Date of Degree

2-2020

Document Type

Dissertation

Degree Name

Ph.D.

Program

Philosophy

Advisor

John Kleinig

Committee Members

Charles Mills

Omar Dahbour

Subject Categories

Ethics and Political Philosophy

Keywords

policing, law enforcement, procedural justice, legitimacy, public reason

Abstract

This dissertation offers a systematic account of the relationship between the police and the democratic state. It describes the role of the police, the powers the police use to discharge the requirements of their role, and the means by which they should justify the exercise of their powers. I argue that the role of the police is to produce a type of substantive, practical justice, and that it involves the exercise of three powers: (1) to protect and rescue third parties from harm, (2) to collect people and evidence and present them to the magistrate for adjudication, and (3) to broker and enforce the terms of social cooperation in public spaces.

I argue that the first power is a natural right available to anyone in the state, and so the state does not have the monopoly on the use of force that a traditional Weberian understanding ascribes to it. Rather, the state takes this prerogative and turns it into a duty. I take a short look at the second power; it is the one most people think of as the core function of the police (although I disagree), and it has been examined at length by legal scholars and those in other fields, observing that a punishment-centric view of adjudication has proven problematic and has been increasingly subject to question. I consider the third power to be an important revision of the idea of “order maintenance,” because it recognizes that relational equality and the respect for differing conceptions of the good are critical components of justice in a democracy, and the manner in which the police broker the use of public space decisively shapes both of these things.

After a discussion of the roles and powers of the police, I examine the role of political legitimacy in policing. I argue that the police should not cultivate perceptions of descriptive legitimacy until they have established acceptable normative benchmarks for their work, and that descriptive and normative legitimacy should be sought in tandem. I then extend this thinking to the prevailing understanding of procedural justice in policing, as advanced by psychologist Tom Tyler. I argue, similarly, that the police should not use procedural justice as a psychological technique to gain voluntary compliance with the law until they can be certain that the goals they seek through the cultivation of such compliance are substantively just.

As an alternative to this type of procedural justice, I offer that public reason, as generally construed by Rawls, can be successfully used as a justificatory mechanism for the exercise of police power. The fact that it requires that reasons be publicly scrutinized, that they be predicated on relational equality, and that people cannot be expected to engage in the transaction from positions of inferiority or oppression requires the police to take democratic equality and pluralism seriously. If nothing else, the use of public reason will provide a critical framework by which the exercise of police power can be evaluated. I then present seven case studies to demonstrate how the work of police can be justified in terms of the account offered by this dissertation, concluding that special interests, majoritarian rule, and populism are threats to democratic equality that the police must guard against as they make decisions.

In these chapters, I aim to show that the police occupy both a positive and indispensable place in a liberal democracy provided we set the proper normative benchmarks for their work. There are ways in which the police can guard vulnerable populations from the threats of populism and coarse majoritarian rule, in doing so honoring the values of democratic pluralism. If they are successful, then they will have delivered important goods that not only safeguard people’s rights, but allow them to enjoy the benefits and protections of democratic pluralism.

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