Defund the Police: Part II, The Philosophical Roots

On 27 August 2016, in response to the Ferguson riots in Missouri, David Byrne wrote a scholarly article, “The Hegelian Roots of Black Lives Matter.” It eventually appeared in the American Thinker. (https://www.americanthinker.com/articles/2016/08/the_hegelian_roots_of_blacklivesmatter.html) The article was published in Theoria: A Journal of Political and Social Science (61:141: 5-29) It suggested that attempts to reform the police have deep philosophical roots. They do. Understanding those roots can help us understand the reform movement and its goals.

Whatever the demands and whatever the outcome, it seems clear that policing will once again soon undergo some radical and fundamental changes. This is far from the first time that radical revisions in policing have followed indiscriminate deaths and widescale protests. The last major shift was from a professional model to an emphasis on community policing that began in the sixties civil rights movement when protests as well as riots targeting racial injustices focused attention on the sources of racial discrimination and systemic racism in police forces in America. These pressures for change culminated in the 1980s. However, at the very beginning of the modern era when police departments were founded, community policing had been the norm. Those responsible for the maintenance of law and the protection of life and property were the citizens themselves who served on a voluntary level as constables and justices of the peace, though sheriffs might be hired and paid.

In the American south, policing entailed slave patrols of white volunteers to capture escaping slaves. In the West, the frontiersman and the Indian killers predominated. In the North East, the neighbourhood patrol backed up by paid watchmen predominated. Clearly, the local needs and norms of the society determined the mode of organization of policing and its functions. But not the philosophical premises which came from abroad, specifically Europe.

Police were first introduced as an instrument of the state in the eighteenth century in France, but modern policing did not begin until the nineteenth century in Britain and Germany when the police were first envisioned as primarily part of civil society to protect property and persons rather than just an instrument of the state to enforce public order. In France, police had meant government and the passage of special regulations to ensure public order even more than the protection of individual lives and property. In Denis Diderot and Jean le Rond d’Alembert’s 1765 Encyclopédie, police was defined as “the art of providing a comfortable and quiet life” to all the Earth’s inhabitants, especially city dwellers.  

Institutionalizing police as an instrument of government centered on an authority who possessed regulatory, judicial and enforcement powers to keep order. It was instigated by the 1660 plague and food riots in France. France had lost one-third of its population (one million deaths) in the epidemic of 1628-31 that itself had its roots in the devastating Black Death caused by the bacterium Yersinia pestis beginning in 1348. Epidemics plagued society. Disorder followed. By the time of the French Revolution, there were 3,000 troops in Paris assigned to keep order led by commissioners and inspectors who accepted bribes to top up their minimal pay.  

My personal experience with the French model of policing in a modern dress took place just outside of Versailles in 1977. I had picked up my eldest daughter in a Volkswagen camper van in Britain where she had finished a concert tour (she was then a flautist) and we had travelled across to the continent. We stopped to refill the gas tank before we got to Paris. The attendant filled the tank and I offered him my visa card to pay.

He did not recognize a Canadian visa card and insisted I pay cash. I had not had a chance yet to purchase French francs. (The Euro clearly had not yet been introduced.) He asked me to wait while he made a telephone call. I presumed it was to someone who could authorize payment. We waited ten minutes. A police van arrived and a platoon of 16 police officers with their batons piled out of the back. They certainly communicated a police presence designed to deter crime and preserve public order. My daughter spoke French and got into an argument as I collapsed beside the VW van in fits of laughter watching this keystone cop event. Eventually, unable to resist the verbal assaults of a Canadian teenager, the police retreated and advised the attendant to accept my visa card.

I could not imagine such an event in England from where we had come or Germany towards which we were heading. Philosophers in Britain and Germany entered the picture at the beginning of the nineteenth century opposed to the French model and the concept of a militarized government police force charged primarily with keeping public order. Both countries favoured a police force primarily focused on civil society. These reforms also coincided with urbanization and the great expansion of cities.

Besides the French, there were two major schools of thought: the German school, Policeiwissenschaft, in which the main function of policing was the promotion of the economic well-being of the community and the establishment of the core elements of a welfare state as a means of preventing crime.  The other British one was led by Jeremy Bentham, the great English utilitarian philosopher. I will refer to the three visions as the French, British and English models.

At the very end of the eighteenth century, along with the police magistrate, Patrick Colquhoun, Bentham wrote a philosophical disquisition to form the basis of two Parliamentary Bills intended to reform the policing of London, on the one hand, and the whole Thames basin on the other. (Cf. Writings on Political Economy, Volume III: Preventive Police, ed. Michael Quinn.)

Since 1791, Bentham had led the crusade against the transport of criminals to New South Wales in Australia in favour of the progenitors of our penitentiaries based on a philosophy of preventive policing. Previously, criminals were supposedly deterred by facing either exile or capital punishment for a wide variety of crimes. The continued presence of the police would now deter crime. The Thames River Police prevented the theft of cargo in the busy London port and the Bow Street Runners operated on land. Sir Robert Peel became the foremost advocate for implementing Bentham’s ideas and, in 1829, established the Metropolitan Police Service in London. Peel became the father of modern policing in Britain and London police were called “bobbies” in his honour. To overcome the heated opposition and the fear that police would become an arm of the state to control citizens, as in France, he offered the following principles to guide the governance of a police force:

  • The purpose of the police force is to prevent crime and maintain order.
  • Police depend on the approval and trust of the public to effectively do their jobs.
  • The ultimate goal of policing is to achieve voluntary compliance with the law in the community.
  • Police must be unwavering in their duties and adherence to the law, maintaining impartiality and avoiding the temptation to be swayed by public opinion.
  • The use of force and physical control is to be used as a last resort, only when other forms of persuasion have failed.
  • Police officers must remember that they, too, are members of the public and that their purpose is to serve and protect the public.
  • The true measure of the effectiveness of any police force is not the number of arrests or police actions taken, but the absence of criminal conduct and violations of the law.

At the time that Peel was forming his London police force, George Wilhelm Hegel was writing his Philosophy of Right in Berlin. In the Third part dealing with Ethical life, civil society was viewed as the link between the family and the state, the sphere in which the individual was “torn” from his or her family and recognized as a self-subsistent person. Civil society was divided into the system for taking care of needs – the economic system – and the administration of justice, including rights and the legal system on the one hand, and the police and “The Corporation” on the other. The function of the police was to ensure security, the safety of persons and property. Further, the individual had duties as well as rights. And the organization of the economic sphere had a direct bearing on establishing a balance. For if the distribution of wealth is skewed to the rich and the general part of society is impoverished, disorder and discontent will result.

In Bentham, the role of the police could be governed by a self-contained set of guidelines to deter crime. In Hegel, this was not possible since the definition of crimes and challenges to public order varied with economic, social and political circumstances. The justice system was an external system and organization “for the protection and security of particular ends and interests en masse.” Thus, the ethical principles that emerge will reflect the character of civil society and cannot be independently established.

Success, as stated above, was measured in each case by the prevention of crime (defined by Hegel as a “subjective willing of evil”) and by bringing those who threaten that safety and security to justice. The police do not derive their authority from the internal “natural” order of civil society, as in Bentham, but in performing on behalf of society a supervisory and preventive ethical power that, in the end, resides in the state.

The difference between Hegel and Bentham is that in the latter’s utilitarianism, the function of prevention is guided by universal norms. In the Hegelian schema, there is “no inherent line of distinction between what is and what is not injurious…or between what is and is not suspicious, or between what is to be forbidden or subject to supervision and what is to be exempt from prohibition, from surveillance and suspicion.” That is determined by custom, the spirit of the constitution, contemporary conditions, the crisis of the hour, etc.

In other words, norms of policing are always subject to revision relative to the time and place. Further, policing for Hegel had an additional problem. Supervision of the police was to be conducted with as little public knowledge and visibility in civil society as possible. This also meant that police operated surreptitiously, invisible to the public eye so that individuals would not recognize that they were being “policed”. In his Addition to his book on rights, Hegel showed how prescient he was and included the following: “As a result of this presence of accident, of personal arbitrariness, the public authority acquires a measure of odium.” Further, the public authority tends to be accumulative, drawing everything possible under its ken.

That is why you need constant oversight and care. For the actions of individuals may theoretically always be wrongful depending on what is considered injurious and what is not. Can a child open a cap? Does a photo promote child molestation? The public has a right not to be led into harm’s way, to be defrauded and, hence, even the mode of production and packaging of goods must be supervised and ordered. Then, as a result of the clashes between the needs of consumers and the rights and interests of producers, overall control is necessary “to diminish the danger of upheavals.”

Clearly, the Benthamite (English) and Hegelian (German) positions overlap in stressing deterrence. But the Hegelian emphasis in the fundamentals of the economic order in ensuring fairness, on oversight because there can be no permanent ethical norms for these vary over time and circumstances, on the inevitability of police incrementalism and accumulation of the opprobrium of the public, offered a very different trajectory for the establishment of police forces.

Of the three alternatives, the French, the English and the German, which philosophical position did America adopt?

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