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E-ISBN 978-0-231-50695-3
Library of Congress Cataloging-in-Publication Data
Dubber, Markus Dirk
The police power : patriarchy and the foundations of American government / Markus Dirk
Dubber.
p.cm.
Includes bibliographical references and index.
ISBN : 0231132069 (cloth : alk. paper)
Police powerUnited StatesHistory.
I. Title
KF4695 .D82 2005
342.73/0418 22
2004043140
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M any friends and colleagues have helped me write this book, by listening, providing encouragement, giving advice, or by reading and commenting on all or parts of the manuscript, including Guyora Binder, Susanna Blumenthal, Jonathan Bush, Hanoch Dagan, Lindsay Farmer, Samuel Gross, Klaus Gnther, Daniel Halberstam, Don Herzog, Tatjana Hrnle, Klaus Lderssen, Elizabeth Mensch, Wolfgang Naucke, Cornelius Nestler, Cornelius Prittwitz, Karl Shoemaker, Michael Stolleis, Robert Weisberg, and James Whitman, along with participants in workshops at SUNY Buffalo, the University of Frankfurt, the University of Iowa, the University of Munich, the University of Michigan, the University of Toronto, and the University of Wisconsin. Thomas Green, Robert Steinfeld, Mariana Valverde, and Peter Westen were particularly generous with their time and advice, though I am sure that not even their exemplary efforts could save me from committing errors, for which I am happy to take the blame.
I am also grateful to the Alexander-von-Humboldt Foundation and to Nils Olsen, my dean at SUNY Buffalo, for generously supporting my research on this book. As always, Bernd Schnemann was the perfect host at the Institute for Legal Philosophy at the University of Munich.
It is only fair and proper that I dedicate this book to my wife, Sara. Without her aid and comfort over many years and in many places this project would not have seen the light of day. Finally, thanks to Clara, Dora, Maura, and Sophie for reminding me that being silly is almost always a good thing.
MARKUS DIRK DUBBER
June 2004
A mong the powers of government none is greater than the power to police, and none less circumscribed. For centuries, it has been a commonplace of American legal and political discourse that the police power is, and must be from its very nature, incapable of any very exact definition or limitation.
This book explores the origins of this most expansive, and most amorphous, of governmental powers with a particular focus on its most awesome manifestation, the law of crime and punishment. The results of this genealogical investigation then are used to set the framework for a critical analysis of the police power in general, and the criminal law in particular.
The concept of police entered American political and legal discourse in the late eighteenth century. Many of the early state constitutions contained references to the internal police of a state.
But where did Jefferson, Wilson, and their fellow Founding Fathers get the idea of police? And what did they mean by it? As so often in the historiography of American law, the best place to start is Blackstones Commentaries on the Laws of England, which rank second only to the Bible as a literary and intellectual influence on the history of American institutions. In the fourth, and last, volume of the Commentaries, published in 1769, Blackstone set out a definition of police that would shape American legal discourse for centuries to come:
By the public police and oeconomy I mean the due regulation and domestic order of the kingdom: whereby the individuals 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 be decent, industrious, and inoffensive in their respective stations.
Until well into the twentieth century, American legislators, courts, and commentators would consult Blackstone when it came time to turn their attention to the police power. Legislators used Blackstones police categories to structure their new codes;
Accordingly, we will devote considerable attention to Blackstones treatment of police in the Commentaries. Blackstone, however, is only the beginning of an inquiry into the roots of the police power. For however influential Blackstone proved to be in the New World, he could not, and did not, make any claim to originality. (In fact, it is doubtful that his influence would have been quite as broad had he been more original than conveniently familiar.) At any rate, Blackstones view of police in particular was radically unoriginal. It reflected a long tradition of governance that can be traced back to the very roots of Western political thought, or so I argue in this book. To make sense of the power to police we therefore must widen our genealogical focus and reach back to the notion of household governance, as first developed in early Greek writings on economics, understood in its original, literal, sense, as the art of the government of the house for the common good of the whole family.
We will trace this mode of patriarchal governance through Roman law, which granted the paterfamilias plenary power over the familia, and medieval law, which recognized a similar discretionary authority of every householder over his household, the mund, with the eventual expansion of the kings mund, or royal peace, to cover each constituent of the state considered as members of a well-governed family.
As a well-entrenched, and truly basic, mode of governmentality, one would expect to find manifestations of policing before Blackstone, including in colonial America. In fact, Americans were policing long before they imported the concept of policing from overseas in the late eighteenth century, combining long-standing governmental techniques from English law, such as the regulation of vagrants and the punishment of petit treason, with innovations and adaptations of their own, including the comprehensive warning-out system in New England, the internal disciplining of church members, and most significantly the management of slaves in plantation households. Americans of the revolutionary generation thus may well have embraced the concept of police because it named, and apparently systematized, a wide array of governmental practices with which they were intimately familiar.
Its clear that Blackstone did not originate the idea of state government as household management. Nor, it turns out, did he come up with the idea of naming it police. By the eighteenth century, the term had been around on the continent for at least four centuries, and even had blossomed into police science, a full-fledged academic discipline, complete with treatises, university faculties, and training academies. On Blackstones side of the Channel, the Scots had been thinking and writing about police for decades. Adam Smith, for one, began delivering his famous
