Police science

In the formative period that led to the emergence of the modern state, treatises on the governmental arts tended to converge with politico-legal treatises on sovereign power, in that they both posited the aim of the public good and the welfare of the political community as broad justifications for sovereign power. As can be appreciated, however, where the utilitas publica was still a strictly legal concept, serving to limit a political power that dangerously perceived itself as entitled to act outside the frame of the law, the bonum commune existed as a distinctly political concept, one that paved the way for a mature development of reflection on the art of government, the art of steering the ship of state in view of the public good. Even so, the debate still could not pick apart the legal and the outright political elements that, as we saw, had thus far been intertwined, so much so that the two survived as one even after Bodin’s well-known distinction between state and government (Bodin [1576] 1986, vol. II, II, 1, p. 7). Indeed, reflections on the foundation for the legitimacy of sovereign power, condensed by Bodin in the concept of souveraineté, continued to be run together with the discourse on the concrete administration of political domains, a discourse that, as we saw, came into form in dealing with the question of ratio status and prudentia civilis. This confusion was undoubtedly nurtured by much of the writing on reason of state, with its tendency to frame the debate in terms of the foundation of sovereign power and the legal limits it was subject to, so much so that the very notion of ratio status found itself increasingly enmeshed in an attempt to juridify that status by invoking the classic notion of ratio necessitatis or the idea of a special public right, a ius politico or ius politiae subject to the exclusive prerogative of supreme authority (Stolleis 1998a, 311-12; De Mattei 1979, 260). On the other hand, once political sovereignty established itself de jure and the power of absolute monarchs was legitimated, there also developed in parallel an interest in figuring out how such acquired summa potestas could be reinforced de facto through a sound governing or sound policing of public affairs (Napoli 2003, 40). This ambiguity would be clearly reflected in the two-pronged discourse that

developed in connection with the police apparatus, which from the outset was theorized both as ius politiae-a politico-legal construct pertaining to the sovereign prerogative-and as good government, or good police, where the effort was to

develop a ratio aimed at guiding the king in exercising sovereign powers. However, it was this very notion of good police that would set in motion the development that would lead to the modern ratio gubernatoria, the endpoint of the gradual transition from the idea of a government of men-an idea deeply rooted in the concern with territorial sovereignty and the people typical of all prior politicolegal thought-to the idea of a government of things and affairs, an idea that took shape with the constant appeal to the modern sciences of the state as a technique for administering the complex of material and human resources constituted by the territory and the population. Once the discourse on reason of state had been set into the theoretical frame of

practical philosophy and of prudentia civilis, it went well beyond the simple assertion of the principle that necessitas non habet legem (necessity has no law). Reflection on the art of government no longer confined itself to a concern with preserving the state. It stepped into modernity by turning to the question of the state’s power understood in part as the thriving of commerce and manufacturing. European political thought was thus beginning to grasp the importance of social and economic policy, and in view of the population’s material and moral welfare, the Machiavellian reason of state was turning into statecraft proper. The sphere of politics broadly construed-or “high” politics, concerned with the survival of the political organism-thus began to distinguish itself from the more circumscribed sphere of internal police, or “low” politics, but without yet resolving itself into a mere guarantee of peace, security, and order (Schmitt 1932, 11). Indeed, the theoretico-conceptual development of modern police found its main breeding ground in the mercantilist policies driven by the aim of increasing material wealth, which policies marked the turning point when an economic science proper began to develop, by freeing itself from the Scholastic scheme of the practical sciences, still focused on the oikos (economics as the management of the household). It was from this circumscribed dimension of the oikos that the art of government proceeded in reframing its consideration of economic affairs in view of the tasks the modern state was now assigning to it. Under the pull of the art of government, the sphere of the oeconomia-encompassing all considerations relative to commerce and manufacturing-was sucked into the sphere of politia, the province of disciplines concerned with the question of authority (Schiera 1968, 283ff.; Napoli 2003, 54-55). It was precisely through this twofold process of politicization of economics and economization of politics that there began to develop a systematic interest in economic police and, more broadly, in police tout court. It is no accident, then, that all across Europe the very first manifestations of

the concept of police, at the dawn of the modern age, should have been tied to the sphere of local government, and in particular to the government of the cities. Indeed, in these early uses, the concept referred to the complex of principles and disciplines that were essential to the economic life that was developing in the mercantile centres of the Late Middle Ages. These principles and disciplines arose in response to the need to govern a complex of socioeconomic activities that had now become something entirely different from the natural subsistence economies that

characterized the agrarian landscape across Europe. Through these activities the cities became a springboard for an authentic revolution in political technologies and the birth of what Max Weber ([1922]1978, 1219) called “urban economic policy” (Stadtwirtschaftspolitik). Indeed, urban centres in the Late Middle Ages found themselves facing a series of problems ranging from the regulation of markets and productive activities to the health hazard attendant on the ever-present risk of an epidemic outbreak, and they also had to figure out how to cope with the constant influx of people from the countryside-hapless drifters who were thought to skirt the duty to contribute to the economic life of the city and were thus regarded as posing a constant threat to order and security. It was therefore in the cities that a new and ever-increasing social intervention sector first developed with the creation of designated public authorities (Oestreich 1980; Napoli 2003; Schiera 1968; Sbriccoli 1986).1 In the Late Middle Ages, therefore, it was already clear what fell within the

scope of police, broadly understood as the government of society. Throughout the ancien régime, this new area of public activity took the territory, the economy, and the population as its object. However, as much as these police activities were already clearly defined in practical terms, they still lacked a solid theoretical foundation. On the one hand, they already entailed for the authorities a set of functions different from that of simply protecting the established order, but, on the other hand, they still found themselves tethered to the more traditional, Aristotelian concept of police, based on the view that politeia or politia boiled down to the undifferentiated task of maintaining the social order on which hinges the survival of the polis itself. Although the problems addressed by the urban institutions were already distinctly modern, they presented themselves on too small a scale to prompt the development of an innovative theoretical framework within which to frame the concept of police beyond a concern with the practical exigencies of the occasion. Because monarchical power did not significantly overhaul the older tradition of city government, but only expanded the old urban economic and social policy on a national scale, it was only with the development of political absolutism, when the royal authorities took on this new set of functions, that the conditions were set for the concept of police to fully develop in a dynamic way. What emerged out of this concept was, with increasing clarity, the view of the sovereign as having a personal part in the management of public affairs, a development that overturned the medieval conception of power: “Police now became the transitive process designated by the verb policer (to police), otherwise referred to as governing or propping up” (Napoli 2003, 30; my translation). Throughout the Renaissance period, however, the term police continued to be

ambiguous, and even when there began to emerge the first suggestions of something like a sovereign interest in intervening in socioeconomic life in a more

systematic way, it became difficult to distinguish the ancient iurisdictio and the modern politia. It was only slowly, and in an entirely haphazard manner, that the idea began to take shape of a general police function requiring royal officials to address the affairs of the community through forms other than the ones traditionally used to resolve legal disputes. This conceptual confusion had its counterpart in a parallel institutional confusion. Indeed, as we saw, at the dawn of the modern age, the general police functions that sovereign authority took on in addressing social issues at large would often continue to be framed within the institutional complex set up under the old judicial administration. As long as police functions remained institutionally unspecified, it would prove impossible for the idea of police to attract anything more than a mere practical, piecemeal interest in working out the problems that public authorities were beginning to confront in the face of capitalistic development. Indeed, it was a laborious process that led from the original idea of good government or good police as the simple function of protecting the established order of the community (in a sense still closely tied to the medieval iurisdictio) to the more modern idea of police as stewardship of the res publica, or the public good as a whole (Napoli 2003, 25; Oestreich 1980, 215; Schiera 1968, 272; Maier 1966, 189). Be that as it may, at the beginning of the 17th century the concept of policy/

police-along with its Continental analogues, the French police and the German Policey-could still be observed to bear strong parallels to its institutional counterparts, meaning the complex of regulatory and administrative activities undertaken by local authorities at first and national ones later, more or less independently of each other, for the purpose of governing the territory, public spaces, markets, manufacturing, and the population. Indeed, the semantic evolution of the three concepts began to break up along institutional lines of divergent development. This meant that, on the one hand, on the Continent, the concept found a fuller theoretical grounding-in fact, with the full development of the institutions needed to run the administrative monarchy, it became the object of a police science proper-while, on the other hand, in the Anglosphere, with the defeat of absolutistic projects, it essentially withered away.