If John Rawls Ran the Police

America has a problem with police legitimacy. This has been true for some years, but the past month has underscored the point. Understandably, the savage beating of Tyre Nichols has led to renewed calls for police reform, and clearly many people do need to be held accountable for that shocking incident. “Police reform” can mean many things, however. Does it merely imply that officers should be more carefully trained, and then held to account when they make serious mistakes? Does it mean that they should be fewer in number, or does it imply a radical transformation in the way Americans think about policing?

In the background of this conversation stands an unhappy truth: violent crime is rising in America, especially in neighborhoods that have long had fraught relations with the police. Police officers have been quitting their jobs in large numbers as cities scramble desperately to recruit more. Leaving aside for the moment the question of whether to pile the most blame on activists, criminals, politicians, or the police themselves, one thing at least is abundantly clear: American law enforcement needs a rebrand. Somehow the public must be persuaded to trust the police again. 

Brandon del Pozo, once a police chief and now a professor at Brown University, has some ideas on this front. His book, The Police and the State, grew out of a doctoral dissertation that recommends a dramatic reworking of America’s entire philosophy of policing, building on the political theory of John Rawls. The idea sounds eccentric at first. As the argument unfolds, there is actually a certain obviousness to it, as though this was a book that simply had to be written. Del Pozo supplies a sober, good-faith analysis of what would need to be done to make policing palatable to social justice activists. Do we want woke policing? If we do, it will probably look like this.

Just Retribution and the Need for Order

Policing has long been a source of tension in America. Policing incidents have been the main catalyst for city riots for the past 75 years or more; this is not a unique legacy of Black Lives Matter. Despite that, there is also a long tradition of holding the police in high esteem, as we see from the popularity of police procedurals, and the political traction Republicans once won through their Tough on Crime agenda. 

Americans are still suspicious of state coercion, however. The feeling is particularly intense when state interference is invasive, reaching into our daily lives. As the coercive arm of the state, the police constantly excite this suspicion. Of course, policemen don’t just put people in handcuffs; they do many other helpful things too. But they are distinguished as police precisely by their special mandate to control fellow citizens, even potentially with physical force. There is a reason why the phrase “police state” does not in our minds imply that a society is extremely just. 

If the state does not assume responsibility for just retribution, citizens will do it themselves, often triggering horrific cycles of violence. We allow the police to interfere in our lives because, unpleasant as this may sometimes be, family feuds and lynch mobs are worse.

No one supposes that police power is limitless. We are not obliged to obey all police orders under all circumstances. I myself once declined to follow orders when a uniformed officer instructed me to leave a collegiate football game, on the grounds that other fans were concerned that my baby (strapped to my chest) was underdressed. My refusal was very cordial, and the policewoman looked quite awkward as she stood next to me for another full minute, perhaps hoping that I would change my mind. I felt no remorse, however. That was not a justified use of police power.

The police are properly empowered to coerce others when this is necessary to enforce law, and preserve order. It is fitting for the state specifically to assume this responsibility, to ensure that all citizens are protected, but also because it is important to prevent private citizens from taking retribution into their own hands. This is the central point of Aeschylus’ Oresteia. If the state does not assume responsibility for just retribution, citizens will do it themselves, often triggering horrific cycles of violence. We allow the police to interfere in our lives because, unpleasant as this may sometimes be, family feuds and lynch mobs are worse. Policing is a vital and honorable job, when officers have the necessary discipline and courage, as well as proper respect for both the law and the people they serve. Good policing preserves the order that enables us to enjoy real liberty.

Social Justice Warriors

Del Pozo is not satisfied with the ancient insights of Aeschylus. He wants to build a new case for police legitimacy, on a liberal-democratic Rawlsian foundation. He wants law enforcement to embrace a Rawlsian theory of justice, accepting that it is their task to respect the equal liberty of all citizens while making a special effort to cater to the least advantaged. For the police, as for government more broadly, distributive justice (or what might in popular discourse be called “social justice”) should be the primary goal. 

It’s an obvious step to take, given progressive concerns. If we really are dead-set and determined to ensure that the police never perpetrate social injustice, why not just make social justice their job? Extending Rawls’ social-justice-based political theory to policing is, at least on a conceptual level, a fairly elegant way to prevent the shadows of historical sins from pushing their way into the present.

It doesn’t follow, of course, that this is something any reasonable person would actually want, even if it were possible to bring American police departments on board. Moving through the different case studies and examples that del Pozo explores, it becomes clear that his recommended form of policing would be both expansive in scope, and potentially invasive in application. He’s very comfortable allowing officers to order citizens around in all sorts of contexts and for reasons that may have only the vaguest relationship to any existing statute. This is exactly what one would expect of police who are guided more by a vague but high-minded mission than by any particular commitment to the law. 

To give shape to his theory, del Pozo enumerates three major “powers” that should be afforded to the police. First, they may protect and rescue citizens from danger. Second, they may act as agents of the courts in gathering information and making arrests. Finally, they may “broker and enforce social cooperation.” 

These first two powers do seem to align with a more traditional justification of policing, centered around law and order. However, del Pozo recasts these traditional functions, putting them in alignment with his broader social-justice-based view. Readers are urged to see the police as “distributing practical justice,” even when they are arresting murderers or preventing street crime. If I am being mugged and a cop intervenes, I might think that he is fulfilling his duty by preventing injustice and preserving order. In del Pozo’s view, that’s not the best way to see it. The officer is “distributing practical justice,” giving me an appropriate share of a common state resource.

What is “practical justice”? It’s a vague term, but in application seems effectively synonymous with “safety,” broadly understood. Del Pozo eagerly explains how officers do, in many circumstances, protect people from threats that have nothing to do with lawbreaking. They help find lost children and rescue drowning swimmers. They talk suicidal people down from ledges. This is of course true, and admirable, but in context, the object of stressing these contributions is to move concerns about order and retribution further to the periphery of policing, so that they can be subsumed under a vague “practical justice” which can then be distributed as a form of “social justice,” del Pozo’s all-encompassing good. 

The contours of this project become even clearer when we reach del Pozo’s third power, “brokering and enforcing social cooperation.” Here, he is especially interested in the role police can play in ensuring the full inclusion of disadvantaged groups, especially when they patrol public spaces. There are interesting points of overlap here with the “broken windows policing” of James Q. Wilson, which was widely decried by the left as excessively invasive (or simply racist). Wilson wanted the police to be attentive to the low-level crimes that make a public space feel lawless, thus encouraging more brazen forms of criminality. Del Pozo is also quite interested in policing of public spaces, but for him, order is not the first priority; instead, the police are tasked with protecting social equality, with priority given to the interests of the underprivileged. 

Del Pozo’s police are effectively parents, trying to raise benighted Americans into good Rawlsians. If we allow them to curb our ugly prejudices and agree to share spaces like nice boys and girls, we’ll be allowed our fun activities.

To some of us, coercive social engineering may sound like a nightmare. Do we trust the police to make these kinds of judgment calls? Aren’t vague procedures and high-minded social goals exactly the sort of thing that might be used to justify any number of politically-motivated abuses of police power? Del Pozo doesn’t seem overly concerned. Indeed, he makes it clear that he prefers for everyday public-use questions to be settled by the police, not by the more mediated mechanisms of organic community leadership and soft social norms. That’s because del Pozo’s police can be trained in social-democratic principles, in a way that may enable them to correct many of the evil effects of social prejudice or asserted privilege. Del Pozo wants to see cops in parks and on street corners, adjudicating disputes over picnic tables and noise levels. As the state’s ground-level coercers, they are uniquely positioned to bring social justice to the nation at large.

In one particularly revealing chapter, del Pozo walks readers through a list of real-world cases in which he personally tried to apply these principles in his job as Burlington police chief. We hear how he permitted unlawful behavior from social justice activists, merely issuing a statement politely asking them not to break laws too often. He “gladly,” as police chief, allowed Burlington to declare itself a sanctuary city, arguing that illegal immigrants are fully entitled to the protection of the state, just like green card holders or tourists. This is simply incoherent. Del Pozo’s entire argument is based on social contract theory, which must clearly draw a distinction between citizens, lawful non-citizens, and people whose very presence here constitutes a violation of our law.

The later chapters of The Police and the State argue energetically for the relevance of Rawlsian principles to policing. This portion of the book does really feel like a dissertation. Del Pozo draws distinctions between himself and other Rawlsian thinkers or police reform advocates. These subtleties probably won’t hold much interest for conservative thinkers, who will already have grasped most of what they need to know. 

A Free People

There is a strange kind of innocence to del Pozo, which is quite surprising in a cop with nearly three decades’ worth of experience. He must have seen a tremendous amount of ugliness across those years, but his chosen examples of police work are often whimsical and zany to the point of absurdity. In one chapter, he illustrates the value of his social-cooperation-police by describing a thousand-person pillow fight that he once helped to facilitate in Central Park. Events like that, he warns, will not be possible unless police can be trusted to serve as mediators, preventing fights from becoming seriously violent and “ordering people to pick up their own feathers.” I was flabbergasted. Do we want thousand-person pillow fights in the public square? If that’s the supposed payoff for accepting del Pozo’s social justice police, I’ll take a hard pass.

The pillow-fight example is helpful, though, for showing how del Pozo’s police are effectively parents, trying to raise benighted Americans into good Rawlsians. If we allow them to curb our ugly prejudices and agree to share spaces like nice boys and girls, we’ll be allowed our fun activities. Another chapter of the book mentions how del Pozo, as police chief, distributed free ice cream as a public-relations move. That made me laugh out loud, because the front cover of the book shows an officer standing watchfully over a crowded square where people are mingling with ice-cream cones. The officer is in sharp focus; the people are in bokeh. I wondered whether they got their ice cream from the cop.

Pillow fights and ice cream cones are not the key to police reform. Neither is John Rawls. What we need is exactly the opposite of what del Pozo recommends. Americans need to understand that the police cannot be held responsible for creating a socially just order. Good policing often draws out painful or unpalatable truths about our social order. Most criminals are both sinned-against and sinning, and effective law enforcement thus reminds us of the far-reaching consequences of historical injustice. It can be healthy, sometimes, for citizens to wrestle collectively with those unhappy truths, but it is not healthy to pile those burdens on the backs of the police. To do their jobs, they need to be empowered to stop criminals, without worrying about corporate guilt or level playing fields. They need to be the thin blue line.

In the modern world, people cannot hope to live freely without a police force. Americans have lost sight of some basic truths about law and order, and, by extension, policing. Some are surely prepared to listen to an advocate like del Pozo. Let’s hope they don’t.