The Jurisprudence of Police

Toward a General Unified Theory of Law

T. Svogun

• Publisher: Palgrave Macmillan
• Year: 2013
• ISBN:
  9781137342638
• Topic: Social Sciences
• Subtopic: Criminology
• Index: Social Sciences

This unique volume develops a new philosophy of law and a new theory of law enforcement. The concepts developed provide the basis for a general unified theory of law that reconciles what legislators and judges do, with what police do to resolve important questions in the field and make public policy recommendations.

P A R T I

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The Need for an Integrative Jurisprudence of Police

C H A P T E R 1

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The Jurisprudence of Police Defined

“Only those who know the law shall be appointed justiciars, constables, sheriffs, or bailiffs”

Magna Carta (1215)¹

The term “jurisprudence” combines two words, the Latin juris meaning law and prudence (from the Latin prudentia) meaning practical wisdom. Jurisprudence is practical wisdom—a virtue—applied to law. The great thirteenth-century summa on English law, Bracton’s Treatise on the Laws and Customs of England, defines jurisprudence as a science concerned with “knowledge of things divine and human, the science of the just and unjust.”² As science, we might say that it is concerned with acquiring knowledge of law, discovering its nature, and the “laws” of law. Bracton also refers to jurisprudence as a “medium” that is “a way to a good end” (Kmiec 32). As a means, or applied science and art, it is directed toward the establishment and preservation of a just order. Bracton, however, does not define jurisprudence itself as a virtue.

On the relation of virtue to art and prudence, Aristotle in his Nicomachean Ethics observes, while there is a virtue of art, there is none of prudence (Ostwald tr. 154). That is because prudence is itself a virtue and, therefore, needs no virtue in addition to make it virtuous. Art, on the other hand, is not itself a virtue and therefore requires virtue if it is to achieve some good.³ Virtue is for the same reason distinct from science and technology—either may be put to vicious ends. So, having some art, science, or technology, man yet requires virtue in addition to make good use of them.

Jurisprudence as science requires intellectual virtues (perception, understanding, and the capacity to reason and correctly draw conclusions from premises) that produce theoretical wisdom. As art, it requires prudence, the practical wisdom to discern the good sought by the art and to identify the efficient means to its production. It also requires moral virtues (particularly justice, integrity, courage, and moderation), the characteristics necessary to conforming the will and actions to the requirements of practical wisdom. These are called for in a world where temptation to wrongdoing, conflicting interests, moral dilemmas, and tragedy put considerable demands on human character. It is especially required in professions, such as law enforcement, where the power conferred on officials may itself pervert judgment. Prudence and moral virtue are both necessary for the exercise of the jurisprudential art, if it is to procure the comprehensive good of justice that Aristotle states “produce[s] and preserve[s] happiness for the social and political community” (Nicomachean Ethics, Ostwald tr. 113). I shall use the term “jurisprudence,” which contains the root “prudence,” to denote not just art and science, but virtue as well. Jurisprudence is intellectual and practical wisdom applied to law as science and art.

One may undertake legal science in order to understand legal phenomena for the sake of understanding. The knowledge itself is the good sought; it is the end of theoretical science. The science of law concerns not only what holds universally (Aristotle thought that there is but one constitution according to nature) but also what holds only in particular circumstances and what is changeable since law pertains to human affairs, and human affairs are, as Aristotle said, “irregular.” Constitutions and laws vary, partly according to customs and conventions, and each may be said to vary with time.⁴ Some contemporary legal scholars, albeit not without controversy, refer to our “evolving constitution.” That the law evolves, however, is not a view exclusive to modern liberals; Edmund Burke himself held to such a view.⁵

Harold Berman identifies several characteristics necessary for the legal scientist if he or she is to be well suited to pursuing knowledge of law. These include the capacities of objectivity and integrity in conducting research, the evaluation of that research according to universal standards of scientific merit, openness to the possibility of error and “organized skepticism” about theories and theses, tolerance of new ideas until disproved, and an assumption that science is an “open system” based on “increasingly close approximations to truth rather than final answers” (Law and Revolution 155). Because law often entails the balancing of conflicting interests, the student of law must be prepared to avoid ideological and other biases, be open to admitting error, and be tolerant of new ideas. These virtues will also be of value to those involved in law’s application, the practitioners of the art of jurisprudence, as their work requires, inter alia, the resolution of conflicts that arise among individuals pursuing diverse interests.

Law is often studied not with a view to knowledge alone but with a view to legislation, judicial decision, or the faithful execution of laws. Here, the ends require applied science or art. The study informs and is a critical predicate to intervention by officials in the world of human affairs. The wisdom involved requires more than mere knowledge of the universal, the particular, and the variable. It requires not only practical wisdom, which includes intelligence, understanding, good sense, experience, and maturity of judgment, it also requires, as noted above, moral character. Practical wisdom determines the means that are conducive to certain ends, Aristotle asserts, but moral character determines that the end chosen is good. If legal officials are to achieve the complex end that Aristotle sees in the nature of law, that is, to make the citizens virtuous and to promote the common good so as to procure happiness for the social and political community, they must themselves be morally good and practically wise. In fact, Aristotle held that to be practically wise in the precise sense, one must be virtuous as well. Wisdom in the service of vice is not true wisdom but shrewdness or cunning. Today liberal philosophers define law’s ends in terms more narrow than Aristotle’s, often rejecting legal moralism (the use of law to enforce morals as such) and legal paternalism in the instance of mentally competent adults (the use of law to benefit individuals preempting their will to act to their own detriment). They typically define the end of law to be the establishment of ordered liberty—a composite end with the two goods, order and liberty, standing in a dialectical relationship. This end, however, remains sufficiently complex to preclude a mechanical jurisprudence.⁶ Practical wisdom, as it bridges the intellectual and moral virtues, remains a necessary virtue for legal officials.

Sir Edward Coke understood that jurisprudence required long study. The knowledge, skills, and moral character implied by the term “jurisprudence” presuppose then a learned and ethical profession, responsible for cultivating the knowledge, capacities, skills, and characteristics necessary to procure the complex good that is the form, the substance, and the end of law. Such a profession requires professional schools. The first law school in the West was established at the University of Bologna in the eleventh century. Law schools provide not only for the education of lawyers and jurists, but also for the development of legal science. They produce a meta-law, a body of critical legal scholarship, that then informs practice.

Jurisprudence is generally thought to be the virtue of judges.⁷ It is consistent with conventional usage to refer to the jurisprudence of John Marshall, to speak of his characteristic approach to the resolution of legal issues. Marshall’s jurisprudence includes his considered judgments about the nature of the constitutional order and the separation of judicial, legislative, and executive powers. It is evident in his reasoning in Marbury v. Madison where he derives and justifies the Supreme Court’s power to declare legislative or executive acts unconstitutional. That power, however, may become the predicate to law making itself and improperly encroach on the legislative authority. Some have argued that in recent years the Supreme Court in various areas, but particularly in its “substantive due process” decisions, has usurped legislative authority and acted like a super legislature. Similarly, in declaring executive or police acts unconstitutional, the Court may err and undermine proper executive authority. In either case, the judges may be criticised for judicial juris-imprudence.

Jurisprudence is applied with less frequency when referring to legislators. Perhaps this is because the term presupposes a specialized profession incongruous with an image of populist lawmaking by people very much like the average person on the street—lawmaking that is reflective rather than refractive of the popular will. To conjure with such a conception of profession is to engage a tension between a democratic and a republican vision of our constitutional order that involves different interpretations of representation. In the former view, the legislator mirrors his or her constituents’ will, whereas in the latter view, the legislator is elected for his judgment (enjoying not only authority based on election but also epistemocratic authority based on assumed expertise) and leads his constituency, but is periodically held accountable to them through the process of elections. (The latter view is espoused by Edmund Burke when he states: “Your representative owes you, not his industry only, but his judgment; and he betrays, instead of serving you, if he sacrifices it to your opinion.”)⁸ Constituents in democracies, however, may find such views less than fully palatable. Burke we might note was defeated in the next election. Our constitutional order seems in various ways to accommodate both views. The United States House of Representatives was designed to be more democratic. The representatives hold office for short terms and are accountable to smaller constituencies, conditions tying them more closely to popular will. The Senate was designed to be more aristocratic. Senators hold longer terms of office and are responsible to larger and more diffuse constituencies, conditions providing for more separation from their constituents’ immediate will. (Originally, senators were not even elected by the people but by the state legislatures. This persisted until 1913 when it was changed by the Seventeenth Amendment.) The division of power among executive, judiciary, and legislature (with a Court that it appointed and not subject to electoral accountability) suggests a democratic/republican constitution that resolves the tensions between democratic and republican principles through checks and balances of various sorts.

It is difficult to defend the view that deliberation about the substance and form of legislation to enact is not a matter requiring specialized judgment and skill, nor of expertise informed by knowledge of the nature of law, its forms and ends, with sensitivity to its historicity—that is, how the law is shaped over time by the particular facts and circumstances of the society the legislator serves. Aristotle’s view suggests that the legislative art demands the highest, most sophisticated sort of judgment and practical wisdom, as it is concerned with achieving the highest most comprehensive good of human action—the happiness of the body politic (Nicomachean Ethics Book X). Indeed, one of the most significant problems confronting the police (that August Vollmer, the father of modern American law enforcement, identifies in his seminal text, The Police and Modern Society), is the enactment of unenforceable laws (or laws whose enforcement comes at too high a price) and the failure to repeal laws that have become unenforceable—what may be called acts or omissions constituting legislative juris-imprudence.

Jurisprudence is, however, rarely if ever explicitly associated with the police. There has been no comprehensive treatise on the jurisprudence of police, that is, no systematic study that integrates the philosophy of law with the philosophy of police. The phrase “jurisprudence of police” occurs with the utmost rarity in the literature. (I have seen it used once by Kenneth C. Davis and once by Lawrence Sherman.⁹) As mentioned earlier, certain connections have been recently suggested between the contemporary discussion of judicial discretion in legal philosophy (particularly, Ronald Dworkin’s treatment of discretion) and the discretion exercised by police, but these references do not amount to anything like a full dress review of the matter.

Our underdeveloped jurisprudence (or in the area of policing, our nonexistent jurisprudence) is partly due to persistence of the view that police work does not require a jurisprudence. Police according to this view are low-level officials who are handed a book of laws that they are told to enforce. In this scenario, police are ministerial agents of law. They do not exercise significant discretion either in interpreting law or applying it. Parratt, for example, states: “The police in our legal tradition, are essentially ministerial officers. To them have been delegated relatively few grants of discretionary power.”¹⁰

The American Bar Foundation (the former research arm of the American Bar Association) in the mid-1950s conducted an extensive field observation study, however, that should have dispelled the empirical assumption that the police do not exercise substantial discretion. Kenneth Culp Davis, a participant in the study and one of the leading authorities to emerge on the subject, concludes: “The police are among the most important policy makers in the society. And they make far more discretionary determinations in individual cases than any other class of administrators; I know of no close second” (Discretionary Justice 222). He observes that police decide what laws to enforce, when they shall be enforced, in what circumstances, and in what manner. The laws that police are charged with enforcing particularly in the area of public order (ordinances prohibiting “disorderly conduct” come to mind readily) are neither narrowly nor clearly defined and invite discretionary interpretation. The late Chief Justice Warren Burger commented: “The policeman on the beat or in the patrol car makes more decisions and exercises greater discretion affecting the daily lives of people every day and to a greater extent, in many respects, than a judge will ordinarily exercise in a week.”¹¹ Burger also said: “No law book, no lawyer, no judge can really tell the policeman on the beat how to exercise this discretion perfectly in every one of the thousands of different situations that can arise in the hour-to-hour work of the policeman.”¹² Yet, the police have exercised that broad discretion often beneath the radar of enfranchised public scrutiny and with insufficient guidance and education on its use. It is necessary to take up discussion of the nature and limits of that discretion and to consider how that discretion may be groomed by education and training. The very high price of police misjudgment and corruption for the public safety, for order, and for the rights of individuals demands the subordination of that discretion to a jurisprudence. Yet, while legal philosophers have devoted considerable time to discussion of judicial discretion, they have devoted virtually no attention to police.

Kenneth Culp Davis in Discretionary Justice asserts,

We need not only empirical studies but also, I think, more philosophical digging. Our jurisprudence of statutes and judge-made law is overdeveloped; our jurisprudence of administrative justice, of police justice, of prosecutor justice—of discretionary justice—is underdeveloped. We need a new jurisprudence that will encompass all of justice, not just the easy half of it. (233)

This book is a response to that call with respect to law enforcement justice. The wise exercise of police discretion, whether in the enforcement of the criminal law, the maintenance of order, or keeping of the peace requires development of professional judgment specific to the police. The substantial discretion entailed, which arises from the complexity of enforcing law in light of an infinite variety of social facts, requires a rationale if it is to be supported—a justificatory theory about the police function that relates it to the nature, function, and limits of law in society. The jurisprudence specific to police also demands the development of a police profession, which produces the requisite knowledge and skills, and provides conditions for cultivation and preservation of the moral character necessary to police if they are to fulfill their proper role in the society. Such a profession would be a great resource to, among other persons, legislators and judges as they labor to fulfill their respective roles in the enterprise of establishing a just order through law. The jurisprudence of police is a necessary complement to the jurisprudence of judges and legislatures.

The phrase jurisprudence of police may be read in a number of ways. It may refer to the practical wisdom proper to police officers as professionals having the primary duty, as Charles Reith the British historian of police puts it, of “securing observance of law” (The Blind Eye of History 11). Observance means at a minimum external conformity to law; but in the fullest sense, it means law abidingness, the internalization of legal principle. Although police must embody law-abidingness in this full sense themselves, they can only encourage or facilitate this internalization of legal principle in the citizenry. Yet, their vocation commits them to this end. Efforts directed toward the end of internalizing law abidingness in the citizens (which will include being models of it themselves and being good educators of it) are surely more vital than making arrests only to secure external compliance.

In another sense, the jurisprudence of police entails a state of affairs—the rational organization of society through a general system of laws and institutions for administering them, that promotes the human flourishing entailed by law’s telos—as suggested by Patrick Colquhoun’s usage. In the first modern Treatise on the Police of the Metropolis (a book published in 1795 which influenced Sir Robert Peel in his formation of the first modern police force, the London Metropolitan police), Colquhoun wrote of police as an improved state of society: “Next to the blessings which a nation derives from an excellent constitution and system of general laws, are those advantages which result from a well-regulated and energetic plan of police, conducted and enforced with purity, activity, vigilance, and discretion” (1).

The right use of the technical competences of police and the instrumentality of law (including i...

Table of contents

• Cover
• Title
• Introduction
• Part I The Need for an Integrative Jurisprudence of Police
• Part II Toward a General Unified Theory of Law: The Integrative Nature of Law, Law Enforcement, and the New Police
• Notes
• Bibliography
• Index