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Book Review
| Markus Dirk Dubber, The Police Power: Patriarchy and the Foundations of American Government, New York: Columbia University Press, 2005. Pp. xvi, 268. $75.00 cloth (ISBN 0-231-13206-9); $24.50 paper. (ISBN 0-231-13207-7).
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| Michel Foucault once suggested that modern political theory has never managed to "cut off the head of the king." Liberalism sought to "free the political from the juridical," but failed to eradicate the monarchical and patriarchal tendencies embedded in the latter sphere. Markus Dirk Dubber's ambitious and provocative book on the police power follows on the heels of Foucault. Focusing on the intersections between police, crime, and punishment, it aims to expose the patriarchal genesis of this notoriously indefinable power and explain why it has managed to escape the guillotine for so long. |
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Readers expecting the examination of American government advertised in the title will have to be patient. The first third of the book advances a Foucauldian genealogy that ranges across two millennia of European and English history. Although the concept of a distinct yet ultimately indefinable "police power" first appeared in fourteenth-century French discourses on pollice, and would eventually migrate into the influential eighteenth-century treatises of William Blackstone and Adam Smith, Dubber's investigation of this "well-entrenched, and truly basic, mode of governmentality" reaches back to classical Athens (xii). The basic lineaments of the police power, he argues, were present in Aristotle's distinction between politics (the government of a polis by autonomous citizens) and economics (the government of a household [oikos] by the patriarch). This latter sphere of broadly discretionary and nearly unlimited patriarchal authority, the author contends, is best understood as the antecedent of modern police power. Athenian oikonomikos constituted domestic dependents as subjects (if not mere things) to be utilized and disciplined to promote the wealth and security of the household. Comparable theories of patriarchal government prevailed in the domus of the Roman paterfamilias, the early medieval mund of the Frankish householder, and the royal estate of the early modern sovereign, whose power to keep the "king's peace" and promote the people's welfare would ultimately become the police power: "the due regulation and domestic order of the kingdom, whereby the individuals of the state" are, in Blackstone's words, "like members of a well governed family" (xii). |
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Turning to the early American republic, Dubber argues that the "patriarchal essence" of the police power "stood in deep tension" with revolutionary principles of law and self-government, but finds American states exercising it with little restraint or serious judicial scrutiny (82). Federal courts deferred to state regulations, citing the extensive (if not limitless) police powers ostensibly reserved to the states. State courts went even further, becoming key instruments of police governance while expanding the reach of regulation. For example, Dubber's discussion of nuisance law shows how judges often used common law misdemeanors to punish offenses that lay beyond the scope of common law police offenses. Thus the state did not need to show that drinking, prostitution, or gambling actually corrupted public morals, only that the presence of drunkards, prostitutes, and gamblers offended popular moral sensibilities. In these ways, courts broadened the rationale for regulation by emphasizing—as Justice Lemuel Shaw did in Commonwealth v. Alger (1851)—the preventative nature of the police power. While acknowledging that Cyrus Alger's wharf posed no actual or potential harm to the public, Shaw held that Alger had nonetheless violated a statute intended to prevent harms. |
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Dubber contends that this uniquely American conception of police as the prevention of threats both real and inchoate "spread across the entirety of the criminal law" (171) during the late nineteenth and early twentieth centuries. Theoretical distinctions between criminal law and police were largely irrelevant to progressives like Roscoe Pound, who believed that the former derived from the latter. In practice, such distinctions had long been unclear. Vagrancy, for example, was prosecuted as a police offense before a magistrate with no jury, no records, and few procedural protections. But vagrants were often punished like criminals. Once again, the rationale was prevention: the vagrant, as Christopher Tiedemann famously posited, was "the chrysalis of every other species of criminal" (130). |
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More recent developments in criminal due process and the rights of the accused have produced "no meaningful constitutional limits on the state's exercise of its police power through the criminal law" (175). Widespread disparagement of Lochner-era jurisprudence has discouraged critical scrutiny of police, while a growing list of "threats to society" (narcotics, weapons, terrorism, etc.) has further extended its reach. But what would a meaningful limit on police governmentality look like? Dubber argues that it should begin with a well-defined concept of personal autonomy, but admits that this is not easily defined. The concluding chapters search for some instructive precedents (including a qualified defense of Lochner). The results are mixed, but the question posed by this fine book remains worth asking: can the state police persons without denying their personhood? |
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| Mark Schmeller
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| Northeastern Illinois University |
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