Policing the demos: Foucault, Hegel & police power in Waller v. City of New York.
For Hegel (1991), the branch of the public authority he refers to as polizei is the ethical power of the state acting upon civil society to provide oversight and provisions for individual welfare within the system of needs. In The Philosophy of Right, polizei is thus responsible for preventing crime, providing for the contingencies of the market that produce poverty (public welfare), limiting the encroachment of individual liberty upon the general welfare, as well as for all the unknown contingencies that could potentially harm the security and well-being of individuals. Thus for Hegel, polizei is essentially an ethical power of the state acting upon civil society, but as:
an external order and arrangement for the protection and security of the masses of particular ends and interests which have their subsistence [Bestehen] in this universal; as the higher guiding authority, it also provides for those interests which extend beyond the society in question. (1)
As the 'higher guiding authority' over civil society, polizei concerns itself with the protection and security of all particular individuals within civil society, 'with the result that the ethical returns to civil society as an imminent principle' (p249). Thus for Hegel (POR), polizei is in fact the ethical power of the state concerning all individuals that derives its authority not from internally to civil society; that is, its authority is not founded or derived from the consent of individuals internal to civil society. Polizei, for Hegel, thus partly derives its authority over individuals in its claim to universality, as an 'external order' to the particular society which it supervises. Polizei, therefore, does not derive its authority from the internal order of civil society; rather, for Hegel it constitutes the supervisory, provisionary and preventative ethical power of the state whose authority derives externally to civil society, instead from its claim to 'universality' as such.
Since this 'higher' ethical guiding power of the state derives its authority externally to civil society, the scope of polizei then becomes particularly problematic for Hegel. For Hegel, defining the scope of polizei becomes subject to intractable difficulties because, reflecting on the nature of crime, contingency and the logic of 'prevention', it is especially difficult to specify a priori the limits of police authority and control over individuals. Since polizei is concerned with the security of every individuals' particular well-being (p230), and potential wrongs or harm done to individuals are by definition indefinable and subject to contingency and the demands of expediency, then it follows that polizei must have authority over events, harms and wrongs that are indefinable in nature and cannot be specified in advance. Thus, because the nature of potential harm or wrong cannot be specified a priori, then the scope of police power cannot (and indeed ought not) be objectively limited or circumscribed. For Hegel, this problem surrounding polizei is just as ethical a question as an epistemological one. Hegel writes:
The relations of external reality occur within the realm of the infinity created by the understanding, and have accordingly no inherent limit. Hence, as to what is dangerous and what not, what suspicious and what free from suspicion, what is to be forbidden, or kept under inspection, or pardoned with a reprimand, what is to be retained after pardon under police supervision, and what is to be dismissed on suspended sentence, no boundary can be laid down. Custom, the spirit of the constitution as a whole, the condition of the time, the danger of the moment, etc., furnish means for a decision. (2)
Hegel continues in the Addition struggling with the problems of 'the police power', calling attention to the tension between its duty of ethical oversight of individuals and the unlimited power it wields over individuals' lives as an external order of state power. Indeed, when speaking of polizei, Hegel writes:
No fixed definition can here be given, or absolute boundary drawn. Here everything is personal and influenced by subjective opinion. To the spirit of the constitution or the danger of the times are due any more decisive characteristics. In time of war e.g., many things morally harmless are looked on as harmful. Because of the presence of this aspect of contingency and arbitrary personality the police are viewed with odium. They can by far-fetched conclusions draw every kind of thing within their sphere; for in anything may be found a possibility of harm. Hence the police may go to work in a pedantic spirit, and disturb the moral life of individuals. But great as the nuisance may be, an objective limit to their action cannot be drawn. (3)
Thus for Hegel, polizei refers to the ethical power of the state for the supervision of and provision for individuals, whose scope or limits cannot and should not--because of its very nature--be objectively specified.
Hegel then clearly recognises the intractable problems with polizei, and his attempts to come to terms with the nature and role of 'police' in the ethical life of individuals can be seen in his debate with Fichte. In his Lectures on Natural Right and Political Science, Hegel (2012) criticises Fichte's conception of the role of police, according to which 'no persons can go without having their identity papers with them, and he deems this very important so as to prevent crimes.' (4) Such a state, Hegel says, 'becomes a galley of slaves where each is supposed to keep his fellow under constant supervision' (p212). Instead, Hegel writes, 'police supervision must go no further than is necessary', adding that 'though it is for the most part not possible to determine where necessity begins here.' However, while rejecting the Fichtean conception of police state as the ever-present visibility of police presence, Hegel writes that '(I)n this respect secret police would be best, for people ought not to see that they are exercising supervision even though such supervision is necessary' (p212), adding that 'the purpose of what is hidden is ... that public life should be free' (p212). Thus the problem of police for Hegel is one of knowledge and visibility: police supervision should be conducted with as little public knowledge and visibility in civil society as possible. Hegel continues in LNR by claiming that, apart from a limit that should be set on police supervision of private property, 'no limit can be set within which this supervision must be confined' and that 'a good police force should not be noticed at all, and since it is not seen doing anything, it gains no praise either' (p213). Thus for Hegel, a good polizei will operate surreptitiously, invisible to the public eye, without individuals knowing that they are being supervised and 'policed'.
It is in this context that Hegel (LNR) situates polizei as the third sphere of civil society, alongside political economy (Staatsokonomie) and the legal system (Rechtsverfassung), where polizei is that sphere of ethical life in where 'the universal emerges as such' (p213). Speaking of the role of polizei, Hegel then makes immediate reference to Plato's Republic, where he writes that:
The Politeia teaches the form of government of the people. With us 'the police' may also mean something universal over against the particular citizen, but this universal has as its end the welfare of individuals as individuals, not, as in the Politeia, as a universality (p213).
Thus for Hegel, Plato's Politeia serves as an example of an external public power of universality over against the individual, and because of this politeia is linked directly to Hegel's use of polizei. The ancient form of 'police' referred to as politeia is thus for Hegel a kind of ethical power of the state over individuals, whom it treats not as particular individuals with specific interests and needs, but rather as a 'universality' of homogenous identities. As Bykova explains, the Greek polis embodies 'police' rationality on account of the fact that:
People live bonded by an ethical substance (sittliche Substanz), a set of shared practices and standards that undergird Greek social life. The rationality in question has no justificatory value, although it has a practical significance, because it is rational to do things in the customary way. (5)
In short, the Greek polis for Hegel, according to Bykova (2009), embodies 'police' rationality because it embodies 'a form of social life in which the individual could achieve his fulfilment in public roles' (p282). For Hegel, this form of social life in which individuals and the state are reconciled is sittlichkeit, or the ancient ethical community. However, the 'police' of ancient sittlichkeit for Hegel was deficient in that, in its ethical power over individuals, it neglected individuality and the particularity whereas the modern ethical power of polizei, according to Hegel, takes into account the particular needs and interests of individuals through their mediation of all spheres of civil society. It is in this sense that, for Hegel (LNR), Plato's Politeia embodies an ancient form of 'police'. The Greek politeia, therefore, refers both to the contradictory ethical power of the state over against individuals, as well as the ethical substance (sittliche Substanz) that binds the common form of life and conduct in a community. Polizei, as a modern form of police rationality, is thus defined both as an ethical substance that defines a way of life and conduct, and also the external order and public authority of the state that also systematically 'disturbs' the moral life and individual rights of the people.
Hegel's account of modern police underscores and prefigures many theoretical accounts of police in the modern state, from Marx and Weber through the work of Foucault. However, Foucault's genealogies, most importantly, underscore the particularly exclusionary and undemocratic nature of modern police in its targeting and disenfranchising of what Marx called more broadly 'the lumpen-proletariat'. For the early Foucault, the contradictory nature of police in the modern state lie in its exclusionary function in society, whereby the function of police was to suppress and eventually confine the poor as a measure of economic and political security. However, Foucault's historical inquiry through the 1970s and into the 1980s provided a much more nuanced history of 'police' in the western state. In particular, Foucault would distinguish the more 'totalitarian' police of the European mercantilist/Cameralist police state from the emergence of 'liberal' ideas of police in the 'economic governments' of the eighteenth and nineteenth centuries. In what follows, I attempt to briefly reconstruct Foucault's account of liberal police as both a departure from and continuation of the 'administrative' European police state.
Foucault and Liberal Police
In the 1978-79 lectures, Foucault develops an analytics of the western 'governmental state', a 'history of governmentality' which will reject his prior tendency to periodise distinct types of 'societies' in favour of a 'triangle' of sovereignty-discipline-government (6). In these lectures, Foucault is very clear that with the emergence of liberal regimes, both problems of discipline and sovereignty and law become '... even more acute' (p107). In fact, for Foucault, we can observe in the rise of both laissez-faire liberalism and contemporary forms of American neoliberalism both a vast inflation of a juridico-legal code focused on new forms of delinquency and crime as well as the proliferation of new disciplinary networks of surveillance, control and 'police'. Indeed, with the emergence of a liberal governmentality founded on the economic problematic between '... the cost of repression and the cost of delinquency', the primary control mechanisms deployed will be security mechanisms which call upon both a '... huge set of legislative measures, decrees [and] regulations' as well disciplinary techniques of correction and reform that have their origin in the idea of 'police' (p47).
In particular, Foucault notes in the 1978-79 lectures how the 'unitary' project of the administrative 'police state' of the seventeenth century was broken down and decomposed into four distinct elements in liberal modes of government: economic practice, population management, a legal-judicial apparatus, and a police apparatus (p354). The first three--economic practice, population management and law--will be mechanisms of 'incentive-regulation', and the latter a corresponding mechanism of repression. For Foucault, the centralised, administrative 'police' of seventeenth century theories of raison d'Etat consisted in 'unlimited internal objectives' whereby police assumed responsibility and supervision of all aspects of economic, social and political life. Foucault remarks:
governmentality in the regime of pure raison d'Etat, or at least, its tendency, was unlimited. This was precisely the main characteristic of what was called at the time police and which at the end of the eighteenth century will be called, already with a backward glance, the police state. The police state is a government that merges with administration, that is entirely administrative, and an administration which possesses, which has behind it, all the weight of governmentality. (7)
The 'unlimited internal objective' of the European police state, in Foucault's history of governmentality, is contrasted with the 'internal principle of limitation' that is founded with the emergence of liberalism, or what he calls 'economic government' or the 'new governmental reason'. The founding of a self-limiting, economic government for Foucault signals the emergence of:
The new governmental reason--and this is the point of separation between the old and the new, between raison d'Etat and reason of the least state government must no longer intervene, and it no longer has a direct hold on things and people; it can only exert a hold, it is only legitimate ... to intervene, insofar as ... the new governmental reason does not deal with what I would call the things in themselves of governmentality, such as individuals, things, wealth and land. It no longer deals with these things in themselves. It deals with the phenomena of politics, that is to say, interests, which precisely constitute politics and its stakes; it deals with interests, or that respect in which a given individual, thing, wealth and so on interests other individual or the collective body of individuals (BOB, p67).
As Foucault notes in the previous years' lectures of 1977-78, 'police' in this new liberal, self-limiting government will be decomposed and broken up into a network of autonomous domains of regulation that, while each serving the interests of 'security', nonetheless together seek to fulfil a central function of 'police'--ensuring and maintaining the internal order, harmony and stability of the state. Indeed we are reminded that, with the emergence of liberal regimes of government, '... we are still in the realm of raison d'Etat' (p348). Indeed, for Foucault, what the regulatory domains of economic practice, population management, and law all have in common with the repressive apparatus of the 'police force' we know today is precisely their role in maintaining '... an internal equilibrium in the form of order (p348). Therefore, liberal government will intervene through the regulatory domains of economy, population and law: '... when it sees that something is not happening according to the general mechanics of behaviour, exchange, and economic life (p67)'. For liberal governmentality, intervention into the 'general mechanics' of behaviour, exchange and economic life will be determined through a specific economic-institutional calculus, weighing, for example, the economic cost of repression versus the cost of delinquency (STP, p9). In addition to this economic problem-space, Foucault points also to the implementation in liberal regimes, of protectionist tariffs, anti-trust legislation, and the disarming and enfranchisement of the working class as part of an inflation of legal, regulatory and administrative measures to maintain an equilibrium between individual and collective interests (p65). In this way, liberal 'strategies of security' are to be thought of as mechanisms of control based on the economic-institutional calculations of crime, delinquency, and repression as well as those of population, individual v. collective interests, and the competition of market 'enterprises' and behaviours.
Most importantly however, the police supervision, regulation and repression of these 'general mechanics of behaviour, exchange and economic life' necessarily entails that liberal police observe the 'internal principle of limitation' that restricts the objectives of the police, and prevents it from overstepping its boundaries and intruding into the 'general mechanics' of population, society and law. Even though 'police' retains its ultimate objective of ensuring the internal equilibrium of order and harmony within the liberal state (p67), police must still observe the principle of internal limitation whereby it cannot intrude into the 'semi-natural' domains of legal authority, economic regulation, and social life.
It is in this respect that Foucault would remark in 1976 that 'police', since the eighteenth century, should be understood as part of a legal-penal regime that has been '... naturalised within the milieu of the population'. This recognition of the apparent 'naturalness' and 'self-limitation' of 'policing' through economic restraint, law and population management reflects how, for Foucault, liberal and neoliberal government functions through a certain 'economic-juridical' or 'economic-institutional' order that presents itself as 'natural' (p162).
Foucault's account of liberal police underscores an important aspect of how police continues to function as repression and exclusion through presenting itself as a 'natural' and 'self-limiting' organ of the liberal state. At the same time, Foucault's 1978-79 lectures do not go nearly far enough in interrogating the self-presentation of police as 'natural' and 'self-limiting' even in the own discourses of physiocratic economists, liberal political theorists and political figures such as Benjamin Franklin, who he cites as a central figure in the emergence of governmental reason. In what follows, I challenge Foucault's portrayal of Franklin, in the 1978-79 lectures, as a figure who championed 'frugal government' and 'prudent police' in the pursuit of limited government. In doing so, I show how Franklin was a central figure in rationalising and actualising 'police' as a technology of discipline, exclusion and regulation of the poor. In order to make this argument, I firstly situate the emergence of liberalism within Foucault's history of raison d'Etat and police.
2. RAISON D'ETAT AND THE EMERGENCE OF LIBERAL POLICE
The emergence of a unique liberal governmentality in the eighteenth century, as a specific form of western political rationality was for Foucault the single most significant transformation in the theory of raison d'Etat and police that had dominated European interstate politics since the Treaty of Westphalia. In an important sense, liberal government signalled the emergence of a new era--the end of absolutism and the divine right of Kings, the critique of omnipotent and omniscient monarchical rule, and the birth of new political ideals which placed sovereign power and legislative authority in the hands of the people. In a more important sense, however, this new era of liberal governmentality was heralded in by new forms of knowledge, procedures of government and new forms of subjectivity that were reconfigured according to the new demands and obligations of liberal modernity and a new political-economic order. Raison d'Etat and police, the two poles of sovereign power which sustained the European interstate order, therefore began a complex process of decomposition, reconfiguration and recalibration beginning with the emergence of liberal government.
However, as Foucault suggests, it would be a monumental mistake to suppose that reason of state and police merely faded away under the advance of liberal modes of governance and pragmatics of self-rule. Instead, Foucault made clear that liberal governmentality was in many ways a continuation of raison d'Etat and 'police' by other means, a continuation which modified the terms and conditions of their exercise, without fundamentally challenging their basic premises: namely, the sovereignty of the state and the preservation of internal order. (8) In fact, Foucault maintains in the lectures of 1978-79 that liberal government sustains itself by using its own internal formula as a principle for organising the basic elements of raison d'Etat. That internal formula of government, according to Foucault, is the one he cites from the utilitarian and founding father of American government, Benjamin Franklin --what he calls 'frugal government' (9), or 'raison du moindre Etat'. However, as Foucault makes clear, the formula of 'frugal government'--which at the same time constitutes the very question of liberalism (10)--will be riddled with the paradox of always seeking 'invasive intrusions' which are met with resistance and revolt, all in the name of frugal government. These 'invasive intrusions' of frugal government which will produce all the great revolts, resistances and social movements of the nineteenth century, as Foucault suggests, will however operate, not through the exhaustive, unitary apparatus of a police state, but rather through the 'natural' mechanisms of government that seek to regulate the exercise of freedom in the name of security(STP, pp353-4).
It is the emergence of this new form of governmental reason which, for Foucault, signals the departure from the mercantilist-Cameralist 'police state' of the seventeenth century, characterised by limited external objectives governed by the European interstate balance and unlimited internal objectives governed by 'police'. It is in this context of the mercantilist police state of the seventeenth century that Foucault locates, even as early as his History of Madness, the unlimited internal objectives of 'police' as a form of social control distinct from late eighteenth and nineteenth century forms of social control which he will define as part of the emergence of 'disciplinary society'. (11) At this stage (History of Madness), Foucault's examples of 'police' are centred around the French system of police, and in particular around the problem of idleness, vagrancy and peasant riots that faced the regime of Louis XIV and which fell under the jurisdiction of his interior ministry of police, Jean-Baptiste Colbert. It is in this context that Foucault defines the mercantilist workhouse for the confinement of the idle and the poor--put to use in the Hopital General in 1666--as quintessentially a 'police' matter, one which, as we will see, will differ greatly in form but not in function from the liberal exercise of 'police' in the late eighteenth and nineteenth centuries.
As Foucault recounts, the Royal Edict of 1656 which created the Hopital General for the confinement and correction of the unemployed, the vagabond and the idle marks, the major transition for the first time in history from 'purely negative measures of exclusion'--such as the banishment of the beggars of Paris in 1606-7--to the positive task of 'policing' and 'taking in charge' of undisciplined individuals and populations, who are to be corrected 'at the expense of the nation' but at the cost of their subjection to bourgeois discipline. This 'implicit system of obligation' between the rich and poorer classes of the bourgeois nation-state, Foucault explains, was directed at a 'rather undifferentiated mass ... a population without resources, without social moorings, a class rejected or rendered mobile by new economic developments.' (12) During the series of economic crises that shook the western world in the seventeenth century--'reduction of wages, unemployment, scarcity of coin'--cycles of poverty occurred across Europe, each time with correlative uprisings in Paris (1621), in Lyons (1652), and in Rouen (1639). During each period of high unemployment and poverty, there was a renewed moral condemnation of idleness which in turn fuelled a reabsorption of the idle into these new houses of correction as social protection against agitation, uprising and social upheaval The new houses of correction, therefore, absorbed the unemployed and the idle in order to mask their poverty, 'and to avoid the social or political disadvantages of agitation' (p135). Therefore, Foucault concludes: 'It was in a certain experience of labour that the indissociably economic and moral demand for confinement was formulated' (p135). And for the first time in history, madness was included in this great confinement, now perceived as one form, among others, of 'social uselessness' which needed to be reformed and corrected (p136). Therefore the great confinement was made necessary, not through the concern to cure the sick, but indeed through the bourgeois imperative of labour.
However, Foucault's major insight in History of Madness regards the rationality, justification and the significance behind the bourgeois 'imperative of labour' that made the experience of confinement--understood as a 'metaphysics of government' as well as a 'politics of religion' (13) --necessary in the first place. For Foucault, the bourgeois 'imperative of labour' which led to widespread practices of confinement must be understood and located in the context of the seventeenth century theory of 'police' and specifically the centralisation of the French police force under the reign of Louis XIV. Under the direction of his interior minister Jean-Baptiste Colbert, a council was established to draw up a comprehensive plan for the centralisation and administration of 'police powers and procedures which restricted the private ownership of arms, and created the Lieutenant of Police for the City of Paris, which by the mid-1700s had the most advanced system of police of any city in Europe.' (14) Under Louis' reign, the Lieutenant was granted seven different areas of authority:
1. The security of Paris, including the repression of civil disorders, making arrests, and surveillance of foreigners
2. The cleaning and lighting of streets, firefighting and prevention, and flood control
3. Regulating and upgrading the moral behavior of the citizens
4. Regulating social affairs in matters of abandoned children, unfaithful wives, organisation of hospitals, and inspection of prisons and jails
5. Assuring adequate food supplies for the city
6. Protecting the city in times of epidemic and general maintenance of health conditions
7. Regulating the economy, which included surveillance of worker's associations and policing the marketplace (p35).
It is in this context that Foucault shows how the problem of the idle poor was inscribed first and foremost as a 'police matter' regarding the 'regulation of morals' as a justification and means to force the poor to work for the rich. Foucault aims to show how 'the very requirement of labour was instituted as an exercise in moral reform and constraint, which reveals, if not the ultimate meaning, at least the essential justification of confinement' (TGC, p138). Citing a report by the Board of Trade and the Edict of 1656, Foucault shows how, in the attempt 'to render them useful to the public', the poor were clearly presented as a problem due not to 'scarcity of commodities or unemployment', but rather to 'the weakening of discipline and the relaxation of morals' (p137). Emphasising the 'moral libertinage' of the poorer classes, the regime made clear that the Hopital General would become a place where these undisciplined populations would be confined and re-trained in the virtues of family, marriage, religion, Christian education and civic virtue; or in other words, the 'laws of the state'. Thus the prisoner who 'could and who would work would be released, not so much because he was again useful to society, but because he had again subscribed to the great ethical pact of human existence', which meant adhering to the 'laws of the state' in exchange for a guarantee of existence (p137).
Foucault thus situates the question of idleness, vagabondage and poverty in the seventeenth century under the jurisdiction of Colbert's 'police'--a centralised system of police powers which had as their aim the increasing of the nation's workshops and households. It is precisely in the context of Foucault's discovery of the doctrine of 'police' in History of Madness (1961) much earlier than his return to 'police' in the Tanner and Vermont Lectures of 1979 and 1982, respectively--that the 'imperative of labour' must be situated as the driving force behind confinement. 'Confinement', he states unequivocally in History of Madness: 'that massive phenomenon, the signs of which are found all across eighteenth-century Europe, is a police matter; police, in the precise sense that the classical epoch gave to it-that is, the totality of measures which make work possible and necessary for all those who could not live without it' (TGC, p137). The justification behind the obligation to work and the condemnation of idleness, therefore, originates in the first instance not from the demands of production, but rather from the authoritarian demand for internal discipline, security and social control for which the 'police' is primarily responsible. Thus the 'bourgeois republican dream and preoccupation in the classical age', according to Foucault, is to adjust ever so carefully, once and for all, 'the laws of the state' which make one a virtuous and obedient citizen, with 'the laws of the heart', which spring forth from one's own moral convictions (p139). It is in this context that the imperative of labour, driven by the bourgeois dream of a perfectly orderly and virtuous Republic, should be situated. Foucault adds:
(I)n this sense confinement conceals both a metaphysics of government and a politics of religion: it is situated, as an effort of tyrannical synthesis, in the vast space separating the garden of God and the cities which men, driven from paradise, have built with their own hands. The house of confinement in the classical age constitutes the densest symbol of that 'police' which conceived of itself as the civil equivalent of religion for the edification of a perfect city (p139).
Liberalism & the Political Economy of the Poor
In The Constitution of Poverty, Mitchel Dean elaborates on the subtle differences Foucault wants to point out between the mercantilist police state under Louis XIV and the policing that goes on in 'disciplinary societies' of the eighteenth and nineteenth centuries. The mercantilist workhouse, Dean explains, was 'rooted in everyday mercantilist concerns with increasing numbers of the trading households in the nation, and converting the idle into the industrious poor.' (15) These forms of confinement for the poor were, Dean says:
less a place for the reform of individuals than the site of the metamorphosis of the idle into the industrious, or dross into sterling, as Bentham might say. It was neither a protected workshop in which the poor learned the skills for the supersession of their condition nor a reformatory in which they became normalised individuals, but a kind of switching mechanism. In it, the poor would remain the poor. That was their earthly lot. They would be transformed, but not as individuals so much as categories. The mercantilist workhouse, unlike later the prison, asylum, and reformatory, which were to be characterised by the regime of discipline described by Foucault (1977a), did not attempt to act on the 'soul' of the individual (COP, p64).
In addition however, the 'policing' of the idle involved not only the inculcation of the mercantilist work ethic through confinement, but also included early version of 'public works' projects for the poor, 'farming out the poor' to private contractors, labour colonies, and the increasing targeting of vagrancy in criminal law (p64). These governmental tactics, Dean makes clear, were part of 'the mercantilist vision of the patriarchal role of the heads of the nation's households in its political economy ... the latter, however, would be relatively unrefined compared to those which would posit a private realm for the liberal governance which was to follow' (p65). Indeed, as Dean documents, the political economy of the poor that was to emerge in eighteenth century liberal political theory would constitute a drastic break in the governance of the poor and their re-calibration to an emerging liberal economic order and the demands of industrial capitalism. The mercantilist discourse of the poor, Dean argues:
corresponds to the particular mode of government formed in the epoch prior to the emergence of industrial capitalism. This police was neither the reformatory police of the period of the decline of the order of estates, nor the preventative police force of the liberal mode of government, although it shares with both the problem of securing the good order of the state ... While certainly the most dense instrument of industrial police, the workhouse formed only one node within a network of techniques and strategies projected on to the labouring population to promote work-discipline by increasing their motivation to follow a continuous and regular course of labour, and hence to liberate them from the 'taint of slothfulness' and make them profitable, above all, to the nation (p66).
The mercantilist police of seventeenth century and the industrial workhouse, Dean concludes, thus should be distinguished from the later liberal 'preventative' police conceived by eighteenth century English theorists of police (Colquhoun, Bentham, Chadwick) and, I would argue, as well as the nineteenth century American theorists of police. However, Dean concludes, what the later liberal, preventative police 'could not resend' was:
the desire to render the Poor useful to the nation or the implication that it was the duty of the rich, articulated throughout the national and local arms of the state, to see to it that the Poor were made to work and inserted into patriarchal relations (p67).
Joseph Townsend's Dissertation on the Poor Laws by a Well-wisher (1787) represents for Dean one of the foundational texts in eighteenth century political economic theory which made possible the new form of liberal governance in the eighteenth and nineteenth centuries. In that work, Townsend put forth a new theory of class relations, which he stated were guided by a 'biological model' governed by 'a putative Natural Law'. Quoting Dean:
The discovery of biological laws of the regulation of the population by the available food resources meant that 'the biological nature of man appeared as the given foundation of a society that was not of a political order' (115). This 'naturalism' justified poverty and indigence among the majority of the population by removing such items from the agenda of the state. Poverty was thus consigned to the ungovernable order of the natural by virtue of the fact that it was the poor who were the bearers of the operation of these laws through the mechanism of hunger (p69).
Townsend's Dissertation is for Dean both a political economy of poverty as much as a metaphysics of government--much like the mercantilist theory of confinement. However, unlike the mercantilist theory of police and confinement, the naturalistic interpretation of Townsend viewed 'population' as being governed by processes which were natural and had to be respected, even and perhaps because of the motivations, fears and sufferings which were found in nature herself (such as 'hunger'). Indeed, Dean says, one of the central themes of the Dissertation is that 'labour' is the result of a motive or 'spur' which is natural, namely hunger:
In this respect, Townsend is at once with the mercantilist low-wage theory of industry. Labour is not a means for the creation of wealth, nor for the transcendence of poverty. Rather, it is the service rendered by the poor to the community. Poor relief can be criticised not because it interrupts the production of wealth or nullifies the Poor's motives to overcome their poverty through labour, but because it fails to promote their 'cheerful compliance with the demands which the community is obliged to make on the most indigent of its members 'and thereby destroys the 'harmony and beauty, the symmetry and order of that system, which God and nature have established in the world'. He might have added that it destroys the proper police between ranks of the community (COP, p70).
Townsend's political economy of the poor, as I mentioned, forms a part of a metaphysic of government in which he divides 'natural society' into two classes, 'the industrious' and 'the idle'. These class divisions give rise to the bonds of servitude and duty in society which are also natural. As Dean remarks:
The dissertation presents a coherent conception of nature which can cover both the relation between populations and food and that of masters and servants. Poor relief not only destroys the police which is established by the natural bonds of service. It also destroys the delicate equilibrium between numbers and food (p72).
Because of these natural relations of dependence established by the processes of population, which are at the same time inherent to the notion of population as such, there is a 'natural division between the active and indolent'. For Townsend, this natural division of the classes of the industrious and the idle constitute an entire metaphysics of government from which flows a program of liberal government whose task is to observe those very processes which constitute the natural laws of population. Therefore, Dean says:
the state of the Poor is doubly necessary: it provides members of the servile class and helps maintain their proper attitudes; it also ensures, through the fear of not being able to feed one's future offspring, and the premature death of present members, that the advance of population will be kept within the limits if subsistence. The poor laws fail to attend to the requirements of the natural laws which, if obeyed, promote happiness (p73).
Governmental reason which takes as its formula the observance of the natural law and order inherent to the processes of population and society is, of course, the model of government that Foucault credits to Benjamin Franklin. And, indeed, Franklin--along with his utilitarian English counterpart Jeremy Bentham with whom he had correspondence--were among the engineers of the kind of political economy Townsend was developing. In The National Charity Company: Bentham's Silent Revolution, Bahmueller recites Bentham's own political economy and its implications for a theory of government. In that illuminating treatment of Bentham's political economic views, Bahmueller shows how Bentham--committed to a utilitarian metaphysic of pain and pleasure--aggressively endorsed Townsend's views on the 'naturalness' of populational processes such as the 'pains' of hunger and the pleasures associated with avoiding that hunger. Rehearsing Townsend's views, Bahmueller remarks:
With a population greater than one can feed ... some additional check was 'absolutely needful' ... the fear of hunger. This was not to be hunger directly felt by the pauper but as feared for his immediate offspring ... Fear of hunger would force men to persevering industriousness and an uncompromising frugality ... The means of turning up the heat was turning down to a trickle the gushing flood of legally enforced public assistance. The poor should depend on the rich for relief, relief which must be limited and precarious ... 'Hunger', he remarked, 'will tame the fiercest animals, it will teach decency and civility, obedience and subjection, to the most brutish, the most obstinate, and the most perverse.' ... a good system of poor relief must 'in the first place, encourage industry, economy and subordination; and, in the second place, regulate population by the demand for labour.' In any case, under Townsend's plan, 'the subordination of the poor would be more effectually secured'. (16)
Townsend's Dissertation, since it divided the population between the idle and industrious classes, came very close to a sort of evolutionary endorsement of hunger, poverty and starvation. 'The frugal, not the profligate', as Bahmueller summarises his views, 'should be given the primary attention of charity; others might share the leftovers, if any. Townsend seemed very close to saying that some would--and should--be left to starve; his entire argument seemed to point to that conclusion' (p80).
Bentham's reception of Townsend's views came in the context of his various projects, which spanned from the Panopticon to the Pannomion, to create a 'House of Industry' which would 'usurp the place of the church', signalling the decline of the church and the rise of a more utilitarian institution. In all but name the parish church poor-box would move to the local branch of the National Charity Company (p85). In this vein, Bentham's utilitarianism extended to his entire worldview, particularly in the case of political economic theory, religion, and their mutual implications for government. As Bahmueller explains:
In 1786 he embraced the biblical definition of poverty, a definition which had by then gained a measure of acceptance. All those are poor who must live as Adam and Eve were obliged to live after their expulsion from the Garden of Eden: 'Taken in the gross to live by the sweat of his brow has always been man's sentence, and is become man's nature.' To labour from necessity is to be poor.... poverty is the 'natural, the primitive, the general, and the unchangeable, lot of man' (p86).
In this respect, Bentham regarded both the acquisition and distribution of the necessities of life 'not as a communal activity, but first and foremost as an activity of particular individuals' (p86). Bahmueller summarises Bentham's metaphysics of government, which incorporated theories regarding human psychology, religious belief and action, and a theory of sovereignty:
'He who does not work shall not eat.' This Pauline moral revelation was a guiding beacon through everything Bentham wrote on the relief of poverty. Even in the garb of his secularised Protestantism, it is shot-through with the psychology of sin. Idleness was an evil on its face, a malum in se; and we will see over and over again how seriously he took the adage that 'the devil finds work for idle fingers' (p87).
In The First American: the Life and Times of Benjamin Franklin, Brands echoes Franklin's political economic thought by observing that, unlike like Bentham, Franklin thought that aiding the poor was in fact a morally virtuous act which pleased god. In this, Franklin and Bentham parted ways. However, the differences in their political economy, it seems, stop there. Indeed, Franklin:
did not question the morality of aiding the poor, only the efficacy. 'To relieve the misfortunes of our fellow creatures us concurring with the Deity; 'tis Godlike, but if we provide encouragements for laziness, and supports for folly, may it not be found fighting against the order of God and nature, which perhaps has appointed want and misery as the proper punishments for, and cautions against as well as necessary consequences of idleness and extravagancy'. (17)
In addition, much like Townsend, Franklin agreed that 'certain groups of people were less inclined to toil than others' (p222), and that this natural division between the idle and industrious classes determined power relations in a political society. Franklin, for example, was convinced that Native Americans, since they were 'naturally' less inclined to submit to the discipline of work and industry and live in cities, were destined for that reason to be 'extirpated' from New England. The natural division between the idle and the industrious, for Franklin, was also the 'the reason that so many, and such numerous, nations, as the Tartars in Europe and Asia, the Indians in America, and the Negroes in Africa, continued a wandering careless life, and refused to live in cities, and to cultivate the arts as they are practiced by the civilised part of mankind' (p223).
According to the governmental reason developed by Townsend, Bentham and Franklin, the idle and the poor were, for natural reasons, a permanent feature of the increasingly urban environment. And, while there was much disagreement on the moral status of the poor, idle and vagrant populations, there was perfect agreement within the new governmental reason being developed that the poor, because they formed a part of the natural order of things, could and should be 'put to use' in the springs and mechanisms of a well-ordered, efficient system of city, state and national government. Especially within the utilitarian camp, the poor would be viewed as the population of the politically useful, to be inserted into the apparatus of smooth and efficient government.
Franklin's particular insistence on the utility of the poor for the commercial enrichment of the city of Philadelphia was clear, at times even arguing for the 'erection of workhouses, where the indigent would be 'obliged to work at the pleasure of others for a subsistence and that too under confinement'. (18) For Franklin, 'not just poverty, but grinding poverty would be required to ensure the accumulation of capital' (p277). Indeed, much like his English utilitarian counterpart Bentham, Franklin came to realise that confinement would in fact be necessary in order to subdue the poor, who would of course resist at times. Hence because the poor would not come to the workhouses willingly, they must be persuaded by other means: charity, philanthropy and the promise of salvation, either religious or civic.
Franklin modelled this workhouse for the poor not after the mercantilist workhouse of the police state, but after the 'disciplinary' institutional model that was being proposed, once again, by his English utilitarian counterparts. In his companion piece to his Panopticon letters titled Pauper Management Improved, 'Bentham proposed a National Charity Company modelled after the East India Company--a privately owned, joint stock company partially subsidised by the government. It was to have absolute authority over the "whole body of the burdensome poor."(p21)'. This absolute authority and confinement of the poor was necessary because the poor lacked precisely the kind of virtues that made one fit for subjection. Indeed in Bentham's words, because 'human beings are the most powerful instruments of production ... each man therefore meets with an obstinate resistance to his own will, and this naturally engenders antipathy toward beings who thus baffle and contravene his wishes (p21).' For Bentham, it was the control over and use of human beings as instruments of production that gave rise to the 'universal thirst for power' as well as the 'equally prevalent hatred of subjection'(p21).
The form of governmental reason being developed in England and America in the eighteenth century which focused on the 'natural' utility of the poor also had its counterpart in France, which is documented by Foucault in The Birth of the Clinic. In that work, Foucault uncovers the class contract of 'utility-docility', negotiated by the State and enforced by 'police' powers of a centralised apparatus, which re-appears both in The Birth of the Clinic and Discipline and Punish as a reinforcement of a government rationality that he calls 'police'. (19) This emerging eighteenth century European form of 'police', developed in Napoleon's imperial regime, also signals a further transition from the mercantilist 'police' state to the liberal state of the nineteenth century.
Foucault describes the emergence of this specific form of governmentality in the eighteenth century in America and Europe, directed at the utility and docility of the poor, succinctly in The Politics of Health in the Eighteenth Century, noting how the figure of 'the pauper' is eventually decomposed into a 'whole series of functional discriminations--the good poor and the bad poor, the wilfully idle and the involuntarily unemployed, those who can do some kind of work and those who cannot'. (20) This re-evaluation and decomposition of 'the idle', Foucault notes, is brought about through the critique and transformation of certain 'immobilising' modes of investment and capitalisation that kept the poor from being inserted into circuits of production and labour. In other words, the poor, in the eyes of the liberal economists--by being supported through the social pact of government to provide 'social assistance' in the form of alms-houses, charities and lazarettos--had become a stagnant population, rendered immobile and thus idle by these state-sponsored forms of capital investment in their well-being. Through the expansion and liberalisation of modes of labour and production in the eighteenth century, the figure of 'the pauper' is decomposed into ever more efficient categories of mobile labour and, along with larger transformations in criminal reform, demographics and public health, a comprehensive analysis of 'idleness' is finally achieved which:
Tends to replace the somewhat global charitable sacralisation of 'the poor'. This analysis has as its practical objective at best to make poverty useful by fixing it to the apparatus of production, at worst to lighten as much as possible the burden it imposes on society. The problem is to set the 'ablebodied' poor to work and transform them into a useful labour force, but it is also to assure the self-financing by the poor themselves of the cost of their sickness and temporary or permanent incapacitation, and further to render profitable in the short or long term the educating of orphans and foundlings. Thus, a complete utilitarian decomposition of poverty is marked out and the specific problem of the sickness of the poor begins to figure in the relationship of the imperatives of labour to the needs of production (p276).
However, expanding upon his argument in History of Madness, Foucault goes to great lengths in Discipline and Punish to show that this economic 'imperative of labour' has its true meaning and justification in the state's internal demand for social discipline. One of the major tasks of Discipline and. Punish is to demonstrate how the exercise of power in Western societies of the seventeenth century was eventually transformed from the 'majestic rituals of sovereignty or the great apparatuses of the state' to the everyday, automatic functioning of discipline which 'makes' individuals the object and instrument of their own subjection. For Foucault, the 'ostentatious signs' of sovereignty, emanating from the ideas of social contract, representation and the general will, are based in the exercise of a power that is primarily deductive: the power to let live or make die, a sovereign power that still resides with the State to this day. However, Foucault's major contribution in Discipline and. Punish, is that he shows how disciplinary power, based in the ideas of utility, order and complete legibility, becomes the internal rationality of the sovereign nation-state of the eighteenth century as a mechanism of social control and civil order. Juxtaposing the dual state objectives of 'strategy', which concerns international relations between states, Foucault situates 'tactics' as the relation states have internally to the maintenance of order and peace within their own societies. In Discipline and. Punish, 'tactics' appears as the primary business of 'politics' in the eighteenth century, understood as 'a continuation, of not exactly and directly of war, at least of the military model as a fundamental means of preventing civil disorder.' (21) What is important for Foucault here is the fundamental link he establishes between the view of 'politics, as a technique of internal peace and order', and the model of 'the perfect army, of the discipline mass, of the docile, useful troop, of the regiment in the camp and in the field, on manoeuvers and on exercises (p185).' Citing Guibert in his Essai general de tactique, Foucault rehearses how the late eighteenth-century nation-states, such as the Napoleonic regime, envisioned the state as a well-oiled machine in which properly trained citizens were seen as necessary functionaries to the administration and the army in the growth of the strength and vigour of the nation (p186).
What is most salient in Discipline and. Punish for Foucault's critique of political reason and 'police' is the new relationship he uncovers--forged by the eighteenth-century military-administrative state--between the individual and the state. While the extension of power into the lives and bodies of individuals in the seventeenth century could only be done so deductively--levying life, money or property from the offender--the new form of disciplinary power emerging in the eighteenth century is described as operating not deductively but inductively, by 'inducing' the individual to become the object and, useful instrument of their own subjection. Rather than 'bending all its subjects into a single, uniform mass' like the mercantilist workhouse, disciplinary power 'trains the moving, confused, useless multitudes of bodies and forces in to a multiplicity of individual elements--small, separate cells; organic autonomies; genetic identities and continuities' (p188).
Whereas the exercise of sovereign power, in the mercantilist police state for example, presupposes the violent force of the state bending the will of its subjects, the exercise of discipline in liberal-capitalist societies of the late eighteenth and nineteenth centuries presupposes 'an apparatus in which the techniques which make it possible to see induce effects of power and in which, conversely, the means of coercion make those on whom they are applied clearly visible.' (22) The subject of disciplinary society, therefore, undergoes a training process of induction for the mastery of his own body and soul, such that his own will is not opposed to the objectives of sovereignty (i.e. law, economy, security), but perfectly in accord with them. Discipline--understood as the 'tactics of power' proper to a state's internal order--becomes the goal of the eighteenth-century military-administrative state whose objective is internal peace and order, which is to be achieved through the regulated 'liberty' of citizens, understood as the necessary and indispensable element of a well-oiled machine of 'working, trading, living beings', an objective which, as Foucault reminds us, is the primary goal of earlier notions of 'police'. 'Tactics' therefore, becomes the new term for eighteenth-century European models of 'police' in its objectives for internal order, peace, discipline and social control.
Another important task for Foucault in Discipline and. Punish is to show how the liberal achievement of 'collective sovereignty' and rule of law, based in the social contract and Enlightenment notions of liberty, was correlative with the emergence of the disciplines which set the terms and conditions for the concrete exercise of liberty in capitalist societies of the nineteenth century. For Foucault, the accumulation of men through the explosion of populations and the accumulation of capital in the nineteenth century are symbiotically linked. The emergence of 'population' as an autonomous object of government and the expansion of modes of capital accumulation are, for Foucault, part of the same phenomenon, in which the utility of individuals and populations are eventually adjusted to the utility and strength of the nation-state. For Foucault, the connecting link between the growth of capitalist disciplinisation of individuals and populations and the growth of the state, is what he refers to as the 'utilitarian rationalisation of morality and political control', or simply the principle of 'political utility' as first envisioned by Bentham's notion of Panopticism as a model for government (BOB, p67). The late eighteenth-century nation-state, therefore, combines both the Enlightenment notion that the individual should exercise his own liberty by becoming the master of himself, and the notion that the liberty of the individual is an essential element and instrument in his/her utility to increasing the strength and vigour of the state. Instead of the mercantilist principle of 'levying-violence', the disciplinary principle becomes 'mildness-production-profit', where the preservation of the order of state and society is maintained not through the deductive power of law and punishment against the will of the criminal (sovereign power), but rather through the inductive power of the disciplines which act on and through the 'soul' of the individual to align his conduct with the objectives and aims of the state itself. This reformative 'training' of the individual, and of undisciplined populations in particular, is achieved through the various disciplines of education, pedagogy, medicine, hygiene, public health, psychiatry, social welfare, philanthropy, sexual health, etc. Disciplines, therefore, transform the will through institutional entrapment, inducing a constant and permanent work on the 'soul' of the individual through his/her own effort to make oneself a 'useful' and productive member of a society of 'working, trading, living beings'. Thus in the late eighteenth century, we have passed from the mercantilist police state modelled on the workhouse to the disciplinary society of industrial capitalism modelled not on the workhouse, but rather on the model of the panopticon--making all members useful and docile through procedures of self-surveillance and capitalist discipline.
However, as Foucault makes clear, this new relationship of 'utility-docility' between the individual and the state which links the liberty of the governed to the strength of the state was only made possible and intelligible through a series of transformations in certain medical, moral, pedagogical and military practices. For Foucault, it was only through the eighteenth-century 'utilitarian rationalisation of morality and political control' (23) that occurs through the great moral, political and scientific reformers, that a new 'micro-physics' of government becomes possible 'for the control and use of men' (p183). Obsessed with the scientific 'description and classification of natural beings', the eighteenth-century adopted--partly from the domain of theology and asceticism--the attention to the 'detail of man', 'since, in the sight of God, no immensity is greater than a detail, nor is anything so small that it was not willed by one of his individual wishes' (p184). Since God is the constant and permanent observer of one's entire life, 'for the disciplined man, as for the true believer, no detail is unimportant' (p184). La Salle's attention to the minute details of man's body and soul became the obsession of Frederick II, covering pedagogy, medicine, military tactics and economics, which was finally received by the 'Newton of small actions', Napoleon Bonaparte who wished 'to arrange around him a mechanism of power that would enable him to see the smallest event that occurred in the state he governed' (p185). The Napoleonic Empire, in this sense, was the political and social manifestation of the panoptic aspirations Bentham had for the completely transparent, legible and therefore just ideal society. Even under the reign of Louis XIV before him, the dream of a completely transparent and legible social body was being pursued under the direction of the interior ministry of Jean-Baptiste Colbert in what has been called the birth of 'the information state'. (24) Through the penetration of knowledge and light throughout the entire social body, the dangerous internal elements could be identified, contained and regulated governed at the least possible cost, both politically and economically. And, in the eighteenth century, it was not only the proletariat but the underclass or 'dangerous class' which represented the highest threat to social order and stability. It was once again the poor, and the underclass, which needed to be 'policed', but this time through other, more 'liberal' means.
In Discipline and Punish Foucault shows that once the poor were made 'useful' within the bourgeois disciplinary apparatus that underwrites capitalist economies of the eighteenth century, the 'mass criminality' of the seventeenth century gives way to a 'marginal criminality' of the eighteenth century which increasingly targets the minute illegalities of the everyday life of the poor, such as laws regarding theft. Here, Foucault shows how laws against vagabondage in the eighteenth century follow a more general pattern at the time for the increasing disciplining of the everyday life of individuals and populations, beginning with the poor, who are described with increasing internal moral animosity at the time: 'enemy troops', 'swarming locusts', 'voracious insects'. (25) The severity of laws targeting the illegalities of the poor--such as theft--in turn, according to Foucault, reflect the larger structural transformations in the eighteenth century in the development of 'production, the increase of wealth, a higher juridical and moral value placed on property relations, stricter methods of surveillance, a tighter partitioning of the population, more efficient techniques of locating and obtaining information (p77)'. The increase in population and the importance of property relations therefore increases the importance on behalf of the bourgeoisie for the demand of security against theft which, in turn, justifies the tightening of the penal and disciplinary hold on the life, conduct and behaviour of the poor. This attention to the detailed life of the poor in the eighteenth century was part of a much larger effort to:
adjust the mechanisms of power that frame the everyday lives of individuals; an adaptation and a refinement of the machinery that assumes responsibility for and places under surveillance their everyday behaviour, their identity, their activity, their apparently unimportant gestures; another policy for that multiplicity of bodies and forces that constitutes a population. What was emerging no doubt was not so much anew respect for the condemned ... as a tendency towards a more finely tuned justice, towards a closer penal mapping of the social body (pp77-78).
As Foucault points out in Discipline and Punish, this transformation in moral and legal reform around the 'problem' of the poorer classes occurred, most famously, in 'the Philadelphia model' of punishment in America at the end of the eighteenth century (pp237-8). It is in this context that Benjamin Franklin became one of the primary negotiators of the new 'utilitarian' contract between the 'natural' populations of the industrious and the idle of the American colonies. Franklin, along with other members of the Philadelphia Society, became the architects of the new institutions that would transform and 'reform' the moral, spiritual and social landscape of the rapidly expanding diverse population of the American colonies, which were confronted with new problems such as ineffective government, political factions, labour strikes, smallpox, waste management, fire protection, theft, madness, insurance, and a myriad of problems associated with urban planning. Franklin, acutely aware of the problems a rapidly expanding industrial city would face, would lay the foundations of a unique form of urban social control. Alongside his comprehensive regime of self-improvement and self-examination, Franklin was determined, as he was in all his scientific endeavours, to discover the secret motivations and springs of civic virtue and vice, and to build institutions that would inculcate virtuous, useful citizens for the city and the state. 'Men', Franklin held, 'if one understood their motives, could be managed as easily as smoky chimneys'. (26)
3. BENJAMIN FRANKLIN AND THE POLICING OF THE POOR
In The First, American: the Life and. Times of Benjamin, Franklin, Brands states that, 'for nearly two decades Franklin had lamented the lack of safety on the streets of Philadelphia after dark' (TFA, p213). It was well known, after all, that the Quakers' 'aversion to violence' could well be to blame for the lacklustre criminal code in Philadelphia as compared to other colonies and that, 'quite possibly for this reason, Philadelphia had a higher crime rate than other colonial cities' (p213). However, as Brands explains, 'Franklin detected another reason as well: an inattention to policing that in itself was almost criminal' (p213). Franklin openly criticised the current system of the night-watch which existed, in which:
Householders in the city were liable for watch duty after dark but might buy their way out of this responsibility by paying the ward constable six shillings a year, with the fee ostensibly to be used to hire substitutes. In practice the money was more than necessary, and the watch fees became a profitable perquisite of the constables' office. They also undermined the security of the city (p214).
Franklin thus went about proposing a complete reform of the night-watch system of Philadelphia which would become in time the first proper 'police' force in American history. After proposing and gaining approval of his police reform idea to the Junto society, the proposal floundered in the Assembly. As Brand explains, 'Not until the early 1750s, following a continued deterriorisation of street safety' was police reform approved by the Assembly enabling Philadelphia 'to raise the tax required to light the streets and pay constables and watchmen sufficiently to make them their jobs seriously'. (27) Brands, in his biography of Franklin, explains the details of this new proposal for the creation of America's first true 'preventative' police force in the sense we understand it today:
The orders specified the hours of duty for constables (ten at night till four in the morning from March to September, nine at night till six in the morning from September to March). They identified the precise street corners on which the watchmen were to stand and he rounds they were to walk ... They listed the sorts of trouble-makers the constables and watchmen should be on the lookout for ('Night walkers, malefactors, rogues, vagabonds, and disorderly persons, who they shall find disturbing the public peace, or shall have just cause to suspect of any evil design'). And they characterised the duties of the watch ('to prevent any burglaries, robberies, outrages, and disorders and to apprehend any suspected persons who, in such times of confusion, may be feloniously carrying off the goods and effects of others'). In addition the watchmen should immediately raise the alarm 'in case of fire breaking out or other great necessity' (p214).
These then were the basic terms for informing the duties and obligations of 'police' in the streets of Philadelphia, which were to become extremely influential in modelling how other post-colonial cities conceived what the 'police power' was, what its scope was, and what its aims, objectives and targets were. However, as Brands explains, while this new 'police' force gave a new vigilance to the watch of the city, it faced one of the most intractable problems in the governance of ever-increasing numbers of persons flocking to the cities of New England:
the proliferation of criminals. Since the seventeenth century the American colonies had been forced to serve as a dumping ground for criminals convicted in England. Colonial legislatures protested the practice of transpiration of felons, only to have their protests ignored. Colonial editors denounced the policy, appending to their editors lurid description of what the policy produced. The Gazette did its part in April 1751: "From Maryland we hear that a convict servant, about three weeks since, went into his master's house, with an axe in his hand, determined to kill his mistress; but changing his purpose on seeing, as he expressed it, how dinnocent, she looked, he laid his left hand on a block, cut it off, and threw it at her, saying, Now make me work, if you can. (N.B. 'Tis said this desperate villain is now begging in Pennsylvania, and 'tis thought he has been seen in this city; he pretends to have lost his hand by an accident. The public are therefore cautioned to beware of him" (p215).
Franklin, who managed the Pennsylvania Gazette, regularly used the newspaper precisely for announcing threats, dangers and nuisances to the public safety, health and civic order such as this one, which denounced and warned against one of the most well recognised threats to public order: a runaway servant who must resort to begging. Thus, not only was the newly organised police force patrolling the streets for the public nuisances of begging, vagrants and vagabonds, but the official newspaper of Philadelphia also acted in concert as a sort of public watch information system, such that the entire community was both put on alert for the criminal, as well as alerted to what exactly constituted a 'public nuisance' and threat to the community. In this way, the public perception of danger and threat to the salus populi was adjusted to the actual objectives, aims and targets of the 'police', who worked in tandem with one another and with the community at large to keep vigilance over the city.
Franklin's 'bottom-up', comprehensive approach to implementing social order and the institutions to ensure them encompassed both the construction of civic institutions and mechanisms of restraint that would direct and reform the daily habits, thoughts and conduct of individuals and the public (the penitentiary, hospital, police, newspaper, free societies) as well as the idea of individual liberty through 'self-improvement', or what he called the practice of 'the art of virtue'. Franklin, aware of the fundamental importance of inculcating the 'public virtue and spirit' at an early age, recognised that 'it is in youth that we plant our chief habits and prejudices; it is in youth that we take our party as to professions, pursuits, and matrimony ... in youth the private and public character is determined'. (28) To this, Franklin added that in order to achieve his 'bold and arduous project of arriving at moral perfection (p128)', one must engage in a rigorous daily practice of 'self-examination' in order to eliminate the vices of character and 'unclean' habits of conduct and in their place inculcate the 'habitude' of what he called the 'thirteen virtues'(p!29). The thirteen virtues [Temperance, Silence, Order, Resolution, Frugality, Industry, Sincerity, Justice, Moderation, Cleanliness Tranquillity Chastity and Humility] were to be mastered, one at a time, until all of them acquired. This regimen was to be carried out as specified:
Conceiving then that agreeably to the advice of Pythagoras in his Golden Verses daily examination would be necessary, I contrived the following method for conducting that examination. I made a little book in which I allotted a page for each of the virtues. I ruled each page with red ink so as to have seven columns, one for each day of the week, marking each column with a letter for the day. I crossed these columns with thirteen red lines, marking the beginning of each line with the first letter of one of the virtues, on which line and in its proper column I might mark by a little black spot, very fault I found upon examination to have been committed respecting that virtue upon that day ... Proceeding thus to the last, I could go through a course complete in thirteen weeks and four courses in a year. And like him who, having a garden to weed, does not attempt to eradicate all the bad herbs at once, which would exceed his reach and his strength, but works on one of the beds at a time, and, having accomplished the first, proceeds to a second, so should I, I hoped, the encouraging pleasure of seeing on my pages the progress I made in virtue by clearing successively my lines of their spots till in the end by a number of courses I should be happy in viewing a clean book after a thirteen-weeks daily examination (p134).
To this rigorous practice of self-examination using his book of tables [Figure 1], Franklin added a rigorous daily schedule, partitioning his time into the following schema: 'The Morning. Question. What good shall I do this day?', 5am-7am: 'Rise, wash and address Powerful Goodness! Contrive days business and take the resolution of the day; prosecute the present study, and breakfast'; 8am-11am: 'Work'; 12pm-lpm: 'Read, or overlook my accounts, and dine'; 2pm-5pm: 'Work'; 'Evening. Question. What good have I done today?' 6pm9pm: 'Put things in their places. Supper. Music or diversion, or conversation. Examination of the day'; 10pm-4am: 'Sleep' (p137).
Together with the new utilitarian institutions of civic order and self-discipline, Franklin was constructing the framework of a self-regulating city where individuals policed themselves and others. By a daily, constant regime of self-improvement and self-examination, one adjusted one's thoughts, behaviour and conduct to the objectives of the city and the state: order, industry, work, health, cleanliness, frugality and so on. This ethos of self-regulation, however, had as its dual objectives the concrete, daily happiness of the individual and the improvement of the efficiency of the city and government; the two objectives--the happiness of the individual and the efficiency of the city and government affairs--were intimately linked. As Esmond Wright summarises, Franklin's regimen of '(s)elf-improvement led inevitably to the improvement of city and state'. (29) Remarking on Franklin's 'mutual aid society' which he named the 'Philadelphia Junto', Wright remarks that: 'What the Philadelphia Junto inculcated was the art of civic virtue, a code of municipal improvement for Philadelphia (p39)':
The mutually constitutive impulses of self-improvement, social advancement, and civic improvement--the creation of social capital--and the combination of private virtue and public service ran through Franklin's entire adult life. Emphasising his multidimensional relationships with institutions, individuals, and ideas ... Franklin wanted people to say about him that 'He lived usefully, [rather] than he died rich.'" In his Proposals Relating to the Education of Youth in Pennsylvania (1749), Franklin posited as the objective of all education the inculcation of 'public spirit' and not religion to foster an inclination and ability to serve mankind, one's country, one's friends and family. (30)
Besides actively lobbying the city council for the creation of a night watch police and other public safety initiatives, Franklin was endlessly obsessed with dirt and the disorder and obstruction it represented to city commerce. In his autobiography, Franklin rehearses his detailed prescriptions of how to remove the dirt from main thoroughfares of the city so as to make the city more conducive to commerce and business. In one passage, Franklin describes how he came up with his initial idea:
After some inquiry, I found a poor, industrious man, who was willing to undertake keeping the pavement clean by sweeping it twice a week, carrying off the dirt from before all the neighbours' doors for the sum of sixpence per month to be paid by each house. I the wrote and printed a paper setting forth the advantages to the neighbourhood that might be obtained by this small expense; the greater ease in keeping our houses clean, so much dirt not being brought in my people's feet; the benefit to the shops by more custom, etc, etc as buyers could more easily get at them; and, by not having, in windy weather, the dust blown in upon their goods, etc, etc (ABF, p200).
Franklin continues with a story about a poor woman whom he found sweeping in front of his door in the morning. The woman, who 'appeared very pale and feeble, as just come out of a sickness' was then asked by Franklin to sweep the entire street for a shilling, and she agreed. When Franklin sent his servant to check up on her progress, he was delighted to report that 'all the dust placed in the gutter, which was in the middle; and the next rain washed it quite away, so that the pavement and even the kennel were perfectly clean' (p200). From these encounters, Franklin drew up a proposal for 'the more effectual cleaning and keeping clean the streets of London and Westminster'. The proposal stipulated that 'several watchmen be contracted with', since they are more 'strong' and 'active', to serve as employers of 'poor people', which these watchmen will hire to sweep up the dust in dry seasons and rake up mud in wet seasons (p201). The watchmen, in Franklin's proposal, were to be supervisors and employers over the poor. In this way, such public health initiatives would come to inculcate the two fundamental values of disciplinary enclosures: work and the gaze.
Addressing the purpose of public health initiatives such as these, Franklin says that while 'some may think these trifling matters not worth minding', such initiatives gain great importance over time with such a great city population (p203), 'its frequent repetitions giving it weight and consequence'. Invoking again the constant and permanent attention to detail to the daily life of man, Franklin says that:
Human felicity is produced not so much by great pieces of fortune that seldom happen as by little advantages that occur every day. Thus if you teach a poor young man to shave himself and keep his razor in order, you may contribute more to the happiness of his life than in giving him a thousand guineas (p203).
The reason for this, Franklin says, is that the thousand guineas will of course be 'foolishly spent' by the young poor, whereas teaching and training young poor men a regimen of self-care gives him independence, since 'he shaves when most convenient to him and enjoys daily the pleasure of its being done with a good instrument'(p203). Through a regimen of self-care, the daily, minute attention to one's habits, pleasures and conduct are one of the best means of contributing to the happiness of the poor. The other and most sure means of ensuring the happiness and tranquillity of men, however, was hard labour. Recalling his oversight of a company of men on military business, Franklin observed that:
when men are employed they are best contented. For on the days they worked they were good-natured and cheerful, and with the consciousness of having done a good day's work they spent the evening jollily. But on or idle days they were mutinous and quarrelsome ... which put me in mind of a sea captain, whose rule it was to keep men constantly at work (p234).
These observations reinforced Franklin's conviction of the fundamental utility of the virtue of 'Industry', which he defined by the axiom, 'Lose no time; be always employed in something useful; cut off all unnecessary actions' (p130). Franklin extended the virtue of Industry far beyond sea-faring, applying it to the entire life of man. In particular war and military matters, Franklin understood, were one domain in which the virtue of Industry was indispensable, if only for the simple reason that military excursions needed to be highly organised and managed. In this way, 'Men', Franklin held, 'if one understood their motives, could be managed as easily as smoky chimneys (ABF, pxi).'
With this historical background into the political economy and history of liberal police, we can now better appreciate the depth and complexity of the discourses that inform 'police power' in its more contemporary manifestations. To this end, we can now return to the 2011 Waller v. City of New York ruling, and examine the discourses of 'police power' that function to establish and maintain a liberal-juridical order while simultaneously excluding and disenfranchising the 'dangerous' democratic element of the city.
4. ANALYSIS OF WALLER V CITY' OF NEW YORK
At approximately 1:00am on the morning of November 15, 2011 the NYPD along with the Sanitation Department entered Zuccotti Plaza with armoured vehicles, barricades and bullhorns and announced to 'those occupying Zucotti Park' that they were to immediately remove all property and leave the park or be subject to arrest. Thus began a four-hour long coordinated police sequestration of the area surrounding Zucotti Plaza, which included the removal of tenements and encampments by the Sanitation Department, the closing of bridges and street access, a media blackout, and the forceful eviction of the protestors utilising sound cannons and pepper spray, resulting in mass arrests of hundreds including journalists. Lawyers for the occupation frantically submitted an application for a temporary restraining order to the City of New York which requested the following injunctions:
(a) Enjoining the respondents from evicting lawful protestors from Liberty Park/Zucotti Park;
(b) Permitting all protestors to re-enter the park with tents and other gear previously utilised;
(c) Returning all property seized from protestors; and
(d) Granting such further relief as may seem just and proper
Waller v City of New York, 2011, Index No. 112957/2001
At 6:30am, a judge issued a temporary restraining order granting limited restrictions on the City until the matter could be heard in court later in the day. These limited temporary prohibitions on the City included:
(a) Evicting protests from Zucotti Park a/k/a Liberty Park, exclusive of lawful arrests for criminal offense
(b) Enforcing the 'rules' published after the occupation began or otherwise preventing protestors from re-entering the park with tents and other property previously utilised
Waller v City of New York, 2011
Shortly after noon, Justice Michael Stallman heard oral arguments for and against the lifting of the restraining order against the city. At bottom, the issue in the lifting of the restraining order was whether the court would recognise the First Amendment rights of those occupying the park in view of their conflicting relationship with a) the right of Brookfield Properties to establish 'reasonable rules' for 'hygienic, safe and lawful' public access, b) the legal obligation of the City to enforce city ordinances within the park and c) to make it available to those who 'live and work in the area' who are listed as the 'intended beneficiaries' of the zoning plaza in question. Judge Stallman's reasoning ultimately fell back on the justification that the demonstrators:
have not demonstrated that they have a First Amendment right to remain in Zucotti Park, along with their tents, structures, generators and other installations to the exclusion of the owner's reasonable rights and duties, and to maintain Zucotti Park, or to the rights to public access of others who might wish to use the space safely.
Waller v City of New York, 2011
Echoing Judge Stallman's reasoning, Mayor Bloomberg stated in his press conference later that day that the rights to free speech were outweighed by the demands for 'public health and safety'. The final ruling of Judge Stallman in Waller stated unequivocally that the applicants for the temporary restraining order failed to show '... a right to a temporary restraining order that would restrict the city's enforcement of the law so as to promote public health and safety.' (Waller v City of New York, 2011). On these grounds, the petition for staying the temporary restraining order against the City was denied.
The 'police' discourse of 'public health and safety' utilised in Waller and in Mayor Bloomberg's justification of the 'eviction' should be understood in the context of what Foucault calls 'bio-power', denoting both the management of populations and the disciplining and confinement of bodies. There are two elements that stand out with regards to the bio-political discourse that governed both the ruling and the Mayor's statement: the involvement of the Sanitation Department, and the subtle and explicit references to 'internal danger' and mental illness. (31) Both of these references, I claim, are doing specific discursive work within the juridical-institutional matrix. The Mayor's official statement on 'the clearing' of the park, mirroring the rationale of Justice Stallman, was the following: when the goals of 'public health and safety' clash with the goals of guaranteeing the First Amendment Rights of the protestors, 'public health and safety' assumes priority. However, by examining the discursive, juridical and symbolic work that is done by the bio-political discourses of 'public health and safety', we can understand how these goals (Public Health v. Democratic Rights) are discursively framed in such a way so as to ensure that they do come into conflict, making the issue a matter of the 'police power', which in turn may be asserted against an old threat to 'public' majorities: the spectre of 'democratic absolutism'.
As Foucault documents in The Politics of Health in the Eighteenth Century and the lectures on Security, Territory, Population (32), the problems of urban 'blight', disease, sanitation, disorder and the elimination of 'dark spaces' of the city become central objects for a 'medical police' [medizinische polizei] of the eighteenth century that emerges as part of the economic-institutional calculus of liberalism. (33) During the nineteenth century, the discourse of 'public health' in United States took shape within the problem-space of the threat of disease epidemics like cholera, tuberculosis and typhus and the risk of 'contagion' and 'congestion' that lurked in the 'dark' corners of tenement housing for poor immigrants and black communities. (34) In this context, local boards of health began to emerge in response to the threat of disease, contagion and 'congestion' and its potential impact on 'the population' and commercial 'publics'. It was thus within this problem-space of early industrial cities like Philadelphia and New York and the discourse of the diseases of the 'urban poor' that local experiments in 'public health and safety'--a fundamental police power--would gain traction and develop into more centralised, and more pernicious, city and state boards of health at the beginning of the twentieth century.
The broad police powers that Public Health agencies enjoy today can be traced to their early organisation and consolidation as administrative 'police powers' of government. In 1828, the City of New York purchased Blackwell's Island in order to build a prison and, by the end of the century, the island --sequestered from the mainland as a true 'enclosure'--was a disciplinary archipelago of nightmares. By 1860, the island housed an insane asylum, a workhouse, a penitentiary, a smallpox hospital, and a 'coloured orphan asylum'. (35) As Maria Sanchez writes: '(T)he logic of who became a resident of Blackwell's is painfully obvious: racial minorities, the poor, the sick, and the criminal were all segregated on 120 acres in the East River (p99).' As an explicit mechanism of social control aimed at the 'dangers' of the urban poor, Blackwell's Island, renamed 'Welfare Island' and now known as Roosevelt Island, was a first step in the development and consolidation of the 'police powers' of the state under the discourse of 'public health'. Sanchez writes, 'The development of 'public health' as a governmental charge and an area of public policy, as well as the changing institutional structure of prisons, can be read through the history of Blackwell's (p99)'.
In 1921, the New York Department of Health created a distinct Department of Sanitation (formerly the Department of Sanitary Engineering) and enumerated various powers under its authority, including:
* the supervision and control of public water quality
* enactment and enforcement of rules and regulations for water contamination
* administration of plans for mosquito extermination
* investigation of 'public nuisances'
* examination into '... conditions of nuisance affecting life and health under order from the Governor'
* special investigations of sanitary conditions of parks, camps, fair grounds and other public gathering places'
* '... examination of the conditions of state institutions' (36)
The 'examination of state institutions' included the examination, treatment and sequestration of 'dangerous' persons under supervision in state prisons, hospitals, penitentiaries, mental wards and houses of corrections. Alongside the Department of Sanitation, the Department for Contagious Disease was charged with the 'sanitary' police powers of apprehending, examining and treating 'menaces' such as women with venereal diseases (37), smallpox patients, 'lunatics' indigent poor and processing them for transport to Blackwell's Island, which was used increasingly seen as a kind of quarantine area for 'public menaces' and 'nuisances' to the public health.
And while 'Welfare Island' was renamed 'Roosevelt Island' and slated for development in the 1970s, the 'police powers' of the Public Health authority remain relatively unchanged, even within the self-understanding of contemporary public health administration. As part of the executive branch of government, public health agencies today '... wield considerable authority to make rules to control private behaviour, interpret ... regulations, and adjudicate disputes about whether an individual or company has conformed with health and safety standards'. (38) In this sense, public health agencies--in cooperation with a network of social service agencies, bureaus, boards and judicial bodies--perform a 'quasi-judicial function' within the administration of city and state 'police powers'. Indeed, as one contemporary textbook on Public Health Administration explains: '... the lines between law making, enforcement, and adjudication have become blurred with the rise of the administrative state' (p148). Health Departments therefore retain '... the executive power to enforce the regulations that they have promulgated ... [and] monitors compliance and seeks redress against those who fail to conform' (p149). In addition, as a consequence of public health being conceived in the first instance as a matter of executive state 'police powers', government has inherent power to interfere with personal interests in autonomy, liberty, privacy, and association, as well as economic interests in ownership and uses of property [and] ... to keep society free from noxious exercises of private rights (p149). Most importantly, public health authorities and officials, as proper magistrates of state police powers, therefore '... retain(s) discretion to determine what is considered injurious or unhealthful and the manner in which to regulate, consistent with constitutional protections of personal interests' (p146). And, despite exceptional federal attempts at intervening in state and municipal government regulation and authority, the most recent trend in public administration law has been in favour of granting states the benefit of the doubt in matters of 'internal police'.
Bloomberg's references to the internal 'danger' and the mentally ill within Zucotti Plaza have an immediate reference to a dark history of the city's very recent past of enclosure, confinement and sequestration. And, as history shows, the goal of 'public health and safety' carried out by the Sanitation Department is itself a discourse enmeshed in that same history. In addition, the typology of 'normal users' as opposed to the 'encampments' and 'tenements' of the 'protestors with no rights' shows how specific discursive and symbolic work is carried out in making marginal populations into a kind of 'underclass Other'. (As one observer said: 'It's like we are an invading army'). This reasoning resembles what Mike Davis calls a 'rhetoric of social warfare that calculates the interests of the urban poor and the middle-classes as a zero-sum game' (39), where the 'middle-class' is conceived as embodying the healthy, law-abiding, consumer-citizen and the 'underclass' is conceived as dirty, criminal, lazy, homeless etc. Most disturbingly, the categories of 'normal users' of the space--those 'who wish to use the space safely'--appear here in Stallman's ruling as those who apparently do not need to 'demonstrate their rights' to the space. The First Amendment rights of the occupants--interpellated as the underclass, dangerous, 'Other'--are contingent, theoretical and subject to judicial review (a point returned to later). This discursive formation that allows demonstrators to be inserted into an economic-juridical framework as 'unruly, dangerous protestors' is now what I turn to.
The history of Blackwell's Island points to the direct connection between the discourse of 'public health and safety' and the discourse of disciplinary confinement and sequestration. But as Sanchez reminds us, it was only certain kinds of bodies--disorderly, 'dirty', 'out of place', 'abnormal' bodies--that became objects of 'police'. In this respect, there was an unavoidable racial and ethnic component in early republican ideas about the connection between the virtues of 'Industry' and 'Work' and the virtues of 'Cleanliness' and 'Order'. For Benjamin Franklin, the virtues of 'public economy' and civic virtue went together, and provided a model for the perfect citizen, albeit one based on ideas about the superiority of the Anglo-American race. As one biographer notes, Franklin believed that '... certain groups of people were less inclined to toil than others' (40), and that a natural division between the idle and industrious classes determined power relations in a political society. Franklin, let us recall, was convinced that Native Americans, since they were 'naturally' less inclined to submit to the discipline of work and industry and live in cities, were destined for that reason to be 'extirpated' from New England.
Franklin's belief in the natural division between the idle and the industrious validated and made possible the institutional, material and discursive conditions under which a place like Blackwell's Island could operate. In turn, the very forms of disciplinary confinement and sequestration inspired by Franklin emerged as expressions of the 'police power' of public health agencies and departments of the early twentieth century, and continue to have a hold in the present. Indeed, the references to 'internal danger', mental illness, health 'hazards', and hygiene all refer to a discourse which warrants not only the revocation of certain recognised rights and freedom, but the very possibility of confinement and sequestration. However, the analysis of 'police' as a disciplinary network of confinement also misses certain important aspects of the broader phenomena of the 'police power' of government. In fact, what developed in American jurisprudence as the 'police power' of government was in effect a direct response to the failure of disciplinary networks and authorities to contain and control the 'dangerous' and unruly figures that haunted the laissez-faire constitutional state of the late nineteenth and early twentieth centuries; namely, the 'dangerous' and unruly figures that threatened the conservative classes with 'democratic absolutism': the anarchists, socialists and communists.
At moments when disciplinary authorities failed to enforce the terms of the laissez-faire constitutional order upon these 'radical reformers', a certain 'counter-reformation' emerged in the field of American 'administration' and legal thought. As one historian recalls for us, by 1800, labour strikes and trade union organising became commonplace and, between the upheavals of the war of 1812 and the economic recession that followed from 1816-1822, the working class as well as an 'underclass' of vagrants, beggars and 'discontents' were rapidly becoming a permanent fixture of urban life in Philadelphia. (41) At the judicial level, courts increasingly began appealing to the 'police powers' of their own, ruling that working-class strikes, such as the Shoe and Boot-makers Union strike of 1806 (pp163-65), were an obstruction and 'conspiracy against trade' and commerce.
At the core of laissez-faire constitutional arguments against workers' demands was the upholding of the 'right of contract' between worker and employer, regardless whether the terms and conditions of the contract are secured under exploitation, intimidation or poor working conditions. And, while these laissez-faire arguments for 'right of contract' would eventually give way to the bio-political 'police power' that would see to the health and safety of the 'race' in its living and working environment, the judicial and administrative 'counter-reformation' against workers' rights to organise and bargain remained a significant element throughout the twentieth century, and to the present. However, the inflation of judicial 'police powers' in the attempt to suppress working class movements only seemed to fuel the struggle for shorter working days, free public education, and a living wage. Indeed, the working class movement of the 1820s in Philadelphia produced the nation's first city-wide trade union and, on 3 June 1835, the first general strike in America's history, uniting skilled and unskilled workers in a strike against 'the grievous and slave-like system of labour' which was emerging in the industrial cities of America (pp163-65).
As labour strikes and clashes with employers and police turned into calls for class insurrection and agitation at the end of the nineteenth century, laissez-faire constitutional jurists began developing and the first comprehensive treatises on the 'police powers' of American government. Christopher Tiedeman's 1886 Treatise On the Limitations of the Police Power in the United States would become one of the founding documents for American police power jurisprudence in the twentieth century. In the opening pages of the Treatise, Tiedeman calls attention to '... the great army of discontents' of 'Socialism, Communism and Anarchism' who represent '... an absolutism more tyrannical and more unreasoning than any before experienced by man, the absolutism of a democratic majority.' (42) Tiedeman then states that his goal is '... to awaken the public mind to a full appreciation of the power of constitutional limitations to protect private rights against the radical experimentations of social reformers' in what he calls the '... cause for social order and personal liberty' (ppvii-viii). Tiedeman writes that the police power, being concerned with protecting the 'private rights' of the 'shrewd majority' from the 'radical' social reforms of the minority, inheres in the legal maxim '... sic utere tuo, lit. alienum non laedas', the principle of 'using your own without alienating the same use by others'. By enforcing and inculcating this this legal maxim of 'equal use' or 'equal access' by law, social stability will be ensured by the appeal to 'equality'. The legal maxim of equal use enforced by 'police power' jurisprudence, in turn, will serve as a mechanism of security against class insurrection (ppvii-viii).
As Mayer notes, Tiedeman immediately follows these introductory warnings against class insurrection '... with a spirited defense of judicial review'. (43) In another major influential work, Unwritten Constitution, Mayer notes that for Tiedeman, the role of the judiciary is primarily an anti-democratic one; in addition to the legal principle of 'sic ut.ere' or 'equal use', there is another legal measure which should be utilized by the judiciary against the popular will: judicial review. For Tiedeman, judicial review:
enabled a small body of distinguished men, whose lifelong career is calculated to produce in them an exalted love of justice and an intelligent appreciation of the conflicting rights of individuals, and the life-tenure of whose offices serves to withdraw them from all fear of popular disproval; it enables these independent, right-minded men, in accordance with the highest law, to plant themselves upon the provisions of the written Constitution, and deny to popular legislation the binding force of law, whenever such legislation infringes a constitutional provision. (44)
Therefore, as Mayer notes, the institution of judicial review 'was essentially anti-democratic', insulating the judiciary from popular scrutiny while at the same time allowing the judiciary to maintain the status quo by basing their reasoning on firm, constitutional principles (p123).
Both the principles of 'equal use' [sic utere] and judicial review would continue to be understood in the discourse of police power jurisprudence as mechanisms of security and control against social disorder. The absence of hard limits and undefined scope of its authority would thus draw within its sphere a vast network of regulatory and administrative agencies, bureaus, bodies and institutions. The fundamental principle of sic utere would even appear as the foundation of the powers of fire prevention. At the First National Fire Prevention Convention held in Philadelphia in 1913, public authorities gathered in an attempt to delimit all the powers of fire prevention for city administration and regulation. The delegates of the convention, locating fire prevention under the 'police power', defined the police power as the right '... to compel the observance of certain rules of safety by one or many for the general good of all.' Citing Blackstone's Commentaries on the Laws of England, the convention defined police power as:
... the power of each state (exercised directly by its legislature or through its municipalities) for the suppression or regulation of whatever is injurious to the peace, health, morality, general intelligence and thrift of the community and its internal safety. (45)
The conventional then proceeds to cite the fundamental principle of police power, which they trace to 'the days of Roman law', which is the '... maxim of common law, that a person has only the right to use his own property to the extent that he does not thereby injure that of his neighbours (p28).' The power of police understood as fire prevention is therefore charged with the supervision of the level of 'congestion' within the city that might create fire, abating 'public nuisances' that disturb the use of property through their 'congestion' of streets, alleyways, or public spaces (p29). Citing the Commentaries again, the convention delegates write that
... we find that the police power is 'that which concerns itself with due regulation and domestic order of the kingdom whereby individual of the state, like members of a well-governed family, are bound to conform their general behaviour to the rules of propriety, good neighbourhood and good manners, and to decent, industrious and not offensive in their stations (p30).
The delegates, noting that while '... this definition has not been resorted to as describing the scope of police power', such an authority nonetheless licenses the due regulations of fire prevention, public health and safety. The police power thus supervises and provides for the '... direct use and enjoyment of the property of the citizen that it shall not prove pernicious to his neighbours or the public generally (p30).'
This context of the 'police' maxim of sic utere sheds a revealing light on the ruling in Waller, as Judge Stallman, resorting to the same legal maxim set out in Tiedeman's treatise on police power ('sic utere1), ruled that the protestors have not demonstrated that they have a First Amendment right to remain in Zucotti Park, along with their tents, structures, generators and other installations to the exclusion of the owner's reasonable rights and duties, and to maintain Zucotti Park, or to the rights to public access of others who might wish to use the space safely.
Waller v City of New York, 2011
Here, there is an explicit appeal to the legal maxim of 'equal use' first set out by Tiedeman; namely, that, because the protestors 'use' of the public space violated the legal maxim of 'equal use by others', the First Amendment rights of the protestors have been rendered void. The 'exclusion' clause, by making the recognition of the First Amendment rights of the protestors contingent on the 'equal use by others', thereby makes it clear that the rights of the 'minority' demonstrators are subject to the security mechanisms intentionally put in place against them by the law. Thus in the legal limbo of Waller, it is clear that the impetus is on the protestors to 'demonstrate' their First Amendment Rights. They must demonstrate their rights to the exclusion of the other 'users' of the space whose legitimate access to the space is already recognised. That the First Amendment rights of 'minority' protestors are contingent upon a judicial review of their legitimacy by a judge in view of this legal maxim, then, is the hallmark of Waller and the 'police power' of neoliberal government that relies upon the security provision of sic utere, and the insulation of the use of such principles from popular scrutiny through judicial review.
Most importantly, the court ruling made it clear that in both respects--with regard to the status of the protests themselves and with regard to Brookfield's private rules of conduct--the applicants did not demonstrate a right which warranted upholding. In other words, what the court did not appear to do is weigh the already-recognised First Amendment rights of the occupants of the park against those of the public at large and those of Brookfield Properties (indeed nowhere does the ruling explicitly recognise a priori the First Amendment rights of the protestors). Rather what the court did do, it seems, was evaluate, from the standpoint of the 'majority', law-abiding consumer-public, whether or not the protests had any rightful validity at all. This perspective allows us to understand more clearly the language of the court which described the occupants of the park as occupying the space 'to the exclusion' of the recognised private owners of the park, the general public who 'wish to use the space safely", as well as 'those who live and work in the area' who are the 'intended beneficiaries' of the zoning plaza.
Indeed within the language of the court, the occupants of the park appear as the only category of individuals who lack any rightful claim at all to using the park. The categories of persons who appear to have a rightful claim to the park include a) the property 'rights' of the private owners, b) the 'public access' rights of those who 'wish to use the space safely' and c) a special category of 'those who live and work in the area' who are named as the 'intended beneficiaries' of the zoning plaza. Curiously, the rightful claims of these categories of persons to use the space do not appear to be in conflict. Rather, the only category of persons whose 'presupposed' rights in question appear to create a conflict is the category of the occupants, who are already interpellated as violating the principle of sic utere. That is, even prior to the reasoning of Waller, a legal judgment has already been made at the level of discourse that the demonstrators are 'dangerous protestors' who have violated the sic utere maxim and thus pose a threat to public health.
In this way, both the sic utere principle, and the legal-judicial review of the temporary park re-occupation work together to produce a situation in which a judicial 'decision' becomes merely the application of the principle to an already pre-defined discursive space. The decision in Waller, therefore, is simply an application of a general legal maxim to a particular case--an easy exercise in deductive legal reasoning. But notice that, as Tiedeman observed, that in cases of judicial review--but not all cases--where a democratic will is opposed to 'the public' or 'the general welfare', judicial review will almost always tend to serve as an anti-democratic measure. In other words, whenever a conflict arises between a democratic minority and the 'public health', or safety, or 'general welfare', 'police power' jurisprudence as a set of legal-institutional practices and legal maxims will generally function as a security apparatus against the 'democratic absolutism' that lurks in the popular will.
One essential difference between the laissez-faire police power and the new neoliberal legal regime is the transformation of constitutional law in the 1970s towards a regime of 'conduct' laws. As Feldman clarifies, the transition from policing the status of persons to the conduct of persons was '... a reflection of the due-process and equal-protection revolution in American constitutional law in the 1960s and 1970s' towards a more 'complete liberalism'. (46) This transition in American liberaljurisprudence would present itself as a progressive movement away from vague status laws like vagrancy statutes based in English common law, ruled unconstitutional in the 1970s, to specific 'conduct laws' that focus on specific prohibited 'acts', behaviour or conduct. This major turn in American policing and law enforcement faced widespread criticism and failure in the face of growing claims that targeting certain forms of 'conduct' is simply another way of targeting certain categories of persons. This criticism continues to the present, through the 'targeting' policing of various 'delinquent' or 'dangerous' categories of persons, such as the 'stop-and-frisk' policy of the NYPD that has been shown to overwhelmingly target and stereotype innercity black youth. In short, the claim is that targeting certain forms of conduct is merely another way to criminalize certain categories of persons within urban space such as the homeless, black youth, women of colour, political activists, etc. Couched in the language of personal responsibility and choice, conduct laws and private 'rules of conduct' in public-private spaces target not the identity or status of persons but rather the wilful, illegal conduct of persons. Indeed the '... contemporary criminalisation of the (conduct of the) homeless concerns ... their wilful violation of the behavioural norms of public space (p50).'
In a neoliberal urban legal regime in which one must comport a proper 'conduct' or a 'social purpose' for being present in the streets, sidewalks and public spaces--or Privately Owned Public Spaces (p50), one thinks of the 'prison-in-reverse' model of normative, 'exclusive-inclusion' that characterises spaces like shopping malls, with their privately enforced 'rules of conduct' and private security. As Voyce describes these smooth, sleek spaces of neoliberal conduct, they constitute '... predictable controlled environments which acts like a prison-in-reverse: to keep deviant behaviour on the outside and to form a consumerist form of citizenship inside.' (47) What is particularly notable about these spaces is that, like the model of the panopticon, they are easily transferable to other applications in public space. Because they are based in loose, ever-changing 'rules of conduct' enforced by private security, the 'prison-in-reverse' can (and does) function extremely well in public-private spaces.
At the same time, neoliberal discourses of 'police' are quite continuous with laissez-faire liberal police powers, in that they remind us that the function of 'police' has historically been pinned to the exclusion, repression and disenfranchisement of the 'dangerous' democratic elements of the polity. The final analysis of the 2011 Occupy ruling thus allows us to see how the discourse of 'police power', in its early modern liberal and neoliberal forms, claims to uphold a certain liberal economic-juridical order, while at the same time functioning as a mechanism of repression and security against the 'dangerous' (democratic) element within the polity.
Kevin S. Jobe is a lecturer in the Philosophy & Religious Studies Department at Morgan State University. He specialises in Critical Social Theory, Twentieth Century Continental Philosophy and the History of Biopolitics. He may be reached firstname.lastname@example.org.
(1.) Hegel, Georg Wilhelm Friedrich, Elements of the Philosophy of Right, A.Wood (ed), H.B. Nisbet, ed. (trans.) Part III, Section II, Civil Society, Cambridge University Press, Cambridge 1991, para 249, pp269-270. (Henceforth POR).
(2.) Hegel, Georg Wilhelm Friedrich, 'The Ethical System' in S.W. Dyde, ed. (trans.) Hegel's Philosophy of Right, George Bell and Sons, London 1896, para 234, p226.
(3.) Hegel, Georg Wilhelm Friedrich, 'The Ethical System' in S.W. Dyde, ed. (trans.) Hegel's Philosophy of Right. George Bell and Sons, London 1896, para 234, p226.
(4.) Hegel, Georg Wilhelm Friedrich, Lectures on Natural Right and Political Science: the First Philosophy of Right Stewart, Michael and Peter Hodgson ed. Oxford University Press, Oxford 2012, p212. (Henceforth LNR).
(5.) Marina Bykova, 'Spirit and Concrete Subjectivity' in Hegel's Phenomenology. The Blackwell Guide to Hegel's Phenomenology of Spirit, Westphal, Kenneth ed. Blackwell Publishing, London 2009, p282.
(6.) Michel Foucault, 'Security, Territory, Population' in Lectures at the College de France, 1977-78, Palgrave Macmillan, New York 2007, p8. (Henceforth STP).
(7.) Michel Foucault, 'The Birth of Biopolitics' in Lectures at the College de France, 1978-79, Palgrave Macmillan, New York 2008, p37. (Henceforth BOB)
(8.) Michel Foucault, Naissance de la biopolitique, Gallimard, Paris 2004, p30.
(9.) In the Course Summary of the lectures on Naissance de le biopolitique, Foucault says that '... liberalism arose in a very precise context as a critique of the irrationality peculiar to excessive government, and as a return to a technology of frugal government, as Franklin would have said.' Michel Foucault, 'The Birth of Biopolitics' in Lectures at the College de France 1978-79, Palgrave Macmillan, New York 2008, p322.
(10.) '... the frugality of government is indeed the question of liberalism.' Foucault, The Birth of Biopolitics, p29.
(11.) Michel Foucault, 'Truth and Juridical Forms' in Power: Essential Works of Foucault 1954-1984 Vol. 3, Paul Rabinow (ed), The New Press, New York 2000, p69.
(12.) Michel Foucault, 'The Great Confinement' in The Foucault Reader, Paul Rabinow (ed), New Pantheon, New York 1984, p130. (Henceforth TGC).
(13.) "In this sense, 'confinement' conceals both a metaphysics of government and a politics of religion: it is situated, as an effort of tyrannical synthesis, in the vast space separating the garden of God and the cities which men, driven from paradise, have built with their own hands. The house of confinement in the classical age constitutes the densest symbol of that 'police' which conceived of itself as the civil equivalent of religion for the edification of a perfect city", Foucault, (TGC, p139).
(14.) James Conser et al, Law Enforcement in the United States, Third Edition, Jones & Bartlett, Burlington 2013, p35.
(15.) Mitchel Dean, The Constitution of Poverty: Towards a Genealogy of Liberal Governance, New York: Routledge, New York 2013, p64. (Henceforth COP).
(16.) Charles Bahmueller, The National Charity Company: Bentham's Silent Revolution, University of California Press, Berkeley 1981, p79.
(17.) Franklin, quoted in H.W. Brands, The First American: The Life and Times of Benjamin Franklin, Random House, New York 2010, p220. (Henceforth TFA).
(18.) Michael Perelman, The Invention of Capitalism: Classical Political Economy and the Secret History of Primitive Accumulation, Duke University Press, Durham 2000, p277.
(19.) Michel Foucault, 'Space, Knowledge, Power', in Paul Rabinow (ed), The Foucault Reader, Pantheon Books, New York 1984, p241. (Henceforth TFR).
(20.) Foucault, 'The Politics of Health in the Eighteenth Century' in TFR, p276.
(21.) Foucault, 'Docile Bodies' in TFR, p185.
(22.) Foucault, 'The Means of Correct Training' in TFR, p189.
(23.) Foucault, 'Docile Bodies' in TFR, p183.
(24.) Jacob Soil, The Information Master: Jean-Baptiste Colbert's State Intelligence System, University of Michigan Press, Ann Arbor 2009, p140.
(25.) Michel Foucault, Discipline and Punish, Random House, New York 1977, p76. (Henceforth/) and P).
(26.) Walter J. Black, The Autobiography of Benjamin Franklin, Classics Club, New York 1941), pxi. (Henceforth ABF).
(27.) Brands. TFA. p214.
(28.) Letter to Franklin from Benjamin Vaughn, ABF, p111.
(29.) Esmond Wright, Franklins Philadelphia, Harvard University Press, Cambridge 1988, p39.
(30.) David Waldstreicher, A Companion to Benjamin Franklin, Blackwell Publishing, Oxford 2011, p341.
(31.) CQ Press and Heather Kerrigan (eds), 'Mayor Bloomberg on Zucotti Park Clearing' in Historic Documents of 2011, Sage, London 2013, p591.
(32.) Michel Foucault. 'The Politics of Health in the Eighteenth Century' in Paul Rabinow (ed), The Foucault Reader. Pantheon Books, New York, 1984, pp273-289.
(33.) Michel Foucault, Securite, territoire, population, Annuiare du College de France, 78e annee, Histoire des systemes de pensee, annee 1977-1978, Dits et Ecrits Tome III texte n 255, pp. 445-449
(34.) Lloyd F Novick, and Glen P Mays, Public Health A dministration: Principles for Population-based Management, Jones 8c Bartlett, London 2005, p14.
(35.) Maria Carla Sanchez. Reforming the World: Social Activism and the Problem of Fiction in Nineteenth Century America, University of Iowa Press, Iowa 2009, p99.
(36.) Annual Report of the State Department of Health of New York, Vol. 42, Issue 1, pp 11-12
(37.) Department of Health, 1921. Quarterly bulletin, New York Dept, of Health, New York 1921-22, pp298-99.
(38.) Lloyd F Novick and Glen R Mays. Public Health Administration: Principles for Population-based Management, Jones 8c Bartlett, London 2005, p145.
(39.) Mike Davis, City of Quartz: Excavating the Future in Los Angeles, Verso Books, New York 2006, p224.
(40.) Brands, TFA, p221.
(41.) Gary Nash, First City: Philadelphia and the Forging of Historical Memory, University of Pennsylvania Press, Philadelphia 2005, pp163-65.
(42.) Christopher Gustavus Tiedeman, A Treatise on the Limitations of Police Power in the United States: Considered from Both a Civil and Criminal Standpoint. F.H. Thomas Law Book Company, 1886, pvii.
(43.) David M. Mayer. 'Jurisprudence of Christopher G. Tiedeman: A Study in the Failure of Laissez-Faire Constitutionalism. ' Missouri Law Review, 55, 1 (1990), Art. 16, p118.
(44.) Tiedeman, quoted in Mayer, 'Jurisprudence of Christopher G. Tiedeman: A Study in the Failure of Laissez-Faire C onstitutionalism', p123.
(45.) American National Fire Prevention Convention, 1st, Philadelphia, 1913. Official record of the first American national fire prevention convention: held at Philadelphia, Pa., U. S. A., October 13-18 (inclusive) 1913. Powell Evans (ed), Merchant & Evans, New York 1914, p27.
(46.) Mark Feldman, Citizens Without Shelter: Homelessness, Democracy and Political Exclusion, Cornell University Press, Ithaca 2006, p49.
(47.) M. Voyce, 'Shopping Malls in Australia: The end of public space and the rise of consumerist citizenship Journal of Sociology, 42, pp269-286.
Figure 1: Franklin's Tables of Examination, (ABF, p133). FORM OF THE PAGES. TEMPERANCE Eat not to dulness: drink not to elevation. Sun. M. T. W. Th. F. S. Tem. Sil. * * * * Ord. * * * * * * Res. * * Fru. * * Ind. * Sinc. Jus. Mod. Clea. Tran. Chas. Hum.
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|Date:||Jun 22, 2015|
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