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What Kind of Order do we Want? Policing, Governance, and the Public Point of View

On April 25, 2024, Malcolm Thorburn delivered a lecture, ‘What Kind of Order do we Want? Policing, Governance, and the Public Point of View’, at All Souls College, University of Oxford. The Centre for Criminology organised this seminar as part of the All Souls Seminar Series during the 2024 Trinity term. Thorburn, a Professor of Law at the University of Toronto, writes primarily about theoretical issues in criminal justice and law. 

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David McMillan

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5 Minutes

What kind of order do we want? This fundamental question, says Malcolm Thorburn, has been left largely unresolved within policing research and policy. As a result, a downstream set of questions facing police officers and political executives are left unanswered. For example, what should the police consider before initiating a criminal investigation? What shapes a police officer’s decision to charge a civilian with a criminal offence? How should a given police department allocate their resources? Two common relationships between political executives and the police, says Thorburn, generate variability in how the police understand their purpose: absolute police deference to partisan policy or complete police independence from partisan politics. As an alternative, he argues that “policing is a public office”. On Thorburn’s view, this solution requires (1) public deliberation in selecting the appropriate goals and methods of policing and (2) impartiality in how policing methods are deployed to achieve aims of policing in actual cases. Finally, he sketches three challenges to his core argument: private police, overlap between other public offices, and disputes about ‘public order’ at different levels (local, provincial, and federal).

The relationships between the police and political executives in many jurisdictions, notes Thorburn, often have adverse consequences. He tells the story of how an Ontario Provincial Police (OPP) officer killed Dudley George, a member of an indigenous tribe, in 1995. George, along with other members of his band, reclaimed indigenous land—Ipperwash Provincial Park—in Ontario, Canada that the Government of Canada had seized and repurposed as a military base during World War II. According to Thorburn, the former Ontario Premier demanded, “I want those [expletive] Indians out of the park”, in a discussion with the OPP that included other vague directives about a forceful removal of the indigenous band. Following this conversation, an OPP officer shot and killed George. The remote cause of George’s murder, says Thorburn, can be found in the belligerent directives that a political executive gave to the OPP. Completely removing political executives from police decision-making, Thorburn posits, may not be appropriate either: the Canada convoy protest is used to underscore this point. As a form of protesting Canadian health policy during the COVID-19 pandemic, thousands of heavy vehicles, primarily semi-trailers and light-duty trucks, rolled into Ottawa to occupy public roadways in the city. The fact that local, provincial, and federal police avoided intervening in the Canada convoy protest, argues Thorburn, illustrates how insulating police administrators from the politics of crime control can also result in a disequilibrium.

A rich literature within policing scholarship aims to define the police mandate, but Thorburn critiques two broad views that some criminal justice practitioners have held. According to Thorburn, Robert Peel—the father of modern policing in the United Kingdom—wanted to extend “quasi-judicial independence” to the police; Lord Denning believed that a police commissioner is “independent of the executive…answerable to the law and to the law alone”; and Prime Minister Pierre Trudeau suggested that political executives “should be kept in ignorance” of everyday policing. These well-known police administrators, judges, and political executives, argues Thorburn, normalise the type of police independence that results in police inaction when action might be desirable. On his view, policing in the U.S. takes the opposite approach. To illustrate this point, Thorburn considers Bratton’s focus on implementing Giuliani’s public safety policy agenda to curb lethal crime in New York City; Fyfe’s observation that the professionalisation of the police has not prevented administrative abuse of power cases; and Vollmer’s understanding of the police as a “business institution”. Seeing the police as one arm of a political executive, Thorburn suggests, might lead to police action or behaviour that is undesirable. In summary, absolute police deference to partisan policy or complete police independence from partisan politics are both unacceptable to Thorburn.

Next, Thorburn asks a question: Is there a positive vision for what a police commissioner should do? In answering this question, he provides his interpretation of several views that he attributes to Bittner, Colquhoun, Bayley, Loader, and Lustgarten. According to Thorburn, Bittner concludes that the police primarily complete tasks unrelated to law enforcement; Colquhoun describes many of these non-law-enforcement tasks; Bayley asserts that the police do not prevent crime; and Lustgarten claims that “policing is politics”. Thorburn also attributes a quotation to Loader (2013), which was Loader’s (2013: 45) direct analysis of Brodeur’s (2010) research on ‘policing agents’: this secondary reference to Loader is an oversight. Nevertheless, Thorburn’s conclusion from the published works of the scholars follows: there is a need for theory that offers a positive vision for policing. 

As the best solution, Thorburn suggests “policing as a public office” can be the “organising idea” in clarifying the police mission. Questions abound. What does ‘public office’ mean? And what does it mean to say that ‘policing is a public office’? On Thorburn’s apparent view, ‘public office’ is an office with a set of rights, obligations, and exemptions that are conferred upon a public official carrying out the duties of her office. To speak of ‘policing as a public office’ seems to imply the set of rights, obligations, and exemptions that police constables, sheriffs, and administrators receive in their fixed-term roles as officials. The expectations on a police administrator’s authority are those, therefore, that would also apply to political executives: Thorburn states that police administrators’ decisions must be made for public rather than private reasons. How will a police administrator determine what public outcomes the police should be trying to achieve? Thorburn suggests that “rather than electing someone…we should vote to set down policies of the police” with the goal of ensuring that decisions can be scrutinised to determine whether the public’s expectations are being followed. In summary, Thorburn’s theoretical approach requires (1) public deliberation in selecting the appropriate goals and methods of policing, which can then be (2) applied and reviewed in actual cases.

Thorburn discusses three complications to his core argument: private police, overlap between other public offices, and disputes about ‘public order’ at different levels (local, provincial, and federal). In the first example, he anticipates concerns over whether ‘policing as a public office’ applies to the private police, such as private security officers in retail outlets. Thorburn’s response is that private security officers should be expected to follow public goals and methods of policing, capable of being scrutinised, that public police are tasked with following. Next, he reflects on why ‘police offices’, the rights, obligations, and duties of the police, are different in-kind from other public offices. The division between public offices, say between health offices and police offices, “is always…provisional” and not always clear-cut. Third, Thorburn recognises that the ambiguity in how the police should respond to potential disruptions to public order, such as the Canada convoy protest, still needs to be addressed. While he believes that some issues around public order are local, there are other questions that are national. To Thorburn, meta-police governance structures, the relationships between local, provincial, and federal police governance structures must be both “well structured” and “flexible”.

This seminar raised multiple questions that centre around how key terms, such as ‘public order’ and ‘public’, are defined in the context of Thorburn’s theory. While thought-provoking, Thorburn’s theory is still blurry—something that his future scholarship on this research project can hopefully clarify—in its practical policy implications for the police. For example, it is unclear how his theory can be operationalised in practice: How are public views on ‘public order’ to be collected? Are public views filtered? It is hoped that Thorburn will define these terms or respond to these questions through his future scholarship on ‘policing office’ theory.

References

Brodeur, J.-P. (2010) The Policing Web. Oxford: Oxford University Press.

Loader, I. (2013) ‘Why Do the Police Matter: Beyond the Myth of Crime-Fighting’ in J.

Brown (ed) The Future of Policing. London: Routledge, pp. 70-81.

Thorburn, M. (2024) ‘What Kind of Order do we Want? Policing, Governance, and the

Public Point of View’ [Lecture]. All Souls Seminar Series. All Souls College,       University of Oxford. 25 April.

How to cite this blog post (Harvard style):

D. . (2024) What Kind of Order do we Want? Policing, Governance, and the Public Point of View. Available at:https://blogs.law.ox.ac.uk/centre-criminology-blog/blog-post/2024/05/what-kind-order-do-we-want-policing-governance-and-public. Accessed on: 17/07/2024

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