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Universities: The Future of Policing?

Unlike most countries, even European ones, universities in the Unites States occupy one of the commanding heights of the culture.  At the start of April, Johns Hopkins University (JHU) gained permission from the state of Maryland to create a private police force of one hundred armed officers.  The risk assessment of the university is that Baltimore’s security situation is not sustainable.

Crime in Baltimore is high by national standards and student calls to the city police have sometimes gone unanswered.  There is a perception that since the 2015 Freddie Gray riots, Baltimore police have disengaged.  Police morale is known to be low and less than one third of the city’s more than 300 murders a year see an arrest, never mind conviction.

Baltimore has come full circle.  The city rose to prominence during the War of 1812.  To augment the fledgling United States Navy, Congress issued letters of marque, allowing private shipping companies to arm and roam the seas to capture British merchantmen and booty.  Investing in privateering proved lucrative for Baltimore. Two hundred years later, the state of Maryland has abandoned its monopoly on violence and granted jurisdiction and arrest powers to a private entity, also the state’s single largest employer.

Baltimore is a progressive bastion of the Democratic Party and, unsurprisingly, some residents have complained about the “militarization” of JHU, expressing concern about accountability and racial profiling.  One state senator has likened JHU to the Vatican City inside Italy.  This analogy is not as silly as it might sound.

Thomas Hobbes devoted Leviathan to “the mutual relation between Protection and Obedience.”  Who protects, governs.  Commenting on Hobbes, Carl Schmitt puts the point pithily, “the protego ergo obligo is the cogito ergo sum of the state.”  The state of Maryland has diluted its sovereignty.

Split sovereignty is thoroughly explored in the natural law tradition.  Dating back to Cicero, at least, the natural law tradition examines norms and mores analytically prior to civil law.

A hundred years before Hobbes, the Spanish jurist, Francisco de Vitoria (1485-1546) explored the licit use of violence in the absence of civil law.  His prompt was Spain’s encounter with the New World and the legal puzzles that arose over contested jurisdictions and mores.  A lurid question posed to de Vitoria was whether the Spanish could stop the Aztec practice of cannibalism.  This question led to de Vitoria’s work on the ius gentium – the binding laws of all peoples – which is viewed as a milestone in the development of international law.  Granted the Spanish have no civil jurisdiction in the Aztec kingdom, and they are not themselves being eaten, still natural law permits the Spanish to intervene, depose the rulers, and change mores.  De Vitoria’s analysis of cannibalism is a truly fascinating read and his answer bequeathed the innovation of the legal grounds for humanitarian intervention.[1]

For de Vitoria, it is morally unproblematic that JHU intends in certain circumstances to use violence to protect its staff and students, as well as its property.  A private person has, he argues, “the right to defend himself and his property, but does not have the right to avenge injury, nor even, indeed, to seize back property which has been taken from him in the past.”  How he defends this thesis is startling.

His 1539 On the Law of War begins boldly: “Any person, even a private citizen, may declare and wage defensive war (bellum defensivum).”  Our democratic and humanitarian sensibility has schooled us to believe that only states wage war, but Thomas Aquinas (d. 1274) would be just as startled as us by de Vitoria’s formulation.  De Vitoria was a Dominican monk, like Thomas, and saw himself as a commentator on Thomas.  A Thomist, certainly, but one who knowingly departed from Thomas’s theory of homicide.

In the Summa theologica, II-II, q. 64 Aquinas insisted that only a public authority charged with upholding the common good can intentionally kill and wage war.  By contrast, de Vitoria thinks split sovereignty is the original condition of communal life.  Invoking an axiom of Roman law – force may repel force – each of us, as well as the state, has the right of war.  The axiom assumes a prior harm, so war undertaken by a private person is a bellum defensivum.  States, however, have an added rationale for war: “the commonwealth cannot sufficiently guard the public good and its own stability unless it is able to avenge injuries and teach its enemies a lesson, since wrongdoers become bolder and readier to attack when they can do so without fear of punishment.”  The right to avenge is tied exclusively to public authority.

Aquinas restricts the deployment of violence to public authority, but, observes de Vitoria, “the nub of the problem is to define the commonwealth, and say who is properly its prince.”  The problem of split sovereignty poses the question of where to draw the line between a private entity and a public authority.

De Vitoria wrote before the concentration of power in the nation state, when dukedoms, cities, and enclaves abounded, all laying claim to the rightful use of violence.  He proposed that a private entity becomes a public authority once attaining self-sufficiency.  He defines the standard: “A perfect community or commonwealth is therefore one which is complete in itself; that is, one which is not part of another commonwealth, but has its own laws, its own independent policy, and its own magistrates.”

Google – and there are other companies, like Walmart – is edging towards this standard.  Fortune relays the scope of its recent lobbying:

The massive company said it lobbied on dozens of issues, reflecting how integral its services have become to American lives and commerce. The filing cited privacy, data security, antitrust, taxes, tariffs, trade, the opioid crisis, artificial intelligence, cloud computing, autonomous vehicles, immigration, the future of work, encryption, and national security.

JHU is not far behind.  Set firmly under the view of Baltimore City’s citizen police review board, the university has declared its ambition to be a leader in twenty first century policing, effectively making review redundant.  Its police force is restricted to defined areas around its three urban campuses.  However, an agreement with the city is already in place that should residents ultimately feel comfortable around its police, the boundaries of the University’s police jurisdiction can expand.

Is JHU a harbinger that in America the future of policing is private?

[1] F. de Vitoria, Political Writings (Cambridge, 2001), pp. 205-230.

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