Privatising Justice

The Security Industry, War and Crime Control

Wendy Fitzgibbon, John Lea

• Publisher: Pluto Press
• Year: 2020
• Print ISBN: 9780745399232
• eBook ISBN: 9781786801678
• Edition: 1
• Topic: Scienze sociali
• Subtopic: Criminologia

Privatising Justice takes a broad historical view of the role of the private sector in the British state, from private policing and mercenaries in the eighteenth century to the modern rise of the private security industry in armed conflict, policing and the penal system.

The development of the welfare state is seen as central to the decline of what the authors call 'old privatisation'. Its succession by neoliberalism has created the ground for the resurgence of the private sector. The growth of private military, policing and penal systems is located within the broader global changes brought about by neoliberalism and the dystopian future that it portends.

The book is a powerful petition for the reversal of the increasing privatisation of the state and the neoliberalism that underlies it.

1

Old Privatisation

This book deals with the issue of the outsourcing of the coercive aspects of state power to private corporations. By the coercive aspects of state power we refer generally to military force, various aspects of policing and the punishment of criminal offenders. Other aspects such as the guarding of frontiers and the private protection of individual and commercial property are also considered, but issues such as taxation fall outside our focus, although these might possibly also be regarded as a form of state coercion.

Discussion of these issues usually begins with a reference to the sociologist Max Weber, who famously defined the state in terms of its ability to claim ‘the monopoly of the legitimate use of physical force within a given territory’ (Weber 1946: 78). There has of course been much critical discussion of this definition of the state, but it is one we shall work with here because of its historical and intellectual reach. The issue of legitimate coercion is central to the areas of outsourcing we are going to discuss. Until fairly recently, only states could legitimately declare war on other states; warfare by non-state actors was piracy or banditry. Still today, only the state legislature has the power to make laws and only the state courts have the authority to imprison those who violate them. Coercion by any other individuals or organisations is kidnapping and false imprisonment. Only the state, acting in accordance with properly enacted laws, can demand your taxes. Such a demand from any other individuals or organisations is a criminal protection racket.

But there is one aspect of Weber’s view of the state that is worth further discussion here. Does the state derive legitimacy from the fact that it is able to secure its monopoly of force? This view was articulated by the historian Charles Tilly (1985), who saw the consolidation of modern state legitimacy as the outcome of long periods of medieval warfare in which regional barons, warlords and bandits competed over the use of violence in a particular territory. Eventually the most powerful group succeeded in establishing its monopoly and that monopoly came, eventually, to be accepted as legitimate. Tilly was well aware that this process of establishing a monopoly of legitimate force is never complete and is periodically challenged by rival non-state organisations. He wrote a preface to Anton Blok’s study of the Sicilian mafia (Blok 1974) in which he (Tilly) posed the question of whether the mafia, although powerful enough to challenge the power and authority of the Italian state and to achieve a degree of respect and legitimacy in the eyes of the local population, could ever itself become a state:

If one mafia network managed to extend its control over all of Sicily, all concerned would begin to describe its actions as ‘public’ rather than ‘private’. The national government would have to come to terms with it, outsiders and insiders alike would begin to treat its chiefs with legitimate authority. It would be a government, it would resemble a state. (Blok 1974: xxiii)

It did not do so, according to Tilly, because it remained a system of competing and periodically fractious clans and families. While we are concerned with the privatising and outsourcing of state coercive power to legitimate private security companies rather than organised crime, Tilly’s observation is important. If, under certain circumstances, a mafia could become a legitimate government, under what circumstances might a private company achieve the same status? We might ask whether a powerful multinational security company like G4S could ever come to ‘resemble a state’ rather than simply provide certain outsourced services to the existing state and to other private corporations authorised by the state.

But this is something for a later chapter. The issue here is that in the eighteenth and early nineteenth centuries, a great deal of legitimacy adhered to private corporations, groups and individuals engaged in activities that would later come to be seen as the legitimate monopoly of the state. The process of change was certainly not that these private organisations came to assume a state-like legitimacy. Rather, their activities were taken over in various ways by means of the expansion of the existing state machinery during the end of the nineteenth and the first half of the twentieth centuries. The most important issue, and our main discussion in later chapters, is why in recent decades their activity and importance has increased.

Part of laying the ground for an answer to this question requires that, as we turn to a broad outline of old privatisation in England during the eighteenth and early nineteenth centuries, we acknowledge an important distinction between types of private power. As industrialisation, urbanisation and the expansion of imperialism and overseas trade gathered pace it became clear that there were some forms of private power which, inherited from previous historical periods, were clearly obstacles to these developments. Aristocratic landowners fencing off their private estates in the middle of growing cities obstructed the increasing flow of people and goods. Progress, as we shall see, demanded their dismantlement. But to regard all forms of old privatisation in this way is problematic. A conventional view of the history of English policing, for example, tends to see the old local and private systems as archaic and inefficient, and their replacement by state-sponsored forces as inevitable. Yet closer inspection reveals that much innovation and modernisation of policing was sponsored by private interests. The consequence is that the eventual demise of private policing has to be explained in terms other than simply those pertaining to efficiency. The important consequence is that, when we come to investigate the resurgence of the private sector in recent decades, an explanation which also goes beyond reference to efficiency or value for money will certainly be required.

We are aware, finally, that the greater extent of private and local institutional power, with regard to the English criminal justice system, at the beginning of our period contrasted with much of continental Europe. On whether or not this reflected some special defect or ‘peculiarity’ of English capitalist development, as famously debated by Marxist historians such as Tom Nairn, Perry Anderson, Edward Thompson and others during the 1960s and 1970s (see Meiksins Wood 1992), we take no position. What we can, however, take as the starting point of our discussion is the fact that ‘by the late seventeenth century the English State lacked the coercive capacity to exact a uniform compliance throughout its social structure’ (McMullan 1995: 123).

PRIVATE WARFARE AND COLONIAL SOVEREIGNTY

From an early stage the inefficiencies of the English state were evident in its overseas activity – colonial conquest – which was as crucial a part of capitalist expansion as the growth of the domestic economy and social structure. The demands of warfare both between European states and as an aspect of early colonial expansion in the seventeenth and eighteenth centuries necessitated expansions of military force supplemented from private sources. In 1701, 54 per cent of British military forces were foreign mercenaries (Thomson 1996: 29). The hiring of foreign professional soldiers, as individuals or corporations, as a supplement to domestic militaries goes back to the ancient world and long predates the modern nation state (see Holmila 2012).

But the important innovation from the seventeenth century onwards was the growing demands of colonial expansion, which far outstripped the capacities of the English state (the British state after union with Scotland in 1706). The seventeenth and eighteenth centuries were the age of the armed trading companies of which the most well known are the British and Dutch East India Companies, which began to assume state-like powers in colonial conquest. ‘Because of the limited capacity of the early modern state, the extension of imperial sovereignty to overseas territories necessarily relied ... on the delegation of legal powers to these non-state entities or persons’ (den Blanken 2012: 7–8).

The (British) East India Company was described by Edmund Burke as ‘a delegation of the whole power and sovereignty of this kingdom sent into the East’ (quoted in Thomson 1996: 32). Philip Stern rejects the notion of the company as ‘state-like’ in favour of the notion of a ‘company-state’ (Stern 2012: 6; see also Wilson 2009). That is to say, the company’s charter from the British Crown – in that sense, of course, it remained an outsourced power of the English state – which began in 1600 as a trading monopoly, was progressively extended until it became

a claim to jurisdiction over all English subjects in Asia and the Eurasian populations resident in its growing network of settlements. Grant after Grant from English monarchs progressively expanded this purview, giving the Company leave to establish fortifications, make law, erect courts, issue punishment, coin money, conduct diplomacy, wage war, arrest English subjects, and plant colonies. (Stern 2012: 12; see also Thomson 1996: 35)

By the late 1700s, the East India Company’s own army of around 100,000, including foreign mercenaries, was larger than the British army. The activities of the company in India can only of course euphemistically be described as ‘trade’. The realities of its rule included outright looting and pillage, impoverishment through ruinous levels of taxation imposed on Indian communities and massive levels of bribery and deception. These were the realities of the foundation of the British Raj (Dalrymple 2015). Much of this wealth flowed directly to the coffers of the company rather than the British state, such that what may have begun as ‘outsourcing’ ended up as more or less complete privatisation – until the British Crown reasserted control well into the second half of the nineteenth century. But until then the virtual monopoly and indeed independence from British state control certainly enabled the company to ‘resemble a state’ in the sense elaborated by Tilly. This independence included the initiation of military conflict independently of the orders of the British government. This was established early on. In 1622, in collusion with Persian forces, company troops attacked Portuguese garrisons in India despite government orders to the contrary (Singer 2007: 33–4). Company-initiated wars of conquest continued well into the nineteenth century (Kinsey 2006: 39).

Furthermore, during the seventeenth and eighteenth centuries the monopoly of the right of the sovereign government of a country to wage war was less clear than it became later in the nineteenth century. David Kennedy, in his discussion of the legal and moral dimensions of warfare, notes that earlier discussions ‘did not distinguish between legal and moral authority, or between national and international law, or between the public and private capacities of sovereign authorities’ (Kennedy 2006: 48). Thus, ‘all sorts of entities had rights – rulers of many different kinds, individuals, citizens, pirates, merchants. Later would come the East India Tea Company’ (Kennedy 2006: 61). In other words, the right of the East India Company to wage war was not simply a matter of outsourcing by the British state, but rather derived from a world in which the capacity and right to use military force was not yet clearly limited to the sovereign governments of states. In England in particular – where at the same time, as we shall see, substantial areas of the domestic criminal justice machinery remained in private hands – this would hardly have seemed strange.

Nevertheless, the autonomy of the company was a necessary part of early colonial expansion rather than some anachronistic survival. It reduced the military and administrative burden on the British state as well as providing the latter with a strategy of plausible deniability in cases of failure or morally dubious action (Thomson 1996: 44; Whyte 2015: 41). The autonomy of the ‘company-state’ resolved the difficulty of stretched lines of communication in the early period of rapid colonial expansion where ‘requiring companies to wait for the sovereign’s instructions would probably not have been a viable option’ (Holmila 2012: 60). This was the case particularly with respect to the important role of the company in combatting rival aspiring colonial powers such as the Netherlands, which promoted the powerful Dutch East India Company.

The East India Company was not simply a trading company but also operated textile factories in the areas of India under its control and

the transformation of the company into an increasingly powerful territorial organisation enabled it to deploy its coercive apparatus in support of its intervention in the labor process, as it did through the assignment of military personnel to protect and support the gumashtas (supervisors) and their staff, or through the later enactment of legislation requiring weavers to work exclusively for the company. (Arrighi and Silver 1999: 111)

It was precisely those coercive measures designed to produce a docile labour force habituated to factory discipline and wage work which also played a major role in the reforms of the English police system, reforms led, as we shall see presently, by the London merchant and magistrate Patrick Colquhoun in the form of his own private system of police. The private sector (as it would now be called) laid down the foundations for a modern police force and, indeed, the formation of the modern working class.

POLICING AND CRIME CONTROL

There were certainly aspects of private power in the area of policing and crime control which were anachronistic obstructions to capitalist modernisation. The resistance, during the early years of the nineteenth century, of the rural gentry and landowners to police reform is well known. Douglas Hay wrote of the eighteenth-century landowners: ‘A regular police force did not exist, and the gentry would not tolerate even the idea of one ... In place of police, however, propertied Englishmen had a fat and swelling sheaf of laws which threatened thieves with death’ (Hay 1975: 17). For the enforcement of that ‘sheaf of laws’ the landowners had their own armies of retainers, gamekeepers and supporters. As late as the 1830s, during the Captain Swing riots in Hampshire, the Duke of Wellington ‘induced the magistrates to put themselves on horseback, each at the head of his own servants, retainers, grooms, hunters, gamekeepers armed with horse whips, pistols, fowling pieces, and what they could get, and to attack in concert ... those mobs, disperse them and take and put in confinement those who could not escape’ (Kent and Townsend 2002: 126, quoted in Clement 2016: 124–5).

The recourse to private arrangements for the defence of private property was not simply a rural phenomenon. Even in rapidly growing cities private land, guarded by what would now be called private security and initially resistant to the incursions of public authority, was a major factor. During the eighteenth and early nineteenth centuries,

large sections of urban centres such as London, were owned by a small group of wealthy landlords who controlled vast swathes of the capital ... Reflecting both the social divisions of the time and the management practices of the private landlords, the capital in this period was characterised by numerous gated squares and private streets, where public access was restricted or blocked by hundreds of gates, bars and posts. (Minton 2006: 9)

This enclosure of public space by private landowners dates back to the seventeenth century. The Dukes of Bedford were major private landowners in London and ‘Upper Woburn Place, originally a private road for the Dukes, had gates in the eighteenth century. By 1798 this road was closed off to traffic, and from the early 19th Century, parts of the Bedford Estate had gates at all entrances’ (Mudlark 2016). By the 1820s the Duke of Bedford had over 200 gates on his properties and employed his own private security to guard them. Private control of urban space was increasing well into the nineteenth century:

the West End was a gilded cage of privilege, the limits of which were constituted not only in the informal and subtle manipulation of the ‘quality’ of its residential neighbourhoods and communities, but also more crudely through the blockading of streets to keep out undesirables and to restrict or ban access to traffic ... The Bedford Estate, one of the most stringent in the protection of its territory, employed uniformed ex-prison officers to vet traffic, and these men acquired a reputation for unflinching defence of their domain, occasional surliness and even violence. At an 1874 court hearing of the reasons for a fracas at the Gordon Street gate, the keeper declared that ‘he would suffer death rather than let the cab through’. (Atkins 1993: 266)

Alongside this private system of what would now be called ‘gated communities’ there existed, as far as the detection of crime and the general policing of public space was concerned, a traditional localised system of parish constables and night watchmen together with a privately paid system of crime detection. The principle of payment for service was a powerful driver of the ‘old’ police and prosecution system (McMullan 1996; Rock 1983; Zedner 2006). Constables were unpaid: any victim of crime who wanted a constable to apprehend a perpetrator was expected to pay the expenses (Friedman 1995: 475–6). It is true that the system had its contradictions, in particular that private thief-takers hired by victims and paid ‘by results’ for property recovered and/or perpetrators apprehended for prosecution had an incentive to collude with criminals; there were some celebrated cases of this (Zedner 2006; McMullan 1996).

At least some of the criticism of the old system might be special pleading to frame Robert Peel’s new police, which took to the streets of London in 1829, as a great step forward in state-led reform. Indeed, to anticipate our later argument, the alleged inefficiencies of the private system were not the main reason for the eventual predominance of Peel’s police. Where policing was less associated with the general disciplining of the working class and the symbolic control of public space, and more focused on the protection of the propertied classes from robbers and burglars – in other words when security was still to a considerable extent seen as a private good available to those who could pay – then a system of fee payment for thief-taking made sense. Payment by results (in modern parlance) for the detection and apprehending of offenders appeared natural to the urban middle classes in eighteenth-century London, as it is beginning to appear once again (as we shall see in Chapter 4) to their twenty-first-century descendants, who are increasingly hiring private security companies to defend their property.

Furthermore, the system reflected an older pre-industrial tradition which considered it a duty for men of property to participate in the governance of their communities as magistrates and constables (Dodsworth 2004). The origins of private payment for policing functions lie in the desire to delegate these functions to others. This, particularly in the duties of constables and watchmen, was not private enterprise in quite the modern sense but a commutation of traditional civic duties. The legitimacy of payment for service being established, it could then seem obvious, in the face of rising theft and street robbery, to pay private thief-takers and informers. Thus it is not surprising that reformers – such as the London magistrates in the mid-eighteenth century onwards led by the Fielding brothers – should seek...

Table of contents

• Cover
• Title
• Copyright
• Contents
• Acknowledgements
• Introduction
• 1. Old Privatisation
• 2. The Consolidation of State Power and Legitimacy
• 3. The Re-emergence of Private War
• 4. Private Security and Policing
• 5. The Private Sector in the Penal System
• 6. Towards a Private State?
• References
• Index