A brief history of law and its enforcement

First, a bit about the background of policing - of course you’ll know that police forces in their modern form didn’t emerge until the industrial revolution, but before we get to that, I thought it might be interesting to look at historical modes of law enforcement to see what their legal priorities were and to see how these were enforced.

Policing, in whatever form it has taken seems to largely have always been an urban phenomenon - as suggested by its name, with ‘Polis’ being the greek for city. But to really begin this, we’re going to take a look at the oldest known code of laws, from the city-state of Ur in Mesopotamia. This is a stone tablet which survives from around 2100 BC from which we can read 32 surviving laws - though two are incomplete. Of these 32 laws, 10 are for the protection of property, mostly in the form of slaves. It is interesting to note that while bodily injuries are mostly punishable by payment of various amounts of silver, robbery is specifically listed as carrying the death penalty. Perhaps surprisingly the two items the highest fines (about half a kilo of silver), are divorcing your first-time wife and the very descriptive: “If a man, in the course of a scuffle, smashed the limb of another man with a club, he shall pay one mina of silver.”

Moving on to the Babylonian period now, we have the Code of Hamurabi from 1754 BC. This is an interesting one, because in the preamble, it says things like “destroy the wicked and the evil-doers; so that the strong should not harm the weak”. Of course shortly after this is goes on to enshrine into law three social classes - with varying punishments for each class. Of course in the modern period, we’re long past this sort of thing. There are 282 surviving laws from this code, so I’ve not bothered to go through them in a huge amount of detail, but there are some interesting inclusions, like a fixed rate of pay for sailors - maybe the earliest minimum wage? Rather than go for fines, this code of laws is a lot more bloodthirsty, frequently prescribing mutilation and death. Even taking someone to trial and failing to prove their guilt could result in your death.

We’re going to advance pretty rapidly through history now to Athens and 620 BC, just to bring up the Draconian law code, written by one ‘Draco’ and is where we get the word draconian from. We don’t know too much about this particular code, but for your harshness to survive in language over two and a half thousand years later, it really has to be something special. According to Plutarch, when Draco was asked “why he made the death penalty for most offences, replied that in his opinion the lesser ones deserved it, and for the greater ones no heavier penalty could be found.” These laws were mostly replaced 20 years later.

Two hundred years later, but still in Athens (about 450 BC), Plato writes about how imprisonment could be used to reform prisoners, the earliest known prison or ‘desmoterion’ having just been constructed in his city. Of course, nobody takes this seriously. The original purpose of this prison being that criminals should be held until they can pay their fines through labour - though you can see a problem with this for large fines. And they did too so they introduced fixed length prison sentences. These, however, were never the punishment in law, the fine was. You have to wait until the Romans before you see prison sentences being handed out as the penalty and the first purpose built prisons, including one inside of a sewer.

A brief moment now so that we don’t talk entirely about Europe - a trip to 221 BC China and the Qin dynasty. Equality is once again enshrined in law, but rapidly ignored. Rules enacted by the ruler for punishment of offences should be clear and intelligible to ordinary people and include death by boiling, chariots, beating and mutilation through castration. Interestingly, tattooing is also a form of punishment. In 167 BC, castration is no longer a punishment by itself but becomes an optional replacement for execution. These are enforced by Prefects, who are appointed by a hierarchy that leads back to the emperor, and have been for 500 years by this point. This is also the enforcement system in Korea and Japan.

Moving back to Athens, in the 5th century BC, publicly owned slaves bought from Scythia were used to guard public meetings and to enforce the laws of the city. These slaves had bows and arrows, and had the power to make arrests, but detective work was still the realm of free citizens - with trials bing carried about by The Council - 500 citizens, with 50 from each of the ten tribes. It seems to have been a bit more complicated than that, but it’s not more relevant to this - what is important is that this is the first ‘professional’ police force. I’m sure vigilante groups existed prior to this - but had less of a relation to the state. Of course, we can’t be in the 5th century BC without mentioning the Romans again; they seem to have been the first to divide property into personal and private in law - and 30 years later they would develop their own kind of police - in the Praetorian guard.

Fast forwarding to the last days of Rome, but 1000 miles away - to the beginning of the Anglo-Saxon period in Britain in 410 AD. During this period, there are no police - the victim, once again is responsible for their own ‘justice’. In this period, land isn’t a commodity as it is in the modern sense, though there’s a concept of ‘loanland’. Generally though, land is owned and occupied by families. Though the state would take it away if you refused to do military service.

Skipping the European dark ages and going to the middle of the Islamic golden age, and the start of the Medieval period in Britain - 1066. William the Conquerer personally outlaws the death penalty - but don’t think this was generous, instead he says “let his eyes be put out and let him be castrated”. Of course they also instate the concept of ‘real property’. About a hundred years later the Normans seem to import the legal system from their conquest of muslim Sicily - the main evidence for this being that England’s legal system is unique in Christian Europe at the time. Of course if you try to research this, all you find is an ocean of screaming bigots. Some examples of this heritage I’ve seen cited are “the right not to testify to incriminate oneself; the outlaw of use of hearsay as evidence in trials; every person’s right to trial by jury, the weight of a spoken or written contract as right to possession or transfer of property (rather than actual physical possession as sole proof of title to land, a horse, etc.)”. During this time, the law is enforced by the Sheriff and his militia, called the posse comitatus. In some parts of the modern US their role is basically unchanged.

In southern Spain (Andalusia), 1265 the hermandades form as a militia to defend their towns from Islamic rebels. Of course throughout three thousand years that have passed since I started this, various militias have formed in various parts of the world to resist imperialism, usually at the order of a lord, but at various points, spontaneously organised by ordinary citizens. This seems to have been one of the latter initially, but quickly became an arm of the crown, but a loosely-attached one. They became Spain’s de facto police force - collecting taxes, making arrests and even acting as judges. What is interesting about them is they acted against the crown in 1298 because the towns felt he had been abusing his power. Ferdinand and Isabella reorganised the force with themselves at its head. Just 10 years later the police had been subject to so many complaints that their powers and immunities were reigned in. These forces existed until 1835 but there are still jokes made at their expense in Spain.

A brief trip to 14th century France now for the Maréchaussée - a mounted military police force, equipped with exactly the same muskets and sabres as the regular cavalry, they were tasked with combatting highwaymen, but also were meant to quell civil unrest. English visitors - having no effective policing in their own country - saw them “as a symbol of foreign tyranny”.

Around the same time, the oldest purpose built gaol in England was built - in 1333. There’s not much in the way of effective law enforcement here still, but creditors still demand that their debtors be punished, so most of the population of these prisons ends up being innocent people who have taken out loans and fallen on hard times. They are kept there until the loan is repaid. Just coming back to the effectiveness of English law enforcement - the main way it worked seemed to be that ordinary citizens were obliged to jump into pursuit of criminals at the cry of ‘stop thief’ or ‘murder’.

Now, to France and 1667. Louis XIV creates the first modern police force in Paris. Previously law enforcement here has been carried out by the Gendarmerie, a branch of the military - and this will continue to be the case in rural areas (and is still the case). What Louis XIV does is unique to cities - possibly motivated by his experience fleeing from rioters in Paris as a child. Thirty years after its establishment in Paris, this institution is spread to all the French cities and large towns. As side note, the Gendarmerie has also been responsible for spreading and enforcing colonial rule up until as late as the 40s.

Returning to London, and 1749, the Bow Street Runners are created by a Judge’s brother and five other law-enforcement enthusiasts. They will operate out of a Magistrate’s office for the next 80 years. At this time, British law is still incredibly bloodthirsty, with 300 offences that carry the death penalty - including petty theft. Now this may have been well-intentioned; prior to this, police work was mostly done by mercenaries called thief-takers. This police force is more egalitarian since you didn’t have to pay them directly; they instead got rewards for catching the accused and were intermittently state-funded.

In the United States, after the revolution, there’s a feeling that the British method of punishment - hanging is too harsh, especially for the tastes of the Quakers and so some of the first purpose built prisons emerge there, most famously the Walnut Street Prison in 1790. This was one of the first prisons which formally intended to separate men and women and had the aim of keeping each person in solitary - though this was usually only the case far about a third of inmates. The thought at the time was that inmates would be reformed if they just had time to themselves to think. The UN now considers this a form of torture, but that hasn’t stopped them from doing it.

Back over the Atlantic now, to Pentonville in 1816. The demand for such prisons arises because of the decreasing popularity of the death penalty, mostly in line with Bentham’s ideas from the century prior about the it being a less effective penalty than imprisonment accompanied by hard labour. Of course we know now that spending even one night in jail increases your chances of future criminal behaviour.

In 1829 in London, Robert Peele creates the Metropolitan police force, hence the name ‘bobbies’. Simultaneously, he creates the ‘Peelian principles’, the foundation of the modern idea of community policing - he says that effective policing can only be done with the public’s consent. It includes lines like “maintain at all times a relationship with the public that gives reality to the historic tradition that the police are the public and that the public are the police”. Of course these police were initially deeply unpopular with the public, and despite not having the public’s consent, as you know, these police still exist. In 2012, the coalition government helpfully aded to the principles: “No individual can choose to withdraw his or her consent from the police, or from a law.”

Still in London, in 1834, slavery was abolished in the British Empire about a year ago across the British empire (except India) and now the poor laws are passed. These cut back on poverty relief funding and declared that the poor should find relief only in workhouses, because as Theresa May would say almost 200 years later, “work is the best route out of poverty”. They were a series of laws explicitly aimed at repressing the poor, separating husbands and wives in workhouses and treating mothers of illegitimate children especially harshly. At the time, eugenics were popular, particularly of the kind promoted by economist, Thomas Malthus; it’s a shame we can see such parallels in the ideology of the Conservative party today.

In 1866, the more humane British ‘standard drop’ method of hanging is introduced and spreads quickly around the English-speaking world and intends to kill convicts with a minimal amount of suffering. Of course this method may still result in strangulation or their head flying across the room.

In 1897, the US moves in the opposite direction, instituting the electric chair, partly as a result of promotion by Thomas Edison. Executions using this method could take eight minutes and set fire to parts of your body. The inventor of the generator they used said “they would have done better using an axe”.

How could we talk about prison systems without possibly the most famous of them all, the GULAGs? Set up in 1918, this prison system, like pretty much all the others at the time was created to separate criminals from the general population and featured hard labour as part of the punishment. The peak population of the GULAGs occurred in 1950, when it reached 2.5 million - or about 1.4% of the population. The average was 0.8%, coincidentally the same as the UK today. More troubling than the UK today, though is that (circa 1950) about 19% of these were political prisoners. Also concerning are the conditions, described as places where you would be worked to death. Again, in the 1950s, the death rate was between one and three percent in these camps, but the author of the Gulag Archipelago claims that the prison officers would release you if they thought you were close to death. In the British prison system in 2018, the mortality rate was 4%. Of course before the 50s, everything was much, much worse. GULAGs were also prisoner of war camps for both the civil and world wars, and of course many, many people were changed as ‘political or counter-revolutionary criminals’, and in the early thirties, during the famine, the mortality rate hit 15%. Of course getting disappeared by the secret police was always a possibility during this period, which is completely different in Russia today.

In 1948 Clement Attlee’s government abolishes the use of penal labour in its prisons. It also abolishes whipping as a form of punishment for most crimes. As you know, it will take 20 more years for the end of of capital punishment.

In 1970, Norway, there is a recidivism rate of 91%, so they change course. Forced labour there is finally abolished, and they embark on a programme of making prisons more humane and focused on rehabilitation, finally taking Plato’s advice from 2500 years ago. They go on to abolish life sentences, make cells more comfortable, create schools and small communities with shops inside some of their prisons; convicts are provided the right to vote and are transferred to transitional housing nearer release to ease them back into society. They now have the lowest recidivism rate in the world - at 20%.

In sharp contrast to this, in 1971 the United States begins the War on Drugs and with it, has practically reinvented slavery, including the racial dimension, with private prisons paying inmates between 12 and 40 cents per hour to manufacture all manner of goods, not only sending profits to the capitalists who own them, but also creating perverse incentives to arrest more people and keep prisoners in for longer. There is evidence that the war on drugs, was created as a means of political repression, since blacks and ‘hippies’ were more likely to use them. The prison population sextupled in the 40 years after the start of this policy, having been relatively stable for the 40 prior. California was not satisfied with this and implemented the three-strikes law in 1994, which has seen a man getting a life sentence for stealing 4 biscuits. Even if you thought all this was a good thing, the cheap prison labour still drives down the wages of free workers in the states. As a tangent that I shan’t expand upon, there is also evidence of US police disappearing protestors and of the Chicago police operating black sites where they’ve tortured those they’ve arrested.

So we’ve seen how policing has always been imposed by the state, regardless of the opinion of the population; but for the past 200 years, there have been efforts to pretend this isn’t the case. The law has always been preoccupied with property, and frequently framed as egalitarian, while never achieving it, and as for prisons, these have mostly been populated with the unfortunate and the poor, rather than the outwardly criminal, and while the harshness of punishment has varied quite dramatically, it has rarely fit the crime. And this harshness has never really been an effective deterrent.

Current police strategy here is to be community police until things get tough, and then to use as much force as is necessary to stop whatever behaviour is currently undesirable to the state, and this is working to preserve the police image for the time being, but I’m sure as inequality rises and unrest grows, the mask will slip as quickly as it did in Hong Kong.

So what do we make of the system we have here today? If you asked me to design a system to create criminals, it would look a lot like what we have. You take people out of their communities for years at a time, send them into a place occupied entirely by both representatives of the state frequently treating them badly to breed contempt and by other prisoners so they can learn a few more tricks of the trade. Then you’d kick them out suddenly with a criminal record to reduce their job prospects and don’t give them any kind of guarantee of housing. Of course this is going to result in a high rate of recidivism - but that’s OK. This will only happen really to the poor - and while they’re in prison, they can’t really protest and they certainly can’t vote. It doesn’t reduce crime, but it’s an incredible, popular, means of political repression, so why change it?

Let’s not forget that prisons are frequently home to mentally ill people, and that as a government report politely puts it, there is “no agreement in place which outlines responsibilities for the mental health and wellbeing of people in prison”. Mentally ill people are currently reported to be 10% of the prison population. These people need help, and they certainly don’t need to be in an incredibly stressful environment like a prison. There are very few cases where I think incarceration improves a situation for an individual or for society at large. Largely, the population of prisons consists of victims of circumstance, but in some of the worse cases, the people in these institutions have issues that really need fixing to make them desirable members of society and since sending someone to Eton costs less than putting them in prison, I see no rational reason not to just help these people in whatever way is best.

So where are we going from here? Well who knows? Denmark has just started its national “ghetto plan”, where areas with high immigrant populations, low education levels or high levels of unemployment will be subject to harsher sentencing including jail times twice as long as if they lived a few streets down the road and some crimes which previously carried a fine, will now result in imprisonment. This programme also includes demolishing large amounts of social housing and lessons on ‘Danish values’ for children. In New York there are plans for ‘snazzy high-rise jails’ with retail spaces and places for lattes underneath, just to give you a flavour of two possible futures for us.

Personally I think we ought to try for something better.