A Genealogy of Public Security

The Theory and History of Modern Police Powers

Giuseppe Campesi

• Publisher: Routledge
• Year: 2016
• ISBN:
  9781317484530
• Edition: 1
• Topic: History
• Subtopic: European History
• Index: History

There are many histories of the police as a law-enforcement institution, but no genealogy of the police as a form of power. This book provides a genealogy of modern police by tracing the evolution of "police science" and of police institutions in Europe, from the ancien régime to the early 19th century. Drawing on the theoretical path outlined by Michel Foucault at the crossroads between historical sociology, critical legal theory and critical criminology, it shows how the development of police power was an integral part of the birth of the modern state's governmental rationalities and how police institutions were conceived as political technologies for the government and social disciplining of populations. Understanding the modern police not as an institution at the service of the judiciary and the law, but as a complex political technology for governing the economic and social processes typical of modern capitalist societies, this book shows how the police have played an active role in actually shaping order, rather than merely preserving it.

Chapter 1

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Iurisdictio and politia in the genealogy of the modern state

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To trace out the birth of the modern police apparatus is to trace out the evolution of the modern art of governing and the set of powers and functions that have annealed around the institutional complex that is usually referred to as the modern state. Our journey across the history of modern political institutions should not, however, be understood as yet another history of the state alongside the many already in existence. The attempt will rather be to reconstruct a genealogy of the political technologies that have been forged in the process leading to the birth of the modern state, with all the tensions, conflicts, and clashes that process has triggered. On the one hand, these conflicts have found their locus in specific institutional places and governmental practices, while, on the other, they have often found expression in different forms of rationality, in different discourses on political power. It is this intricate dialectic of practices and discourses that I shall try to untangle, and the genealogy of modern political technologies that will be attempted here will thus be aimed at showing how out of that dialectic the modern police apparatus can be shown to have emerged.

In this chapter I will describe the emergence of the political structures that frame the institutional space within which the modern art of governing and the modern police apparatus developed. This institutional space is taken as an indispensable condition for the possibility of the theoretical and practical development of police powers, a development we will turn to in the following chapters.

As is known, the modern state developed in constant tension with the originally horizontal structure of power in the medieval political organization. This process involved a long and painful search for new operational modules on which basis to respond to the challenges that modernity laid before the nascent national monarchies. This dialectical tension came about when monarchical absolutism sought to centralize power, moving it away from the estates of the old Ständestaat (polity of the estates), and what emerged from this tension was the distinction between two structures and sets of operational modules. On the one hand is the judicial structure, which governed legal relationships of equality and was thus based on the formal horizontal structure of private law and on the discourse of modern legal reason; on the other hand is the administrative structure, which governed the asymmetric relationship between public interests and private interests, and was thus based on the formal vertical structure of public law and on the discourse of modern administrative reason.

And yet it is only by looking at the past through the lens of our modern conceptual categories that we can formalize the different political technologies that have emerged over the centuries in the dichotomy between, on the one hand, adjudication and private law and, on the other, administration and public law. These two conceptual categories have developed out of the history of conflicts that has led to the birth of modern political institutions, and therefore, as has often been done, it seems methodologically inappropriate to use them as a basis on which to revisit the history of the modern state. I agree with António Manuel Hespanha, in short, that even in constructing a history of law and of institutions capable of engaging with the sociology of law and helping to make its conceptual constructs less abstract, we need to take an approach that comes in radically from the outside, in such a way as to revitalize the legal-institutional models and dogmatic categories that give shape to those constructs, in essence reading the history of cultural forms in context, looking at the practical contexts in which those forms are embedded (Hespanha 1999, 63). It therefore seems best, in constructing a genealogy like the one just described, to draw on a vocabulary and a set of concepts rooted in an era when the distinction between private and public law, on the one hand, and adjudication and administration, on the other, was still in the making. That distinction will accordingly be rendered by speaking instead of the dialectic between iurisdictio and politia.

1.1. The polity of estates (Ständestaat)

It may seem a bit presumptuous to pretend that in the span of a few pages we might be able to even summarily discuss the forms of political organization that have characterized an entire millennium—the one that, at the risk of great superficial oversimplification, is customarily referred to as the Middle Ages. Indeed, it would be difficult, if not impossible, to identify any single dominant trait (however broad it may be) common to the different ways of organizing society so as to satisfy the political needs that persisted throughout this long stretch of history. For it is a plurality of organizational forms that we find in the Middle Ages, and indeed they are closely reflected in the complex landscape of ideologies (Tabacco 2000) and political languages (Black 1992) through which those forms of organization received a theoretical account. Even so, and not discounting all of the caveats just made, I am going to try to identify a few traits that might be said to mark out the medieval political experience. As Paolo Grossi has suggested, these traits make that experience a unique phenomenon which it would be a mistake to read with antiquarian interest as a bygone classical past; nor—from the opposite, forward-looking perspective—can it be read as propelled by a drive to reach the accomplished modernity of the present day (Grossi 1995, 11ff.). That uniqueness can be appreciated despite the fact that the image of the Roman Empire continued to cast its majestic shadow even over the Late Middle Ages, when the political forms of modernity, based on the model of constitutional monarchy, were already beginning to form on the horizon.

The most evident characteristic trait of the medieval experience is that of the political void (ibid., 41), mainly to be understood as an absence of any form or entity capable of exercising a totalizing hegemony over the activity of producing and defending the orders under which different communities were organized. Indeed, medieval society was set up as a patchwork of legal particularisms completely detached from the events that shaped political power, a universe in which the normative structure of communities existed and was reproduced independently of the voluntas of sovereign power. In this sense, it is fair to describe that social reality as one in which the state was absent from politics (ibid.). Indeed, throughout the long course of medieval history, political power was very weak, a characteristic not in any way offset by the lasting influence of imperial political ideology. This weakness can be said to have emptied power of any grounding in public law, reducing political obligation of a sort of semiprivate agreement.

As is known, when the Roman political and administrative apparatus fell apart and no one was ensuring safety along the roads any longer, the empire’s economic life went into an inexorable decline. As commerce languished and the Germanic peoples flooded in, plundering their way across the territory, the regions of the empire began to set up a new kind of social and economic organization no longer dependent on the city and based on a regional division of labour and on trade, but rather located in the countryside and based on local autarky and on manufacturing for consumption. An increasing role in this socioeconomic landscape came to be played by villae, large tracts of land where the local potentiores began to set up their own organization, providing not only a natural economy for the subsistence of the oikos (the “household” or estate) but also instruments of private protection and defence that in the incipient power vacuum were already prefiguring the political function that would later be served by the landed nobility. This is the picture that characterized the European economy and agrarian landscape at least until the 11th century, and in this context we can see how the possession of land—the estate—could have taken on an unprecedented political relevance. The distinctive traits of public law that established imperium over individuals seemed inevitably blended with the traits of private law that established dominium over things (Bussi 2002, 141; Poggi 1999, 40–42; Bellomo 1994a, 120; Van Caenegem 1988, 178).

Political domination—reduced to a simulacrum of the ancient Roman concept of imperium—thus began to be based on the possession of small plots of land, economically self-sufficient and easy to defend militarily. The political importance of possession typical of this sociopolitical structure fashioned lordly power into a form for managing and exercising political power very similar to what Max Weber called patrimonial power (Weber 1922, 221). Indeed, as is clear, in this sociopolitical context the distinction between public and private law tended to disappear, whereas lordly power, or what through our modern legal categories we would call sovereignty, took on the same legal attributes as property, in that it could be sold, donated, traded, and so on (Bussi 2002, 147). Lordship (the authority a lord would exercise through his patrimonial control of a landed estate) thus came to form the basis of a private kind of power over a territory, and as it became increasingly important to defend the territory from without and control it from within—a function over which the lord gained exclusive dominion—that power tended to take on the traits of the power that public law establishes over persons. When such landed power completed its evolution, it thus became a full power exercised over land and person (Lande und Leute), a typical manifestation of the royalism that would characterize the entire medieval experience, in such a way that individuals and the arrangements relative to their personal status would be pulled within the orbit of the legal arrangements of the res they pertain to (Grossi 1995, 73).

The sociopolitical structure of the landed gentry stood as the element that for a long time had to be reckoned with in any attempt to construct political organizations having any broader reach. One attempt to somehow overcome the rigidly localistic dimension of political power came with the “feudal constitution” (Hintze 1929, 50), through which the typical elements of Germanic political culture were grafted onto the lordly sociopolitical structure (see Mitteis 1948; Ganshof 1947; Bellomo 1994a). Indeed, as is known, throughout the feudal period, the control and defence of realms was organized through that complex system of personal bonds of mutual fealty, help, and protection between lord and vassal that, according to Bloch’s description, made each person another man’s man (Bloch 1948). The entire organization of the politico-military apparatus was structured on the basis of these semiprivate agreements between so-called meliores terrae. This associative contractual element typical of the feudal political organization would have a profound influence on medieval political culture, conferring on it some markedly anti-absolutistic traits. Indeed, far from being able to exercise any arbitrary power, a landholding lord was “bound to strictly observe the legal obligations incumbent on him in virtue of the feudal contract and of custom, and so even if the obligation was unilaterally imposed” (Bussi 2002, 165).

In a society like that of the Early Middle Ages—where central political authority was remote, travel was difficult and risky, and socioeconomic life had fallen behind the natural subsistence economy of small village communities—the need to control and govern vast landholdings under constant threat of invasion and war made it necessary to break up and allot administrative functions into autonomous spheres of competence. If a financially weak political authority was to keep vast realms under control, it inevitably had to divide and share power, and the feudal political system was the practical embodiment of this inevitable “systematic decentralization of power” (Weber 1922, 182).¹ As is known, this decentralized power structure, based on personal bonds and on obligations to render services in kind, could be superseded only with the 11th-century rebirth of urban life.

The communes—these new socioeconomic entities that fit in perfectly within the frame of feudal economic relations by basing their prosperity on the uneven balance between city and countryside—did not initially seem interested in upsetting the feudal political order. Indeed, the cities and the mercantile classes that lived in them claimed a sphere of autonomy and self-government very much like that based on the privileges and immunitas of the nobility. But then the cities made their entry into politics as collective potentes acting next to the individual potentes that held sway in the Early Middle Ages, and that development inevitably accelerated the institutional evolution of European political organizations. Indeed, on the one hand, it was precisely within the city communitas that there slowly re-emerged notions bearing the distinct imprint of public law, very much like those that during the Early Middle Ages seemed to have vanished from European politico-legal culture; and, on the other hand, it was the cities’ experience in self-government that provided the impetus for the creation and institutionalization of the assemblies within which the realm’s different interests and social components could try to find common ground.

However, the new political constitution that Europe settled into in the late medieval period did not mark a radical turning point relative to what, with Hintze, was previously described as the feudal constitution. Indeed, the so-called Ständestaat (polity of estates) tended to replace a political organization based on person-to-person relationships with a form of organization within which relations between the sovereign and the meliores et majores terrae are already set up as relations among different institutions (Bobbio 1995, 106). The Ständestaat was thus already moving toward “a greater stabilization of populations and a closer definition of civil, legal, and political arrangements in different regional contexts” (Ortu 2001, 54; my translation). Its development signalled the dawn of the modern Western state, which precisely from this period would inherit one of its most characteristic institutions: the late medieval representative assembly. Indeed, these assemblies originated as organs through which to coordinate or reconcile the constellations of interests advanced by different social groups, or as tools for arriving at an agreed or concerted management of affairs in which all in the community had a common interest, or at least the affairs pertaining to the privileged sphere of some of the corporate bodies that composed the nascent proto-national political entities (in a transition from body corporate to body politic). It is precisely in recognition of the increasingly significant political role taken on by these social formations (estates or Stände) that the political organization of the Late Middle Ages is commonly referred to as a Ständestaat (see Schiera 2004b).

The politico-institutional evolution of late medieval Europe thus revolved around the institutionalization of representative assemblies,² an institutionalization in which the convergent interests of sovereigns and the estates had an equal part. This convergence can be appreciated by pointing out two processes that proceeded in parallel. On the one hand, the ancient feudal obligation to provide one’s own sovereign with consilium et auxilium gradually morphed into an obligation to pay duties or tributes, and in this way the financial question became the main source of conflict between the estates and the sovereign. As is known, this conflict was constantly being stoked by military engagements through which the monarchies themselves are thought to have been forged, as sovereigns firmed up their territorial boundaries, and within each of these territories a sense of national identity or consciousness accordingly emerged (Vives 1971, 227). And it was precisely to meet the growing financial needs of the monarchies that sovereigns in that period began to set up institutions through which to contract for extraordinary tributes to be paid by the estates. On the other hand, these same estates ...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Table of Contents
• Introduction
• 1 Iurisdictio and politia in the genealogy of the modern state
• 2 The theoretical roots of modern police power
• 3 Police science
• 4 Police powers and social disciplining
• 5 Public security and liberal governance
• Conclusion
• Works cited
• Index