Violence as law and excess; or, when the police are the criminals

Expanded version of comment published on New York Times blog, in response to article on violent committed by US police against migrants, "There were stopped at the border":

Why are the police often criminal? Criminality is considered policing’s opposite (or rather, policing is crime’s cure); it is thought a lack of a moral consciousness constituted by explicit norms or laws, In that case, law goes with order, and crime and madness are its lack.

This idea was exploded by the philosopher Hannah Arendt, whose book on the trial of Nazi criminal Adolf Eichmann focuses on his self-presentation as obedient subject--orderly, cold, without hatred--of the relevant higher (secular) authority, the state and its infamously named "Leader."

Further reflection reveals that in the Nazi camps and elsewhere, legally-sanctioned and regulated domination carried out in a military style of impersonal command and obedience without regard for feeling or inclination, is often in fact a concomitant of its seeming opposite: violently cruel excesses committed by policing authorities against persons subject to their power, and in plain disregard for any normative authorization or restraint.

These are not opposites; they go together, in ways that are poorly remarked. Since psychology as paradigm presumes the rightness of norms and seeks to explain deviances, it may not help us here, because Eichmann’s absence (per Arendt) of a soul with a will to think, chillingly, is not sufficient cause of this kind of evil, better explained by logics of power that are part of what links state and business alike to war and policing in the face of that enemy of all business with its projects: risk.

We also need to know what it is about law, and its enforcement and punishment, as such, that makes these spectacular excesses possible and likely. And no doubt particularly when some population is made the target.

It is worth remarking the theoretical and historical differences between (usually foreign) war and (normally domestic) policing, now that they have increasingly merged (with militarized police in America while foreign wars are fought as peace-keeping or human rights protection missions). War intrinsically is outside rules. Rules are sometimes agreed or understood between combatants, but this is minimal, fragile, and goes against the logic of war, which is something other than a legal tribunal, intergovernmental committee, or political process that is not itself civil war.

We should insist on the difference, calling war war, admitting that even good motives for intervention tend to correlate with self-interested ones, benefitting a national interest that may accord with most citizens or only the nation’s most powerful businesses. And we must insist that policing is not war. It must follow rules entirely. Its objects are not only suspected perpetrators but also citizens, whether rightly suspected of a crime or not.

This insistence may be done by insisting on people’s “rights,” as human persons, citizens, or some lucky subset of either, or some other legal notion. (People are not born with rights, Jefferson’s eloquent mytheme notwithstanding; they are conferred by states that “recognize” them; it was of course a popular insurrection that created and established these rights.). The difference between war and policing is a reflection of that between power and law.

A militarized state and society will be either a society at war with itself, or the state at war against the society, and certain parts of it in particular. Probably both. We might as well call this fascism. American society has very strong and obvious elements of fascism and this started long before Trump, who more than anything serves as its name.

The effacement of these distinctions between norm and force is a consequence and expression of the steady erosion over decades of an actual constitutional state in a polity and civil society that was recognizably democratic (where there is open contestation and disagreement that is not treated as violence, and so calling forth crime or war as its name or in response). Democratic is not the same as liberal, because liberty means only that you can do what you like with whatever power you have, as we do with ours. This is why, as has often been remarked, the liberty ideology has been quite compatible with authoritarian governments. Liberty calls for limits to the power of the powerful who rule, which is why the modern liberty idea originated in monarchist England. Democracy is the more radical, and fragile, notion. When a society with a liberal ideology becomes less democratic, it will be host to more violence, and maybe other social disorders, like high rates of psychological malaise, and people in any position of power, or even generally (since in the neoliberal society we are all supposed to be self-managing; it is a cynical world of “every man for himself,” all struggling merely to survive). }

One symptom is that, curiously, people may start misusing speech in a purely performative and provocative manner. “The cat is on the mat” might mean not that the cat is on the mat but that you had better finish your task in 3 minutes or you’re fired. Everyone then has to read everyone’s mind, and the consequences of this are far-reaching: it is compatible with a metaphysical and epistemological empiricist objectivism, where the truth is what you see but your own point of view cannot be questioned. The extreme forms of this is found in managerial notions of understanding other people, often in an essentially animal psychology, as in the American fetish of “body language,” where speech is reduced to behavior to be interpreted by the observer, as the other does not affect me but is merely observed; ambitious progressives such as some feminists may then want to punish men for not reading another’s mind, since she may have said yes but meant no, and that was supposedly clear from her facial expression or body language.

In this brave new world of universal management in the interest of business (which is any organization for getting things done) considered as the society’s whole and sole project, anyone in any position of authority tells you to do something, you had better obey. Say a second sentence, with European politeness, to try to say why you want what you want and had asked for? Now you have taken your life into your hands.

The problem here may not be government and policing as such; we need both for the foreseeable future. We could even want to have forms of policing that are rarely lethal, that do not treat the population (or that of poor ghettos with blacks) as enemy combatants, and that really just try to prevent crime and target real criminals, rather than all the social control activities that are what they are actually about.

Metaphysically, the problem is that norm and force, or law and power, must be distinguished if we are to have a functional constitutional state, but also, the interdependence of the terms in these pairs reveals something about both state power (administration and policing) and violence (which is not merely state authority’s transgression, but also, ultimately, its expression).

In fact, disciplined and “wild” exercises of power have a common logic of instrumentality, effectiveness, implementation, or enforcement, of acts of will regulated by inner or outer authority with which it is identified, with its objects subject to it haplessly, merely. Violent power transgresses the norms that prudent and responsible power observes, but in this both are driven by the same broad conceptions of both law and will, as authorizing action. This means that might thinks itself right, and doubts on either term may only point to administration or business (these are synonyms, which is why state and economy have always implied each other) and its projects.

The liberal solution of limiting powers is inadequate when their object should be questioned. No population threatens our republic, whatever else does. The greatest threats may lie in the preferred cures. But we need problem-solving here less than invention.