Why policemen get away with murder
The feudal concept of “political sovereignty” has to be removed from law textbooks
The murder of George Floyd marks a new low, even for the United States of America. As images of the killing spreads around the planet through social media, we are left to grapple with the senseless brutality of what we witnessed: the casualness with which a policeman leans with his full weight on a man’s neck, hands in his pockets, as the victim slowly chokes to death. The voice of the man, despite his bulk, is pleading and full of suffering. He does not deserve this. No one does. There was no let up. He died.
Beyond the shock and horror of this latest atrocity, lies the question: how can this happen? How can this happen again? And, again? And, again?
Senseless police killings are a near universal legal phenomena across the planet. Systemic reasons vary from nation to nation, geography to geography. The truth is that in the USA, systemic racism, a complete unwillingness to acknowledge the continuance of race-based privilege, and the refusal to learn from the painful, extremely problematic history of slavery are the important factors for the brutalisation of black men by state agents. Not only is the experience and pain of black people denied and ignored, substantial research has actually been invested, in genetic research or IQ testing, in pursuit of defending the myth of white supremacy. The florid, spiky signature of Donald Trump is the ultimate executive authority of the USA, and the odious world-view he represents is sought to be normalised. Other parts of the world, different classes of people suffer unjustly, as political authority is used to craft different mythologies.
In India, it is Muslims and lower castes, people on the fringes and margins of society, who suffer horribly the frustrations of policemen. There is even a term used in India, to explain the staged nature of killings by the police. These killings are called “encounters” but everyone knows they are staged killings. In the state of Andhra Pradesh, in particular, rough justice executions of under-trials is almost a standard feature of policing. On the use of “lathis” (or, heavy sticks), often swung at head-level by police constables, there is no social conversation on lethality and permanent brain damage.
However, there are theoretical similarities across jurisdiction. They have to do with how jurists imagine power.
The Bybee Memos
When the history of this century is written, and future historians marvel at how cruel and barbaric we were as a civilisation, the document par excellence that will be cited evidence of our savagery will be the Bybee Memos.
In fact, while executive excess is a problem in any jurisdiction which lacks awareness of restricting police and military authority to use coercive force on individuals in their custody, the creation of legal literature, such as these memos, shows us that the United States has a specific problem of executive authority that is intrinsic to its own legal system.
To refresh our memory, the Bybee Memos (also known by the simple short-hand “the torture memos”) were authored by two officials of the George W. Bush Jnr administration, in 2002, in support of the Iraq-Afghanisthan invasions. Their names are Jay S. Bybee and John Yoo.
The Iraq invasion, some would argue, was in flagrant violation of international law (this included the false claim of Saddam Hussain possessing “weapons of mass destruction” — now known to be based on fabricated intelligence). Not only was this war waged on illegal pretexts, the Bybee Memos offered legal cover to US military operatives to use “enhanced interrogation” techniques — water-boarding, sleep deprivation, and extreme temperature exposure, amongst other techniques.
These horrific techniques are flagrant violations of the Geneva protocols and other rights obligations of the United States with respect to enemy combatants. Recognising this, the Obama administration quickly rescinded the legality of the memos once in power, but Jay S. Bybee and John Yoo, like George W. Bush and Tony Blair, the authors of the suffering of thousands, will never face any indictments for the pain and loss they have caused. Neither will Barack Obama for invading Libya, and the gruesome of lynching of Gaddafi, and the killing of Gaddafi’s family. In fact, many of these individuals go on to hold tenured positions at think tanks and prestigious US law schools, spreading poison in the minds of future generations of American lawyers, Republicans and Democrats alike. The debauched old age of Nixon adviser Henry Kissinger is the best example of celebrating evil.
The poison policy like this espouses can be summarised in one line: those who hold executive power, whether the President of the United States or his common representatives, the beat cop, can do whatever the fuck they feel like, including murder. Official acts should enjoy complete immunity from scrutiny. This is why every time a policeman commits murder, a government lawyer steps forward to protect him.
In doing so, they take a leaf out of the book of one of the most notorious legal theorists in history: Carl Schmitt.
He who controls the Exception is Sovereign
Funnily, while Carl Schmitt’s theories have never been more popular, as wealth and power concentrate in the hands of a smaller and smaller elite, the man himself remains persona non grata in the academy. Law students aren’t categorically told that their beliefs about power are best described by the theories of Nazi Germany’s pre-imminent jurist. In fact, they are taught exactly the opposite.
In England, they are taught the theories of Herbert Hart, who argued for law-making to be separated from public morality, religion and populism. Hart argued that laws should always be the result of specialised, technical thinking. In the United States, they are taught the ideas of Ronald Dworkin, who came up with the idea of herculean judges: the independent judiciary as the saviours of democracy.
Yet, both these theories are oriented to answer the devastating technique of liberal democracy that Schmitt crafted — one that nearly knocked the bottom out of Western jurisprudence and political liberalism, and justified the rule of a dictator.
Schmitt was a prodigious academic and lawyer. In the early part of his career, he not just finished his doctorate and habilitation, German law is one of the longest and hardest disciplines to master, he also was involved in the local bohemian, poetry scene. Schmitt loved the mysticism of poetry and possessed a lawyer’s love for word-play, but as a conservative, didn’t exactly fit into the free-spirited scene. While teaching and working as a lawyer (and, informing on the poetry scene to the authorities), Schmitt even found the time to author the doctoral thesis of a lady friend on her behalf.
A Catholic, Schmitt was opposed to the idea of liberal law — where institutions were seen more important than the divine inner brilliance and charisma of men. His theoretical enemy was John Austin, the English scholar from the golden age of utilitarianism, who argued, echoing Hobbes, that law was a command of a Sovereign.
But Austin’s s theory was sociologically flawed and vulnerable to attack. It did not answer how law worked in practice, in the wild. Liberal institutions were seen by men like Carl Schmitt as dens of corruption. What they needed was the energy of a singular, individual man to sweep away the cobwebs and unleash the potential of the nation. Schmitt came up with a poetically simple definition of a ruler: He who controls the Exception is Sovereign. The man to whom no institutional law applies, the exceptional man, who sits over and above the system. Donald Trump. Bolsonaro. Boris Johnson. Duerte. Edrogan. Narendra Modi. Xi Jinping. Netanyahu. Each of these men are exceptional in that they have torn up the rule-books, and have accumulated unaccountable power in a way that are twisting the political structures of their nations completely out of shape. Truly, we are living in the age of Carl Schmitt’s Exceptional Sovereign.
The rest, we know, is German history — a cyanide pill and a bullet to the brain in a Berlin bunker.
What remains to be explained, is how law students, particularly in the USA and the UK, end up as unwitting disciples of Carl Schmitt, when they are taught Hart and Dworkin, raised on a diet of Abraham Lincoln and Winston Churchill, and ostensibly trained to uphold a rules-based, liberal political order.
The answer lies in the lectures of French philosopher, Michel Foucault. Particularly, the idea of “governmentality”.
What happens, through a process of corruption, as law students start to accumulate the power they desperately crave, is a natural tendency to believe that society is destined to be divided into a feudal hierarchy of rulers and the ruled. This idea is an archetype of the imagination, and exists unconstructed by the progress of history. Whether the birth of modern republicanism in revolutionary France or the Universal Declaration of Human Rights, the idea of equality, justice, or even the the idea of race or caste as a completely stupid and unscientific, begins to slips their notice. Instead, they start to see themselves as some kind of modern royalty, divinely ordained, exceptional people, chosen through divinity, with policeman as stewards, who act to preserve the hierarchy they benefit from. Any violence that occurs, even arbitrarily, is necessary to preserve the mythical order of the system. They begin to see rogue policeman as bastards, but our bastards. Even gratuitous murder, therefore, is to be excused, the perpetrator to pardoned, and kept on the streets to kill again.
Once the concept of sovereignty becomes entrenched in a lawyer’s mind, because of repeated usage, it becomes impossible to shift their consciousness away from it. In a democracy, there should be no area of government policy that is free from independent scrutiny and questioning. Jacques Maritain described sovereignty as forged on the same anvil as European absolutism. It is completely incompatible with the norms and values of a polity that sees people as equal citizens, not subjects and slaves. In Man and the State, Jacques Maritain slams the concept:
It is my contention that political philosophy must get rid of the word, as well as the concept, of Sovereignty:-not because it is an antiquated concept, or by virtue of a sociological-juridical theory of “objective law”; and not only because the concept of Sovereignty creates insuperable difficulties and theoretical entanglements in the field of international law; but because, considered in its genuine meaning, and in the perspective of the proper scientific realm to which it belongs — political philosophy — this concept is intrinsically wrong and bound to mislead us if we keep on using it — assuming that it has been too long and too largely accepted to be permissibly rejected, and unaware of the false connotations that are inherent in it (Chapter Two, Man and the State).
One of the main problem with political philosophy, and the present post is a perfect example of that, is that it tends to be pale, male and stale. It is interesting that Hart and Maritain are alleged to have had male lovers, and their work is the most humanist of all the philosophers cited above. Therefore, for diversity’s sake (even if it is an ideal blonde), I end with a quote from Barbie in Toy Story 3:
“Authority should derive from the consent of the governed, not from the threat of force!”
Law students, who fall prey far too easily, for the robes, hammer, memos and other outward trappings of judicial administration, should heed these words with due regard and care. Failure to internalise this wisdom will mean that the streets will burn and no order will be possible. It was America’s justice system that really put a knee on George Floyd’s neck, by authorising the actions of his tormentors, leaving him to choke: “I can’t breathe”.
Nothing will bring George Floyd back to his family, friends and loved ones. Martin Luther King Jnr said the “arc of the moral universe is long, but it bends toward justice”. For men like Floyd, a day of justice cannot come soon enough.