Summary

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  • Caselist.RoundClass[10]
  • Caselist.CitesClass[10]

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Caselist.RoundClass[10]

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1		-2016-11-06 03:45:50.40
	1	+2016-11-06 03:45:50.0

Caselist.CitesClass[10]

Cites

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	1	+The aff’s use of civil suits focuses on punishing individual perpretators of violence – this obscures the endemic violence of police forces
	2	+Feldman 15 (Leonard Feldman, Hunter College, CUNY) “Police Violence and the Legal Temporalities of Immunity” LADI
	3	+On the same day the Department of Justice declined to prosecute Ferguson Missouri Officer Darren Wilson for civil rights violations in the shooting death of Michael Brown, it issued a scathing report as part of a “Pattern and Practice” investigation of the entire police force. Concerning the former—the decision not to prosecute—while this paper has focused on the legal grey hole of civil litigation for civil rights violations, it is possible to detect similar forms of legal immunity in the high thresholds for prosecution established by 18 U.S.C. § 242. The legal reasoning overlaps 25 with that in civil litigation because in the criminal cases the courts use the same standard of “objective reasonableness” developed in the civil cases (Graham, Garner, and Scott) to establish that a rights violation occurred. While there is no qualified immunity defense (according to the Supreme Court in Pearson) there is a higher willfulness standard (and “specific intent” requirement) for proving a violation that similarly works to shield police.55 (Campaign Zero, discussed below, recommends eliminating the willfulness standard for Federal Civil Rights prosecutions of police officers.56) Perhaps the Court felt less compelled to erect barriers to criminal prosecutions (as opposed to civil litigation) since it assumed that federal prosecutors’ discretion would accomplish the very same objective. Concerning the latter—the Department of Justice’s report on the entire police force of Ferguson, as well as the complicity of judges and city officials—it offers the promise of constraining police use of force by using the threat of litigation to address broader and deeper policies and practices. As Coates argues, “the focus on the deeds of alleged individual perpetrators, on perceived bad actors, obscures the broad systemic corruption which is really at the root.”57 Similarly, Madar writes, “far more useful are the DOJ Civil Rights Division’s root-and-branch interventions into violently dysfunctional police forces, triggered by ‘patterns and practices’ of systematic rights violations rather than any one particular incident.”58 Moving beyond both law and sovereignty narrowly construed, enables attention to what Harmon describes as the “problem of regulation” and the role of “other institutions and sources of law in regulating the police.”59 As Harmon shows, police use of force is embedded in a dense but also permissive regulatory environment running the gamut from administrative rules to employment and collective 26 bargaining law to state level licensing regulations. Consent decrees, Memoranda of Understanding and Collaborative Agreements all emerge out of or in the shadow of Department of Justice “pattern or practice” investigations, aiming to change policies and practices at the department level. Furthermore, even tools such as quantitative benchmarking can be deployed in the service of structural reform: A DOJ study cited by Rushin of the Washington D.C. police force contrasted what they discovered to be 15 rate of excessive force incidents as compared to a benchmark “‘well-managed and supervised police department’ that should only expect about 1 or 2 percent of all incidents to involve excessive use of force.”60 And in Cincinnati, Shatmeier describes successful police department reform in the wake of a Department of Justice “pattern or practice” investigation through consent agreements that relied on “experimentalist regulation.”61
	4	+The aff assumes that police violence can be addressed by bringing it under the control of law – in fact, the law is the apparatus legitimating police violence. Civil suits only identify “operational errors” committed by the police, fail to convict police, and excuse and reinforce the violence of the policing apparatus itself.
	5	+Simon Behrman 11 (Simon Behrman, ) Police killings and the law – International Socialism, 1-4-2011 LADI
	6	+Ever since the late 1970s some on the left have declared that Britain is either in or on the cusp of a police state.5 Yet even after the miners’ strike, various pieces of draconian anti-terrorist legislation and other attacks on civil liberties, the British state remains very much a capitalist democracy. Nevertheless, during this period the use of firearms has become ever more widespread in the police force. It was little noticed, for example, that during the 1990s police forces up and down the country began regularly deploying Armed Response Vehicles (ARV), equipped with a huge stock of firepower.6 The impetus for this began when the IRA bombing campaign came to the mainland. Indeed, the weaponry introduced including live firearms, plastic bullets and CS gas were all road-tested first in Northern Ireland. The point is that just as these developments in police practice have outlived the Irish “emergency”, so too a state of emergency appears to be becoming a more permanent feature of policing policy which has in turn led to a justification for retaining and expanding the right of the police to use lethal force. Examples where “unprecedented” circumstances have been claimed as justification for the use of police-state tactics are mass detentions of anti-capitalist protesters and the threat of suicide bombers. It is very likely that as social instability caused by the economic crisis develops this too will be claimed as justification for the continued use of “emergency” powers. Of course, Marx and Engels argued that capitalist democracy was a major advance over feudalism and offered to the working class a far better terrain on which to fight than other, more authoritarian, forms of capitalist rule. Yet throughout his writings, from “On the Jewish Question” in 1843 right through to the Critique of the Gotha Programme over 30 years later, Marx highlighted two crucial aspects of capitalist democracy. First, democracy and equality in the political sphere mask the massive inequalities that exist in the economic domain where capital operates a dictatorship over labour. Second, as Lenin put it, capitalist democracy provided “the best possible political shell of capitalism”.7 Because the working class poses such a potentially powerful threat to the dictatorship of capital, relying on rule by consent rather than by violence is always the preferred tactic of bourgeois rule. But, and this is the key point, the monopoly on the use of violence that the dictatorship of capital exercises through its state means that killings by the police, along with other forms of state terror, can be accommodated without violating the norms of capitalist democracy. This is achieved via the rule of law, specifically the legal form that, as the Soviet jurist Evgeny Pashukanis argued, shares the same structure as the commodity form. My argument here is that certain police-state tactics such as extra-judicial killings have become possible without the loss of legitimacy and rule by consent conferred by governing under the rule of law. Instead law itself has become a perfect vehicle for such tactics. In short, police violence must be understood not as a departure from capitalist democracy but as a function of it. From policing by terror to policing by consent In spite of the shocking nature of recent killings by the police, it is important to recognise that throughout their history the police have frequently used extreme violence against suspects, bystanders, demonstrators and workers on strike. The violence deployed by the modern police is in fact far less than that of their predecessors of the 18th and early 19th centuries. Douglas Hay has described how the British ruling class of that period imposed their authority through state terror.8 From 1688 until 1820 the death penalty was extended from about 50 offences to over 200, most involving crimes against property.9 Executions were bloody public spectacles intended to instil fear into the lower classes. An additional element of this strategy involved armed members of the local gentry, the yeomanry and special constables. If those ad hoc forces failed to keep order they were reinforced by the deployment of the military around the country. This became increasingly necessary with the intensification of riots in the countryside as the effects of the birth of modern capitalism began to bite. Following in the wake of this brute force, judges would be sent into the affected areas to dispense summary justice. The causes of the riots and the need for the ruling class to impose terror on the populace were rooted in a massive transformation of economic relations during the 18th century. This represented a concerted shift from the remnants of feudalism towards capitalism. Brutal methods were necessary for the ruling class during a period that saw a massive theft from the poor in a process described by Marx as the “primitive accumulation of capital”.10 The new bourgeoisie seized common lands through successive Enclosure Acts, thus impoverishing and starving the local peasantry who relied on these to support and feed themselves. Enclosure had two effects—forcing the rural poor to resort to poaching and scavenging on the estates of the rich, and pushing increased numbers of them from the land into the cities to seek work. The uprooting of communities in the countryside and the chaos of expanding cities with a lack of housing and work for the new arrivals led to social instability fed by anger and desperation from those who had been dispossessed. This period of transition saw the ruling class deploy a combination of forms of rule inherited from the feudal period, and new forms that better suited a capitalist society. An inheritance from feudalism was the use of terror tempered by mercy. The huge increase in crimes punishable by the death penalty was in fact accompanied by a comparative reduction in its actual use. More often those sentenced to death were encouraged to seek clemency from either the king or the property owner against whom they had committed the offence. Assuming they demonstrated a suitable amount of humility, they would be shown mercy and their sentence commuted. Note that in this arrangement law and socio-economic relations appear in one and the same guise. The same person who held a higher social position to you could also at their discretion prosecute you. Following conviction they could accept or reduce the punishment. Sometimes the property owner would negotiate with the convict terms for doing work on their land in exchange for dropping the prosecution. In effect, this was not the rule of law but instead naked class power adorned with some of the rituals of law. In like manner, the application of physical force was not governed by law, but rather by expediency. Once a riot broke out the armed forces of the state were permitted to use whatever force was necessary to restore the king’s peace. This worked up to a point when dealing with the rural poor. For the landed gentry, the debilitating injuries and killing of the local peasants did not disturb their lives or livelihoods on their increasingly large estates. Moreover, the only weapon the peasantry could deploy against the force of the state was their own ability to organise and fight. But face to face against a much better armed and organised military force, they were invariably beaten. With the growth of the working class in the cities the balance of class forces changed. The urban working class living closer together in built up areas were better able to organise and defend themselves. At the 1819 “Peterloo” massacre in Manchester, for example, the crowd numbered possibly up to 150,000, larger than any riot or uprising since the English Revolution almost two centuries earlier. In addition, many of the protesters had been carrying out practice drills for weeks in advance. With just 1,000 troops and 400 constables, the authorities would only be able to break up the protest through the use of extreme violence, and so it was. Men, women and children were stampeded by horses, sabred and whipped relentlessly through the streets of Manchester. The attack that began shortly before 2pm lasted well into the evening, at the end of which at least 11 were dead and about 500 injured. Peterloo exposed the limits of the strategy of terror deployed against the working class. Such concentrated violence caused a major scandal that shocked even sections of the middle classes and the establishment. Moreover, the violence failed to subdue the emerging movement for political and civil rights. Instead it led to a growing number of demonstrations, riots and strikes culminating in the great Chartist movement for manhood suffrage. The Chartists were responsible for, among other things, organising in 1842 the first general strike in history. This new form of resistance was not as easy to deal with as a riot. After all one cannot literally beat a mass of workers back to work. Also, if too many are incapacitated by police and military violence, the capitalists will suffer in the immediate term through fewer workers being able to work. Indeed, the level of violence was far less than in previous uprisings such as Peterloo and at Merthyr in previous decades. The sentences handed out to Chartists were minimal compared with earlier reckonings by the ruling class. No one was sentenced to death and most convictions for rioting or other crimes were punished with terms of imprisonment of a few months up to a few years, although the leading agitators were treated more harshly, many of them sentenced to transportation or much longer jail terms. The fear of the power of the working class also led the government to concede a number of reforms such as the repeal of the Corn Laws in 1846, which led initially to lower food prices, and the Factory Act 1847 limiting working hours. This was in contrast to the pattern during the 18th century where the ruling class was able to steal wealth from the poor at an ever increasing rate. It was also during this period that the military began to be replaced by the police as the primary tool for enforcing public order. The Metropolitan Police Act of 1829 established the force in the capital. In response to the first Chartist agitation, the 1839 County Police Act was enacted allowing the formation of regional police forces. The fear of disorder from demobilised soldiers returning from the Crimean War led to the 1856 County and Borough Act which established police forces across the whole of the country. This period during the mid-19th century represents British capitalism maturing from the more brutalist primitive accumulation of capital into a settled capitalist democracy. Central to this process was the development of the rule of law as the primary method of enforcing order. Legally regulated state violence was replacing naked class terror. The police force was founded on the principle of “citizens in uniform”. In other words, they were bound by the same laws as anyone else. They were also made structurally independent from the control of either politicians or individual members of the ruling class. Thus they were also bound by law in a manner unlike that of the yeomanry or other military forces, whose authority came directly from the Crown and the socio-economic power exercised in localities by the landed gentry and aristocracy. The establishment of the police was part and parcel of a move away from a form of class rule which saw little separation between economic and juridical power. Within decades the state assumed a monopoly on the application of criminal law and, with the police, a monopoly over the use of violence. This accruing of power by the state at first alarmed sections of the ruling class, which is why many of them initially opposed the setting up of a police force. But it quickly became clear that the use of physical force by the capitalist state would not be deployed against property rights, but against labour and the poor. In his classic work on the birth of the prison, Michel Foucault shows convincingly how the move from the application of the power of the king to the power of law provided a more efficient and less risky form of social control. The messy system in force during the later feudal period could lead to: the fear of the uproar, shouting and cheering that the people usually indulge in, the fear that there would be disorder, violence, and outbursts against the parties, or even against the judges… Before the justice of the sovereign, all voices must be still.11 The final word uttered by an apparently neutral and rational law was far more effective in silencing the oppressed. The police became legitimised as “embodiments of impersonal, rational authority”, as opposed to the naked class power of the yeomanry.12 What Foucault glosses over is the fact that this change was a direct result of a set of new economic relationships. The feudal order rested on an ideology of a class born to rule; thus their authority and their right to dispense “justice” was unquestionable. The bourgeoisie, on the other hand, rule on the basis of a series of contractual relations. Economic exploitation is rooted in the payment of wages for labour power. This has the effect of normalising exploitative relations such as in the expression: “A fair day’s pay for a fair day’s work.” Equally, the rule of law is predicated on notions of fairness, reasonableness and equivalence. Phrases such a “paying the price” for committing a crime, or “let the punishment fit the crime” illuminate this aspect of law. This is quite distinct from feudalism when punishment was a demonstration of the “majesty” and power of the monarch, the nobility or the church. The contractual nature specific to capitalist exploitation finds its equivalent in legal relations. Phil Cohen identifies the police as the first branch of the British state to develop an ideological as well as a purely repressive function…to protect the institutions of private property, and to enforce statutory norms of public order primarily designed to ensure the free circulation of commodities, including the commodity of labour power.13 At first the urban working class had to be disciplined into accepting these norms. Violence between police and local working class communities, defending what they considered as their own territory, was a common feature right up to World War One. But over time there was a “gradual ideological penetration of ‘The Law’ into the basic conditions of working class life”.14 Cohen explains this as a result of social changes in the composition of the working class. While there may be some truth in that, referring to the police as “The Law” also illustrates something else. Unlike their predecessors, the police were not just deployed to put down riots and other major disturbances, but also assigned to manage everyday order in the community. Criminologists sometimes describe this as a dual role involving “parking tickets and class repression”.15 As a result the law and “The Law” gradually came to be seen as indispensable to a well-ordered society, irrespective of class, politics or economics. In short, an ideology of “police fetishism” developed.16 I would argue that this is a direct result of two other fetishes closely linked together—that of law and commodities. Pashukanis In his 1924 book, Law and Marxism, Pashukanis developed what has become known as the “commodity form” theory of law. In it he sought to explain the legal form as one inherently tied to the commodity form. He begins his analysis using the same methodology as Marx does in Capital: “In as much as the wealth of capitalist society appears as ‘an immense collection of commodities’, so this society itself appears as an endless chain of legal relations”.17 What these two sets of relationships—commodity exchange and legal relations—have in common is the notion of the autonomous egoistic individual. When commodity owners go to market to engage in trade, they must each recognise in the others their exclusive right of ownership over their commodities; otherwise they cannot expect their own rights to be so recognised. Thus the basic principle of commodity exchange, the freedom of every seller freely to dispose of their property, gives rise to the concept of universal and equal rights, which is an ideological misrepresentation of capitalist relations as a whole, but one that accurately reflects the actual material conditions in which subjects under capitalism find themselves. The claim of one commodity owner on all others to recognise his own rights as such creates a subjective, and thus seemingly natural, desire to recognise those same rights in others. From this starting point Pashukanis is able to make the following analogy with law: “The legal subject as representative and addressee of every possible claim, the succession of subjects linked together by claims on each other, is the fundamental legal fabric which corresponds to the economic fabric”.18 Thus just as we have the market in which every buyer and seller comes metaphorically brandishing their commodities to exchange, so the law is a regulated market of legal subjects haggling over their respective bundles of rights. The rule of capital is thus also necessarily the rule of law. In “On the Jewish Question” Marx argued that the bourgeoisie emancipated the state from economics and religion by placing it (the state) above society, and thus giving it the appearance of being independent and above the classes.19 As Pashukanis expresses it: By appearing as a guarantor, authority becomes social and public, an authority representing the impersonal interest of the system… Thus there arises, besides direct unmediated class rule, indirect reflected rule in the shape of official state power as a distinct authority, detached from society.20 This provides a theoretical underpinning for the transition from naked class rule to rule by law that I discussed earlier. Commodities and legal relations did, of course, exist in many pre-capitalist societies. But in the same way that a society where free alienation of property raises the commodity to its highest and most generalised level, where exploitation becomes mediated via the legal contract, ie where the exploited worker “figures as a legal subject disposing of his labour power as a commodity”, so also legal relations reach their highest form under conditions of generalised commodity exchange: “The legal form attains universal significance, legal ideology becomes the ideology par excellence, and defending the class interest of the exploiters appears with ever increasing success as the defence of the abstract principle of legal subjectivity”.21 The crucial import of Pashukanis’s analysis is that he is able to reveal how the specific form of social regulation under capitalism, that is rights-based law, is able successfully to transform the subjective needs of the ruling class into an objective set of relationships for society as a whole, by means of which the coercive role of law is then in turn subjectivised (internalised) by the rest of us. The dispersal of responsibilities At first blush it may seem counter-intuitive to apply a theory of law that identifies the logic of equivalence and autonomous egoistic individualism to the application of lethal force by the state against unarmed individuals. However, if we take at look at how the police are able to justify their actions in law, the relevance of Pashukanis will become apparent. There was no disputing the fact that de Menezes was neither armed when he was shot, nor was he a terrorist. How could this wilful and unnecessary taking of life not result in any legal sanction? Crucially, the failure to bring any individual or group of police officers to justice over the de Menezes killing was a result of the dispersal of responsibilities created by law.22 This process rests upon the principle of the autonomous egoistic individual who functions as the commodity owner and legal subject par excellence. In much the same way that the market economy appears as an impersonal and naturalistic process involving an endless chain of buyers and sellers, so law functions in a similar way as each individual stands in relation to all others owing certain duties and possessing certain rights. One of the aspects of the operation which was highlighted in the inquest into de Menezes’s death was the police’s bronze, silver, gold structure used for firearms, and other emergency operations. This structure was developed by the Metropolitan Police in order to develop clear command, following the, from their point of view, catastrophic failure of organisation during the Broadwater Farm riots in 1985.23 One aspect of this system highlighted in the de Menezes inquest was that it removed many crucial strategic and tactical decisions from the officers on the ground and placed them instead in the hands of commanding officers situated miles away in a room in New Scotland Yard. This led to several crucial mistakes in the operation that meant that police officers on the ground missed several opportunities safely to stop de Menezes before he entered the Tube. But it also reinforced the dispersal of responsibilities in such a way that none of the commanding officers, nor any of the officers on the ground could be held criminally liable for the decisions made. This is one reason why the Metropolitan Police as a corporate entity could be successfully prosecuted under health and safety legislation, but that no individual officer was answerable in law for the mistakes made and the decisions taken. A similar conclusion was reached in the Police Ombudsman’s report into the 2003 killing of Neil McConville, a teenage joy-rider in Northern Ireland.24 According to the Ombudsman, the failure to appoint a Bronze Commander in charge on the ground was a critical factor leading to the death of McConville. Thus the officers who carried out the operation were exonerated from blame. On the other hand the senior officers who held the positions of Silver and Gold Commander respectively were merely reprimanded for bad management. Because they were not on the ground and did not fire any shots they were not culpable either. Several senior police officers testified during the de Menezes inquest that one of the concerns the Metropolitan Police had when developing the Kratos policy was that the armed police officer on the ground would be very hesitant in executing a suspect without warning without legal safeguards to protect themselves. During Kratos training members of the specialist firearms unit SO19, who would be assigned to carry out the executions, expressed fears that they would be held both morally and legally responsible, particularly should anything go wrong. It was for this reason that the role of the Designated Senior Officer (DSO) was created within the Kratos policy. The idea was that in a situation where police officers found themselves confronted by a suspected suicide bomber, the DSO, situated in New Scotland Yard, would be responsible for giving the order to shoot. This would take the pressure off the police officers who would actually have to carry out such an extreme and violent act. But surely this then places full legal responsibility on the DSO? Not so, according to the evidence presented to the de Menezes inquest. For the DSO, Commander Cressida Dick, did not give any such order; indeed, her last order to the SO19 officers before they descended into the Tube was ambiguous. The SO19 officers ended up using deliberately lethal force, due to what they claimed was a reasonable judgement based on de Menezes’s behaviour, and coupled with the reports they had received from surveillance officers, senior officers and the DSO during their briefings that morning and throughout the tracking of de Menezes. The responsibility for the killing was thus dispersed amongst the dozens of police officers involved in the operation. Not only does this dispersal of responsibilities create almost insurmountable problems in holding the police accountable, but it also reinforces the logic of capitalism in which bad things result from the market—unemployment, starvation, recessions etc—not because any individual capitalists are responsible but because that is just the way the system involving countless autonomous egoistic individuals operates. The Metropolitan Police declared eight months after the killing of de Menezes that Kratos remained “fit for purpose”; the Stockwell shooting had merely been a result of some operational errors.25 Equally, in the case of McConville, the Ombudsman’s recommendations stressed the importance of clear policies, training and command for operations involving potentially lethal force.26 The report reserved its concluding comment for criticising commanding officers for a lack of effective management.27 In both these cases the issue under consideration was not posed as one of an agent of the state walking up to a member of the public and, without warning, shooting them in the head, or one of a police officer using a semi-automatic rifle to deal with an alleged juvenile delinquent. Rather the issue was considered to be a lack of efficient organisation. It was to this logic of managing barbaric acts through law that Hannah Arendt was referring in her description of the “banality of evil”.28 The “reasonableness” of police killings Ever since the Police and Criminal Evidence Act 1984 (PACE) the police have been recognised in law as possessing certain special powers, which the rest of us do not have, such as the right to stop and search and detain individuals. However, in terms of the use of force, in the eye of the law they remain neither more nor less than “citizens in uniform”. In other words legally they are to be held to account for taking another person’s life in much the same way as you or me. The law offers us two main defences for killing someone. The first is the common law of self-defence. The second is contained in Section 3 of the Criminal Law Act 1967, which states that “a person may use such force as is reasonable in the circumstances in the prevention of crime, or in effecting or assisting in the lawful arrest of offenders or suspected offenders or of persons unlawfully at large”. This obviously refers mainly to the police, but it also applies to any one of us confronted by someone committing a criminal act, eg a burglar in our home. The key term common to both this statutory provision and the defence of self-defence is “reasonableness”. In order to uphold a defence to a charge of murder or manslaughter, one needs to prove two things—that the force used was both necessary and proportionate. If someone attempts to grab my wallet, it will be necessary for me to use physical force to stop them. If someone merely threatens to steal my wallet tomorrow, it would not be necessary for me physically to attack or restrain them. Assuming that I am actually being mugged, the question then arises as to the level of force I can legitimately apply. If in this scenario I push the thief to the ground then that would probably be considered a proportionate degree of force. If I took out a knife and stabbed them in the chest, then that would almost certainly be considered disproportionate. However, if the thief produces a gun when robbing me, the use of a knife might be considered proportionate and legitimate. A key principle evident in the law here is that of balance and rational calculation. I may only do to you something that can be measured as equivalent to the danger posed by you. In each and every case where the police shoot a suspect dead, they always claim that they feared deadly and imminent danger from the victim. So the police officers who shot de Menezes “honestly believed” that he was an armed suicide bomber, and therefore shooting him in the head was a reasonable and proportionate response. In law, the fact that they were subsequently shown to be mistaken does not vitiate their claim as to what their subjective fear was at the time they shot him. It was on the same basis that the case against members of the Royal Ulster Constabulary (RUC) charged with one of the shoot to kill incidents in 1982 was dismissed. The judge in that case, Lord Justice Gibson, argued that the police had reacted reasonably given the potential danger they faced from known members of the IRA. Indeed, notoriously, he went a step too far by commending the defendants for bringing the murdered IRA suspects to the “final court of justice”. Although, in an unprecedented move, he subsequently had to retract his remarks from the bench, the logic expressed fits perfectly the way in which the devaluation of the lives of suspects allows the police to justify the use of extreme violence against them. The jurisprudence has tended to judge what is reasonable from the subjective standpoint of the police officer who has applied lethal force.29 This then places a disproportionate emphasis on the testimony of the police officer concerned. Again Lord Justice Gibson makes the point crystal clear: The question whether there was the necessary criminal intention is not to be judged…by the standard of what one thinks one would have done or should have done had one been in that situation. The question is: has the Crown proved beyond any reasonable doubt what was the actual state of mind, belief and understanding of the accused police officers in the heat and anxiety of the moment, faced, as they understood it, with but a fleeting second to decide and to act…30 This justification was repeated in almost exactly the same terms more than two decades later to justify the murder of de Menezes morally and legally. When placed in the context of the potential threat from terrorists the criteria of what might be considered reasonable are widened considerably. Instead of the law acting as a restraint upon the police officer, the yardstick by which to measure the legitimate extent of lethal force applied by the police has instead been judged on the basis of the extent of the potential violence committed by the terrorist. The hyperbole that surrounds the “war on terror”, a war whose end cannot be envisaged in a world racked by imperialism, is largely responsible for investing in the concept of a reasonable use of force, a pre-emptive dimension based on quasi-apocalyptic expectations of what terrorists are capable of carrying out. An academic writing on the experience in Northern Ireland points out how the concept of proportionality became so fluid that it facilitated the use of lethal force by law enforcement agents for almost any crime even if it was only a vague notion of a terrorist crime… This has had the profound subsidiary effect that security forces were enabled to engage with supposed terrorists in situations that would enable them the full protec-tion of the law due to the elasticity and elusiveness of the concept of “reasonableness”. 31 It has sometimes been argued that the problem is simply one of English law being out of step with the jurisprudence of the European Court of Human Rights (ECtHR), which applies a more rigorous or objective test in judging the “honest belief” of the police officer.32 However, in a case from 2001 concerning yet another lethal shooting of an unarmed suspect by the police the same court held that “it is not for the court to substitute its own opinion of the situation for that of a police officer who was required to react in the heat of the moment”.33 As Clair de Than points out, this judgment has the effect of placing even greater emphasis on the subjective testimony of the police officer: “It does not have to be a reasonable mistake, merely an honest one”.34 The vague concepts of reasonableness and proportionality, which are integral to law, are given detail and weight by reference to the perceived enormity of the crime that may take place, in order to justify an extra-judicial policy of shoot to kill. In this way the context of what is considered reasonable is shifted towards more brutal policing methods. This paradigm shift, of which Kratos is a part, is born of an increased use of exceptional measures. This leads many to claim that what is needed is a return to a firmer rule of law in order to resist the tendency to resort to states of emergency to fight the “war on terror”. But this is a category mistake, for states of emergency are not departures from law, but are rooted within it. In a footnote, Pashukanis says that when it comes to times of heightened revolutionary struggle, we can observe how the official machinery of the bourgeois state apparatus retires into the background as compared with the volunteer corps of the fascists and others. This further substantiates the fact that, when the balance of society is upset, it seeks salvation not in the creation of a power standing above society, but in the maximal harnessing of all forces of the classes in conflict.35 This passage is problematic as it suggests that the ruling class can simply and consciously put aside the law for its own preservation. If this were so, then it would seem to negate his central point about law’s roots in the objective relations of capital, relations in which they themselves dominate. Mark Cowling identifies the problem as that of “the idea of equivalence and the idea of class terror coming into conflict with one another”.36 Pashukanis is right that at the most acute phases of class struggle, such as existed in Russia in 1917 or Italy a few years later, the ruling class does act in the way he describes. But in order to understand the ever closer and more permanent relationship between law and the state of exception, we must look beyond Pashukanis. What has become increasingly evident over the last century has been the fact that in most cases the ruling class is able to manage its way through crises not by abandoning law, but rather by extending its reach. The “state of exception” Giorgio Agamben argues that the “state of exception”, which has with increasing frequency been used to justify extreme departures from the liberal norms of the rule of law, is in fact a function of law itself.37 Here Agamben is drawing on the work of two critics of capitalist democracy; from the right Carl Schmitt who argued that the state of exception is the necessary foundation of sovereign power38 and from the left Walter Benjamin who posited that “’the state of emergency’ in which we live is not the exception but the rule”.39 Indeed, as long ago as 1851 Marx identified the apparent anomaly of states of exception being written into law in his critique of the liberal-democratic French Constitution of November 1848.40 There are many problems in Agamben’s work, particularly his ahistorical attempt to explain the state of exception as a feature of all human civilisations stretching back to antiquity and beyond. Indeed, in this he departs from all his key influences—Schmitt, Benjamin, Arendt, Foucault—by ignoring the specificity of how power is exercised in modernity. Nonetheless, his work offers some very useful insights by developing the relationship between law and the state of exception that is merely hinted at in Benjamin’s “Theses on the Philosophy of History”. In doing this Agamben provides a necessary corrective to the idealised celebration of the rule of law that exists amongst the liberal left and indeed among a significant portion of the Marxist left.41 It has become a feature of modern capitalist democracies to call in aid tactics which violate the norms of the rule of law, yet which are justified on the basis of defending the rule of law against existential threats, real or imagined. After almost a decade of the “war on terror” examples are familiar and numerous—Guantanamo Bay, extraordinary rendition, water-boarding, control orders, etc. This argument has, of course, also been used by the police when they claim that they are facing “unprecedented circumstances” which necessitate the deployment of more brutal tactics. The danger in this approach was recognised more than 30 years ago by the ECtHR, when the court ruled that there were limits to the use of national security in justifying extreme methods, even, or perhaps especially, legal ones: The Court, being aware of the danger such a law poses of undermining or even destroying democracy on the ground of defending it, affirms that the Contracting States may not, in the name of the struggle against terrorism, adopt whatever measures they deem appropriate.42 And, in words that brought a cheer from every civil libertarian, Lord Hoffman famously declared in a case which struck down New Labour’s policy of detention without trial of terrorist suspects that “the real threat to the life of the nation, in the sense of a people living in accordance with its traditional laws and political values, comes not from terrorism but from laws such as these”.43 However, the decision of the House of Lords in that case was not that it was illegal for the government to detain without trial per se, but that the policy was discriminatory, as it did not apply to British citizens, thus breaching the principle of equivalence. The government responded with control orders, which to date stand in law. In mainstream discussions of the problem of the state of exception, it is presented as a contradiction which exposes the gap between the self-identity of liberal democratic societies and the abuses committed by certain governments or state agencies. For Agamben, on the other hand, the state of exception is in fact a latent yet integral function of sovereignty, embodied as much in capitalist democracy as in fascist and other authoritarian political systems. Agamben argues that the claim by the state of the need to protect itself, and wider society, against perceived threats requires it to regularly impose sanctions which fall outside the rule of law. The contradiction thus emerges in that the rule of law can only be protected by regularly going outside the rule of law. Agamben gives as an example the Nazi state, which throughout its existence did not abolish the liberal Weimar constitution, but merely suspended it at regular intervals.44 Thus, legally, the “lawlessness” of the Nazis was in fact rooted in the liberal constitutional Weimar Republic. And in a perverse piece of legal formality, just prior to being sent to the death camps German Jews were stripped of their citizenship, precisely so that they would not be covered by the normal legal rights of other citizens.45 In a like manner, although at a far lower level of barbarism, in Britian shoot to kill has evolved from an unofficial and ad hoc tactic into a policy of extra-judicial killing in the form of the Kratos policy. The ability of the police to act beyond the bounds of the rule of law has, paradoxically, become written into law. This creates a space around the suspected suicide bomber, where the norms of criminal law and police practice are suspended. Yet its status as an official policy, implemented without violating the norms of governmental procedure, grounds this extra-legal policy within the framework of the law. One police officer has attempted to justify Kratos on the basis that it authorises not shoot to kill but the right to take action which, “in order to save life, may have to take life”.46 Echoes here of the infamous comment made by a senior US Army officer during the Vietnam War: “It became necessary to destroy the town in order to save it.” This barbaric contradiction in terms recurs throughout the arguments used to justify draconian anti-terrorist measures. The rule of law must be suspended in order to preserve the rule of law. The situations in which the police adopt lethal force are often described as “unprecedented”, with suspects as “dangerous”, “desperate”, “won’t be taken alive”, etc. In striking the balance between the reasonable use of force and the perceived danger posed by the suspect, the mean point gets moved to an extremity. A senior member of the security forces explained how the language of necessity was used to justify lethal force in Northern Ireland: “Was it a decision to kill those people? I don’t think it would have been phrased like that. Somebody would have said, ‘How far do we go to remove this group of terrorists?’ and the answer would have been, ‘As far as necessary’.”47 Similar arguments were used by the Nazis and other totalitarian regimes in the cause of maintaining stability and the security of the state. Indeed, it was this logic that led Schmitt from a critical defender of the Weimar Republic into a supporter and theorist for the Nazis. In the conflict between human rights and security, the latter must always trump the former, for without security there cannot be a social framework strong enough to support human rights. This is but a concrete expression of Agamben’s point that It is as if the judicial order contained an essential fracture between the position of the norm and its application, which, in extreme situations, can be filled only by means of the state of exception, that is, by creating a zone in which application is suspended, but the law, as such, remains in force.48 Agamben allows us to grasp the interrelationship between law and the state of exception, and thus fill the gap left in Pashukanis’s formulation. In attempting to answer the question as to why the evolution of an official shoot to kill policy has met with relatively little outcry compared to the scandal that followed the killings by the RUC in the early 1980s, Agamben’s work illuminates the essential role of law in grounding and thus normalising exceptional and brutal police tactics. The retreat of the organised working class and the concomitant decay in politics have left a gap that has been occupied by law. Benjamin’s injunction that we confront “states of emergency” with a real state of emergency is a call to reject the confines of the rule of law when faced with state violence. The failure to do so leads one into accepting the legal form on which the legitimacy of state violence rests. This is precisely the mistake made by EP Thompson and his followers who argue that the rule of law is a “universal good” which supposedly transcends capitalism.49 A crucial aspect missing from Agamben’s analysis is an understanding of what grounds law and the state of exception, as well as what makes these concepts evolve over time. Instead he points to a highly obscure figure in early Roman law, homo sacer (sacred man), as a recurring figure in Western societies.50 The homo sacer refers to someone who “may be killed, but not sacrificed.” In other words, this person has no value—their life may be taken away without legal sanction. Thus, Agamben argues, the homo sacer is representative of those targeted by the law under a state of exception as being beyond the protection of the law. But Agamben is not able to explain why certain groups or individuals are capable of becoming homo sacer and others not. Indeed, he goes so far at one point as to suggest that today we may all be homines sacri.51 He appears to argue (Agamben is obscure at the best of times) that anyone who poses a threat to the state, or whom the state merely perceives as a threat is liable to become the homo sacer. If this is so it raises the question of why the working class as a whole or even significant sections of it have not been subjected to this process. The reason why this is so is because the always present, if hidden, power of the working class cannot be legislated or terrorised away. Working class organisation can be smashed, but the latent power of the working class is impossible to eliminate. To place any powerful group in society within the category of the homo sacer would fundamentally destabilise the rule of capital. Thus Nazi terror on the streets was necessary politically to break the power of the organised left and the trade unions before those sections of the working class could be made the homo sacer. Nonetheless, even under fascism capital cannot escape the logic of the legal form that, as Pashukanis convincingly argues, is the necessary guarantor of commodity exchange. Thus the fetish of legal formalities that pervaded Nazi rule is not the anomaly it at first appears. The racist content of Nazi law was, of course, qualitatively different than that which exists under capitalist democracy, and all the gains achieved by the working class such as collective bargaining rights were abolished. Yet the basic legal form remained because the economic base of capitalism remained. Not only did the Nazis keep to the legal niceties of the constitutional state, but the working class continued to sell their labour power on the basis of a contractual exchange with employers. For this reason when the demand for labour exceeded supply during the late 1930s, particularly in the construction industry, wages went up in some cases by 30 percent.52 So while the homo sacer is flawed as an analysis of the generalised form of capitalist rule, as a metaphor it does provide a very useful way of understanding how the police, in the example under discussion here, are able to kill without being legally culpable. Indeed, it would seem to reinforce Pashukanis’s theory by identifying the extent to which legal rights are co-determinate with the measuring of value. Subjects who are from the point of view of the state expendable or individually dangerous can be made into homines sacri, at the mercy of the state’s monopoly of violence. This can certainly apply to, for example, refugees, terrorist suspects or other “subversives”. The process by which such lives are devalued, and the way in which the law colludes in this is discussed next. Suspect Communities Contrary to the claims made by the Metropolitan Police following the killing of de Menezes that terrorist attacks on the Tube were unprecedented, the very first bombing of the London Underground took place more than a century earlier in 1883. At first the Irish were blamed, although later it transpired that the bomb had been the work of anarchists. As a result, the police and the press began targeting the Jewish community, which was identified as a hotbed of anarchist refugees from Eastern Europe. The barrister Richard Harvey has drawn the obvious analogy with Harry Stanley, Diarmuid O’Neill, Neil McConville and Jean Charles de Menezes. What all had in common was membership, or perceived membership, of communities which had been viewed as and thus targeted as suspect. Once it was Jewish communities who were perceived as a breeding ground for anarchist violence, followed by the Irish community harbouring Republican terrorists; today it is Muslim communities supposedly encompassing Al Qaida sympathisers that fulfil the role of a suspect community.53 In this demonisation of minority communities lie the origins of the elite police squads tasked with the use of lethal force. The Special Irish Branch was set up to fight the Irish Republican Fenian movement in the 1880s. This has since changed its name to the less offensive sounding, though no less offensive in deed, Special Branch. It was officers from SO19 of the Special Branch that carried out the killings of O’Neill, Stanley and de Menezes. Paddy Hillyard coined the term “suspect community” to describe a sub-group of the population that is singled out for state attention as being “problematic”. Specifically in terms of policing, individuals may be targeted, not necessarily as a result of suspected wrong doing, but simply because of their presumed membership of that sub-group. Race, ethnicity, religion, class, gender, language, accent, dress, political ideology or any combination of these factors may serve to delineate the sub-group.54 Muslims, as a suspect community, are often portrayed as anti-Enlightenment and thus anti human rights, threatening a “civilised” way of life.55 But, as the authors of a recent study at London Metropolitan University argue, it is also symptomatic of a discourse of “anti-rationality” of the suspect community as fanatical and immune to reason or argument.56 In the case of Neil McConville, shot dead in April 2003 by the Police Service of Northern Ireland (PSNI), the justification for his death was created after the event, by suggestions fed by the PSNI that he was variously linked to paramilitaries or drug gangs. In the days following the killing of McConville headlines in the press included allegations of involvement in these criminal activities, all of which were completely untrue. The same thing happened with Harry Stanley, when a list of his previous, spent criminal convictions was read out to the inquest into his death despite their complete irrelevance to the circumstances surrounding the shooting. Again, with de Menezes, the police circulated smears in the media about alleged drug use and his immigration status. Of course none of these allegations were intended to justify the police’s actions per se; their aim was to associate the victims with certain groups who would be considered of lesser value—criminals, drug dealers/users, illegal immigrants—thus devaluing their claim to a legal right not to be murdered by the state. As Hillyard points out: Once dehumanised, people can be viewed with ethical indifference and moral questions are of no concern to the police carrying out their tasks. The police are only doing their job. As violence has become increasingly concentrated under state control, moral responsibility is replaced by a technical responsibility.57 De Menezes was neither Muslim nor from the Middle East. What set off the chain of events which led to his death was the misidentification of him by the police surveillance team as a “North African male”. Likewise, Harry Stanley was shot dead by armed police to whom it had been reported that he had an Irish accent when in fact he was Scottish. What these two examples show is the way in which the suspect community is defined by appearances, by superficial attributes.58 This reverses the normal modus operandi of policing whereby evidence or hard intelligence is the prerequisite for the use of force. Moreover, the fact that in both these cases the victim was misidentified simply points up the extent to which perceived membership of the suspect community is sufficient to give rise to an “honest belief” by police that lethal use of force is necessary and proportionate. Had Stanley not had an “Irish” accent or de Menezes a darkish skin, both would probably still be alive today. And as we saw above, “honest belief” forms the basis for the legal defence of police officers who kill unarmed or innocent suspects. In this insidious manner racist and cultural stereotypes become legal justifications for the taking of life by state agents. Hillyard has pointed out how the Prevention of Terrorism Act 1974 (PTA) effectively introduced a “dual system of criminal justice”, one system operating under the PTA and the other under ordinary criminal law. As a result a dichotomy developed between terrorist suspects and “ordinary decent criminals”.59 Today we face a similar separation between those subjected to recent anti-terrorist legislation as distinct from regular criminal law.60 This distinction functions within both law and a broader social context, with one reinforcing the other. The threat from terrorists is exaggerated by politicians and media alike. This in turn creates a greater sense of fear of violence about the suspect community in general, and that small minority seeking to use violence in particular. This dynamic then provides a platform for the introduction of ever more draconian laws, and brutal police methods. The argument from the police and others is that the threat from Al Qaida is wholly Muslim just as the threat from the IRA was mostly Irish, and thus it is reasonable to target those communities. Yet we must not forget that this “dual system” is not one of completely distinct and hermetically sealed areas of law. The foundational principles of the rule of law do not permit such a thing. Norms, legal tests and police practice are constantly migrating between the two. Think, for example, of how anti-terror legislation has been used to detain protesters or to stop and search individuals suspected of petty crimes. The state of exception and its associated policing strategies become the norm. Hillyard’s detailed study on how violence targeted the Irish community comes to this conclusion: It is commonplace to counter-pose the rule of law to the abuse of power or acts of violence. Law, from this perspective, is seen as the antithesis of violence… But this dichotomy is false… Law is…an integral part of the repression and organisation of state violence.61 Conclusion In hindsight, the period lasting from the later half of the 19th century through to the 1960s saw the proliferation of various mechanisms that in a thousand strands bound the working class ideologically to capitalism. In Gramscian terms, hegemony was manifested in aspects of civil society such as education, culture, community identity, civic projects, etc. The police were successfully woven into this apparatus as a necessary, if not necessarily benign, method of preserving social cohesion. But, as Reiner puts it, “when neoliberalism unravelled this complex of subtle, hidden controls, the thin blue line turned out to be a Maginot line”.62 Thus, on the one hand, the role of the police in maintaining order within capitalist democracy has not altered fundamentally in the last 150 years or so. Yet, on the other hand, the retreat of the organised working class in the face of neoliberalism has revealed the violence that exists at the heart of policing and the rule of law. The problem has been that throughout this period the ideology of the rule of law has become ever stronger, and indeed has been taken up by sections of the left as the solution to the problem of police violence. My aim here has been to demonstrate, using Pashukanis’s commodity-form theory of law, Agamben’s work on the state of exception and Hillyard’s description of suspect communities, how the law as such (not merely particular laws or legal systems) is complicit in legitimising police violence, even at the extreme end involving the deliberate killing of innocent people.
	7	+Vote negative as to subvert the law – we ought to study the law not to use it, but to free humanity from it
	8	+De Boever, 2006 (grammar modified) (Arne De Boever, Professor of American Studies at the School of Critical Studies at the California Institute of the Arts, Overhearing Bartleby: Agamben, Melville, and Inoperative Power, Parrhesia Number 1, 2006, 142-162)
	9	+According to Agamben, we should aim to study the law in order to deactivate it. He refers to this study as a kind of play: “One day,” he writes teleiopoetically, “humanity will play with law just as children play with disused objects, not in order to restore them to their canonical use but free them from it for good.”42 As will be clear, there is no contradiction in the passage I just quoted between messianism and secularism. The perspective is decidedly postsecular: instead, the puppet of historical materialism has the dwarf of theology within; but once the puppet starts moving, and we begin to play the game of chess (which is, after all, a game of sovereignty) this materialist-theological activity is overcome into the messianic or postsecular thought of inoperativity. It is interesting to note that in The Time that Remains, Agamben cites a poem as a “concrete example” of messianic time.43 The poem, a sestina by Arnaut Daniel, is presented by Agamben as “an organism or a temporal machine that, from the very start, strains toward its end.”44 Thus, “a kind of eschatology occurs within the poem itself.” But this is not what Agamben is after. He notes that “for the more or less brief time that the poem lasts, it has a specific and unmistakable temporality”45 that is different from the time of the eschaton. This other time is produced, Agamben argues, by the peculiar formal characteristics of the poem: What is peculiar to the sestina is that the status of the repeated end words changes, in the sense that the homophony of the final syllables that you typically get in rhymed poems, is replaced by the reappearance of the six end words in the six stanzas, in a complex but equally regulated order. At the end, the tornada recapitulates the end words by dispersing them within its three lines translation slightly modified.46 This will ultimately lead into a grand hypothesis formulated at the end of the fourth chapter: that rhyme is “the messianic heritage that Paul leaves to modern poetry.”47 Whether we agree with this or not, it is important to point out that Agamben’s example of messianic time, which also contains his solution to the problematic link between sovereignty and bare life that he criticizes in Homo Sacer, is a poem. This illustrates the larger argument that I have been making in these pages, namely that Agamben’s thought is crucially a literary-political thought. It is a literary thought that, in its political force, cannot be articulated within the limits of political science. Thus, it oscillates between the literary and the political and demands to be studied comparatively, across the disciplines. Such a comparative study would not realize the destruction of disciplines, but rather their deactivation and inactivity, their inoperativity. As I have argued above, the task of thinking inoperativity is a task that concerns us all. In contemporary situation that is dominated by the conflictual binary oppositions of a Schmittian concept of the political, we have all taken position in between beings-withrights and beings-without-rights, Jews and non-Jews, Muslims and non-Muslims, terrorists and non-terrorists, Benjamin scholars and non-Benjamin scholars, Agamben scholars and non-Agamben scholars – we have all become non-non-Agamben scholars. In a world in which we are all non-non-terrorists (how else to describe myself when my phone-calls may be tape-recorded even though I am not a terrorist?), the thought of inoperativity can present itself is a powerful alternative to power’s abuse of the state of exception. But is this thought of inoperativity also more than a thought? What would a practice of inoperativity look like? Who would be its agents? There is Bartleby, of course, who resists any easy appropriation into the either/or of legal divisions. There is Toshevski, whose Free Territory-project unworks the state of Macedonia by creating zones in which free creative performance activists are invited to think the law as freedom. There is Agamben, also, who in a January 2004 article entitled “No to Bio-Political Tattooing”48 announced (much to my dismay!) that he had cancelled the course he was scheduled to teach at New York University later that same year because of a new law that required whoever wants to go to the United States with a visa to be fingerprinted and photographed when they enter the country. In February 2006, a letter was published in the New York Review of Books, 49 in which a group of scholars of constitutional law and former government officials (Ronald Dworkin, Kathleen M. Sullivan, and others) expressed their concern about how the Bush administration’s National Security Agency’s domestic spying program violated existing law. Finally, I want to bring to your attention an extremely interesting case, dating from 1990, which shows that inoperativity can also be practiced by the sovereign him/herself. When King Baudouin of Belgium was faced with giving his assent to a bill that would liberalize Belgium’s abortion laws, he explained that he was unwilling to give official endorsement to what he found personally objectionable. (Baudouin was deeply religious; he and his wife Queen Fabiola did not have children.) Instead, he chose to abdicate his throne on the day he was expected to sign the bill. A state of exception was declared; the law was passed. The following day, Baudouin went back to work. These “extraordinary” (as Kalyvas would have it)50 acts of subversion, whether they are committed before, within, or next to the law, show how the thought of inoperativity can also be a political practice.

EntryDate

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	1	+2016-11-06 03:45:52.107

Judge

...	...	@@ -1,0 +1,1 @@
	1	+John Scoggin

Opponent

...	...	@@ -1,0 +1,1 @@
	1	+West EW

ParentRound

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	1	+10

Round

...	...	@@ -1,0 +1,1 @@
	1	+1

Team

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	1	+Immaculate Heart Dosch Neg

Title

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	1	+NOVDEC - Legalism K

Tournament

...	...	@@ -1,0 +1,1 @@
	1	+Damus Invitational