#LawAndOrder #SocialControl
Written by: Vicens Valentín, Barcelona and Camp d’Eix
«Within critical criminology, for some time now, attempts have been made to develop a materialist theory of socially negative situations and behaviour as well as of criminalisation. A materialist theory of this kind is characterised by the fact that it relates the two points of the criminal question, socially negative situations and the process of criminalisation, to the social relations of production and, as far as our society is concerned, to the structure of the capital valorisation process. The discussion that has recently taken place also within Marxism on these issues has shown, in my opinion, that even a materialist theory that refers in a non-dogmatic way to Marx’s teachings can operate with a correct and radical application of the new criminological paradigm without falling into the mystifications of the idealistic use of labellingapproach: it can denounce and overcome this idealistic use without having to use an ontological or naturalistic conception of criminality or remain at the level of common sense«. Sandro Baratta Critical Criminology and Critique of Criminal Law, Siglo XXI, 1986, pg. 227.
I
In democratic states, and as essential structures of these, police forces are made up of a certain number of personnel, hierarchically organised in different services of an organisational nature that respond to the fulfilment of operational objectives. These objectives are determined by the legal framework that defines their powers, functions and limits of action.
The legal framework also conditions the resulting state structure and its administrative model (from Hobbes to Weber). In this sense, two main models of state can be established, those with a continental influence and those with an Anglo-Saxon influence. Consequently, depending on the legal framework, the police apparatus will respond to a specific police model, communitarian for the Anglo-Saxons and governmental for the Continentals.
From this legal framework and the derived state form – from a formal point of view – we can speak of the different versions and formulas of state, administration and police force, until we get lost in infinity.
Regardless of the model of state that has been configured in each country, the police forces (Recasens, 1989), together with the penitentiary system (Pavarini, 2003), the judiciary and the various techniques of penal execution (Maqueda, 2015), form an intrinsic part of the Criminal Justice System (CJS). This triad articulates the circuit through which the people to whom criminal laws are applied circulate. The police are at the first level of the CJS and it is they who select those who enter the system through the prevention/operational intervention models with which they operate.
But although police forces are a fundamental instrument of the SJC, the study of these comparative models, separately, will not facilitate the task of analysing public security policies (PPS). Although these policies depend on the regulatory framework of each state, they are defined on the basis of political decisions that respond to the interests of the system. These interests are not always objectified and are not always typified in criminal laws.
Three examples:
- No criminal law determines how a particular police operation should be decided or on which criminal acts the police should act. In both cases, police action depends on the discretionary decisions of those in charge of the police forces, in the first case, and of the police themselves, in the second.
- The implementation of a particular policing model (e.g. community policing models) occurs with different criteria, formulation and normative deployment in each country and even in each police force.
- The application of the so-called Zero Tolerance models is as heterogeneous and undefined as the social reality to which they are applied is heterogeneous and undefined: insecurity, male violence, traffic mortality, corruption, etc. In the end, all they have in common is the name: zero tolerance, and the concept becomes empty of content.
II
Beyond this specific legal framework, the police as a concept (policing), is the result of the historical development of the class needs of the liberal capitalist system (Recasens, 1989) to provide itself with an instrument of control of the population (especially the workforce) adequate to the needs of reproduction of the system (Rusche and Kirkheimer, 2004 and Melossi and Pavarini, 2019).
The police and the other two apparatuses (the penitentiary system and the administration of justice) that make up the SJC are specific instruments of the liberal capitalist order and respond to the development of the bourgeois state (Pavarini, 2003). It was not until the creation of the post-revolutionary police in Europe, in the 19th century, that the old and conflict-ridden estates militias were overcome (remember the events of Peterloo and Peel’s proposal for the London Metropolitan Police, or Fouché’s police force in Directory France (Valentin, 1994) and the police apparatus of the bourgeoisie was structured.
Since the creation of the police apparatus, there have been two main objectives: the defence and guarantee of private property (protection of goods and people) and the control of political dissidence (control of public order). The guarantee of the rest of citizens’ rights has been subordinated, de facto, to both objectives, and they are more or less blunt depending on the level of development of democratic guarantees – or their deficiencies – in each country. There are not the same democratic guarantees and therefore control over the police – just to give a few examples – in Sweden, Canada or Japan as in Russia, Burma, Mexico or Morocco.
Moreover, the police, as an apparatus of the state, have over the years developed two decisive characteristics of their own: firstly, loyalty to the defence of the system, and secondly, a powerful corporate culture, which gives them a very strong conservative character. Both characteristics are a barrier to change, to which it will always maintain a refractory attitude.
III
The systemic crisis of the economic model and the development model, highlighted from the first oil crisis of the 1970s to the current one – with the first global pandemic (Harvey, 2020) – has led to the growth of a new conservatism in many countries on the 5 continents and the emergence of formulas for exercising power which, while maintaining democratic forms (Klein, 2007), use the mechanisms and powers of the deep state (judiciary, police force, senior civil servants) as instruments of government through strategies of power, such as punitive populism, while maintaining democratic forms (Klein, 2007), use the mechanisms and powers of the deep state (judiciary, police force, senior civil servants) as instruments of government through power strategies such as punitive populism, lawfare or «the criminal law for the enemy«.
As a result of these crises and the increase in social and political conflict, the reformist proposals of the state powers over the police apparatus of the last third of the 20th century have been pushed aside by the global conservative offensive, which aims to retain control over the citizenry in order to keep the bases for the reproduction of the system intact. Those proposals for reform have gradually been replaced by policies of control in which guarantees of citizens’ rights take second or third place. The defence of the hegemonic social order takes precedence over human rights in the fight against the new dangerous classes (Maqueda, 2015).
It should not be forgotten, however, that the reform proposals put forward by the state do not respond to an altruistic inspiration. The reform of the police apparatus, the emblematic arm of the state for law enforcement and the maintenance of order, has never been a trivial matter. Control apparatuses never have trivial functions, even when one might believe in their obsolescence, as has happened in the aftermath of Black Live Matter (Yglesias, 2020).
Because these functions are not generated by the apparatuses themselves, but by the state ‘continuum’ in its dialectical relationship with society, from which, at least formally, the existence of the state itself derives. For the function is to exercise (controlling) power, and technology is the way of doing so (Foucault, 1994).
What actually occurs is a convergence between the interests of the police force (loyalty to the system and corporate culture) and the interests of the political and economic powers. The police force, then, reinforces its mechanisms for controlling public order (more human and material resources, greater collusion with the judiciary, greater influence in the construction of a security narrative in the media), under the guise of an increase in the fight against crime (protection of property and people). In reality, it increases control over dissidence (surveillance and intervention on dissidents and their activities), and control of the street, even if it is cloaked in the fight against common crime or the global fight against terrorism.
It is then that reforms on the management and modernisation of the police force are proposed in the name of effectiveness, efficiency and community policing and service to citizens. Reforms that in no way affect the model: protection of goods and people and control of public order to sustain the hegemonic social order.
IV
We have stated that, since its creation, the two main objectives of the SJC have been the defence and guarantee of private property (protection of property and persons) and political dissidence (control of public order). Rightly, the eradication of criminality was never an objective of the state. Such an objective would have been impossible to achieve in a social and economic environment based on the unequal distribution of wealth and associated property. The objectives have always been the containment of criminality at sustainable levels for the citizenry (and property owners) and the reactive response to denunciation or knowledge of a subjective criminal act to reinforce cohesion and social obedience in the face of (in)security, with a functional purpose (Durkheim, 1994).
The same happens with alternative political dissidence to the system: to keep it at levels controllable by the state, applying an iron control to the political response to the system. The broader – and more radical – the response, the tighter the control (Klein, 2007). While mobilisations of a clearly conservative, if not outright fascist, inspiration are tolerated (in Washington or Madrid). While states, through the deployment of police force, have developed strategies and technologies to control common criminality, the same has not been true for the control of public order.
Historically, the community policing model (the same London Metropolitan Police promoted by Robert Peel), which postulated the integration of the police into civil society, the spirit of service and the exclusion of coercive force as much as possible, failed to resolve social conflict and revolts by means other than the use of coercive force, leaving control of the streets to political espionage and the army (Valentín, 1994).
The occupation and control of the streets by specialised anti-riot units, with weapons and shock troops (horses, rubber or foam bullets or armoured vehicles), and political espionage, continues to be the instrument of conflict control in our democratic societies. Police actions will be more or less aggressive depending on the state of affairs of social and political contestation in each country and the instruments of control and evaluation of police activity that each state has equipped itself with.
We have seen this in Chile, Hong Kong and Spain, and these days the United Kingdom is considering increasing the material resources and making the necessary regulatory changes to toughen the state’s response to the growing protest on the streets. This follows in the wake of the toughening of repression in many of the central countries.
Bibliography cited:
Sandro Baratta: Criminología crítica y crítica del derecho penal. Siglo XXI. 1986
Emile Durkheim: Two laws of penal evolution. Delito y sociedad: revista de ciencias sociales, No. 13, 1999, pp. 71-90.
Michel Foucault: Surveillance and Punishment: The Birth of Prison. Siglo XXI Editores Argentina, 2002
David Garland: The Culture of Control. Crime and social order in contemporary society. Gedisa, Barcelona 2005
David Harvey: Anti-capitalist Politics in the Time of COVID-19. https://www.sinpermiso.info/textos/politica-anticapitalista-en-tiempos-de-covid-19
Naomi Klein: La doctrina del shock, Editorial Paidós, 2007.
María Luisa Maqueda Abreu: La criminalización del espacio público. The unstoppable rise of the «dangerous classes. Electronic Journal of Criminal Science and Criminology (2015).
Dario Melossi, Massimo Pavarini: Cárcel y fábrica. The origins of the penitentiary system (16th-19th centuries). Siglo xxi, 2019
Massimo Pavarini : Control and domination. Bourgeois criminological theories and hegemonic project. Siglo XXI 2003
Amadeu Recasens: Police and social control: problems of construction and legal and social definition. Doctoral thesis. University of Barcelona, 1989
Georg Rusche, Otto Kirchheimer: Pena y estructura social. Editorial: Editorial Temis, Bogotá, 2004
Jonathan Simon: Gobernar a través del Delito (Governing through Crime), Gedisa, Barcelona, 2012.
Vicens Valentín: Robert Peel y la creación de la policía inglesa. A critical approach. Revista de Pensamiento Crítico. No 2, Winter 1994/95. Barcelona
Automatic translation. Original versión: Spanish.
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