Randy E. Barnett
- Published in print:
- 2013
- Published Online:
- October 2017
- ISBN:
- 9780691159737
- eISBN:
- 9781400848133
- Item type:
- chapter
- Publisher:
- Princeton University Press
- DOI:
- 10.23943/princeton/9780691159737.003.0013
- Subject:
- Law, Constitutional and Administrative Law
This chapter examines the propriety of state laws under what is known as the “police powers” of the states. Unlike the enumerated powers of Congress, the powers of states are unwritten. This makes ...
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This chapter examines the propriety of state laws under what is known as the “police powers” of the states. Unlike the enumerated powers of Congress, the powers of states are unwritten. This makes determining their proper limits one of the most challenging and vexatious issues in constitutional theory. The chapter first considers the need to construe the propriety of state laws before discussing the police power of the states. It shows that these “police powers” are not inconsistent with the rights retained by the people. To the contrary, the protection of individual rights is at the core of a state's police power. A state may also justify its laws by showing that it is merely regulating liberty in a way that protects the rights of others. The chapter also cites the Supreme Court's decision in Lawrence v. Texas, which found the states' exercise of police power to be improper.Less
This chapter examines the propriety of state laws under what is known as the “police powers” of the states. Unlike the enumerated powers of Congress, the powers of states are unwritten. This makes determining their proper limits one of the most challenging and vexatious issues in constitutional theory. The chapter first considers the need to construe the propriety of state laws before discussing the police power of the states. It shows that these “police powers” are not inconsistent with the rights retained by the people. To the contrary, the protection of individual rights is at the core of a state's police power. A state may also justify its laws by showing that it is merely regulating liberty in a way that protects the rights of others. The chapter also cites the Supreme Court's decision in Lawrence v. Texas, which found the states' exercise of police power to be improper.
Brice Dickson
- Published in print:
- 2010
- Published Online:
- May 2010
- ISBN:
- 9780199571383
- eISBN:
- 9780191721854
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199571383.003.0005
- Subject:
- Law, Human Rights and Immigration
This chapter examines the powers of arrest in Northern Ireland, showing how the European Court exercised a fairly ‘light touch’ control over army and police arrest powers under the emergency ...
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This chapter examines the powers of arrest in Northern Ireland, showing how the European Court exercised a fairly ‘light touch’ control over army and police arrest powers under the emergency legislation in force during the troubles. Beyond insisting, in Fox, Campbell and Hartley v United Kingdom, that arrests had to be grounded in reasonable suspicion, not just suspicion, the Court gave more or less carte blanche to arresting officers to act on whatever their superior officers told them to do, provided only that those superior officers were acting on what to them seemed reliable information.Less
This chapter examines the powers of arrest in Northern Ireland, showing how the European Court exercised a fairly ‘light touch’ control over army and police arrest powers under the emergency legislation in force during the troubles. Beyond insisting, in Fox, Campbell and Hartley v United Kingdom, that arrests had to be grounded in reasonable suspicion, not just suspicion, the Court gave more or less carte blanche to arresting officers to act on whatever their superior officers told them to do, provided only that those superior officers were acting on what to them seemed reliable information.
Stefan Petrow
- Published in print:
- 1994
- Published Online:
- October 2011
- ISBN:
- 9780198201656
- eISBN:
- 9780191674976
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198201656.003.0001
- Subject:
- History, British and Irish Modern History
For Victorians, morality was significant as it was deemed as a necessary part of life in order to hold and keep social stability. Morality in the 19th century was also seen as a protector of family ...
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For Victorians, morality was significant as it was deemed as a necessary part of life in order to hold and keep social stability. Morality in the 19th century was also seen as a protector of family institutions, properties, and social values such as honesty, decency, self-discipline, respect, and diligence. This book examines the role of the Metropolitan Police in enforcing morality through set laws in late-Victorian and Edwardian London. In this book much focus is directed to the legislation of laws that tended to curb habitual criminality, prostitution, drunkenness, and betting. The book also looks into the efforts exerted by moralists to increase the policing powers of the Metropolitan Police and the Home Office bureaucracy; the capacity of the Metropolitan to curb, enforce, and resist these powers based on practical and moral considerations; how policing methods were altered to accumulate more power; and how successful the implementation of these policing morals turned out to be.Less
For Victorians, morality was significant as it was deemed as a necessary part of life in order to hold and keep social stability. Morality in the 19th century was also seen as a protector of family institutions, properties, and social values such as honesty, decency, self-discipline, respect, and diligence. This book examines the role of the Metropolitan Police in enforcing morality through set laws in late-Victorian and Edwardian London. In this book much focus is directed to the legislation of laws that tended to curb habitual criminality, prostitution, drunkenness, and betting. The book also looks into the efforts exerted by moralists to increase the policing powers of the Metropolitan Police and the Home Office bureaucracy; the capacity of the Metropolitan to curb, enforce, and resist these powers based on practical and moral considerations; how policing methods were altered to accumulate more power; and how successful the implementation of these policing morals turned out to be.
Martin Loughlin
- Published in print:
- 2010
- Published Online:
- September 2010
- ISBN:
- 9780199256853
- eISBN:
- 9780191594267
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199256853.003.0015
- Subject:
- Law, Public International Law
Although the origins of potentia can be traced to the exercise of the king's prerogatives, its significance in the modern era has been altered out of all recognition. This came about because of a ...
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Although the origins of potentia can be traced to the exercise of the king's prerogatives, its significance in the modern era has been altered out of all recognition. This came about because of a third revolution to have shaped public law: the disciplinary revolution which flowed from the Protestant Reformation. This establishes as the main objective of public law that of establishing a well-ordered commonwealth. The disciplinary revolution supplements the bourgeois revolutionary concern for the structure of government with a concern over its infrastructure and a consequential shift in orientation takes place: from input legitimacy (focusing on right ordering) towards output legitimacy (measured by effectiveness in service provision) — that is, a shift from potestas towards potentia. This chapter examines the origins and nature of the disciplinary revolution and considers its impact on the workings of modern government.Less
Although the origins of potentia can be traced to the exercise of the king's prerogatives, its significance in the modern era has been altered out of all recognition. This came about because of a third revolution to have shaped public law: the disciplinary revolution which flowed from the Protestant Reformation. This establishes as the main objective of public law that of establishing a well-ordered commonwealth. The disciplinary revolution supplements the bourgeois revolutionary concern for the structure of government with a concern over its infrastructure and a consequential shift in orientation takes place: from input legitimacy (focusing on right ordering) towards output legitimacy (measured by effectiveness in service provision) — that is, a shift from potestas towards potentia. This chapter examines the origins and nature of the disciplinary revolution and considers its impact on the workings of modern government.
Robert Gellately
- Published in print:
- 1990
- Published Online:
- October 2011
- ISBN:
- 9780198228691
- eISBN:
- 9780191678806
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198228691.003.0002
- Subject:
- History, European Modern History
The Gestapo or the Secret State Police emerged from a set of complex set of interacting social forces, personalities, and traditions. In early 1933, from one state to another, the tightening of the ...
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The Gestapo or the Secret State Police emerged from a set of complex set of interacting social forces, personalities, and traditions. In early 1933, from one state to another, the tightening of the organization of the police was taking form. This was due to the claims of the dire necessity to assure the existence and safety of the state from battles and threats directed against it. Driven by these aims, the Gestapo vigorously exercised their power and invaded the lives of the citizens. Their powers were unchecked wherein the legal and civil rights were disregarded. They became the foremost enforcer of policy and at times they acted as lawgiver, jury, and executioner. This chapter discusses the emergence of the Gestapo within the German society during the 1930s. In this chapter, the patterns of continuities and discontinuities from the earlier periods are discussed. The limits and possibilities of the new police powers and the expanding spheres of activities are also discussed. The chapter concludes with the nationalization of the political police.Less
The Gestapo or the Secret State Police emerged from a set of complex set of interacting social forces, personalities, and traditions. In early 1933, from one state to another, the tightening of the organization of the police was taking form. This was due to the claims of the dire necessity to assure the existence and safety of the state from battles and threats directed against it. Driven by these aims, the Gestapo vigorously exercised their power and invaded the lives of the citizens. Their powers were unchecked wherein the legal and civil rights were disregarded. They became the foremost enforcer of policy and at times they acted as lawgiver, jury, and executioner. This chapter discusses the emergence of the Gestapo within the German society during the 1930s. In this chapter, the patterns of continuities and discontinuities from the earlier periods are discussed. The limits and possibilities of the new police powers and the expanding spheres of activities are also discussed. The chapter concludes with the nationalization of the political police.
Katherine Beckett and Steve Herbert
- Published in print:
- 2009
- Published Online:
- May 2012
- ISBN:
- 9780195395174
- eISBN:
- 9780199943319
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195395174.003.0001
- Subject:
- Sociology, Law, Crime and Deviance
This chapter introduces the concept of banishment. It discusses the return of banishment through the stories of three individuals in Seattle, who supposedly violated the trespass law and drug traffic ...
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This chapter introduces the concept of banishment. It discusses the return of banishment through the stories of three individuals in Seattle, who supposedly violated the trespass law and drug traffic loitering ordinance. It then analyzes the return of banishment, which is widely considered as an archaic legal practice. Another archaic legal practice discussed in this chapter is the revival of police power. The chapter also explains why the study focuses on the rise of banishment in Seattle and provides an outline of the chapters that follow.Less
This chapter introduces the concept of banishment. It discusses the return of banishment through the stories of three individuals in Seattle, who supposedly violated the trespass law and drug traffic loitering ordinance. It then analyzes the return of banishment, which is widely considered as an archaic legal practice. Another archaic legal practice discussed in this chapter is the revival of police power. The chapter also explains why the study focuses on the rise of banishment in Seattle and provides an outline of the chapters that follow.
Bill McClanahan
- Published in print:
- 2021
- Published Online:
- January 2022
- ISBN:
- 9781529207446
- eISBN:
- 9781529207491
- Item type:
- chapter
- Publisher:
- Policy Press
- DOI:
- 10.1332/policypress/9781529207446.003.0007
- Subject:
- Sociology, Law, Crime and Deviance
This final thematic chapter traces the outlines of a theoretical visual criminology of police and police power. Describing the role of police images in media and visual culture, the chapter takes up ...
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This final thematic chapter traces the outlines of a theoretical visual criminology of police and police power. Describing the role of police images in media and visual culture, the chapter takes up body-worn cameras, police mugshots, and the always-lurking cultural figures of police and police violence. The chapter concludes with some notes on the ways that the image and the power of the visual have also been turned against police, and the ways that an imaginary of police abolition might be nurtured through visual challenges to police power.Less
This final thematic chapter traces the outlines of a theoretical visual criminology of police and police power. Describing the role of police images in media and visual culture, the chapter takes up body-worn cameras, police mugshots, and the always-lurking cultural figures of police and police violence. The chapter concludes with some notes on the ways that the image and the power of the visual have also been turned against police, and the ways that an imaginary of police abolition might be nurtured through visual challenges to police power.
Peter Ramsay
- Published in print:
- 2012
- Published Online:
- September 2012
- ISBN:
- 9780199581061
- eISBN:
- 9780191741005
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199581061.001.0001
- Subject:
- Law, Criminal Law and Criminology
This book presents a theory of the recent emergence of a right to security and of its protection by the criminal law in the UK. It states that the protection of such a right makes sense of the ...
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This book presents a theory of the recent emergence of a right to security and of its protection by the criminal law in the UK. It states that the protection of such a right makes sense of the liabilities found in much of the expansive criminal legislation enacted under that government. This book identifies the normative source of the right to security in the idea of vulnerable autonomy. It demonstrates that this idea is axiomatic to political theories that have enjoyed a preponderant influence across the political mainstream, well beyond the ranks of the Labour government. It considers the continuing influence of these normative commitments on the Coalition government's policy. The book explores how the contemporary criminal law's institutionalization of a right to security differs from the law's earlier protection of security interests. It exposes the paradox presented by laws that declare their own lack of authority by threatening punishments that are justified on the assumption that the normal condition of the representative subject of law is one of feeling vulnerable to criminal victimization. The book presents unorthodox criminal law theory in two respects. First, it offers an explanatory political sociology of a contemporary trend in the criminal law's ‘special part’ rather than a philosophical treatment of the law's general principles. Second, rather than applying a pre-existing sociological or philosophical theory to the law, it develops its theoretical explanation from a detailed legal analysis and reconstruction of New Labour's flagship criminal justice policy, the Anti-Social Behaviour Order.Less
This book presents a theory of the recent emergence of a right to security and of its protection by the criminal law in the UK. It states that the protection of such a right makes sense of the liabilities found in much of the expansive criminal legislation enacted under that government. This book identifies the normative source of the right to security in the idea of vulnerable autonomy. It demonstrates that this idea is axiomatic to political theories that have enjoyed a preponderant influence across the political mainstream, well beyond the ranks of the Labour government. It considers the continuing influence of these normative commitments on the Coalition government's policy. The book explores how the contemporary criminal law's institutionalization of a right to security differs from the law's earlier protection of security interests. It exposes the paradox presented by laws that declare their own lack of authority by threatening punishments that are justified on the assumption that the normal condition of the representative subject of law is one of feeling vulnerable to criminal victimization. The book presents unorthodox criminal law theory in two respects. First, it offers an explanatory political sociology of a contemporary trend in the criminal law's ‘special part’ rather than a philosophical treatment of the law's general principles. Second, rather than applying a pre-existing sociological or philosophical theory to the law, it develops its theoretical explanation from a detailed legal analysis and reconstruction of New Labour's flagship criminal justice policy, the Anti-Social Behaviour Order.
Nancy Woloch
- Published in print:
- 2015
- Published Online:
- October 2017
- ISBN:
- 9780691002590
- eISBN:
- 9781400866366
- Item type:
- chapter
- Publisher:
- Princeton University Press
- DOI:
- 10.23943/princeton/9780691002590.003.0003
- Subject:
- History, American History: 20th Century
This chapter discusses how the courts shaped protective policy from the 1890s to 1907. During this period, state and federal courts began a legal conversation about state protective laws. In court, ...
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This chapter discusses how the courts shaped protective policy from the 1890s to 1907. During this period, state and federal courts began a legal conversation about state protective laws. In court, challengers relied on the due process clause of the Fourteenth Amendment; they embraced freedom of contract and also cited the amendment's equal protection clause. Meanwhile, defenders gave wide latitude to the police power, the state's power to protect the health and welfare of its citizens. Throughout the era, the legal system imposed a discussion of gender. In cases that involved women workers, decisions that upset protective laws defended equal status for women. On the other hand, decision that upheld single-sex laws explored the role of sexual difference, mentioned women's reproductive capacity, and linked hours limits to the good of posterity and the welfare of society. Thereafter, judicial opinion steered states' attorneys—and the reformers who backed protective labor laws—into gender-based strategies.Less
This chapter discusses how the courts shaped protective policy from the 1890s to 1907. During this period, state and federal courts began a legal conversation about state protective laws. In court, challengers relied on the due process clause of the Fourteenth Amendment; they embraced freedom of contract and also cited the amendment's equal protection clause. Meanwhile, defenders gave wide latitude to the police power, the state's power to protect the health and welfare of its citizens. Throughout the era, the legal system imposed a discussion of gender. In cases that involved women workers, decisions that upset protective laws defended equal status for women. On the other hand, decision that upheld single-sex laws explored the role of sexual difference, mentioned women's reproductive capacity, and linked hours limits to the good of posterity and the welfare of society. Thereafter, judicial opinion steered states' attorneys—and the reformers who backed protective labor laws—into gender-based strategies.
Peter Ramsay
- Published in print:
- 2012
- Published Online:
- September 2012
- ISBN:
- 9780199581061
- eISBN:
- 9780191741005
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199581061.003.0010
- Subject:
- Law, Criminal Law and Criminology
This chapter assesses the penal protection of the right to security in the terms of thee recently published broadly liberal theories of criminal law: Douglas Husak's theory of the limits of ...
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This chapter assesses the penal protection of the right to security in the terms of thee recently published broadly liberal theories of criminal law: Douglas Husak's theory of the limits of criminalization; Markus Dubber's critique of the police power; and Alan Brudner's theory of dialogic community. The enemy criminal law theory of Gunther Jakobs is also briefly considered. The purpose of the assessment is to understand the relationship of the right to security to liberalism. It argues that from the point of view of liberal political theories of criminal law, protection of the right to security is inconsistent with the state's authority understood either as a traditional (and essentially illiberal) patriarchal order or as a modern liberal state.Less
This chapter assesses the penal protection of the right to security in the terms of thee recently published broadly liberal theories of criminal law: Douglas Husak's theory of the limits of criminalization; Markus Dubber's critique of the police power; and Alan Brudner's theory of dialogic community. The enemy criminal law theory of Gunther Jakobs is also briefly considered. The purpose of the assessment is to understand the relationship of the right to security to liberalism. It argues that from the point of view of liberal political theories of criminal law, protection of the right to security is inconsistent with the state's authority understood either as a traditional (and essentially illiberal) patriarchal order or as a modern liberal state.
Randy E. Barnett
- Published in print:
- 2013
- Published Online:
- October 2017
- ISBN:
- 9780691159737
- eISBN:
- 9781400848133
- Item type:
- chapter
- Publisher:
- Princeton University Press
- DOI:
- 10.23943/princeton/9780691159737.003.0001
- Subject:
- Law, Constitutional and Administrative Law
This book examines whether the U.S. Constitution—either as written or as actually applied—is legitimate. It argues that the most commonly held view of constitutional legitimacy—the “consent of the ...
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This book examines whether the U.S. Constitution—either as written or as actually applied—is legitimate. It argues that the most commonly held view of constitutional legitimacy—the “consent of the governed”—is wrong because it is a standard that no constitution can meet. It shows why holding the Constitution to this unattainable ideal both undermines its legitimacy and allows others to substitute their own meaning for that of the text. The book considers the notion of “natural rights” as “liberty rights,” along with the nature and scope of the so-called police power of states. Furthermore, it analyzes the original meaning of key provisions of the text that have been either distorted or excised entirely from the judges' Constitution and ignored: the Commerce Clause and the Necessary and Proper Clause in the original Constitution, the Ninth Amendment, and the Privileges or Immunities Clause of the Fourteenth Amendment.Less
This book examines whether the U.S. Constitution—either as written or as actually applied—is legitimate. It argues that the most commonly held view of constitutional legitimacy—the “consent of the governed”—is wrong because it is a standard that no constitution can meet. It shows why holding the Constitution to this unattainable ideal both undermines its legitimacy and allows others to substitute their own meaning for that of the text. The book considers the notion of “natural rights” as “liberty rights,” along with the nature and scope of the so-called police power of states. Furthermore, it analyzes the original meaning of key provisions of the text that have been either distorted or excised entirely from the judges' Constitution and ignored: the Commerce Clause and the Necessary and Proper Clause in the original Constitution, the Ninth Amendment, and the Privileges or Immunities Clause of the Fourteenth Amendment.
Stefan Petrow
- Published in print:
- 1994
- Published Online:
- October 2011
- ISBN:
- 9780198201656
- eISBN:
- 9780191674976
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198201656.003.0012
- Subject:
- History, British and Irish Modern History
In the mid-18th century, John Stuart Mill warned of the possible adverse effects of unrestrained police powers on liberty. However, his warning was left unheard. By 1914, the powers of the ...
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In the mid-18th century, John Stuart Mill warned of the possible adverse effects of unrestrained police powers on liberty. However, his warning was left unheard. By 1914, the powers of the Metropolitan Police under the direction of the Home Office flourished and grew. They imposed anarchic restrictions that suppressed society, most of which belonging to the lower strata. The restriction and the cumulative impact of police powers were both a nightmare and a failure. Instead of curbing the immoral and criminal ways of society particularly the lower classes, the oppressive restrictions created a more antagonistic society which led to the exercise of underground crimes which the hands of the Metropolitan Police could hardly penetrate. The failure of the police as well as their enormous power prompted moral reformers to call for prevention and moral instruction rather than punishment as solution to immorality. The drawbacks and setbacks of the role of the police and their oppressive power as well led to a vigilant and watchful society which safeguarded liberty and freedom to which the societies of today are greatly indebted to.Less
In the mid-18th century, John Stuart Mill warned of the possible adverse effects of unrestrained police powers on liberty. However, his warning was left unheard. By 1914, the powers of the Metropolitan Police under the direction of the Home Office flourished and grew. They imposed anarchic restrictions that suppressed society, most of which belonging to the lower strata. The restriction and the cumulative impact of police powers were both a nightmare and a failure. Instead of curbing the immoral and criminal ways of society particularly the lower classes, the oppressive restrictions created a more antagonistic society which led to the exercise of underground crimes which the hands of the Metropolitan Police could hardly penetrate. The failure of the police as well as their enormous power prompted moral reformers to call for prevention and moral instruction rather than punishment as solution to immorality. The drawbacks and setbacks of the role of the police and their oppressive power as well led to a vigilant and watchful society which safeguarded liberty and freedom to which the societies of today are greatly indebted to.
Stephan W. Schill
- Published in print:
- 2010
- Published Online:
- January 2011
- ISBN:
- 9780199589104
- eISBN:
- 9780191595455
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199589104.003.0010
- Subject:
- Law, Constitutional and Administrative Law, Public International Law
This chapter deals with the function, scope, and effect of umbrella clauses in international investment treaties. It proposes to understand the clauses as breaking with customary international law ...
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This chapter deals with the function, scope, and effect of umbrella clauses in international investment treaties. It proposes to understand the clauses as breaking with customary international law and argues that their function consists in stabilizing investor-State relations by opening recourse to dispute settlement by arbitral tribunals for breaches of specific and individual promises made by the State. Umbrella clauses prevent host States from acting opportunistically in reneging on their initial promises whether through acts of a governmental or purely commercial nature. While reinforcing the principle of pacta sunt servanda as a fundamental basis for investor-State cooperation, they do not exclude, however, variations of contracts due to contingencies arising during the life of a contract, nor do they override the State's police power to regulate investor-State contracts in the public interest.Less
This chapter deals with the function, scope, and effect of umbrella clauses in international investment treaties. It proposes to understand the clauses as breaking with customary international law and argues that their function consists in stabilizing investor-State relations by opening recourse to dispute settlement by arbitral tribunals for breaches of specific and individual promises made by the State. Umbrella clauses prevent host States from acting opportunistically in reneging on their initial promises whether through acts of a governmental or purely commercial nature. While reinforcing the principle of pacta sunt servanda as a fundamental basis for investor-State cooperation, they do not exclude, however, variations of contracts due to contingencies arising during the life of a contract, nor do they override the State's police power to regulate investor-State contracts in the public interest.
William J. Novak
- Published in print:
- 2020
- Published Online:
- May 2021
- ISBN:
- 9780226712291
- eISBN:
- 9780226712468
- Item type:
- chapter
- Publisher:
- University of Chicago Press
- DOI:
- 10.7208/chicago/9780226712468.003.0005
- Subject:
- Law, Constitutional and Administrative Law
This chapter provides a legal-intellectual genealogy of the common-law doctrine of overruling necessity and the state police power in the development of modern administrative and regulatory authority ...
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This chapter provides a legal-intellectual genealogy of the common-law doctrine of overruling necessity and the state police power in the development of modern administrative and regulatory authority in the 19th century United States. This history demonstrates the deep and rather unexceptional historical roots of the idea of exception and necessity in American law and democratic governance. Rather than seeing “necessity” and “salus populi” as exceptional anomalies or apparent absurdities in early American jurisprudence, this chapter takes them seriously, interrogating their pivotal role in some of the baseline concepts in American public law. In contrast to conventional understandings that try to formalistically separate the rule of law and constitutional governance from problems of exception and necessity, this chapter offers a more pragmatic and realistic accounting of the close and constant interrelationship of necessity and law-making from the earliest days of the republic.Less
This chapter provides a legal-intellectual genealogy of the common-law doctrine of overruling necessity and the state police power in the development of modern administrative and regulatory authority in the 19th century United States. This history demonstrates the deep and rather unexceptional historical roots of the idea of exception and necessity in American law and democratic governance. Rather than seeing “necessity” and “salus populi” as exceptional anomalies or apparent absurdities in early American jurisprudence, this chapter takes them seriously, interrogating their pivotal role in some of the baseline concepts in American public law. In contrast to conventional understandings that try to formalistically separate the rule of law and constitutional governance from problems of exception and necessity, this chapter offers a more pragmatic and realistic accounting of the close and constant interrelationship of necessity and law-making from the earliest days of the republic.
Jeffrey T. Martin
- Published in print:
- 2019
- Published Online:
- May 2020
- ISBN:
- 9781501740046
- eISBN:
- 9781501740060
- Item type:
- book
- Publisher:
- Cornell University Press
- DOI:
- 10.7591/cornell/9781501740046.001.0001
- Subject:
- Anthropology, Social and Cultural Anthropology
What if the job of police was to cultivate the political will of a community to live with itself (rather than enforce law, keep order, or fight crime)? This book describes a world where that is the ...
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What if the job of police was to cultivate the political will of a community to live with itself (rather than enforce law, keep order, or fight crime)? This book describes a world where that is the case. The Republic of China on Taiwan spent nearly four decades as a single-party state under dictatorial rule (1949–1987) before transitioning to liberal democracy. This book describes the social life of a neighborhood police station during the first rotation in executive power following the democratic transition. It shows an apparent paradox of how a strong democratic order was built on a foundation of weak police powers, and demonstrates how that was made possible by the continuity of an illiberal idea of policing. The conclusion from this paradox is that the purpose of the police was to cultivate the political will of the community rather than enforce laws and keep order. As the book shows, the police force in Taiwan exists as an “anthropological fact,” bringing an order of reality that is always, simultaneously and inseparably, meaningful and material. It unveils the power of this fact, demonstrating how the politics of sentiment that took shape under autocratic rule continued to operate in everyday policing in the early phase of the democratic transformation, even as a more democratic mode of public reason and the ultimate power of legal right were becoming more significant.Less
What if the job of police was to cultivate the political will of a community to live with itself (rather than enforce law, keep order, or fight crime)? This book describes a world where that is the case. The Republic of China on Taiwan spent nearly four decades as a single-party state under dictatorial rule (1949–1987) before transitioning to liberal democracy. This book describes the social life of a neighborhood police station during the first rotation in executive power following the democratic transition. It shows an apparent paradox of how a strong democratic order was built on a foundation of weak police powers, and demonstrates how that was made possible by the continuity of an illiberal idea of policing. The conclusion from this paradox is that the purpose of the police was to cultivate the political will of the community rather than enforce laws and keep order. As the book shows, the police force in Taiwan exists as an “anthropological fact,” bringing an order of reality that is always, simultaneously and inseparably, meaningful and material. It unveils the power of this fact, demonstrating how the politics of sentiment that took shape under autocratic rule continued to operate in everyday policing in the early phase of the democratic transformation, even as a more democratic mode of public reason and the ultimate power of legal right were becoming more significant.
Jeffrey T. Martin
- Published in print:
- 2019
- Published Online:
- May 2020
- ISBN:
- 9781501740046
- eISBN:
- 9781501740060
- Item type:
- chapter
- Publisher:
- Cornell University Press
- DOI:
- 10.7591/cornell/9781501740046.003.0002
- Subject:
- Anthropology, Social and Cultural Anthropology
This first chapter describes policed sociality surrounding and infusing the “paichusuo.” It focuses on patrol as the primary mechanism by which police power was projected through society. This ...
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This first chapter describes policed sociality surrounding and infusing the “paichusuo.” It focuses on patrol as the primary mechanism by which police power was projected through society. This chapter explains “control over movement” as an aspect of police power distributed through the political landscape in a manner that effectively embedded formal police operations into the wider political economy. Movement through policed space is organized by police powers and few things display these powers more concretely than arrest and custody—the special authority police have to hold and move people against their will. Navigating the uncertainty of sociability that surrounds and suffuses the work of professional oppression is an enterprise of managing tension.Less
This first chapter describes policed sociality surrounding and infusing the “paichusuo.” It focuses on patrol as the primary mechanism by which police power was projected through society. This chapter explains “control over movement” as an aspect of police power distributed through the political landscape in a manner that effectively embedded formal police operations into the wider political economy. Movement through policed space is organized by police powers and few things display these powers more concretely than arrest and custody—the special authority police have to hold and move people against their will. Navigating the uncertainty of sociability that surrounds and suffuses the work of professional oppression is an enterprise of managing tension.
Jeffrey T. Martin
- Published in print:
- 2019
- Published Online:
- May 2020
- ISBN:
- 9781501740046
- eISBN:
- 9781501740060
- Item type:
- chapter
- Publisher:
- Cornell University Press
- DOI:
- 10.7591/cornell/9781501740046.003.0005
- Subject:
- Anthropology, Social and Cultural Anthropology
This chapter describes the routine work of “paichusuo” patrolmen, which presents the theoretical goal of specifying their particular contribution to the city's order. It characterizes the unique ...
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This chapter describes the routine work of “paichusuo” patrolmen, which presents the theoretical goal of specifying their particular contribution to the city's order. It characterizes the unique professional competence of patrolmen as a kind of “administrative repair” that deploys the power of inscription to facilitate the political processes by which people curate their common world. The chapter also explores some of the techniques Taiwanese police use to do their work. It focuses on the nature of the boundary that sets police power apart from the other kinds of power at work in the city's political metabolism. It also demonstrates what unconventional possibilities the idea of a police power grounded in a political ethic of care might reveal.Less
This chapter describes the routine work of “paichusuo” patrolmen, which presents the theoretical goal of specifying their particular contribution to the city's order. It characterizes the unique professional competence of patrolmen as a kind of “administrative repair” that deploys the power of inscription to facilitate the political processes by which people curate their common world. The chapter also explores some of the techniques Taiwanese police use to do their work. It focuses on the nature of the boundary that sets police power apart from the other kinds of power at work in the city's political metabolism. It also demonstrates what unconventional possibilities the idea of a police power grounded in a political ethic of care might reveal.
James H. Mills
- Published in print:
- 2012
- Published Online:
- January 2013
- ISBN:
- 9780199283422
- eISBN:
- 9780191746161
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199283422.003.0008
- Subject:
- History, British and Irish Modern History, Cultural History
This chapter considers the decade or so before 2008 in order to explain some of the features of a period that was one of remarkable activity. By the late 1990s there were more consumers than ever ...
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This chapter considers the decade or so before 2008 in order to explain some of the features of a period that was one of remarkable activity. By the late 1990s there were more consumers than ever before in the UK, and greater numbers of them finding themselves in trouble with the police. In the years immediately after New Labour came to power in 1997 many of these consumers again found their voice. Newspapers and political parties took up their cause and a expert bodies rushed to offer opinions. In 2001 the Home Secretary broke with the policy of his predecessors and reclassified the drug and his successors quickly back-peddled and reversed his decision. The chapter explores these events and argues that they are best understood in the wider context of the history of the period, as the nature of the New Labour administration and the agendas of the police served to frustrate those that sought change to ‘the British compromise’.Less
This chapter considers the decade or so before 2008 in order to explain some of the features of a period that was one of remarkable activity. By the late 1990s there were more consumers than ever before in the UK, and greater numbers of them finding themselves in trouble with the police. In the years immediately after New Labour came to power in 1997 many of these consumers again found their voice. Newspapers and political parties took up their cause and a expert bodies rushed to offer opinions. In 2001 the Home Secretary broke with the policy of his predecessors and reclassified the drug and his successors quickly back-peddled and reversed his decision. The chapter explores these events and argues that they are best understood in the wider context of the history of the period, as the nature of the New Labour administration and the agendas of the police served to frustrate those that sought change to ‘the British compromise’.
Simon Balto
- Published in print:
- 2019
- Published Online:
- May 2020
- ISBN:
- 9781469649597
- eISBN:
- 9781469649610
- Item type:
- chapter
- Publisher:
- University of North Carolina Press
- DOI:
- 10.5149/northcarolina/9781469649597.003.0006
- Subject:
- Sociology, Law, Crime and Deviance
Overlapping chronologically with the preceding chapter, chapter 4 explores a localized “punitive turn” in Chicago’s policing arrangement during the late 1940s and especially in the 1950s. Driven by ...
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Overlapping chronologically with the preceding chapter, chapter 4 explores a localized “punitive turn” in Chicago’s policing arrangement during the late 1940s and especially in the 1950s. Driven by grassroots pressure from white citizens, the exposure of corruption both politically and within the police department, and the rise of the famed Daley machine, police power and the size of the police department itself both expanded dramatically during this period. Once elected, Daley radically expanded the number of police officers employed by the city. Those officers were also invested with increasing amounts of discretion, leading to the expanded use of stop and frisk and other tools that disproportionately were used against Black citizens. In a department lacking meaningful accountability mechanisms, this increased discretion also led to widespread accusations against police that they were engaged in the illegal detention of citizens and also of torture. The chapter also details the early onset of the urban crisis, especially on the West Side as neighborhoods there transitioned from white to Black, and an early-1950s “war on drugs” that police waged on the Black South Side.Less
Overlapping chronologically with the preceding chapter, chapter 4 explores a localized “punitive turn” in Chicago’s policing arrangement during the late 1940s and especially in the 1950s. Driven by grassroots pressure from white citizens, the exposure of corruption both politically and within the police department, and the rise of the famed Daley machine, police power and the size of the police department itself both expanded dramatically during this period. Once elected, Daley radically expanded the number of police officers employed by the city. Those officers were also invested with increasing amounts of discretion, leading to the expanded use of stop and frisk and other tools that disproportionately were used against Black citizens. In a department lacking meaningful accountability mechanisms, this increased discretion also led to widespread accusations against police that they were engaged in the illegal detention of citizens and also of torture. The chapter also details the early onset of the urban crisis, especially on the West Side as neighborhoods there transitioned from white to Black, and an early-1950s “war on drugs” that police waged on the Black South Side.
Markus D. Dubber and Mariana Valverde
- Published in print:
- 2008
- Published Online:
- June 2013
- ISBN:
- 9780804759328
- eISBN:
- 9780804779777
- Item type:
- chapter
- Publisher:
- Stanford University Press
- DOI:
- 10.11126/stanford/9780804759328.003.0001
- Subject:
- Law, Criminal Law and Criminology
This introductory chapter begins with a review of the U.S. Supreme Court decision in Kelo v. City of New London—a lowly case about how a small town in Connecticut might improve its waterfront, which ...
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This introductory chapter begins with a review of the U.S. Supreme Court decision in Kelo v. City of New London—a lowly case about how a small town in Connecticut might improve its waterfront, which shook people up across the United States, caused numerous state legislatures to pass new laws restricting eminent domain powers, and even prompted the House of Representatives to enact a resolution disapproving of the decision. This is followed by a discussion of the meaning of police powers. The chapter then sets out the book's purpose, which is to refocus scholarly attention through the lens of police power on the scope and functioning of government in its myriad manifestations, from the family to the prison to the workplace, from the city to the state to the international community. An overview of the subsequent chapters is also presented.Less
This introductory chapter begins with a review of the U.S. Supreme Court decision in Kelo v. City of New London—a lowly case about how a small town in Connecticut might improve its waterfront, which shook people up across the United States, caused numerous state legislatures to pass new laws restricting eminent domain powers, and even prompted the House of Representatives to enact a resolution disapproving of the decision. This is followed by a discussion of the meaning of police powers. The chapter then sets out the book's purpose, which is to refocus scholarly attention through the lens of police power on the scope and functioning of government in its myriad manifestations, from the family to the prison to the workplace, from the city to the state to the international community. An overview of the subsequent chapters is also presented.
