Guarding the Guardians

“Quis custodiet ipsos custodes? [1]

For legal rules to have any effect, someone has to enforce them, usually by making violation costly. This raises an obvious, indeed proverbial, problem: Who is to enforce rules upon the enforcers, and how? It is a particularly serious problem given that the powers used to enforce rules may also be used for other, and possibly less desirable, purposes—extortion, intimidation of political opponents, facilitating the commitment of ordinary crimes such as robbery. It is a problem brought home by recent news stories, such as the account of the NY city police union demonstrating against trials of officers caught fixing traffic tickets—and arguing that the right to fix tickets is a perquisite of their job,[2] or reports of policemen planting drugs on people in order to fulfill their quota of drug arrests.[3] How has that problem been dealt with in different legal systems?

The simplest solution is not to have any specialized enforcers. Consider, for one example, a system of social norms. What prevents me from teaching classes stripped to the waist is not the fear of being arrested but the expectation that doing so would lower my reputation, social and professional, changing the behavior of people with whom I interact, and by doing so making me worse off. Norms are potentially enforced against me by everyone I interact with, and by me against everyone I interact with. That describes not only the social norms I face but the norms of neighborly behavior in Shasta County, California, as described by Robert Ellickson in Order Without Law, enforced by both legal and (mildly) illegal acts of neighbors against norm-violating neighbors.

Another example of a type of legal system without specialized enforcers is a feud system, such as traditional Somali law or the legal system of saga period Iceland. The rules are enforced by the threat of the private use of force—by anyone, against anyone. Individuals vary in their ability to use force, some being more formidable or having more allies than others. But nobody has any special set of rights or special legal status associated with the job of enforcing rules, and anyone who uses his particular advantages to try to abuse the system risks bringing into existence a stronger coalition to block him.

For a third and final example, consider England in the 18th century, a society with modern criminal law but no police. Constables had a special legal status, being needed for the procedure that led to a trial [check on the details of this], but no real power. Since any Englishman could prosecute any case, the fact that an offense was approved of by the authorities was no guarantee that it would not be prosecuted.

A different solution to the problem, observed in  variety of forms, is a second layer of enforcement charged with the duty of enforcing rules on the enforcers. The version familiar in the modern U.S. is a civilian review board to review charges against police officers. In Islamic law, the nazar fil-mazalim , “investigation of complaints,” was a prerogative of the caliphs by which they “or, by delegation, ministers or special officials and later the sultans, heard complaints concerning miscarriage or denial of justice or other unlawful acts of the kadis, difficulties in securing the execution of judgements, wrongs committed by government officials or by powerful individuals …, and similar matters. Very soon formal courts of complaints were set up.”[4] In imperial China, the censorate “had as its primary general purpose the investigating and impeaching of governmental wrongdoing or corruption wherever uncovered.”[5] While this approach may limit the ability of ordinary enforcers to abuse their powers, it raises the obvious risk of abuse by the layer of enforcement above them.

A variant on this approach is to use one part of the legal system against other parts as when, in the U.S., the FBI or state police are occasionally involved in investigations of corruption by local police. A more decentralized version is the use of tort law to punish the misuse of the powers of the enforcers of criminal law. I am told [check this for details] that, whereas modern law students study what rules police must follow in order that the evidence they procure will be admissable, the equivalent section in 19th century textbooks dealt with what police had to do in order not to be subject to civil suit. And in a number of prominent cases in recent decades, such as the shooting of Black Panthers Fred Hampton and Mark Clark in Chicago in 1969 and the Steve Jackson case in Texas in 1990, victims of law enforcement abuse sued and collected either damages or a settlement.

A famous 18th century example of the use of tort law to restrain the enforcers of criminal law was the case of Hinkle v. Money, one of the earliest punitive damage cases in English law. Issue 45 of The North Britain, an anonymous anti-government publication, contained an article attacking in strong terms a royal speech;[6] the government responded by sending out Kings’ Messengers, roughly the 18th c. equivalent of Secret Service agents, with a general warrant authorizing them to arrest any person and seize any papers that they believed were connected with the publication. They arrested 49 people—and were sued by one of them, a journeyman printer, on the grounds that holding him prisoner for six hours while searching his papers on the authority of a warrant that did not name him was illegal. He won the case and collected  three hundred pounds from the Secretary of State.

One final approach to controlling enforcers is suggested by The Transparent Society, a book on the implications of surveillance technology by science fiction author David Brin. He argues that technological development, combined with the usefulness of surveillance for law enforcement, is in the process of producing a society where everything that happens in any public place will be recorded and findable, putting enormous potential power into the hands of law enforcement. To control the abuses that may result, he further proposes that the transparency run in both directions, that the police be able to watch the citizens but the citizens equally able to watch the police.

Recent high profile cases such as the Rodney King case, where law enforcement agents got into serious trouble as a result of video recording of their misdeeds by bystanders, suggest that something along the lines he suggested may be occuring. The technology is new but the underlying theory is not. One very ancient approach to controlling the misdeeds of government actors is for the ruler to hold open court at which any of his subjects may approach him to complain of the acts of his officials.[7]

Both the old and the new versions suffer from the same limitation. The police can watch us, we can watch the police, but the police can also arrest and, with the cooperation of other parts of the law enforcement apparatus, jail or execute us, and we cannot do the same to them.[8] Brin’s approach depends on a system of government where it is in the interest of the ruler to regulate enforcers in the interest of the general population, and the only limit is in his ability to do so. So does the older version.

H.L. Mencken, in a satirical discussion of the problem of controlling misdeeds by government actors,[9] describes two solutions, one German, one American. The former consisted of a special court for trying errant officials; it worked because, by Mencken’s account, “a Prussian official was trained in ferocity from infancy, and regarded every man arraigned before him, whether a fellow official or not, guilty ipso facto; in fact, any thought of a prisoners’ possible innocence was abhorrent to him as a reflection upon the Polizei, and by inference, upon the Throne, the whole monarchical idea, and God.”

That approach would never work in America, since “even if they had no other sentiment in common, which would be rarely, judge and prisoner would often be fellow Democrats or fellow Republicans, and hence jointly interested in protecting their party against scandal and its members against the loss of their jobs.” Mencken therefor proposes an alternative better suited to American conditions: “… any [American citizen], having looked into the acts of a jobholder and found him delinquent, may punish him instantly and on the spot, and in any manner that seems appropriate and convenientand that, in case this punishment involves physical damage to the jobholder, the ensuing inquiry by a grand jury or coroner shall confine itself strictly to the question of whether the jobholder deserved what he got.”

Think of it as a modified version of the tort law approach—using a decentralized and privately prosecuted part of the legal system to control the public enforcers.

 

 

 



[1] Oddly enough, the original context for the phrase is not the political problem of controlling enforcers but the domestic problem of a husband trying to ensure the fidelity of his wife.

“the plan that my friends always advise me to adopt:
‘Bolt her in, constrain her!’ But who can watch
the watchmen?They keep quiet about the girl's
secrets and get her as their payment; everyone hushes it up.”

For a later version of the same problem, see “The English Padlock” by Mathew Prior.

http://www.poemhunter.com/poem/the-english-padlock/

[2] http://tinyurl.com/6pbbxyq,  http://tinyurl.com/87l9vem

[3]  http://tinyurl.com/7xks2sr

[4] Schacht p. 51.

[5] Bodde and Morris, p. 121.

[6] A despotic minister will always endeavour to dazzle the prince with high flown ideas of the prerogative and honour of the crown. I wish as much any man in the kingdom to see the honour of the crown maintained in a manner truly becoming Royalty. I lament to see it sunk even to prostitution.

An earlier issue, #5, had strongly hinted that Lord Bute, prime minister and favorite of the king (whose tutor he had been) was the lover of the King’s mother.

[7] Quote Burton (?) on the importance of this.

[8] For a longer discussion of the problems produced by surveillance technology and the limits of transparency as a solution, see Chapter 5 of my Future Imperfect, webbed at:

http://www.daviddfriedman.com/Future_Imperfect/Chapter5.html.

[9] http://www.mencken.org/text/txt001/mencken.h-l.1924.the-malevolent-jobholder.htm