An idealist interpretation of law is that Jurisprudence forms the basis of law. The law is based on a sentiment of right and wrong, the justice that is served represents an idea of what people are supposed to be and that the punitive measures are somehow corrective actions to allow people the opportunity to correct past mistakes and for individuals and society in general to learn from those previous mistakes. Idealism claims that the justice of a punishment requires sorting out whether an act was a ‘good’ or ‘bad’ act warranting a punishment and whether or not the severity of the act warrants a more or less severe form of punishment as retribution. Normative ethics in a ‘state’ society (i.e. a policy oriented society) always limits personal freedom of the individual. Policing means people patrolling communities. Often the implication is that these police patrols are a service offered by the state to keep its citizens safe. This thesis is flawed (I will argue in this paper); and the erosion of public confidence in the institutions of government as servicing them in the form of ‘protection’ has been at an all-time low, for good reason. This is also why it is virtually impossible to teach ethics or political theory these days without some sort of ideologically divisive piece of news creeping into class discussions due to our constant bombardment with highly loaded associations with terms such as: Policing, state, government, power, law, democracy, not to mention the even tighter wound terms such as race, violence, oppression, and drugs. The latter of which associate with deeply felt traumatic wounds within the students. That being said, there are ways to get around this and make conversations interesting. Here are a few solutions to the issues of “Policing” as the mandated state policy and students need to think about whether or not these categories make sense anymore. We all know that the Law only acts retroactively and that there are material resources that are protected by the law and those who make a claim to ownership of said resources are those who benefit from the violence enforcement of the law. This is what I call the ‘mythos of justice’ or rather the materialists know that this idealist position of some sort of citadel, or sanctuary upon which the law is bestowed upon the unwashed masses is a mythological narrative that must die.
Usually there are roughly three categories into which the topics of legal philosophy fall: analytic jurisprudence, normative jurisprudence, and critical theories of law. Analytic jurisprudence involves providing an analysis of the essence of law to understand what differentiates it from other systems of norms, such as ethics. Normative jurisprudence involves the examination of normative, evaluative, and otherwise prescriptive issues about the law, such as restrictions on freedom, obligations to obey the law, and the grounds for punishment. Finally, critical theories of law, such as critical legal studies and feminist jurisprudence, challenge more traditional forms of legal philosophy.
My thesis is that more and more people are awakening to the understanding that ‘law and order’ is antithetical in a society where government makes policy, because when government makes policy this immediately puts the responsibility for the creation of laws into the hands of someone else. “Policy” means that people elect representatives who serve their interests and represent the interests of the public on behalf of people who work, live, and are otherwise too busy to serve in public office. The fact of the matter is that today, this ethos runs so incredibly thin that nobody can say that the government serves the interest of the public with a serious face, without a snicker, a cynical smirk, a derisive laugh.
Policing on the other hand comes into play as the direct manifestation of the enforcement of ‘the law’ – that is, the police show up on the scene when a crisis occurs – be it an existential crisis (someone’s life is in jeopardy); or a legal crisis (some kind of illegal behavior is occurring that threatens the function of the community, someone is robbing a bank and this threatens everyone’s savings in the community, that sort of thing); however, there are any number of ways that these policing behaviors take a ‘normative’ effect – that is, the police busting up a bank robbery gives a normative understanding that robbing a bank is wrong. However, the state is the one who decides that definition of right and wrong.
There may in fact be any number of anarchists, or Marxists, or libertarians who live in that specific community who fundamentally believe as a core principle of their political values that the use of money as a medium of exchange is ethically wrong. Therefore, as a symbol of rebellion against the use of money these people may band together into a ‘gang’ and steal money from the bank. Let’s call these folks the “Robin Hood Gang”. As a further gesture, perhaps these people do believe in the use of money and purvey a sense of Marxist-virtue-ethics in favor of wealth equality and full-heartedly believe in an ethos of building a classless society through the redistribution of wealth. Therefore, robbing the bank to give money to the poor is a way of ending the ‘class struggle’ of capitalism through the redistribution of wealth. The state-paid police force that busts up this robbery and puts this “Robin Hood Gang” in jail for grand theft larceny.
In this case, policing amounts to the state creating a policy that normatively defines many things including but not limited to the definition of money, the definition of value, the value placed on secure banking, the ethics of what may be called ‘prudently saving ones hard earned money’ which places value on work ethic and may tacitly diminish the value of the ‘unemployed poor’ to the community. It may also give off the impression that the police are merely serving the interests of the wealthy elites who happen to hold more money in the bank then those who do not hold much money in the bank. Let alone the silly policies of the banking industry that reward the wealthy who hold more money in savings with accrued interest, while punishing the poor who may overdraft their savings account by charging overdraft penalties, fees, and hurting their credit score through late payments on bills, so forth. By policing as the enforcement of securing ‘wealth in a bank’ one may also get the impression from police that they go out into the community and even during routine traffic violations threaten, or turn to violence as a way to subdue suspects through intimidation on behalf of serving the interests of the wealthy (who can afford lawyers to get out of such routine tickets, to find loopholes in the laws to preserve their wealth); etc.
Meanwhile, people pulled over for simple misdemeanors and drug violations are most often the victims of police violence. Drugs may be used as palliative measures to numb the pain of being poor and being alienated within a repressive, exploitative society that only views the poor as potential labor-power (constantly feeling the tug of war between guilt by association when one lapses into being a docile-body, and the exploitative apparatuses of submitting oneself to being a working piece of labor-power in a violent machine). Police brutality is not separate from the cold, rational, austere institutional ‘debate’ of policy making. Policy making IS policing. These go hand in hand and policing becomes necessary when one involves reform as the basis of political representation.
Reform of what? Reform of humans in their nature, into an alleged ‘civil’ society; well, to put someone in a civil society the state must clip the immediacy of libidinal instincts away, this always leads to re-forming human beings into something other than a human – turns folks into machines, animals, truncated beings that noticeably resemble robots coming off an assembly line ready, willing, and able to serve as cogs in a machine. This is the function that ‘policing’ serves on behalf of the will of the government, to give people a peace offering as the ‘protector’ offered to the community – As Michel Foucault famously stated, and perhaps he is right, “Politics is war by other means.” The security ensured by the government ends in the creation of ‘docile bodies’ that are productive in service of simply putting money in the bank – keeping the economy going; and though the state (as a stasis-forming-institution) tries to truncate the animal-instinct in humanity; the evolutionary factors and fast moving inertia of human history far outweigh the latest Pavlovian tricks up the sleeves of social engineers who attempt to placate ‘citizens’ into allegedly happy, peaceful, working labor-power.
This is why everything in policy making moves at a glacial pace and yet every other aspect of culture, entertainment, business, moves at breakneck lightning speed. We are fast moving animals that desire immediate gratification of our needs (we are born as babies who cry out for attention every time we need something); and yet the government is so mind numbingly slow, not because it tries to meet the vast contingency of needs of millions of unique people and finding consensus is so improbable it may be an imaginary fantasy, but the government functions to ‘police’ through ‘policy’ as a surge-protection.
Policing always protects from surging immediacy of needs; it tends towards the ‘garden party’ approach to civility inside the social contract rather than the ‘immediatism’ of life in the alleged ‘state of nature’ – where things were assumed to be nasty, brutal and short. As we know now, there are numerous cultural contexts where life in the ‘state of nature’ goes on without any ‘policing’ at all. For instance, the completely different family associations of the Na peoples in Yongning region of China. No policing is necessary and the tribes live without husbands, fathers, and consanguine relations between sisters and brothers form the basis of the child-rearing family structure. Sexual engagements are often initiated by women and men without gendered bias.
There is also a free movement of people in and out of each domicile in the villages (with the invitation of the people who live in the houses); marriages are formed and left with no big shame associated with divorce (not that this exists in the west anymore); but the point is that free association, even in sexual relations, can exist and function without the use of ‘policing’ (such as the bureaucracy of marriage licenses, joint bank accounts, all the trappings of private property, etc.) – policing and violence associated with ‘policies’ are all tied with this presumption that ‘state’ organizations have the right to ‘govern’ the people.
Even though, now, today, the confidence in government institutions is at an all-time low. We should move to freer social associations which already exist in other areas of the world.
Since policies are allegedly made by the representatives of the people and many people are exploited by life in capitalism and turn to drugs as a palliative measure – the easiest reforms possible to alleviate police brutality is to completely decriminalize all illicit drugs. This policy may only work when we move to pass legislation that will immediately medicalize drug addiction rather than criminalize it. Drug addiction is a serious health risk. If a police officer comes onto the scene of a crime, or even a minor traffic violation, and sees someone who they suspect is intoxicated on a potentially life-threatening disease, the police should be trained to bring them to a drug rehab center, either at a local hospital, or at a licensed drug addiction counseling center. Just as I have argued elsewhere (See; Critical Madness Theory, my first book) if a police officer or psychiatrist gets into a situation where someone is clearly having a psychiatric episode, a ‘break with reality’ they should be moved to local cooperatively-run community based psychiatric clinics. Drug rehab centers should be run the same way. People from all over the community should have to spend time as a form of mandatory public service to build fellowship, and compassion towards people in the community.
Countries should minimize this police violence by eradicating the criminalization of drugs. Portugal has moved to a total and complete decriminalization of all drugs. In Portugal drug abuse is astutely classified as a public health risk rather than a crime. Here are some of the philosophical flaws in espousing the belief that someone pulled over for drug crimes should be taken to jail, or that any person pulled over by a police officer should have immediate retributive action taken against them in the form of violence.
Retribution is always defined in the sense that the punishment fits the crimes committed. Retributivists advocate for retribution for the harm committed by criminal acts. What kinds of punishment fit the crime? Now, in the case of policing retributivism becomes tricky because.
1) There has not been a trial yet
2) Under the law any person pulled over is understood to be innocent until proven guilty in a court of law
3) What warrants retribution for harm committed, if the person has not yet been convicted of a crime? In some cases, if a civilian is pulled over and begins to verbally harass an officer is that enough provocation to give physical retaliation as retribution for verbal assaults? Probably not.
If someone physically harasses a police officer, so, they try to punch an officer, is that enough to warrant physical abuse? Physical restraint is warranted in that case.
Do verbal threats of violence warrant forms of physical retribution on behalf of police officers?
Threats of violence with a weapon? This is tricky. Can the police officer see the weapon? If yes, then retaliation is warranted. If no, then retaliation may not be warranted. Even though a police officer cannot see the weapon, that does not mean that there is not a weapon that is concealed. Which is something to think about in Texas, and it is important to note that when a police officer is in the line of active duty there are all sorts of hormones, emotions, and irrational reflexes that have to be calculated and suppressed in order for the police officer to make an ethical, rational, non-destructive decision in that exact moment where life and death hang in the balance.
What if the assailant is intoxicated when pulled over by the police? Perhaps if we take the criminal aspect out of the equation there will be less paranoia on behalf of the assailant when pulled over. Intoxicated people may realize that they are being stopped by someone who wants to help them rather than someone who wants to punish them and throw them in jail.
These are antiquarian questions for philosophers to ask because with the emergence of cellphones, everyone can become a panopticon who turns the eyes of the surveillance state back upon itself. With advancements in technology anyone can see the violence that the police exert on people every single day. The technological capacities available in the palm of our hands can un-conceal this ‘banality of evil’ and create connections with people around the world who share compassion for those being brutalized.
If we truly wanted to end police violence then we should end institutional violence within the state (which is virtually impossible without obliterating the state in my opinion); but for pragmatic sake I will propose something novel that may alleviate the ‘problem of stupid’ in our politics. There is a growing animosity towards ‘elites’ dictating how people run their lives. “Elites” usually runs as code for ‘more intelligent than me’ rather than ‘class’ which means ‘wealthier than me’; it is a way to shame the ignorant into voting against their own self-interests because it implies that experts are merely ‘so-called’ experts who do not necessarily know what is best for ignorant people; and yet; the fact that people do not know their own interests is what makes them ignorant. So, it has been shown time and time again that states with lower investment in education trend towards being ‘red’ states and they also have higher likelihood of ‘non-self-interested’ policies like conceal and carry laws, lower minimum wages, so forth. States that trend towards more liberal candidates have also trended towards greater investment in education (and hence, greater investment in taxes); but also, greater sympathy for police reform and non-violent methods of conflict resolution, more pacifist, so forth. A highly educated public is also highly articulate, obtaining a stronger vocabulary may make it more likely to have to verbal skills necessary to resolve conflict through words rather than violence.
Best way to help resolve police brutality is through raising more money for education. Not only federal mandates requiring all police officers have at least a master’s degree; but conflict resolution classes; classes in counseling; literature; philosophy; sociology; and more of the humanities and social sciences; BUT perhaps pass an IQ test AND as already exists in State Trooper qualifications in Ohio and several other states; a rigorous ‘boot camp’ kind of physical training as well; IN ADDITION TO rigorous mental; intellectual; and linguistic training; cops should undergo ‘compassion’ training; because often first responders are the first people to have access to extreme crisis situations where victims and perpetrators are experiencing nervous breakdowns, manic episodes, severe depression and even suicidal behaviors; so some background in human psychology (not just criminology and ‘abnormal’ psychology; but actual Freudian; Jungian; talk therapy as a methodology employed for conflict resolution; hostage situations, so forth)
In capitalism, the state is a type of machine based on creating laws that regulate crime, but these regulations never abolish crime because crime is always dealt with retroactively, justice is served after a crime is committed. That is why the film Minority Report is so heinously immoral; how can someone predict the future crimes that another person may or may not commit? Seems that the plot for the film exists on a plane of Calvinist pre-destination that modern society has grown unaccustomed to because he has gone out of style in favor of the presupposition that we are agents acting upon rational self-determined free-will decision making processes. Punishment of crimes does not just happen after the act is committed, but after the criminal is convicted! What kind of deterrent is this? Not before? And this means that crime will exist until there is a complete and total revolution that transforms society from top to bottom. Until we get to a point of immediate retribution there will be crime. One study by deathpenaltyworldwide.org showed that death rows are overcrowded; the death penalty is not even being used as a deterrent anymore.
The state is an institution that predates all of us in this room, but it is ineffective in terms of preventing crime. To use an analogy typically employed by communists, the state always deals with symptoms of a disease (retroactively punishing crime) because it never confronts the root causes underlying the disease (poverty created by a society based on greed, i.e. capitalism) To take this analogy further, medical discourse is based on the same premise of treating symptoms instead of root causes. I will make a bold prediction that is undoubtedly true modern medicine will not cure cancer until the profit motive is taken out of medicine… why would a capitalist society cure a disease and invest in preventative care when that society will create more wealth by treating the symptoms of a disease, by selling pills, and medications, that allow you to pay money to live with the disease.
It is more profitable for a pharmaceutical company to get someone hooked on medication for the rest of their life paying to consume pills indefinitely, than to cure them once and be done with it, or to prevent a disease and never make money selling prescription drugs.
These are problems that exist because of social mechanisms that are beyond the control of one person, and will take a radical revolutionary break with existing society to transform the way things are currently run.
Reforms and regulations from the state are only short-term remedies to problems that have grown to epidemic proportions.
Freedom, like so many things in life, is a non-totalizing process (It is something strived for but never finished, a project that lasts a lifetime) that must be expressed, created, produced, or it will die.
Once a subject defines “Freedom” like so many things in this world, it becomes nothing more than a form void of content, an empty signifier, a word that becomes dead because it is inert, unmovable. The irony with freedom is that once you define it, the definition inherently strips it of its meaning. Freedom is the individual assertion of will-power, self-mastery, and equality through difference not sameness. Language can interfere with or create liberation. When language is stable… “This is the truth, it is unquestionable.” Or what the Romans referred to as truth, “Veritas” – correspondence between object and thing. There are other interpretations of truth. For instance, “A-letheia” which the Greeks called “Un-concealment” where truth serves as a perspective shift, a process of discovery and revelation, not a stable “Subject/Object” nexus as inextricable from each other. Where a subject is studied from an objective standpoint. Or, vice versa, someone imputed their subjective opinion onto an unchanging timeless set of objective moral ideas. Freedom is much like the Tao which loses its power once it takes a name. It is constantly shifting, which is one of the strange properties of freedom, its pure propertylessness, to live in freedom means to live in perpetual flux and flow, which is something that the policy of policing cannot incarcerate.
Bradley Kaye teaches philosophy at Erie Community College in New York.