State, law and order, and police
Sheikh Hafizur Rahman Karzon
Modern law presupposes the existence of state. The obvious reason being law requires sanction to be effective. If law is left to the goodwill of the people, none will obey it. It requires some coercive forces behind it. Law and state, therefore, bear with them the necessary evil of coercive force. Though different wings of disciplined force (army, BDR, police etc.) constitute the whole gamut of the coercive force of a state, in practice police plays the key role to maintain law and order. Now the question is how force will be used. It may be used to achieve some social purpose, or to realise personal ends of a despot, or to keep the interest of those who hold the rein of control in a state.
The Austinian theory of law
According to Austin, law is a command of a political sovereign and is enforceable by sanction. He mentioned three features of law. It is a type of command. It is laid down by a political sovereign. It is enforceable by sanction. When any Bill is passed by the parliament it becomes an Act, which, then, functions as a full-fledged law. The Act is law because it is the command of the sovereign (parliament.) It is law because it is passed by the parliament. Violations of the rules of the Act are met with penalties (sanction.)
To Austin the relation between law and sovereign is very important. According to him law is law because it is made by sovereign and sovereign is sovereign because it makes the law. The relation between the sovereign and law is the relation between the centre and the circumference.
Austinian theory puts emphasis on sanction and postulates the necessity of coercive force behind law. The fear of penalty (sanction) among the people and its real execution are needed to implement legal rules in case of its transgression.
Marxist view on law and state
Marx and Engels had their own views about the origin of state and law. Freidrich Engels brought out his famous book "The Origin of the Family, Private Property and State" in 1884. According to Engels, at the very outset of human existence the society was classless as they had same position regarding the means of production. The material condition was such that means of production were free and at the disposal of all. They obeyed some rules (or code of conduct) for their convenience, which were not executed with the aid of force. Those rules, therefore, did not pertain to legal rules. In course of time primitive society was divided into social classes because of the division of labour. One of these classes then took full control of the means of production and started to exploit other classes. At this moment of human history law and state emerged.
Marx and Engels analysed the interrelation of state and law. They visualised how state and law walked hand in hand during the whole period of human history after their emergence. According to them, there is no law without a state, and there is no state without law. The time when society became stratified into different classes, from that time on the ruling elites utilised law and state to strengthen and perpetuate their domination. The history of human society is the history of class struggle. In the class struggle law protects the interest of ruling class and keeps social inequality for its own benefit. To Marx and Engels interests of the ruling elites are translated into the letters of law. It is an instrument at the disposal of those who hold the rein of command in a given society. Marx and Engels were straightforward to say that law has been a means of oppressing the exploited class.
Edward Said on law and order and police
Many scholars have strong reservation about state as it requires lethal force to keep the state machinery functional. Disciplined force safeguards the interest of those who hold the rein of control and they suppress any possibility of progressive social change. In the name of ensuring law and order police keeps the interest of ruling elites. Through this process state establishes a condition of terror where citizens' rights remain overlooked or suppressed.
Edward Said in one of his writings delineated how police keeps the interest of ruling elites in America and Arab World. He gave a brief sketch of how police violated the rights of the poor, minorities, and the homeless in the name of maintaining law and order.
In April 10, 2000 Edward Said wrote," During the past year, New York City has been racked by three major crises involving both the police department and Mayor Rudolph Giuliani... In the first instance, a Haitian black man, Abner Louima, was apprehended by policemen in Brooklyn, taken to the station for interrogation, and then badly beaten, sodomised with a bottle and subsequently hospitalised with several broken bones, including his jaw. At the criminal trial, the self-confessed police perpetrator of Louima's injuries, one Justin Volpe, was sentenced to thirty years, while his three accomplices were found guilty of obstruction of justice at a later civil trial. The second case was the shooting of an unarmed Guinean, Amadou Diallo, by white policemen who fired 41 bullets at him (of which 19 found their mark) because they said they thought he was armed. They were acquitted, to the whole city's astonishment. The third and in a sense the most inflammatory, concerned the killing of an unarmed 21-year-old black, Patrick Dorisman, who was shot at his doorstep for no evident reason.... The troubling theme in all three killings is not only that they involved blacks being shot by white policemen, but that Giuliani's sympathies seemed mostly to be for his officers rather than for their victims..."
Said continued, " It is certainly true that New York has now become one of the safest cities in the country: Giuliani... has promoted harsh measures against the city's undesirables, i.e., the poor, minorities, the homeless, etc. As a result, it has been assumed that anyone not white and middle-class must fear for his or her safety,... Nor has New York been alone in the matter of police brutality. In Los Angeles, another huge city with a considerable minority population, policemen in the Ramparts area have drawn attention to their brutal methods, not only because of how violent they have been, but also because the media has revealed that in addition to its bullying the police has also engaged in drug-selling and extortion in the supposed discharge of law and order. The American jail system is therefore bursting with great numbers of unjustly persecuted blacks whose "crimes" are dubiously prosecuted by policemen who claim that they are acting on behalf of society to protect the majority from an already down-trodden and long-suffering minority..."
When connoting the term "law and order" Said wrote"...The fact is that ever since the Nixon years the phrase "law and order" has acquired the status of a right-wing slogan. It first appeared during the Chicago Democratic Party convention in 1968, when the riots associated with Vietnam protest were brutally crushed by the Chicago police acting on the principle of law and order. Since that time dissent, debate and protest -- as in Seattle during the November 1999 riots against the World Trade Organisation -- have been opposed by the forces of law and order, as has agitation on behalf of integration, abortion rights, and anti-war protest. The idea is that whatever the government does carries with it the authority of rectitude, so that even abuses such as the killing of unarmed black men can be sanctimoniously ascribed to maintaining law and order."
"In the American context," Edward Said wrote, " therefore, "law and order" has to do with an interpretation of law and order that favours the strong, the wealthy, the conservative currents in society, whether those happen to be in office or not. The notion is at bottom that the police is there to protect vested interests in the society and to make sure that social change occurs very slowly, if at all. This is why struggling minorities in particular associate the police with the blocking of their march towards equality and economic advancement. In non-democratic societies such as those in much of the Third World, the police is also associated with the notion of law and order, except that law and order is a phrase implying the defence of the government, which would otherwise fall were it not for its battalions of policemen, republican guards, presidential security and so on. This is very much the case in the Arab world where as long as I can remember the police -- except for the lowly traffic policeman -- is immediately identified in the popular mind with interrogation, torture, unjust detention, surveillance, spying and cruelty..."
At last Said concluded that," ...It is always the security teams whose main job is to guarantee the ruler's life, his regime and its interests, regardless of whether those happen to coincide with the interests of the population or not. There is no appeal for the average individual if he or she is picked up and taken to jail for "questioning." The whole idea imparted to citizens of so many of our "democratic" or "revolutionary" republics (and certainly of the monarchies) is that the police is there to strike fear in everyone in order to deter attempts against the regimes, rather than to protect the interests of a favoured segment of the population."
We have not yet discovered better alternative than state, law and democracy. All these must be of the people, for the people and by the people. But when state, law, and police become synonymous with terror, brutality and fear, we reveal insurmountable gap between theory and practice.
The author is a teacher at the Department of Law, University of Dhaka.