The organization of the modern police is a contingent social choice about how to engage in the process of governance when regulating public order on the street. The police are the agency authorized to act upon the state’s duty to govern in response to public emergencies. The duty to govern exists when there is some urgent social need that could be resolved by acting, and some person or institution has the resources and ability to do that act. The duty is (...) impersonal: anybody with the relevant skill set is obligated to act to address the relevant need. Problems can arise, however, when too few individuals respond or too many compete to resolve the need. A core feature of governance, then, is to create publicly recognized institutions with special authority, resources, and abilities to address the demand for public services when someone needs to step in and do something to the exclusion of ordinary members of the public. Police agencies are further characterized by various powers and duties. These powers are normative powers to change the legal status of the people with whom the police interact, rather than physical powers to use some amount of violence to coerce individuals to comply with police demands. The core powers of the police include the powers to make authoritative determinations about how to respond to an emergency, to detain individuals, and to trespass upon their person or property, along with conjoined duties to govern, to protect, and to intervene at risk to themselves. The dominant approach attempts to distinguish the police from other institutions using the police ability to use violent to respond to public emergencies. On the governance based model of the police, however, the ability to use force is simply one of the resources available to the police, and does not mark them off as different from other public governance agencies. (shrink)

La scène de la prise du pouls, dans le Voyage sentimental à travers la France et l’Italie de Laurence Sterne (1768), est à l’image de cette oeuvre de fiction. Cet épisode, dans lequel Yorick palpe le poignet d’une grisette parisienne (c’est-à-dire d’une ouvrière), évoque les affaires du coeur, au sens propre comme au sens figuré. Les chercheurs ont longtemps spéculé sur le sens à donner aux mots de Sterne, lorsqu’il décrit le Voyage sentimental comme « une oeuvre de rédemption ». (...) Cependant, personne n’a songé à faire un lien entre le discours de Yorick sur la sensibilité et une controverse catholique contemporaine que Sterne était d’ailleurs susceptible de connaître, comme invitent à le croire des preuves circonstancielles. Cette controverse pourrait avoir guidé le rapprochement équivoque de Sterne, pourtant anglican, avec les pratiques catholiques. En 1765, le pape Clément XIII autorisait une certaine dévotion au Sacré-Coeur de Jésus. Il donnait ainsi une valeur aux visions de la soeur Marguerite-Marie Alacoque, qui eurent lieu entre 1673 et 1675. Après le second soulèvement jacobite de la fin des années 1740, le jeune Sterne s’était joint à son oncle Jacques, farouche antipapiste, pour faire condamner les religieuses de Mickelgate Bar à proximité de York, qui occupaient l’un des deux derniers couvents en Angleterre. À travers le Voyage sentimental, où s’élabore une théorie originale et tragicomique du Sacré-Coeur, il est possible que Sterne ait cherché à faire amende honorable, sous une forme excentrique, pour son fanatisme des jours passés. (shrink)

Gilbert Imlay’s 1793 epistolary novel The Emigrants, which dramatizes several characters’ journey across the Alleghenies to occupy and develop a tract in the Ohio country, features the use of allusions and commonplaces that illuminate this fiction’s provocative campaign to conciliate physiocracy, proto-feminism, and the new philosophy with the expulsion of indigenous people in the region. Imlay uses Pope, Sterne and Thomson to justify and eroticize U.S. expansiveness. The heroine Caroline T—n embodies, especially, the wondering, wonderful vindication of a world-historical land-grab. (...) Comparisons with contemporary stories by Chateaubriand, Blake, Radcliffe, and the Seneca leader known as the Cornplanter highlight ways in which Imlay—partaking of a rhetorical repertoire demonstrably familiar to his peers—mutes history, religion, appropriation, and aggression in favour of erotic appeal, a series of emblematic, excusatory metonymies, and the picturesque language of an early phase of the North American real estate pitch. (shrink)

Gilbert Imlay’s 1793 epistolary novel The Emigrants, which dramatizes several characters’ journey across the Alleghenies to occupy and develop a tract in the Ohio country, features the use of allusions and commonplaces that illuminate this fiction’s provocative campaign to conciliate physiocracy, proto-feminism, and the new philosophy with the expulsion of indigenous people in the region. Imlay uses Pope, Sterne and Thomson to justify and eroticize U.S. expansiveness. The heroine Caroline T—n embodies, especially, the wondering, wonderful vindication of a world-historical land-grab. (...) Comparisons with contemporary stories by Chateaubriand, Blake, Radcliffe, and the Seneca leader known as the Cornplanter highlight ways in which Imlay—partaking of a rhetorical repertoire demonstrably familiar to his peers—mutes history, religion, appropriation, and aggression in favour of erotic appeal, a series of emblematic, excusatory metonymies, and the picturesque language of an early phase of the North American real estate pitch. (shrink)

Felony disenfranchisement is best understood as a means of vote suppression. Quite apart from its significance as a form of criminal stigma, disenfranchisement is most properly characterized as one of the ways in which the American voting system reserves political participation for a privileged social and intellectual class. Thus understood, felony disenfranchisement reveals the theoretical underpinnings of an exclusionary version of American democracy in which more or less widespread disenfranchisement is an acceptable or necessary political tactic. Felony disenfranchisement should not (...) be characterized as a sanction for criminal conduct: It fits none of the usual justifications for punishment. Most commentators agree that felony disenfranchisement as a collateral sanction for criminal conduct stigmatizes alike a disparate collection of individuals convicted of crimes carrying a penalty of one year or more - everything from drug possession to murder - and extends, in many instances, long after former felons have completed their sentences. Justifications for refusing the vote to felons, and to former felons who are no longer incarcerated, are surprisingly weak and clearly related to larger issues of democratic participation. Accordingly, it is under the framework of democratic participation that the most persuasive justifications of disenfranchisement might be found. Under the framework of democratic participation, the disenfranchisement debate implicates competing theories of democracy, each of which has profound consequences for the constitution of the American polity. I contend that there are currently three models for the right to vote in American society: (1) a membership model premised upon popular participation in the democratic process as an expression of citizenship; (2) a deliberative model in which popular participation is conditioned upon the duty to be an informed and reflective citizen; and (3) an elite model entrenching political office in a political class that competes for votes among the electoral masses. The continuing vitality of these three models at the level of political debate and constitutional doctrine unsettles the dominant history of the franchise as one of progress from an exclusionary to an inclusionary extension of the mandate, and requires us to acknowledge felony disenfranchisement as part of a larger process of voter exclusion and suppression. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Is Literature Self-Referential?Eric MillerIIs literary language necessarily self-referential? And does this put paradox at the heart of literature? For at least two decades now, affirmative answers to both questions have been articles of faith among critics in the structuralist and poststructuralist mainstream. Literature’s ineluctable paradoxicality attracts us so because a paradox suggests that there are limits to human rationality, and thus strikes a blow for literature and against science. (...) Paradox ensures literature its own special realm, safe from the culturally imperialistic inroads of science’s orderly, rational-empirical constructions. Literature thus gets to be seen as “bigger” than reason, because only literature can live with paradox, and thus only literature reveals those “deeper” truths of contradiction-ridden human existence, whereas science can never penetrate beyond rational manipulations of phenomenal surfaces. Indeed, for anyone who holds all human existence to be fundamentally paradoxical, this special capacity makes literature the only genuine, demystified species of human knowledge. In the war between C. P. Snow’s Two Cultures, a war humanists are now losing badly, we like to regard paradox as our ultimate weapon.Belief in the paradoxicality of literature may also be found among the New Critics, 1 and in fact goes back at least to the Romantics, 2 but they did not derive this belief from a necessary self-referentiality of literary language. This newer way of deriving paradox appears to offer several competitive advantages. Self-reference seems to be the ultimate version of “art for art’s sake”: if all literary language is necessarily self-referential, then literature must be something totally self-contained, and is thus legitimized solely in and through itself. In addition, deriving [End Page 475] literature’s paradoxicality from self-reference seems to ground it in the same conceptual realm as mathematical logic, and thus tempts us to claim for literature a “rigor” normally conceded only to logic, mathematics, and theoretical physics. Self-referentiality would thus seem both to protect literature’s autonomy and to raise its cultural status into the company of mathematics and science.But it is a trap. For behind this new strategy lurks a capitulation to the underlying conceptual scheme of natural science, and literature thus comes to be conceived, in effect, as a science. Self-reference is, after all, still a kind of reference; paradox is still a kind of truth-relational construction;—and truth-relations built around reference constitute the correspondence theory of truth. From such a foundational commitment to reference and correspondence-truth, flows the rest of the scientific worldview: the dualism of referring expression and referent, word and object, sentence and fact, theory and data, language and world, culture and nature. The presentation of literature as a quasi-negation of this ontology changes nothing. The dualism of reference still functions as literature’s conceptual starting point, as its arche. We only appear to be defining a peculiar and radically distinct sphere for literature when we insist on its self-referentiality, on the (recursive) identity, for it, of referring expression and referent. For, this is still to treat the conceptual distinction between the two as foundational, and literature thereby tacitly assimilates science’s fundamental categorial division: the referential language-world duality of correspondence truth. Indeed, literature thus comes to live even more completely in the margins of science: it will have no essence of its own; it will differ at most in being a photo-negative image of science’s positiv(istic) project. In Snow’s war, self-reference is a Trojan horse.With self-reference as the essence of literature, we are thus staking our reputations on literature’s being a special field of formalizable “knowledge about...,” rather than, say, a quality or kind or realm of possible experience—which is to adopt science’s understanding of what is important. Matters are only made worse by that other attempt to define literary studies as a negation of the theory-data dualism of natural science: the poststructuralist denial of the distinction between criticism and literature. For the institutional need professional critics have to be seen as a discipline with a method and a subject, as a form of “knowledge about,” hardly disappears with... (shrink)

Eric Miller's affordable, elegant translation of Nemesis divina by Carolus Linnaeus reveals a little-known side of the great natural historian. A classic of Swedish literature that influenced luminaries such as August Strindberg, Nemesis divina was composed over years, apparently for the edification of Linnaeus's wayward son Carl. A surprising field-guide to theodicy, the book explores the occult operation of a Theologia experimentalis, an "empirical theology," in the lives of men and women. Many of these people were known to Linnaeus himself. (...) Eric Miller, an award-winning poet and scholar, set Linnaeus's fascinating and eloquent work in a broad literary and philosophical context, linking it to matters as diverse as New England Transcendentalism, the subculture of Black Metal, the Icelandic sagas and contemporary Swedish poetry. Nemesis divina will intrigue students of literature, religion, science, and philosophy alike. (shrink)

Quality-of-life policing, responsive to the concerns of urban communities, presents a profound paradox. On the one hand, the collateral effects of drug use, especially in public and in racially fragmented, low-income communities, result in levels of crime and fear of crime that renders the communities almost uninhabitable; on the other, the collateral effects of policing drug crime, for these same communities, destroy the community's human fabric. A "new" generation of legal scholars have embraced and transformed the Broken Windows model of (...) policing urban communities. These theorists share a "social norms"perspective: they suggest that law's direct threat of imposing sanctions is not the sole means of constraining conduct. A variety of other devices, including non-legal, "social" norms, may supplement the law's coercive power. The social norms "take" on the Broken Windows argument is that public low-level crime undermines the social structures of local communities. Inner city blight sends a distinct message: that community members reject or ignore norms supporting law-abiding behavior in favor of norms supporting law-breaking. Accordingly, social norms theorists advocate empowering police and local communities through a variety of traditional and newly minted public order offenses (such as anti-loitering statutes and youth curfews) as means of attacking high crime in urban and predominantly minority neighborhoods. In this article, I take up the challenge of public order policing. My claim is that the sort of preventative policing social norms theorists advocate can and should be separated from reactive "investigative" policing directed at apprehending criminals. Separating preventative and investigative policing means that the police, as currently constituted, are the wrong people to engage in preventative policing. Instead, the appropriate people include municipal officials with no power to engage in investigation but who have the authority to enforce norms of public order. My proposal is to radically restructure the manner in which we think about the legitimacy of various policing practices and the type of authority the police wield. Our current focus on constitutional remedies for low-level police abuses has failed to ameliorate the justified resentment expressed by individuals and local communities subject to heightened amounts of increasingly invasive policing.The attempt to limit police authority through prospective constitutional (and other) norms that control their ability to search, seize, and interrogate suspects is properly confined to the police's investigative role. Limits do not work to constrain their ability to police public order and engage in crime prevention. Yet even at the investigative stage, the Court has already replaced the rule-based due-process model of authority with a series of role-based exceptions to the Fourth, Fifth, and Sixth Amendments' constitutional requirements. Both role- and rule-based concepts of authority concern the proper scope of legitimate authority. Rule-based authority has its basis in adherence to the content of particular rules; role-based authority is based in the powers afforded individuals in particular roles of public authority. Whereas rule-based authority derives its legitimacy primarily from the government's right to promulgate norms, role-based authority gains legitimacy from the degree to which the official's role is matched to the circumstances triggering authority. (shrink)

When addressing the burdens borne by victims of police wrongdoing, we often overlook moral harms in focusing on the physical and psychological harms that they suffer. These moral harms undermine the moral status of the victim, her ability to consistently pursue the values she endorses, and her character. Victimhood is a morally significant social role. Victimhood imposes normative standards that measure the moral or political status of victim. Conforming to these standards affects our assessment of the conduct of the victim (...) and her moral standing. Considering the victims’ role provides important insights into contemporary practices of policing in the United States. The physical and verbal acts of the police often force race-based degradation upon racially subordinated groups. There is often no morally good way out of racially discriminatory encounters when the choice is to degrade oneself or suffer violence or even death. Worse, how we respond to the threat of police violence morally undermines our relationships with those we would keep safe from police violence. (shrink)

This review of Hoskins’ book on the collateral legal consequences of a criminal conviction focuses on some of the consequences of his concept of collateral legal consequences for our understanding of justifications of criminalization, the theory of punishment and incapacitation upon which it rests, and the implications for the prosecutor’s role that goes beyond Hoskins’ suggestions in the last part of the book. The review particularly engages with Hoskins’ distinction between punishment and incapacitation, which forms the core of his defense (...) of collateral sanctions as in principle capable of moral justification and his excellent discussion of contemptuous punishment, which he uses to sketch out the limits of both direct and indirect criminal sanctions. (shrink)