In my previous column on Diggit Magazine, I lamented the rise of Trumpian governance and the concomitant devaluation of the art of separation. The latter I defined as a liberal form of governance that makes sure that an individual’s success in one social sphere is not convertible into another. Trump, in contrast, is a juggernaut who demolishes the walls that for so long have kept us safe from totalitarian control. I also stated that Trumpian governance ushers in an epoch that is new but not limited to or originating from the context of US politics. In the five remaining columns that I will publish on this platform, I will focus on specific contexts other than US politics. Today: the domain of law and legal culture.

In what we have grown accustomed to calling liberal democracies, the law and its accoutrements (the courts, legislators, state police, etc.) have long been considered the great levelers in society (to speak with Atticus Finch, one of the main characters in Harper Lee’s novel To Kill a Mockingbird). Our legal institutions, we thought, made a pauper the equal of a Rockefeller, the stupid man the equal of an Einstein, and the ignorant man the equal of any college president, said Finch, while defending an African American in the Alabama of the 1930s. And indeed, one could argue that, for a long time, our legal institutions have functioned as the Weberian ideal type (alas, always more idealized than typical, that is, more the object of aspiration than an accomplished fact).

Our legal institutions could be classified as the rule-of-law type characterized by procedural regularity, bureaucratic order and the “organizational man” (Whyte). These features were fundamental to our legal cultures,  a concept which can be defined as the meaningful matrix through which social forces are (or are not) channeled into specifically legal institutions (Martin). They made sure that social forces were mitigated by legal practices and institutions—they never came out raw.

So, whenever public sentiment demanded a closer surveillance of “risky” individuals despite their clean rap sheet, the organizational man would step in by brushing aside all private considerations and sentiments and emphasizing the importance of the bureau as unit of governance. Repeat offenders who paid their dues were rehabilitated in society, judges seemed to be less sensitive to the punitive gap caused by the mismatch of their judicial decisions and the ruling popular punitivism of the time, and ethnic minorities were treated equally in the majority of cases.

Police tweets increase the ‘off the books’ power of police to warn people and make them more vigilant

The Weberian ideal type rested upon the conception of legal institutions as a distinct sphere of human actors and action, that is, if not fully enclosed, then largely divorced from “the people” (see Jauregui). Over time, however, such “state externality” was increasingly considered a social evil. It was argued that it led to unresponsiveness, a loss of liberty and an alienated public (see Sennett and du Gay). The state-society wall, it was argued, had grown out of proportion.

Around the globe, legal institutions responded by embracing popular forms of justice—the sort of public-opinion based justice which Weber himself had lamented decades ago as ‘born of irrational sentiments’ and ‘thwarting the rational course of justice.’ Governments around the world introduced migration laws to keep unwanted others out, probation services incorporated popular stereotypes into their risk-assessment instruments which significantly decrease the life changes of minorities, and police forces transformed discrimination and racial profiling into standard operating procedures. Freed from the bureaucratic formalism that institutes blindness to social standing, legal institutions can increasingly become instruments of majoritarian rule.

Allow me to conclude with an example, taken from the Dutch police, an organization well-known to me as I carried out a long-term ethnographic project on police discrimination between 2008 and 2013. On November 4, 2016, a columnists for NRC Handelsblad, a major newspaper in the Netherlands, published a critical column about a tweet that was sent out a couple of days earlier by a Juvenile Officer of the Rotterdam police. The officer in question had tweeted about his “catch” of three juveniles (aged 10, 12 and 16) and attached a mug shot that shows the three kids with their hoodies on and faced against the wall.

The juveniles were charged with bicycle theft. The situation reminds of what Choongh, quoting Garfinkel, said: ‘The power to arrest and detain “suspects” at the police station allows each officer to extract the submissiveness which he feels is his due, for the police station is an ideal location at which to subject recalcitrant member of the policed community to a status degradation ceremony.’ Except this time, the officers in question decided to make the degradation ceremony known to the public on social media. And this time, it was not the decision of one officer but of an entire communication department. Another newspaper (Algemeen Dagblad) had conducted a public opinion poll which disclosed that 80 percent of the 13.000 people who were being surveyed had no problem whatsoever with the photo. Some were even displeased by its anonymity:  ‘You still don’t get to see anything.’ ‘They need to be publicly disgraced and have their hands chopped off.’  

Police tweets play no role in criminal investigations but ought to be understood in the sphere of public relations

In other words, there seemed to be a great deal of moral consensus on the conduct of the tweeting officer. The Juvenile Officer argued on his twitter account that ‘the public needs to know that juveniles too commit bicycle theft.’  This statement was later repeated by the National Police in a press release, in which it was stated that the organization considers the photo harmless. It was simply intended to inform people about the developments in their neighbourhood and this tweet was considered the most expedient way of informing the public about the rise of bicycle theft in the district. Police tweets expand the possibilities of informalized action and increase the ‘off the books’ power of police to warn people and make them more vigilant.

Owen and Cooper-Knock, in their work on police in Nigeria and South Africa, coin the term “police vigilantism” to make the point that ‘police can behave in ways that mimic non-state actors who are termed “vigilantes”.’ Evidently, police vigilantism is a special variation because it merges legal authority with informal action that does not necessarily facilitate criminal justice work. Many police tweets play no role in criminal investigations but ought to be understood in the sphere of public relations. They inform the public about past—and sometimes ongoing—police actions to make people more familiar with police work and to bring the police closer to the people. As such, they are an expedient way of countering the state externality and impersonality that the Dutch police has been trying to counter since the 1970s.

But such “involvement” and “engagement” comes with a price: a false anchoring in the normative certainty of Gemeinschaft that privileges some groups at the expense of others. In this light, a police tweet can be understood as a public text that is composed in the language of the law but intersects with the fabric of particularistic “sentimental feelings” that define the political textures of local community life (Martin). Not all community life of course: the moral consensus that appears from the opinion poll mentioned above is strikingly at odds with the realities of power imbalance, inequality and class hostility that characterize modern society, that is, the Gesellschaft (Zedner). Considering the juveniles’ appearances (the hoodies, the colour of their hands), this particular tweet is likely to count as one of many factors that complicates the already troublesome police-minority relations and strengthens rather than dissolves existing lines in society. It is not hard to imagine that the tweet will make people more vigilant in very particular ways, that is, with an eye on those at the margins of society.

If we fail to care for the art of separation—which separates popular justice from criminal justice, the private from the public, legal entanglement from social standing—our legal cultures will deteriorate. Broken walls are hard to restore…