policing as a plurality of auspices, governing authorities, or corporate entities (Johnston 1992; Bayley and Shearing 1996), a view that fits nicely with Third Way politics (Giddens 1998).
At the same time that the Reagan-Thatcher years normalized neoliberal doctrine and “a more radically laissez faire ‘social’ entrepreneurialism,” so did it produce a “defensive neoconservatism” that “valorised social and prudential authoritarianism” (O’Malley 2011, 9). Re-alignments across institutional authorities are seen dramatically in the configuration of the Department of Homeland Security, in more than one hundred Joint Terrorism Task Forces (JTTFs), and in fusion centers and other multi-agency linkages generically. These intelligence hubs or nodes were established to overcome traditional silos. They are sites of vital liberal intelligence (Donzelot 2008) that produce unstable and fluid decision-making authorities. And they are dramatically altering the pointy end of police work by inserting military conventions and protocols into the nodes, particularly in the control of information and in the perception and mitigation of risk.
For example, at 55 Broadway in Manhattan, New York, there is a surveillance center, the Lower Manhattan Security Coordination Center, operating and analyzing video from two thousand private surveillance cameras in the financial district and about one thousand from the NYPD. One hundred and fifty million dollars of public money, from municipal and federal sources, is funding this operation. The Center’s technology is used to track people in the financial district and beyond that are “suspicious” or may pose a threat or disrupt the business of the Wall Street firms. It is jointly staffed by the NYPD and the Wall Street firms. Ironically, the analysts in this public/private partnership collect information on Occupy Wall Street protesters who gather to demand that the Wall Street 1 percent is held to account for the economic disenfranchisement of the 99 percent (Martens 2012).
In its interpretation of its community protection mandate and with its intelligence unit, the NYPD has also made the boldest fusion of law enforcement and security intelligence authorities. Its counterintelligence and counterterrorism activities are carried out by over one thousand officers, many of them stationed overseas.17 The NYPD has used former CIA officers, trained its own officers at the Farm (the CIA training academy), and spent more than $1.6 billion in funding from the federal government in aggressive monitoring, data collection, and active surveillance. Much like Military Operations in Urban Terrain (MOUT), counter-insurgency (COIN) actions overseas, and the FBI’s infamous Counterintelligence Operations (COINTELPRO), the NYPD has been acting preemptively and preventively (as per the post-9/11 discourse) against a threat to New York that it perceives will derive largely from radicalized Muslims.
This is doing much to shift the institutional position of policing under the division of powers. In legislation extending from petty drug offenses right up to antiterrorism the criminal process is “bent” away from modern rule of law idealism toward a post-Wilsonian international relations realism (Chesney and Goldsmith 2008; Weisselberg 2008). Disciplining of police authority by the lower judiciary is (p. 226) compromised by a culture of post-legality, as illustrated in recent work by a variety of policing scholars (Ericson 2007; Zedner 2009; Monaghan and Walby 2011) that is targeted differentially at subordinate populations. Its transparency and dialogical character is strained by adaptations to a culture of control, intelligence, and ubiquitous surveillance (Garland 2000; Kane 2007; Lyon 2007; Ratcliffe 2010). The privacy wall is differentially viable so that immunity from a more imposing prudential authoritarianism is a function of economic means or relative economic power (cf. Herbert 1997). In line with post-9/11 standards of efficacy against asymmetric threats, domestic policing is more impervious, duplicitous, and unpredictable.18 In accord with existential prerogatives of the executive there is a substitution of public accountability in checks and balances for an intelligence doctrine that gives primary value to information control. Police as “the new centurions” (Wambaugh 1970) indeed!
It is arguable that the limited view of state authority (and policing practices) is bifurcated. Limit and caution (in the protection of economic vitality) does apply to interference in the market and in much commercial or corporate transaction, where the interpretation of a near certainty of preventable harm is needed before intrusions may be made. The more proactive and authoritarian view is applied to public and common places and against those parties without sufficient means or community support to erect a sufficient property wall against government intrusions. New York’s “stop and frisk” search policy is exemplary. In the context of flat or declining crime rates, it is protection of community and vigilance against terror risks that permits New York police to increase stop-and-frisk searches of mostly black and Latino youth, with numbers reaching 601,055 in 2010 and 2.4 million between 2009 and 2012 (NYCLU 2011).
Under the post-9/11 geography, police actors draw from a plurality of authorities in neoliberal and neoconservative politics, redraw the balance of consent to stipulate the in its place the greater good of prerogative necessity, and insert the means and methods of security intelligence deep into the body politic. Altogether, this view of police authority strains and stretches the meaning of public law and the traditional liberal doctrine’s basis in visibility, contestability, public ownership, and accountability.19 In this context, is it really imaginable that police might deploy their discretionary power for the common well-spring of authorities and against anti-authoritarian practices? Via a discussion of plural authorities and policing as a dialogical enterprise, it is to this question we now turn.
10.3 Police Discretion and Plural Authority
An adequate account of the development of police authority must take on board both ends of the classic liberal dilemma of negative and positive governance. Slogans, such as that “police are the public and the public are the police” serve a discursive value: that, (p. 227) for example, police are evenly distributed according to public need or perceived risk of depredations to property. But a counter-narrative or genealogy of policing will take adequate stock of this other side of liberal-consent in which liberal political theory and a good section of popular opinion support the subservience of individual rights to collective or social rights. Since it is police “who temporarily act as sovereign” (Agemben 1998, 3) where decisions must be carried out with celerity by actors on the ground, it is police who experience strong pressures to intrude beyond their negative capacity to do proactive and prophylactic harm reduction and to offer a definitive expression of the limit of sovereign authority.
It is much appreciated that police work draws from a variety of authorities to be both productive and conservative. For example, police deploy charismatic and de facto authority more than is sometimes considered polite to admit. The “discovery” of police discretion—by Goldstien (1960), La Fave (1962) and others in the early 1960s—referred to this latent or “original” capacity of the public police. It is now well-recognized that the work of the sovereign requires a certain presence and projection of de facto authority (or decision); otherwise police appear too much as poor actors, not sufficiently convincing. Following suit, the earliest ethnographies of police work corrected the false impression left by top-down, “institutional” texts on policing (Fosdick 1920; Wilson 1950; Smith 1960) that overlooked that police authority was also an accomplishment of “method actors” (Manning 1977) who take “a line of action.” As many policing ethnographers make plain, a connection to state capacity requires further work at the occupational cultural level (Banton 1964; Rubinstien 1973; Manning 1977). This is because, as Herbert (1996, 800) summarizes, the legal order of the state requires a moral justification in order to avoid looking “nakedly coercive and illegitimate.”
Consequently, police are—and must be—invested and invest themselves with many kinds of authority consistent with the requirements of changes to the political environment in which they are situated.20 Work by Herbert (1997), Shearing and Ericson (1991), and de Lint (1999) situate police actors in a multiplicity of authority relations. Decisions are made not only to (not) invoke the law, but also to (not) liaison with other service providers, to (not) provide a lesson on morality, to (not) lend a hand to restore a particular order, to (not) input data about an individual into a computer-assisted dispatch (CAD) system. Police powers are an expedient of liberal democracies that allow situated actors to gain access to places and people in a manner consistent with the preservation of privacy and liberal freedoms. However, it is now more readily accepted that the public and highly visible authority of the police officer is situated in a policing or security assemblage that involves multi-agency linkages (Monaghan and Walby 2011) and derives from a variety of institutional and mediated sources (Herbst 2003). The craft of policing is therefore found in leveraging access to troublesome people or places in such a way as to coexist with sovereign, common, and political expediencies—and not merely law enforcement efficiencies (de Lint 2003). As pivotal actors in governance, public police are placed to absorb and cast off the full range of these authorities, and a complete evaluation of police authority must reference each of them.
(p. 228) The situational platform of this one actor is pivotal to shaping normative relations throughout what is often called a security or policing assemblage (Haggerty and Ericson 2000).21 Yes, uniformed public police officers practice and project the character of what passes for legal authority in many of the mundane or quotidian surfaces of social interaction. Public police officers act though warrant of legal instruments, but they also deploy violence and surveillance or information systems to push through the privacy wall of the putatively sovereign individual. They deploy these tools while walking a fine line between legitimate and illegitimate expression of the authorities that pass through them. The line is fine because the appearance (at least) of legitimate and consensual relations depends upon embedding police authority deep into a polity, through institutions that gain legitimacy by reference to common origins in common values. The result is that each actor is Janus-like, switched on to orders and transactions, trust building and information collection, needs and risks, and capable of turning on a dime, if necessary: acting for the will of the executive or, in a manner, to negate that will by referencing quasi-institutional independence or a nullifying public pressure.
10.4 Policing as a Dialogical Enterprise and Anti-Authoritarian Force
As we know, sovereign instability or insecurity is related to police function and the legitimacy of police authority is vulnerable to the sedimentation of various transgressing forces. In the analogy of public protest, the thin blue police line may become an impenetrable barrier or disintegrate altogether. This is in the very design of the agent of authority or “he who decides the exception.” It is evident as police everywhere adopt a line of law enforcement in the context of many competing institutional, practical, and ideological considerations. For those committed to the idea of a highly iterative policing—a policing by consent that builds up the negating power of the individual and recognizes the need to redress positive harms and risks that may be sourced without and within government—this idea need not be too radical. In line with the anti-authoritarian strategy of liberal democratic precautionary government structure, police are indeed positioned between the institutions of government. The institution of public police is constituted to allow for considerable discretionary uptake of information and coercion into authoritative action. It is an error to anticipate that the exercise of this authority will routinely track toward authoritarianism. On the contrary, a common prerogative or rule nullifying authority is consistent with liberal democracy’s negative capacity, as per Locke’s argument, and belongs as much with public police action as anywhere.
To revitalize this anti-authoritarian latency in policing it is necessary that public police take a more nuanced and wider view of disorder and use their capacities according to an appreciation of those various authorities that push them to action. First, take discretion. Police discretion is understood as the decision not to enforce the law where (p. 229) it might be justifiably applied (Goldstein 1960; La Fave 1962). It is an institutional stopper and buffer that places liberal police actors in situ between various authorities and as choosers who initiate a line of action. This capacity is a requirement of legitimate authority. The power to work the thin blue line against tyranny need refer only to the capacity of police to use discretion. Police choose a remedy from a variety of choices in a troublesome situation. They may use their tools to interpret lawful coercion consistent with the letter of the law or the principles of legality. Consistent with the definition of sovereignty, police discretion is the choice (not) to act and decide exceptions to norms or law. It is also stipulated by the optics of executive necessity (action) where certain distinctions are disallowed as offensive to cultural aspirations (as prejudice) or economic vitalities. Discretion in the craft of policing is therefore choosing the sovereign or political expediencies that inform how or when to leverage access to troublesome people or places.
This takes from our discussion of plural authority. Police authority is the complement of discretion. If one accepts that the police role encompasses legal, coercive, and informational powers, to meet needs and risks, the navigation of authority within a privacy labyrinth is sufficiently wide. The metaphor “thin blue line” evokes the idea that the barrier between police authority and a citizenry is not meant to be too sharp and bold. This is well-represented in the earliest discourses about the New Police, particularly in famous phrase “the police are the public and the public are the police.” Indeed, policing is a dialogical enterprise. Public order policing is defined as “the use of police authority and capacity to establish a legitimate equilibrium between governmental and societal, collective and individual, rights and interests” (de Lint 2005). In each interaction between police and citizen cohorts or denizens, the currency of authority passes back and forth across “the thin blue line.” The legal basis for action is often an open question as a narrative or line of action is chosen or trialed and then pursued by actors. De facto or natural authority is challengeable and tested. Good dialogue depends on reference to the good, or something of value, and a good faith effort to attach a line of action to this value. These are ethical questions at the heart of “good policing” (Brodeur 2010) and must be asked. But there is no necessary constancy in either party to the dialogue. Both are shifting and adaptive. Police are actors who take a line noting the review of performance, who search for a proper footing in various kinds of authority, and who play to the most appreciative pockets of the audience; imperatively, to the heart of liberal doctrine in the protection of a sphere of liberty.
Lastly and in sum, may we situate police discretionary authority in minor rather than major politics (Mouffe 2005)? As a dialogical enterprise reflective of the polity policing is required to be absorptive of the common and popular. Too many think that taking popular direction is always a short step toward authoritarian policing, as evidenced in the penal populism literature. However, to take direction from popular movements is not to abandon the requirement to modify or modulate this impulse with principles of legality. The interaction between various politics and policing does directly influence police mandates and authority, but the direction of that influence is not predetermined, nor should it be thought to be a matter of inevitability. It is incumbent upon public police (p. 230) to ensure more than adequate uptake of minor politics and political movements, given that in our most established liberal democracies political power has been unseated from polities and functions poorly, if at all, to match societal preferences with official policy.
As this is being written, the Occupy Wall Street rebellion is building into a popular social movement, the first from the left in the United States since the 1930s, according to Dorian Warren (2011). Solidarity in the movement is achieved by reference to the slogan “We are the 99 percent,” referring to the economic, political, and social disparity between the vast majority of Americans and the 1 percent that comprise the elites that have gained from the policies of the past thirty years. The NYPD is caught directly between these so-called 1 percent and 99 percent forces. Protesters are calling for the NYPD to allow the occupation, with one protester saying, “They’re our NYPD” (Democracy Now 2011), while JPMorgan Chase—which paid out $156 million to settle a fraud case in which it was accused of deceiving clients into buying risky mortgage-backed securities (a precipitator of the 2008 crash that led to the Occupy movement)—donated $4.6 million to the New York Police Association on the eve of the protests.
How will police deal with this protest movement, particularly if it continues to grow? Police are not only to be judged against liberal institutions, and liberal democratic institutions are not necessarily averse to more blunted police instrumentation. Many scholars have pointed out that police respond to emergent social, political, and cultural conditions. Governments adapt to conditions of so-called emergency conditions by relaxing restrictions on arrest and detention, search and seizure, and monitoring or snooping. Although this provides police with extra leverage in accessing potentially troublesome people, it also narrows the options and cuts off the dialogue with minority politics (Mouffe 2005). Political authorities can lead police away from constructive negotiations about political grievances. Likewise, police may insist that avoidance of serious disorder requires that political authorities negotiate with minority politics spokespersons in occupied space to push a democratizing cause. Like the protestors, many recent commentators do not despair of this requirement and also seek to finesse the position of policing in the reinvigoration of liberal democratic practices (Loader and Walker 2001; Shearing and Wood 2003). This is in evidence in plural policing, nodal governance, capacity building, and in many other works of policing scholarship and policy innovation, measures that have a strong pedigree in grounded realist genealogies and practice.
10.5 A Scorecard for Anti-Authoritarian Policing
The right mix of authorities has thus far secured a strong role for public police in domestic governance and ordering (cf. Garland 2001). Police authority in liberal democracies is connected to diverse institutional supports (cf. Turk 1982). In situ, the legality of police (p. 231) authority is a matter of the exchange rates that public police barter between various government actors and a view of order. Actors reach out with (often) less visible capacities and instruments so that, as Brodeur (2010, 68) expressed it, the synoptic form of surveillance is augmented by the panoptic form. Viewed bureaucratically under conditions of resource competition, it is also guided by risk-aversion.
As constituted, public police possess a tremendous capacity to restore the footing of liberal democratic policing. They may act thus without adding a whit to the authority or formidable independence that they already possess. Who better than they to utilize professional expertise and craft to ensure survival of the institutions that in turn support them? Police are still very much visible and responsive to the policed community, and they elicit its trust by engaging in partnership dialogue.
That said, liberal democratic policing—or the actors that carry out public policing in liberal democracies—faces a stark choice right now. Foundational features of liberal democracies are in peril. Processes of appointments to legislative, executive, and judicial bodies and of the chief executive (the president) are now more than ever dominated by big money and machine politics. Popular disconnection from the traditional political process is at an all-time high. This democratic deficit can hardly be made up singlehandedly by public police as the “thin blue line.” Yet, as in decision making in public order policing, whose accommodation of minor politics may avert wider societal and political disorder, it is public police who will be at the vanguard one way or another. It may be a time to read the tarot cards or tea leaves and avoid the more dangerous result: the wholesale abandonment of the institutional foundation of liberal consent, a consequence of which will be visible in the destruction of our modern police. One starting point for encouraging best practice is a scorecard for anti-authoritarian practice. Such a scorecard would itemize practice against the common good. Luckily, it would not take much work to find the basis for such a device. There are over two hundred years of trial and error to draw from.
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(1) . Lord Denning, in R. v. Metropolitan Police Commissioner, ex parte Blackburn . All E.R. 763 (English Court of Appeal), at p. 769.
(2) . O’Donnell (1999) found that many Latin American states enjoy the capacity only partially, so that only in “blue zones” is there an effective bureaucracy, a functioning legal system, and clear monopoly over legitimate violence. In “brown zones,” there are strong “systems of local power” and the state is negligibly present. In colonial and frontier policing (Weitzer 1995; Hills 2009), the assertion of a state’s claim of jurisdiction is more tentative and manifest in a patchwork or tapestry in which the “rule of law” and “rule of men” are mixed and matched.
(3) . Including John Locke, Jean-Jacques Rousseau, Edmund Burke, John Stuart Mill, Jeremy Bentham, and other founders of liberal doctrine.
(4) . The crafters of limited government argued in favor of the principle of a freedom that belongs with all citizens (by which was meant people who were freeholders of property and male).
(5) . Other criticism abounds. Utilitarians discredited negative rights and ridiculed social contract theorists for their fanciful heuristic device and the idea that social reality was a product of prescriptive invention. Jeremy Bentham called the idea “nonsense on stilts.” Early social philosophers, including Emile Durkheim and Karl Marx, saw in liberal rights not so much a universal edifice as social conventions, relations, or norms set in contingency, historical specificity, and materiality. The social reality predicate and reality principal is now fully developed. Corrigan and Sayer (1985) argue that state institutions are formed through cultural revolutions. Tilly (1985) makes a strong case that states emerge as a normalization of organized criminal activities. Realist and critical legal scholars and a host of others criticized the non-materiality of the liberal subject, who is so often structurally prevented from achieving advantage from the rights she is told she is privileged to possess.
(6) . Citizens United v. Federal Election Commission, 558 U.S. 310 (2010).
(7) . Doreen McBarnett (1979) and others (Ericson 1981; Skolnick 1966; Manning 1977) have argued that the distinction between due process is overwrought when it comes to what police do at much of the low-level criminal intake where it would offer sovereign authority a good contest. McBarnett (1979) found that “due process is for crime control.” Ericson (1981) found that accused persons were dependents in the criminal process, a process that was not so much a contest or conflict between relatively equal parties as the bureaucratization or administering of accused. The high use of the plea bargain is also an unintended consequence, as it is an avoidance of the ambiguity of the process by both parties.
(9) . The United States is a so-called stronghold of liberal freedoms, but with less than 5 percent of the world’s population it accounts for 25 percent of the world’s incarcerated population, incarcerating more people for drug offences than Western Europe incarcerates for all its offences combined (Andreas and Nadelmann 2005, 251–52).
(10) . For instance, community policing was a response to the trust-gap between minority inner city residents and municipal, state, and police authority that resulted in an information gap that threatened police credibility (Silver 1967). Reassurance policing is another such innovation that is doubly-edged to gain both trust and information (Heatherington and Millie 2006).
(11) . Marx argued that to be governed through the ideal of liberties is not the same as being liberated or free, or it is a certain kind of liberation: liberation from an alternative, a connectedness to the material needs of others.
(12) . An illustration of the latter is Monsanto’s employment of Pinkerton’s as “the gene police.” Hired by the agribusiness giant, “the eye that never sleeps” gives Monsanto loss protection by developing informants, providing monitoring and surveillance of farmers, and “comb[ing] the countryside” for gene “seed pirates” (Robin 2011, 206, 207).
(13) . Many police analysts draw a version of police institutional purity from the historical interaction between an idealized police mission and the minor politics of a bygone day. This is partly because Anglo-American policing references back to Peel’s sensitization to fears and anxieties present at the formative moment of police modernization, a consequence of which is well-versed in various “Whig histories”: the diminution of the less visible, less dialogical “high policing” authority. Many analysts make rather less of the idea that liberalism in policing is currently connected to neoliberal ideals and practices. Today, fear of merchant class civilities may still discipline police authority, but the direction of the modulating impact is in favor of a so-called “zero tolerance” or public activities that deviate from the “look” of legitimate commercial transactions.
(14) . This challenges traditional limits on the sovereign’s right to act unilaterally across the divide of domestic and foreign affairs, a right that flows from the “lean, mean state” (Hall 1988), one that acts against the resuscitated classical idea of a free-choosing criminal who may be countered by rational deterrence.
(15) . Following Lukes (1976), consent is a “discursive production”: what is meant by “consent” or “self-government” is a strategy of power or the manipulation of meanings and appearances (Lukes 1976). Following both Lukes (1976) and Foucault (1977) power and authority is now understood as dynamic and contingent, incorporating not one but many audiences.
(16) . Many students of authority now acknowledge that it is not only de facto or natural, charismatic, and legal-rational (or de jure), but also the epistemic, moral, and media-derived (Herbst 2003).
(17) . The idea both of precaution and targeted policing is also reflected in other innovations of similar consequence. Under the Crime and Disorder Act, police in England and Wales have asserted themselves more deliberately across service providers from health to corrections, in a ubiquitous social control of offenders deemed prolific and priority. Multi-agency partnerships are “force multipliers,” seeing more by sharing information, and acting more singularly for “community protection.”
(18) . New York is also known for its “police surge” demonstrations, in which police unexpectedly converge in a variety of deployments (helicopter, car, motorcycle, mounted) in order to demonstrate an unpredictable counter-force that keeps the issues of terrorism and its antithesis in the public eye and consciousness (de Lint et al. 2007).
(19) . At the high end, University of Texas law professor Robert M. Chesney is just one legal scholar to contend the legality of extra-judicial executions like that of al-Alwaki (Chesney 2007; Shane 2011).
(20) . There are dissenting views on this purported relationship between sovereignty, democracy, and police power. For instance, many analysts take the view that it is precisely the openness of liberal democracy that leaves it more vulnerable than a totalitarian state to destabilizing forces from within and without. When dissent against a government policy builds or when a strong constituency is angered and wants to use alternative political vehicles to shift government policy or change government itself, there is a challenge to the social and political order and to the relationship between a particular political party and sovereign authority. This can produce a crisis of legitimacy, place public police in the difficult position of choosing sides, and leave liberal democracies appearing weak and vulnerable.
A deeper criticism is that political sovereignty in modern liberal democracies is more powerful because it has much more subtle capacities to collect, absorb, and co-opt dissenting voices—the function of much of the police assemblage. In this line of thought, civil institutions including a free press can still reproduce an ideological or even hegemonic view much more effectively than a totalitarian regime, even with its state propaganda apparatus and openly authoritarian practices (Holquist 1997).
At the highest levels, police also serve at the discretion of political authorities. This may be less problematic where politicians do not meet great resistance in instituting the real or perceived law enforcement, crime prevention, or order maintenance mandate on which they succeeded to win elected office. However, political authority is a matter of contention and is supported or undermined by other sources of power or authority within and without politics proper, including the charismatic or personal reputations of individual actors, the influence of pressure or lobby and demand groups, etc. In addition, there is, as is well documented, the sediment of bureaucratic forces and, in public policing, the significant capacity of the union-buttressed rank-and-file to resist ill-favored political direction.