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police militarization and suppression of dissent as a logical outcome of legal positivism?

July 7, 2012

Today a friend of mine posted a link to an entry on The Agitator, the website of Radley Balko, a senior writer for the Huffington Post, comparing two police department recruitment videos—one from Decatur, Georgia, and the other from Newport Beach, California. While the first recruitment video presents (at least superficially) a more community-oriented, diverse, and empathetic police force that doesn’t necessarily kick ass first and ask questions later, the second recruitment video perfectly characterizes the growing trend of police militarization in the US, particularly how they’re trained to confront and subdue citizens with extreme force (unashamedly, might I add).

Unfortunately, long gone are the days of Andy Griffith’s Mayberry. Now local police departments are receiving surplus military supplies and weapons from the Secretary of Defense courtesy of the DoD Excess Property Program (aka, the 1033 program); and thanks to the influence of the War on Drugs and the War on Terror, local law enforcement agencies are organizing themselves more and more like the domestic arm of the US military, utilizing any means necessary to ‘maintain order,’ including things like the use of deadly force on unarmed civilians (many of which are minorities and/or mentally ill) and assaulting peaceful protesters with batons, chemical weapons (e.g., pepper spray, tear gas, etc.), flash grenades, LRAD’s, etc. like they do in more ‘repressive’ states such as Bahrain, Egypt, Iran, etc. It brings to mind a popular quote floating around the internet attributed to anthropologist David Graeber:

‎When we are dealing with the police as an institutional structure, we are not dealing with a group of individuals acting on their own personal feelings and judgments, but rather, with a group of functionaries who have, as part of the terms of their jobs, agreed to set their personal opinions and feelings aside and instead act as obedient agents of the state… Thus, if we are referring to “the police” as an institution, rather than the personal feelings of individual police, no, they are not “part of the 99%”, they are the enforcers of the 1%’s power.

And I think Graeber (or whoever said that) has a point. Who, exactly, are they hired and trained to serve and protect? I hate to say it, but when it comes down to it, the police aren’t our friends; they’re not part of the 99%, and they’re not bound by the same laws and restrictions that we, the people, are. It’s not that cops are individually or inherently bad people (I know a couple, and they’re great, hardworking men and women), or that they’re not struggling to make ends meet like many of us are. The problem is that, as an institution, the police are designed to serve and protect the interests of the 1%, the owners and controllers of wealth, the ruling class. Any threat to the status quo, whether peaceful or not, is a threat to the very institution that employs law enforcement, the state.

This, I think, illustrates one of the possible downsides of legal positivism, where laws are considered valid because they’re enacted by ‘legitimate authority’ (i.e., the ruling regime), and the ruled are unconditionally obligated to obey them. As Leo Strauss argues in his essay on Plato in History of Political Philosophy, when “the just is the same as the lawful or legal,” there’s nothing higher to which one can appeal (37). Moreover, when justice is nothing but the advantage of the stronger (the idea essentially underlying legal positivism), and the will of the ruling class becomes the sole source of justice since they create and enact the laws that the rest of us, as citizens, must follow, we become trapped within a system where justice doesn’t exist for the state since each regime “lays down the laws with a view to its own preservation and well-being” (38). And this is where conflicts arise.

Essentially, when the state, whether in the form of a single individual or a body of individuals, “lays down laws with exclusive concern for its own advantage,” this makes the police, as an institutional structure of the state, the personification of the ‘advantage of the stronger’ underlying the justice of legal positivism. So when citizens come into conflict with the state, its laws, or its actions, they come into conflict with justice itself, regardless of whether their grievances are justified. And the police, by virtue of their role as persons empowered by the state to enforce the law, protect property, and limit civil disorder, must consequently use whatever means at their disposal to maintain order in the name of justice, even if that means harming those simply exercising their constitutionally-protected freedoms of speech and assembly to challenge the state. And the promise of bourgeois liberal rights vanishes in a smoky haze of pepper spray, tear gas, and gun fire.

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