Agamben and Critical Police Theory
This post is about the police: the origins of contemporary police structures in absolutist states, especially the Napoleonic regime; the police as a particular instance of police power, referring to an older concept and term for the power of states to coerce on any matter for the general well-being; and new critical police theory that understands this power, as instantiated in modern policing, to be a significant problem for the “legitimacy of state power in a liberal democracy” (Markus Dubber, The Dual Penal State). The post is exploratory, based on reading notes that I shared on a Facebook page I called “Cops: Reading Critical Police Theory.” More about that experiment towards the end.
Much of the newer critical work in police theory draws on Foucault and Agamben and sees contemporary policing — growing penality and violence, dishonesty, contentious relations with the public — as an important and highly visible site for studying the role of the sovereign, where the “legal lawlessness” of policing is somewhat equivalent to the decision on the exception.
In Agamben’s series of blogs published a year ago and translated at Ill Will here, he referred to the 18th century German twin theories of cameralism and police, where ‘police’ — a word related to ‘policy’ and ‘polis’ — meant something more broad than it does today: namely, “the administration of the good order of the community and the care for the well-being and life of its subjects in all its aspects.” This history is well-known; Foucault discusses it in The Birth of Biopower. Agamben then remarks that it is “no coincidence that Napoleon … was the sovereign who gave the administration and the police the modern form with which we are familiar.” The bite being that the Napoleonic regime was absolutist while ours are self-described as liberal democracies (or ‘legislative states’ in Agamben’s discussion, borrowing a framework from Schmitt).
He writes:
“The administrative state theorized by Sunstein and Vermeule, which is taking hold in advanced industrial societies, is in its own way faithful to this model, in which the state seems to resolve itself into administration and government and “politics” transforms itself entirely into “police.” It is significant that, precisely in a state conceived in this way as a “police state” that the latter phrase ends up designating the least edifying aspect of government, i.e., the bodies required to ultimately ensure by force the realization of the state’s governmental vocation.”
That’s brilliant. I paused there also because I was living in Albania and reading about post-Communist countries, especially the helpful Anatomy of Post-Communist Regimes: A Conceptual Framework by Bálint Madlovics and Bálint Magyar (2020), and also about reforms in preparation for EU integration of the Western Balkans — legislative, judicial, and police reform.
This sparked my interest in how the word ‘police’ as it was used in the 18th century came to mean the guys in blue —what’s sometimes called the ‘constabulary’ — and what are we to make of the power of this police in relation to Agamben’s theory of power in administrative states. One answer to the first question — the evolution of the word — is provided by Fabien Jobard in “Concept of the Police” for the Springer Encyclopedia of Criminology and Criminal Justice, a useful starting point:
“The entire body of knowledge collected by police science [in the 18th century sense], as well as knowledge tools such as accounting or statistics, all contributed to the birth of bureaucracy, this multifaceted government body overseeing whatever pertains to the knowledge required to ensure the prosperity of the state and its constituents. Alongside bureaucracy, the police pursued its development, but did so as an institution that had specialized in one function, that of preventing: preventing disorder, preventing crime, and helping justice elucidate crimes. It follows that the police is not a branch of the bureaucracy: while bureaucracy belongs to the sphere of dogma, policing is circumstantial; and while bureaucracy is a vector of Weberian modernization, policing retains an ancien regime flavor, grounded in secrecy, dissimulation, and the general techniques of absolute power.” Fabien Jobard, “Concept of Police.” Emphasis added.
An analytical tool used in The Anatomy of Post-Communist Regimes could be useful here. Madlovics and Magyar posit what they call “stubborn structures” that persist through history and regime types. For example, they examine the prevalence of patronal systems in countries like Albania since the Ottoman era — systems where the members of ruling elites are connected through patron-client relations — in contrast to a county like East Germany, and they demonstrate the persistence of this form, despite the imposition from above of apparently similar Communist states. This accounts for differences between East Germany and Albania both in the Communist era and today. For example, East Germany had a highly professionalized bureaucracy and secret service; Albania was not like this. It may be that the “ancien regime flavor” of modern policing could be accounted using a “stubborn structure” framework.
And again, recent theory is interested in the paradoxes of police power in liberal democracies: as an element of lawlessness that maintains the law, or embodying “legal lawlessness” (Jean-Paul Brodeur). Events of 2020, from emergency Covid restrictions to the remarkable protests against the police in the USA, seem to call for an examination that could link the two.
Melayna Kay Lamb apparently does this in a book just published, taking an approach close to my own interests. I haven’t read it yet (studies in progress here) but excerpts are available online. She looks at police power as something fundamentally “an-archic” at the center of the “lawful,” and she argues that understanding police power is essential to understanding sovereignty in liberal states — as well as the crisis of legitimacy of modern states. She discusses Schmitt, Agamben, Foucault, and Benjamin. In the final chapters, she turns to both states of exception and to anti-Black violence in American policing.
What’s intriguing about a framework uniting an analysis of the “police power” in general with police studies in particular is how it seems to give equal theoretical purchase to the concerns of progressives about anti-Black state violence and similar forms of state violence against other minorities and the concerns of conservatives about the administrative state. Both are worried about illegitimacy and power; that much is obvious. By pairing Agamben with police theorists like Markus Dubber and others, we can see how the paradox of power in liberal democracies is constituted at widely divergent levels, and how that paradox itself is constitutive of the modern state form.
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The Facebook page. I called it “Cops: Reading Critical Police Theory,” and the idea was to post excerpts with comments on and links to books and articles in the field — a way of keeping reading notes and maybe stimulate some discussion, too. Facebook is a terrible place for that. It took some moderation to keep odd-duck commenters at bay. Facebook categorized the page as a “business” and wanted payment to promote posts. More amusing: some clever entity (algorithm?) populated the newsfeed with an endless stream of absurd AI pictures of Jesus in weird places. Less amusing is that the page was removed and restored more than once. In February, when I returned to the US after two years in Europe, the page disappeared entirely for a couple or more days without any explanation. The little page did lead to plans for a discussion group (online venue to be determined), so not a total wash.
I recall that back in 2020, Facebook removed posts in a Giorgio Agamben philosophy group that linked to translations on this blog — then restored the posts again. That was before the more sophisticated system of disinformation warnings and formalized back channels to flag things for suppression was devised — a system challenged in court (Murthy v. Missouri) and declared unconstitutional, then restored again pending a US Supreme Court decision.
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As an archive, some “raw” notes/posts from the “Reading” page:
The police are the punishment.
Three essays on how the police deliver extra-judicial punishment, or the police as a means for the delivery of pain, typically towards marginalized groups or individuals.
The first is “The Police Are the Punishment,” by Didier Fassin (2019). It’s based on ethnographic research at 15 police precincts over the span of more than a year. “Against the normative definition of punishment as the infliction of pain on an offender by an appropriate legal authority, this essay argues that the police, although they are not entitled to administer retribution, commonly do so on the street or at the precinct, including against innocent individuals. Such punishment is disproportionately imposed on working-class men from disadvantaged neighborhoods belonging to ethnoracial minorities.”
https://read.dukeupress.edu/.../The-Police-Are-the...
The second is “Policing, Punishment and Comparative Penality,” by Newburn and Jones (2022). They apply Fassin’s insights in a comparative way, looking at the increasing punitiveness of western liberal societies. “Police in many countries are involved in the de jure allocation and delivery of punishment via what has been termed ‘summary justice’ (Young 2008). Delivered directly by the police, these ‘technologies of responsibility … directly target “inadequate” or “irregular” citizens who already occupy precarious places at the margins of society’.”
About Fassin, they write that he “contends that the police are de facto involved in the delivery of state punishment via the frequent and ubiquitous use of extra-judicial force/intimidation. In Fassin’s view, these police activities should viewed analytically as punishment (rather than simply as examples of police deviance or brutality) because such practices are perceived as retribution by those on the receiving end, and are often justified in these terms by those who deliver them. The routine and systematic underplaying of such matters by the authorities offers further grounds, he argues, for seeing these interactions as part of the wider complex of state punishment. In Fassin’s view, therefore, formal legalistic definitions of punishment (which clearly distinguish legal punishment from illegal acts of pain delivery) are so dislocated from the empirical reality of some citizens’ daily experiences of state control agents that they have little analytical or normative utility.”
https://academic.oup.com/bjc/article/62/5/1196/6702058
The third is “The Police and Punishment: Understanding the Pains of Policing” by Diarmaid Harkin. It’s the oldest of the three (2014), and its proposal that the police should be seen as involved in “pain delivery” rather than law enforcement was an important contribution that influenced the other two. “The police deliver pain to individuals and groups, virtuously, justifiably, accidentally, maliciously or otherwise. As Egon Bittner (1970) noted some decades ago, the police’s use-of-force is fundamental to their effective competence and functioning. If, instead of ‘use-of-force’ we substitute, ‘inflicting hurt or pain’, the resemblance between police work and imprisonment becomes more evident.”
“Staying with this idea, we might reflect on the range of psychological and sociological harms police engender. Stigma, trauma, intimidation, as well as generalized feelings of insecurity can all be a consequence of police intervention on individuals. They might be amplified by harassment.”
https://journals.sagepub.com/.../10.1177/1362480614543043
It’s interesting to note that two of the essays at various points contrast the aggressive punitiveness in American or Anglophone police culture (“penal populism” and an emphasis on vengeance) with other Western liberal democracies. Newburn and Jones write about the work of some earlier scholars who consider “the possibility that, influenced by macro social-structural forces, some leading liberal democratic societies were following the Unites States’s punitive direction of travel.”
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A Philosophical History of Police Power by Melayna Kay Lamb (2024)
Looking forward to reading this book, just published. It has a chapter on Agamben, also chapters on Foucault, Benjamin and Schmitt.
The publisher’s description:
“Rethinking the philosophical grounds of police power, Melayna Lamb argues that traditional ideas of sovereignty and the law need to be radically re-evaluated. In placing police at the centre of analysis this book demonstrates the manner in which police power exists in a complex and overlapping relationship with sovereignty and law in a form which is not reducible to implementation. In doing this it argues for the centrality of order in any consideration of police and challenging a common narrative whereby a dynamic, interventionist sovereign power that follows from a belief of order as ‘artificial’ is replaced by a liberal, limited non-interventionist sovereign power that proceeds from a ‘natural’ order. Moving through thinkers such as Hobbes, Hegel and Adam Smith the book argues that police power is in fact an-archic in form, in a manner that makes it impossible to hold accountable through the law.
“Lamb adopts an interdisciplinary approach that turns to philosophy to make sense of global events that see police power at their centre. This includes the history of police brutality in the US, the structural injustices made more apparent by COVID-19 and the growing calls to abolish the police.”
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Police Deception and Dishonesty — The Logic of Lying (Oxford 2024)
Another new book to check out. Luke William Hunt is a former FBI agent who became a philosophy professor. “This book considers the many varieties of police deception and dishonesty — investigative lies, testilying, and everything in between — and how these varieties are intertwined…. Police deception and dishonest has become a normative foundation of the police institution, but that means neither that the logic of lying is justified nor that the police should embrace that logic.”
Why not?
“…the police are often the primary point of contact between the citizen and the state… [and] it’s plausible to think that honesty and trust are crucial if we want any semblance of a viable functioning society — including a viable, functioning police institution.”
He argues for reform to the “widespread, illiberal, anything-goes, dishonest, and deceptive policing that exists today.”
From the publisher:
“This book addresses a puzzle in policing: Honesty and good faith are important to the police institution, but so are deception, dishonesty, and bad faith. Drawing on legal and political philosophy-as well as empirical data and cases studies-the book examines how cooperative relations steeped in honesty and good faith are a necessity for any viable society. This is especially relevant to the police institution because the police are entrusted to promote justice and security. As with other state institutions, the police institution is supposed to be based on legitimacy. Legitimacy is a function of authority, which is grounded in reciprocal public relationships generating rights and duties. Despite the necessity of societal honesty and good faith, the police institution has embraced deception, dishonesty, and bad faith as tools of the trade for providing security. In fact, it seems that providing security is impossible without using deception and dishonesty during interrogations, undercover operations, pretextual detentions, and other common scenarios. The book addresses this puzzle by showing that many of our assumptions about policing and security are unjustified given fundamental norms of political morality regarding fraud, honesty, transparency, and the rule of law. Although there is a time and a place for the police’s use of proactive deception and dishonesty, the book illustrates why the use of such tactics should be much more limited than current practices suggest-especially considering the erosion of public faith in the police institution and the weakening of the police’s legitimacy.”
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“Surveillance Society: From Communist Czechoslovakia to Contemporary Western Democracies”
An inter-disciplinary field of surveillance studies has evolved alongside new developments in police theory, and for good reason. Law enforcement today is often able to access very powerful surveillance tools with little oversight. It’s worth noting that “surveillance does not pertain exclusively to ‘high policing,’ i.e. the political police. It trickles down to all levels of policing action…” (Jobard, 2012).
Muriel Blaive, a scholar at the University of Graz, Austria, specializes in the history of Communist regimes in Europe. She believes that their experience has lessons for us today, and she kindly sent me this article.
“In the 1970s, Václav Havel concluded that societies living under communism were at the forefront of one particular aspect of modernity: surveillance culture. They have a useful experience to share. Eastern Europe was at least as postmodern (or “post totalitarian” as Havel put it) as Western Europe, despite looking increasingly despondent from an economic point of view.”
https://brill.com/view/journals/eceu/49/2-3/article-p254_006.xml
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Copaganda
Writing for Jacobin Magazine, civil rights lawyer Alec Karakatsanis reports that police departments are spending tens of millions of dollars annually to flood the public with propaganda — even outright disinformation.
According to the article, one of the goals is:
“To manufacture crises, or ‘crime surges.’ For example, if you watch the news, you’ve probably been bombarded with stories about the rise of retail theft. Yet the actual data shows there has been no significant increase. Instead, corporate retailers, police, and PR firms fabricated talking points and fed them to the media.”
The larger context:
“The budgets of modern police departments are staggeringly high and ever increasing, with no parallel in history, producing incarceration rates unseen around the world. [Yet] Police and their right-wing unions (which have their own PR budgets) want bigger budgets, more military-grade gear, more surveillance technology, and more overtime cash.”
https://jacobin.com/2022/07/copaganda-police-propaganda-public-relations-pr-communications
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FBI Entrapment — Analysis of Causes
Excesses in FBI entrapment cases are well-known. This TED talk from investigative reporter Trevor Aaronson gives a good overview: https://www.ted.com/.../trevor_aaronson_how_this_fbi....
This article outlines some factors that led to the current state of affairs. By Jesse Norris, published in 2019 in Critical Criminology.
Excerpts:
“Former FBI agent Michael German (2013) maintains that if agents in the 1990s had proposed the kind of operations that are commonplace today, they would have been sent to psychological counseling.”
Factors mentioned in passing or considered in detail:
1. The “emergence of an ideology of absolute prevention and preemptive prosecution.”
2. Preying on suggestible people and those with mental illness.
3. Normative formalism. “The belief that the entrapment defense’s failures [in courtrooms] mean these cases must be legitimate and worthwhile. This can be termed ‘normative formalism’ because it assumes that if something is nominally legal under current law as implemented by courts and juries, it must be normatively valuable. […] Notably, this ignores widespread pro-prosecution biases, as well as numerous legal experts’ identification of these cases as entrapment. Normative formalism provides another illustration of how state actors use law to legitimize, or deny the existence of, rights abuses.”
4. Informant incentives. (“…a former FBI informant stressed that the ‘informant system is not voluntary; it’s through leverage…you don’t voluntarily do this work.’”)
5. Informant mendacity. (“An ex-informant said informants do their utmost to prolong investigations, including by exaggerating threats. He said ‘there’s no honesty and patriotism in becoming an informant’ — it is about finding an ‘angle to keep the money coming in.’”)
6. Status quo preservation. “First, a desire for status-quo preservation may prompt officials to approve problematic operations and pressure agents to produce convictions in order to achieve tangible results from counterterrorism spending. For example, a former agent described stings as an ‘exercise in manufacturing plots, solvable plots to be able to tout to Congress and the public.’” And, “An ex-agent reported that ‘the statistics they take from these things, they use them to get resources and funding, and some people get accolades.’”
7. Institutional culture. “One insider reported a ‘healthy debate within the FBI’ about stings, with ‘lots of people’ saying ‘this is crazy.’ Yet a culture of conformity stigmatizing internal critics as disloyal may stifle such conversations. For example, one ex-agent reported experiencing marginalization by colleagues after criticizing an investigation. Both a former agent and an insider indicated that higher level administrators are generally unwilling to terminate questionable operations.”
8. Vertical coordination. “…coordination with higher-level officials partially explains why even dubious operations continue once they begin. Sources indicated that from the beginning of each case, agents coordinate closely with prosecutors to plan the details of the case. This could have a reinforcing effect, preventing agents from terminating operations even after a suspect’s reluctance or incompetence becomes clear. An ex-agent noted that once agents discuss operations with prosecutors, perhaps selectively filtering information, they are reluctant to terminate them, potentially undermining their credibility.”
9. Cognitive bias, such as “…the alarmist bias (which encourages more alarmist interpretations of the same facts).”
10. Sunk costs. “This fallacy motivates continued investment in worthless endeavors without net benefit because one feels as if the money already invested will be wasted unless additional investment is made.” And, “An expert considered it ‘unquestionably’ true that sunk costs influenced entrapment because ‘over and over again’ they ‘spend an enormous amount of time on a case and find there’s nothing there,’ but ‘go ahead with’ the operation anyway, ‘even though it doesn’t make any sense.’”
