ABSTRACT
To trace out the birth of the modern police apparatus is to trace out the evolution of the modern art of governing and the set of powers and functions that have annealed around the institutional complex that is usually referred to as the modern state. Our journey across the history of modern political institutions should not, however, be understood as yet another history of the state alongside the many already in existence. The attempt will rather be to reconstruct a genealogy of the political technologies that have been forged in the process leading to the birth of the modern state, with all the tensions, conflicts, and clashes that process has triggered. On the one hand, these conflicts have found their locus in specific institutional places and governmental practices, while, on the other, they have often found expression in different forms of rationality, in different discourses on political power. It is this intricate dialectic of practices and discourses that I shall try to untangle, and the genealogy of modern political technologies that will be attempted here will thus be aimed at showing how out of that dialectic the modern police apparatus can be shown to have emerged. In this chapter I will describe the emergence of the political structures that
frame the institutional space within which the modern art of governing and the modern police apparatus developed. This institutional space is taken as an indispensable condition for the possibility of the theoretical and practical development of police powers, a development we will turn to in the following chapters. As is known, the modern state developed in constant tension with the originally
horizontal structure of power in the medieval political organization. This process involved a long and painful search for new operational modules on which basis to respond to the challenges that modernity laid before the nascent national monarchies. This dialectical tension came about when monarchical absolutism sought to centralize power, moving it away from the estates of the old Ständestaat (polity of the estates), and what emerged from this tension was the distinction between two structures and sets of operational modules. On the one hand is the judicial structure, which governed legal relationships of equality and was thus based on the formal horizontal structure of private law and on the discourse of modern legal reason; on the other hand is the administrative structure, which governed the asymmetric relationship between public interests and private
interests, and was thus based on the formal vertical structure of public law and on the discourse of modern administrative reason. And yet it is only by looking at the past through the lens of our modern
conceptual categories that we can formalize the different political technologies that have emerged over the centuries in the dichotomy between, on the one hand, adjudication and private law and, on the other, administration and public law. These two conceptual categories have developed out of the history of conflicts that has led to the birth of modern political institutions, and therefore, as has often been done, it seems methodologically inappropriate to use them as a basis on which to revisit the history of the modern state. I agree with António Manuel Hespanha, in short, that even in constructing a history of law and of institutions capable of engaging with the sociology of law and helping to make its conceptual constructs less abstract, we need to take an approach that comes in radically from the outside, in such a way as to revitalize the legal-institutional models and dogmatic categories that give shape to those constructs, in essence reading the history of cultural forms in context, looking at the practical contexts in which those forms are embedded (Hespanha 1999, 63). It therefore seems best, in constructing a genealogy like the one just described, to draw on a vocabulary and a set of concepts rooted in an era when the distinction between private and public law, on the one hand, and adjudication and administration, on the other, was still in the making. That distinction will accordingly be rendered by speaking instead of the dialectic between iurisdictio and politia.
