The Police Power

Patriarchy and the Foundations of American Government

Markus Dirk Dubber

• Publisher: Columbia University Press
• Year: 2005
• ISBN:
  9780231506953
• Topic: Política y relaciones internacionales
• Subtopic: Corrupción política y mala conducta

Mention the phrase Homeland Security and heated debates emerge about state uses and abuses of legal authority. This timely book is a comprehensive treatise on the constitutional and legal history behind the power of the modern state to police its citizens.

Dubber explores the roots of the power to police—the most expansive and least limitable of governmental powers—by focusing on its most obvious and problematic manifestation: criminal law. He argues that the defining characteristics of this power, including the inability to accurately define it, reflect its origins in the discretionary and virtually limitless patriarchal power of the householder over his household. The paradox of patriarchal police power as the most troubling yet least scrutinized of governmental powers can begin to be resolved by subjecting this branch of government to the critical analysis it merits. Dubber shows us that the question must become how can the police power and criminal law together serve the goals of social equity that define and give direction to contemporary democratic societies? This book goes to the heart of this neglected but crucial topic.

	PART I
	From Household Governance to Political Economy

1	Police as Patria Potestas

Two basic modes of state governance can be traced throughout the history of Western political thought and practice. Autonomy, or self-government, is the basic norm of modern state governance through law. Thomas Paine was right: in America the law is king, as it is in every other modern democratic state; but it’s not everything.¹ There is another mode of governance, police. While the state may govern its constituents through law, it also manages them through police. In contrast to law, police is defined by heteronomy, or other-government, of the people by the state. And so Thomas Jefferson was right as well when, eager to enlist institutions of higher learning in the formidable task of governing his newly independent state of Virginia, he established not the first American professorship of law, as is commonly supposed, but a chair in “law and police.”²

These two modes of governance, law and police, reflect two ways of conceptualizing the state. From the perspective of law, the state is the institutional manifestation of a political community of free and equal persons. The function of the law state is to manifest and protect the autonomy of its constituents in all of its aspects, private and public. From the perspective of police, the state is the institutional manifestation of a household. The police state, as paterfamilias, seeks to maximize the welfare of his—or rather its—household.

Politics and Economics in Athens and Rome

Government, and politics, has always meant both resolving conflicts among equals, and managing inferiors, with modes of governance appropriate to each. And so autonomy and economy, justice and police, can be found to underlie political institutions as far back as the beginnings of Western civilization, in the Greek city-states. As Hannah Arendt has argued,

[t]o be political, to live in a polis, meant that everything was decided through words and persuasion and not through force and violence. In Greek self-understanding, to force people by violence, to command rather than persuade, were prepolitical ways to deal with people characteristic of life outside the polis, of home and family life, where the household head ruled with uncontested, despotic powers, or of life in the barbarian empires of Asia, whose despotism was frequently likened to the organization of the household.³

Autonomy occupied a central place in Greek political thought, in two senses. First, autonomy was a communal attribute. One political community was autonomous insofar as it was free from oppression by another; autonomy in this sense meant the absence of heteronomy. This communal sense of autonomy—or sovereignty—still plays an important role in international politics. Complaints by one state about another state’s interference in its internal affairs are as familiar as they are legitimate.

But autonomy had intracommunal significance as well. One political community could be externally autonomous from another in the above sense without being internally autonomous. To be internally autonomous, a political community had to be democratic.⁴ Through participation in political affairs, the constituents of the community governed themselves. They were not governed by another community—or rather its governors; neither were they governed by other members of their own community.

In this sense, autonomy is both a communal and an individual attribute. A political community is autonomous to the extent that its constituents govern themselves, i.e., are autonomous. The distinction between government and individuals disappears along with the distinction between the governors and the governed, or the subjects and objects of government. At any rate, we will be concerned with autonomy primarily as an individual attribute, leaving autonomy as a communal attribute, or sovereignty, to discussions of international politics.

Because autonomy as sovereignty is compatible with internal heteronomy, it must be sharply distinguished from individual autonomy.⁵ A dictatorship can make claims to sovereignty, and therefore to noninterference from the outside, just as well as a democracy.

The tension between sovereignty and autonomy was already very much evident in internal Greek politics. The participant in political life, the subject-object of Athenian self-government, was the head of the household.⁶ But while this head of the household enjoyed political autonomy, the other members of his household lived in utter heteronomy, and more precisely, in utter heteronomy under the autocratic rule of the very man who claimed autonomy for himself in the political realm.

What’s more, it was the very heteronomy of mere members of the household that qualified their head as autonomous.⁷ Throughout most of the history of democratic government only propertied heads of household were qualified to participate in political life.⁸ All others were considered insufficiently autonomous to lend legitimacy to the government through their participation. This lack of autonomy derived either from their inability or failure to exercise their capacity for autonomy, as in the case of the poor and children, or the complete lack of the capacity itself, as in the case of slaves, livestock, plants, and inanimate objects.⁹

We’ve noted that in the intercommunal realm, sovereignty was compatible with intracommunal autonomy as well as heteronomy. Within a democracy, sovereignty didn’t merely permit heteronomy; it required it. Greek political thought recognized two separate, but mutually dependent, spheres of governance. In the public sphere of the city-state, governance was self-government for and by autonomous constituents. In the private sphere of the family, however, governance was economy for the household by its head.

Much of Greek political thought was devoted to exploring the connections, as well as the distinctions, between the modes of governance in these two realms.¹⁰ According to Aristotle, in his Politics, “the state is made up of households.”¹¹ Each household, in turn, was under the management of its chief. The head was entitled, and obligated, to maximize the welfare of his household. To this end, every member of the household was at his disposal. The entire household, in other words, consisted of instruments the skillful operation of which made up the art of household management.

Moreover, as Aristotle emphasizes, these “instruments are of various sorts; some are living, others lifeless.”¹² The power of the head extends over the household in its entirety, over things and persons and animals and plants alike. Household management is resource management, not person governance. For this reason, as Aristotle explains in the Nicomachean Ethics, matters of household governance lie beyond the realm of justice: “there can be no injustice in the unqualified sense, towards things that are one’s own, but a man’s chattel, and his child until it reaches a certain age and sets up for itself, are as it were part of himself” so that “justice can no more truly be manifested towards a wife than towards children and chattels.”¹³

Political government and household management should not be confused. Here is Aristotle’s way of drawing the distinction between these two modes of governance: “[T]here is one rule exercised over subjects who are by nature free, another over subjects who are by nature slaves. The rule of a household is a monarchy, for every house is under one head: whereas constitutional rule is a government of freemen and equals.”¹⁴ In other words, political government, and only political government, is autonomy: “in most constitutional states the citizens rule and are ruled by turns, for the idea of a constitutional state implies that the natures of the citizens are equal, and do not differ at all.”¹⁵

One finds very much the same arrangement in Roman and medieval law. Roman law in particular paid much attention to defining the obligations and rights of the paterfamilias. The Roman paterfamilias, like his Greek analogue, was in charge of the welfare of his household, or familia.¹⁶ To discharge his obligation he was equipped with extensive powers to discipline those constituents of his household who—or which—interfered with his management.¹⁷

Roman society closely resembled the two-level system familiar from Greek politics. “We must imagine,” explains James Strachan-Davidson, “a number of households, each united under its own paterfamilias. Inside the household the father is the sole judge. The relations of the household and its members to other households resemble … international concerns rather than transactions between individuals.”¹⁸

Over his familia, the paterfamilias enjoyed unlimited authority in practice, and virtually unlimited authority in theory. Since the power to discipline arose from his duty to maximize the welfare of the household—and its members—the head was not authorized to discipline for any other reason. In particular, he was prohibited from disciplining out of what common law courts would, much later, call “malice,” as we’ll see in greater detail below.¹⁹ A household head who maliciously harmed members of the household forfeited his title; as no longer worthy of his position of responsibility, he also was no longer worthy of protection from the state for measures necessary to discharge that responsibility.

This limitation on the father’s disciplinary power was particularly important in the case of inferior members of the household who had the capacity for autonomy, and therefore for participation in the political life of the state. A father who maliciously stunted the development of his children, in particular, therefore harmed not only them, but the state as well:

For, inasmuch as every family is a part of a state, and these relationships are the parts of a family, and the virtue of the part must have regard to the virtue of the whole, women and children must be trained by education with an eye to the constitution, if the virtues of either of them are supposed to make any difference in the virtues of the state. And they must make a difference: for the children grow up to be citizens, and half the free persons in a state are women.²⁰

The relationship between the household head and his slaves differed from those between him and his wife, and between him and his children. As one of the master’s possessions, “an instrument of action,” the slave was literally to be mastered: “the slave has no deliberative faculty at all; the woman has, but it is without authority, and the child has, but it is immature.”²¹

Now in Greek writings on economics—the science of household management—one finds slight variations on the question of what constitutes the household. Xenophon, in his Oikonomikos, “probably the oldest and certainly the most influential discourse on ‘economics,’” limited the household to “the material possessions of the household head.”²² Aristotle, by contrast, included within the household not only inanimate possessions, but persons and relatives as well, “all those persons subject to the authority of its chief.”²³

Apparently this ambiguity persisted in Roman economic thought. According to Herlihy,

[i]n classical Latin, the word familia carries equivalent meanings. It designates everything and everybody under the authority (patria potestas) of the household head. Familia in classical usage is often synonymous with patrimony…. Familia could also mean persons only, specifically those persons subject to the authority of the paterfamilias, the household chief, usually the father…. Thus, the jurist Ulpian, in the second century A.D., defines “family” as those persons who by nature (that is, natural offspring) or by law (wife, adopted children, slaves) are subject to the patria potestas. This definition still recognizes no distinction between the primary descent group and servants and slaves. But it does retain a crucial distinction between the father and the family, the ruler and the ruled, even though by Ulpian’s day the patria potestas had considerably weakened….

[T]he classical understanding of the word familia excluded from its membership its chief, th...