Law and Violence (original) (raw)

Mathieu Deflem
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Please cite as: Curry, G. David, and Mathieu Deflem. 2022. "Law and Violence." Pp. 342-350 in Encyclopedia of Violence, Peace and Conflict, Third Edition, Volume 3, edited by Lester R. Kurtz. Amsterdam: Elsevier, Academic Press.

Abstract: Law and violence are dynamically interrelated under varying historical conditions and across societies. Law responds to violence, but law also displays violence, legitimately or not, by the threat and use of force. This chapter begins by reviewing the variable interdependence of law and violence over the course of US history in terms of race, gender, and class. Specific areas of law that respond to violence, including domestic abuse, gang violence, and terrorism, are also reviewed. Special attention subsequently goes to contemporary issues of police violence. In conclusion, the conditions for a future of law without violence are considered.

This chapter is a revised and expanded version of G. David Curry, “Law and Violence,” pp. 1127-1134 in Encyclopedia of Violence, Peace and Conflict, Second Edition, edited by Lester R. Kurtz (Academic Press, 2008). It was written in its present form by the second author at his suggestion to the Editor and with input of a former colleague of Dr. Curry, in whose memory this paper is published.

Introduction

The relationship between law and violence is complex. This observation is neither obvious nor trivial. For law is commonly associated with justice and conflict resolution, whereas violence is, no matter its varying conceptions, essentially a form of injustice and a particularly troublesome kind of conflict. Yet, regardless of differing conditions of social formations across the globe and changes over historical time, law and violence always co-exist in a dynamic interrelationship. Law can lead to accelerate violence rather than prevent it, and violence in turn can be an element of law itself. The Weberian notion of the nation-state as the political community that has monopolized the means of coercion expresses this violent element of law explicitly in reference to the dual enforcement instruments of the military and the police.

This chapter reviews some of the most important complexities of the relationship between law and violence, with special attention to the historical development of the changing relationship between law and violence. Attention will specifically go to law and violence in the context of the history of the United States relative to critical conditions of race, gender, and class. The essentially dialectical relationship between law and violence will be reviewed from a historical perspective in the development towards modern democratic societies. Special attention will next go to the legal response to such issues of violence as gang violence, spousal abuse, and terrorism. A final section of this chapter will devote attention to a discussion of law and violence in terms of contemporary problems associated with police violence and the policing of violence. Concluding this review, the possibilities that exist towards a world without violence are discussed.

Law and Violence Since Antiquity

The role of violence is deeply embedded, and inextricably linked with, the development of modern societies, despite and along with their claims to increasing levels of civilization. Broadly reviewing the period from the antiquity to the Middle Ages, it can be observed that legal traditions in the West and in Western civilization in general are typically framed as descendants of the democratic legacy of the Greek city-states. Yet, it is no irony that the beginning of Greek history and literature is Homer’s The Iliad, an account of the Trojan War. In his introduction to a modern edition of that work, Bernard Knox (1990) notes that from their appearance as organized communities until the loss of their political independence, the Greek city-states were uninterruptedly at war, quoting from Homer and Plato to illustrate the point. In Homer’s words, the Greeks are “the men whom Zeus decrees, from youth to old age, must wind down our brutal wars to the bitter end until we drop and die, down to the last man” (Knox 1990, p. 24). And from Plato’s Laws, Knox quotes, “Peace is just a name. The truth is that every city state is, by natural law, engaged in a perpetual undeclared war with every other city state” (ibid.). Yet, despite the ubiquitous presence of violence and war in Greek antiquity, the fate of the citizen of Athens is most often associated with logic and reason. The trial of Socrates was formal and dignified, although the aging philosopher was executed by having to drink poison.

The final centuries of the classical Mediterranean world were similarly marked by a seemingly inextricable bond between law and violence (Harries, 2007). Roman legions and Praetorian guards played an essential role in enforcing and producing the order that was Roman law. The collapse of the Roman legal and political system brought about the relative chaos of the Dark Ages. Philosophically, the medieval social order was based on loyalty to the blood of royal families or to the symbolic blood of Jesus within the two major divisions of the Christian Church. Medieval lords ruled by force, while the Church maintained its institutional authority by manipulating the loyalties of the political lords and the levels of violence committed by them. The royal families that provided the symbolic imagery from which modern nation-states emerged accentuated blood as their source of legitimacy. In the social orders they contributed to create, jurisprudence and governance were marked by the bloodshed that accompanied key demonstrations of state power, especially in the form of repeated acts of war.

In a final stage of development towards the national states of the modern era, the changes in law that brought law closer to a system based on equality and rights came into being after and through a series of organized violent confrontations between the ruler and those who were ruled. The most famous of these radical developments in world-history are the American and French revolutions (Brown, 2018; Hoock, 2017). On the North-American continent, the separation of the thirteen colonies from the British Empire was marked by the second-longest war in US history, the American Revolutionary War, which lasted from 1775 to 1783. From Lexington to Yorktown, confrontations between the new nation’s armed forces and militias were sufficiently fierce to produce an official estimate of 4,435 battlefield deaths for the insurgents. In Europe, the ten-year lasting French Revolution that began in 1789 moved from a relatively nonviolent transition in governmental structure to an extremely violent period referred to as the Reign of Terror. As such, it is more than peculiar to note that democracy and the violence of terror are historically closely intertwined.

From the violence associated with the American and French Revolutions grew the ideal of the citizen soldier in which the franchise for full legal participation was associated with military service (Janowitz, 1975). The traditions of national birth through revolution eventually became sanctified in Western-style republics and constitutional monarchies, in which until today freedom and equality rights are formally guaranteed, in more or less explicit ways with the blood that has to be shed and the violence that has to be committed in association with military force and war. In the United States, for instance, the notion of freedom is until this day associated with the price the military would have to pay, in the form of putting oneself in harm’s way, to ensure that freedom.

A violence committed both in the name of, and against, the law has remained a factor in societies until today, it should also be noted that the level and intensity of violence since the Middle Ages have decreased tremendously. In terms of the quantitative and qualitative transformation of violence in the context of European and other Western societies since the Middle Ages, there has indeed been a general decline in interpersonal violence over the centuries along with a decrease in the severity of punishment as a form of violence through law (Spierenburg, 2013). Peculiarly interesting hereby is that most recent times, from the 20th century onwards, have at times witnessed increasing concerns expressed by the public and government officials alike over problems intersubjectively experienced in connection with violence, even though objectively there is less violence today. This disconnection between the reality of violence and how it is perceived has also brought about a general increase in punitiveness in modern culture leading to higher levels of punishment, retribution, and incarceration.

Law and Violence in the Preservation of Order Throughout US History

In cases of momentous political revolutions, violence serves as an instrument of social and legal change. The more conventional and frequently enacted role of violence is in its role in the preservation of an existing social order. Sociologist Morris Janowitz (1978) has argued that there are two mechanisms at work to insure social control as the foundation of social order in Western industrial states: mass persuasion and social coercion. For social coercion to operate, an enforcement apparatus capable of bringing violence to bear on individual citizens must exist. The most obvious manifestation of such an institutional apparatus is the criminal justice system. Exhibiting the element of a threat of force, rather than its actual application, the general principle of deterrence underlying law as a means of diminishing the likelihood of criminal behavior requires that institutions capable of utilizing legitimate violence be maintained by the state at its various levels of organization.

In the context of the history of the United States, at least three important interrelated cases can be examined in which not merely a threat, but also an actual application of violence has been used, both legitimately and illegitimately, to maintain social order. Specifically, consequential cases of violence as applied by law in US history can be unraveled in connection with issues of race, gender, and class (Zinn, 2015).

Race and Law

Legal structures associated with race characterized North-American contact between European settlers and indigenous peoples well before the first arrival of African slaves in the Jamestown colony in 1619. Spanish explorers took violent measures to extract wealth from the lands that they conquered in the Caribbean and in Latin America. The enslavement and robbery of native peoples was carried out with the full might of law (Sale, 1990). The five centuries that followed brought about a lessening of intensity of the brutality that marked early colonization, but Native Americans for a long time continued to suffer. Efforts of organized resistance by Native Americans in the 19th and 20th centuries were met with violent force sanctioned under the umbrella of the US legal and political system.

The manner in which US law historically incorporated differential treatment of Native Americans based on notions of race and inferiority is mirrored in the way in which the status of natives of Africa was legally framed and violently enforced. When the first African slaves were sold on the docks at Jamestown, they were initially treated similar to European indentured servants. By 1670, colonial laws that established the continuation of the slave status throughout the life-term and the inheritance of slave status by the children of slaves had transformed African slavery into the ‘peculiar institution’ that was to endure until the American Civil War. Slavery was a lawful institution in the United States until 1865. Revealing the inherent paradox of US law and its constitutional protection of freedom rights co-existing with the freedom-denying practice of slavery, eight of the first twelve presidents of the United States owned slaves (Horton and Horton, 2006).

The abolition of slavery in the United States followed President Abraham Lincoln’s Emancipation Proclamation of 1863. The proclamation was enforced by the federal government in the form of the American Civil War, the most deadly violent legal action in US history. After the war had ended, the end of legal slavery brought about by the ratification of the Thirteenth Amendment in 1865 was by no means the end of both legal and illegal violence against Americans of African ancestry. The Fourteenth Amendment to the Constitution granted political rights to all male citizens, including Americans of African descent. But the newly won freedoms of African-Americans in the Southern states suffered dramatic setbacks. Violence disproportionately and specifically applied against black Americans particularly took place in the form of race riots and lynchings (Finkelman, 1992). From the late 19th century onwards, segregation was legalized and could be lawfully enforced with violence, while economically sharecropping acted as a substitute for slavery, and the criminal justice system was differentially enforced based on the race of the offender.

Much like the disenfranchisement of the descendants of African-born Americans after the end of the Civil War contained both legal and illegal components, so did the movement to gain full rights of citizenship for all. In the Southern states, the unlawful element was represented in the form of protests, boycotts, and sit-ins. Yet, at the same time as African-American men and women were struggling for their own freedom in the streets, even if it meant violating segregation and other laws, action also took place within the US legal system. In the Supreme Court, in particular, segregation policies were gradually struck down. Some of these legal successes came comparatively early during the 20th century, such as in the case of Guinn v. United States of 1915 when the Supreme Court declared unconstitutional the so-called ‘grandfather clauses’ that allowed illiterate whites to vote while denying that right to illiterate blacks. In 1917, Buchanan v. Warley held laws requiring blacks and whites to live in specific sections of cities to be unconstitutional. After World War II followed the greatest gains to ensure constitutional protections for all Americans regardless of race when the Supreme Court overturned ‘separate but equal’ policies by outlawing school segregation in Brown v Board of Education of 1954, paving the way for the passage of the Civil Rights Act of 1964 and the Voting Rights Act of 1965.

Gender and Law

In 1619, in the same year and on the same docks at Jamestown from which the first African slaves were auctioned, 90 women were distributed to male colonists willing to pay the price of their passage plus a respectable profit to the Virginia Company. During those times, indeed, marriage was legally not yet an equal partnership. Women who struck their husbands were sentenced to public beatings or had to spend time in the pillories. Although men who had killed their wives were subject to hanging, the law was usually not enforced, while a woman killing her husband was judged equivalent to the killing of a king or a deity. At the time of the nation’s founding, individual states denied women the right to own property and the right to vote.

The women’s rights movement in the United States had its early roots in the movement to abolish slavery, in which women were very active (Davis, 1981). Women’s participation in the abolitionist movement stemmed from the belief that women’s ultimate freedom was contingent on freedom for African-Americans as well. Shortly before the Civil War, a majority of the members of abolitionist groups were women. In 1848, several hundred women convened at the Seneca Falls Convention in New York. Elizabeth Cady Stanton, Lucretia Mott, and other famous women leaders attending the convention produced a Declaration of Sentiments that proclaimed the equality of women with men.

The struggle for women’s suffrage was a long protracted struggle involving both illegal and legal efforts. In 1872, Susan B. Anthony was arrested for illegally casting a ballot in the presidential election. Unlike the violent responses to the African-American civil rights struggle, the violence involved in reaction to women seeking their rights was more of a private matter sustained by a general legal disregard for domestic violence and rape. It was not until 1920 that the Nineteenth Amendment guaranteed women the right to vote. But as late as 1982, an effort to pass an Equal Rights Amendment to the US Constitution to assure that the equality of rights could not be denied “on account of sex” failed to gain legal passage by the required number of states.

Law and Social Class

Since colonial times, class differences have also been a source of legal conflict in the unfolding of US history. In the 17th century, the differentiation of distinct social classes was especially pronounced because of a reliance on indentured servitude as a major source of labor in the colonies. In the Southern states, indentured servants made up a majority of the population. At the time of the establishment of the American republic in 1776, many of the states limited the right to vote to white males over the age of 21 who owned property or paid annual taxes that exceeded a specific limit. While most such property barriers to voting had disappeared for white males by the end of the Civil War, class conflict was most clearly revealed in efforts to organize labor.

During colonial times, class unrests already occurred, such as in the form of strikes by bakers in New York and by shoemakers in Philadelphia. But it was not until the development of advanced industrialism that a more widespread labor movement developed in the United States. The mining industry was the setting of some of the most violent clashes between labor and management with the available legal institutions and their enforcement agencies always siding with the latter. Strikes involving coal miners broke out and were violently suppressed until the early 20th century. Among the more infamous examples, bloody confrontations between workers and law enforcement officials took place in 1920 during the so-called Battle of Matewan in West Virginia when coal miners were engaged in violent conflict with government representatives. Other such conflicts erupted thereafter, such as during the Battle of Blair Mountain in West Virginia in 1921.

Violent confrontations between workers and law enforcement officials also took place in other economic sectors besides mining. In 1894, for instance, federal army soldiers were used to suppress a strike by Pullman car workers. Members of the International Workers of the World union in Everett, Washington were fired upon by county law enforcement, resulting in several dead and dozens of wounded. Even law enforcement itself was at times targeted in the clampdown on labor rights. In 1919, a strike by Boston police officers was suppressed by means of a major commitment of state guards deployed by then Governor of Massachusetts Calvin Coolidge.

The Dialectics of Law and Violence

As the histories of race, gender, and class issues in terms of law and violence have shown, violence and the development of law are fundamentally intertwined. This dialectical relationship also implies that the struggles that have marked US history should and can, because of its flagrant inconsistencies, be complemented with an increasing allocation of rights to each and all in line with the Declaration of Independence and the great principles it contains. Law as such can be seen to function as an important instrument against injustice, inequality, and violence, even though law has been established and changed through violence itself (Costanzo and Oskamp, 1994).

A dialectical approach lends itself to bring out the paradoxical aspect of the relationship between violence and law. For while one explicit function for the emergence and support of law is the desire for a social order that is free from violence, it is also true that a major mechanism for achieving and maintaining a system of law is by means of the threat and use of violence (Menke, 2010). The dialectical relationship between law and violence has a long historical basis in the development of modern society.

Law as Peacekeeping – War as Law Keeping

The tradition of the legal system as a mechanism for dispute resolution historically dates back to systems of law based on an all-powerful central authority. The Biblical Solomon is prototypical in this respect. When conflicting parties did not share a consensus with the ruler, the ruler’s supreme power facilitated a resumption of the operation of the social order. In ancient Greece, the collectivity of the polis assumed the role of this all-knowing, all-powerful mechanism of conflict resolution. In contemporary society, peaceful dispute resolution constitutes the majority of legal activity. Courts at numerous levels resolve disputes between individuals, corporate actors, and units of government. Only rarely do the people and organizations involved in such resolutions need to be made aware of the agencies of coercion that can be called upon to ensure peace and order.

Modern law, in exceptional situations, seps into a violent dispute as a neutral third party that must make its access to greater violence clear to both parties. At the micro-level, for instance, police officers and security guards can legally intervene in fights between individuals. Historically, in the United States, an example is the government’s intercession in the gang wars that had emerged during Prohibition. Since in this case the opposing forces were both in violation of the law and a threat to the safety of those innocently exposed to the line of fire, the government could display a dispassionate ruthlessness in its application of violence to bring the conflict to an end. In contemporary times, such a ruthless response to urban disorders and other forms of violence is at times similarly advocated by policymakers and the public alike. Recent noteworthy examples include the application of the Insurrection Act by then President G.H. Bush to send state guards, federal law enforcement, and members of the US military to intervene in the L.A. riots of 1992 and the interventions by agents from several federal law enforcement agencies during the urban unrests of 2020.

The perspective of law as a peacekeeping mechanism co-exists with the otherwise antithetical conception of war as a means of establishing or preserving law, or more ironically still, the function of war as a mechanism for achieving peaceful legal consensus. From this perspective, the American Revolution and the War of 1812 can be conceived as institutional mechanisms for effecting agreement between the United States and the United Kingdom on issues of the limits of taxation and the legal boundaries of sovereignty. The Civil War could likewise be interpreted as a method by which an understanding could be reached among the states about the appropriate balance of powers needed to make a united legal system possible in the centuries to follow.

In view of such interpretations of historical conflicts, it is not altogether surprising that since the end of World War II, US armed forces have almost routinely been committed to resolve conflicts in other national settings. The Korean War and the Vietnam War are much debated in this context and continue to sharply divide opinions on their value. However, the first Gulf War incursion into Kuwait to restore that nation’s sovereignty in 1990-1991, the humanitarian missions to Somalia in 1992-1993, and the efforts to stabilize the former political components of Yugoslavia in 1995 were less subject to disagreement as they were generally seen as both necessary and just. However, military interventions in the name of the so-called global war on terror following the terrorist attacks of September 11, 2001, specifically the invasions of Afghanistan in 2001 and Iraq in 2003, once again revealed differing opinions on both the morality and lawfulness of such operations of organized state violence.

Punishment Between Correction and Death

The development of correctional institutions in Western societies from public spectacles of physical pain inflicted on the bodies of the condemned to the institutionally confined mechanisms oriented at a transformation of the soul has been well documented and usefully theorized in the work of French philosopher Michel Foucault (1977). In his groundbreaking book Discipline and Punish (originally published in 1975), Foucault begins by comparing two very different kinds of punishment that occurred over the course of less than a century. In 1757, a public torture of a perpetrator of regicide was recounted in startlingly gruesome detail. Then, in 1838, a time-table in a correctional facility describes in great detail the regulation of daily activities of the inmates. Whereas the public torture served as a gruesome ritual for hurting and ultimately killing the convicted, the tightly regulated schedule of the correctional facility served as a mechanism for correcting the offender. As Foucault notes, the nature of punishment transformed from negatively hurting the body to positively shaping the soul.

The transformation of punishment in modern society reveals a new form of disciplinary power that seek to manipulatively reform rather than harshly punish the offender. Reflecting the principle of discipline, the modern prison is built on the basis of the ideal of the panopticon developed by Jeremy Bentham. The panopticon is a deliberately constructed space designed to maximize the surveillance of its subjects. In the context of a modern prison, the role of violence in maintaining this system of surveillance and control is visible in the form of gun towers, barbed wire, and armed guards, but it ideally also becomes invisible as the inmates become unaware of whether or not they are being watched. Nonetheless, for all who are punished, whether it be by imprisonment, parole, or probation, the legal threat of force is a continuous reality.

The death penalty is the ultimate manifestation of the violent dimension of a legal system by virtue of its lawful taking of life. Unlike the public tortures of absolutist regimes, the legalized killing that is carried out under modern forms of the death penalty is a methodical, systematic process. The United States is among the few remaining capitalist democracies that has the death penalty as a sanction for violations of criminal law. In 1972, the US Supreme Court ruled in Furman v. Georgia that the death penalty as it was practiced in the states with capital punishment laws was arbitrary and discriminatory. The death penalty was, therefore, judged to be unconstitutional as a violation of the Eight Amendment’s prohibition against cruel and unusual punishment. In 1976, however, the Supreme Court in Gregg v. Georgia again allowed the death penalty under the US Constitution, providing capital punishment statutes allowed for guided discretion for juries and judges to consider sentencing separate from the guilt-innocence part of a trial.

Since 1977, the number of persons awaiting execution in the United States rose steadily to a high of about 3,600 in 2000 after which the number has declined to about 2,500 in 2020. With the exception of the 1960s, public opinion polls have shown that since the 1930s a majority of Americans find the death penalty morally acceptable for at least some crimes. Nonetheless, the death penalty remains a contested form of punishment.

Law as a Response to Violence

Various criminal offenses contain an essential element of violence and are duly responded to by means of legal strategies. In such cases, law functions to prevent and respond to violence in varying degrees of effectiveness. Various examples can be mentioned, among which inter-personal violence in the home and among gangs offer striking contemporary examples along with the organized violence that marks terrorism.

Domestic Violence Interventions

Although the specific magnitude of domestic violence in the United States and other parts of the modern world cannot be known, all indicators point towards a widespread problem that is difficult to reconcile with the otherwise advanced nature of modern society (Richards and Haglund, 2016). The problem of abuse of women partners is especially widespread. The most prevalent reaction to the problem has been the organization of a system of shelters that are community-based and organized by women. Once such shelters have become more established, it has been shown, cooperation with and assistance from local law enforcement greatly facilitate their effectiveness.

Police officers were until recently relatively reluctant to intervene in domestic violence cases. When intervention was attempted, strategies were left up to the discretion of the officer, resulting in an inconsistent application of enforcement techniques. In a now classic experiment conducted in the 1980s, the Police Foundation and the Minneapolis Police Department in a systematic fashion examined the impact of different strategies for domestic violence intervention (arrest, separation, and verbal advice). The study concluded that arrest was the most effective strategy. Although attempts to replicate the findings of the Minneapolis study in other U.S. cities have been inconsistent, there has since been a trend among law enforcement agencies to engage in arrests in domestic violence incidents.

A much discussed response to domestic violence has been the use of a legal defense based on the so-called battered woman syndrome, which has been applied in instances where a woman killed her abusive husband. The defense has been hailed by some as a valuable innovation in protecting battered women from domestic abuse, although others have questioned its need or effectiveness. In the 1990s, several successful applications of the battered woman defense received national attention. In recent years, the defense has been broadened to apply to both men and women on the basis of the idea of a ‘battered person’ syndrome that is connected with Post Traumatic Stress Disorder (PTSD). While not a legal basis as such, the syndrome can be applied legally on the basis of laws of self-defense and insanity.

Controlling Gang Violence

Problems associated with gangs and gang violence date back many years, but have especially caught the public eye from the 1990s onwards when both the public and policymakers became increasingly concerned with a perceived rising tide of gang-related violence (Curry, Decker, and Pyrooz, 2013). From an almost complete absence of public interest in gangs in the early 1980s, the end of that decade witnessed what has been called an explosion of gang activity. In 1995, the National Youth Gang Center (NYGC) in the US Department of Justice reported 664,904 gang members in 23,338 gangs in almost 1,500 jurisdictions. In 2012, the last year for which NYGC data were collected, no less than 3,100 jurisdictions reported a total of 850,000 gang members for a total of 30,000 gangs. The number of gang-related homicides between 2009 and 2012 stands at an average of about 2,000 a year.

Strategic responses to gangs include various measures, such as suppression, social intervention, community mobilization, and opportunities provision. Based on a 1988 study that found that suppression strategies alone are not sufficient, the US Office of Juvenile Justice and Delinquency Prevention has developed a Comprehensive Gang Prevention, Intervention, and Suppression Model that has been applied in several cities nationwide.

From the earliest studies on gangs, researchers have suggested that the emergence and development of gang problems are as much influenced by community responses as that such responses are influenced by gang problems. Any underestimation of gang problems can lead to overly harsh punitive responses when gang problems do emerge. Incarceration can ironically strengthen gangs by allowing them to grow and develop greater cohesion in correctional settings. Even certain kinds of counseling programs have been found to bolster gang cohesion. Many laws have also adopted specific laws to target the proliferation of gangs, but there is no research to substantiate the effectiveness of such legal efforts to reduce gang violence.

Gun Control

The Second Amendment to the Constitution guarantees the right to bear arms. Polls have indicated that almost half of US households own firearms for an estimated total of almost 400 million guns. At the same time, the United States leads all industrial nations in homicides and other violent crime rates, many of them involving the use of firearms. Legal efforts to control the availability of firearms include licensing, purchasing restrictions, and sentence enhancements for crimes committed with a firearm. Research on the effectiveness of gun control laws at reducing violent crime has produced conflicting findings. Most gun control measures have no clear effect on rates of crime and violence, but the efforts that do have some effect tend to focus selectively on high-risk groups to prevent their members from having access to guns (Kleck, 2019).

Political as well as cultural forces constitute the greatest barriers to an expansion of gun control laws in the United States. Arguments against gun control rely on both constitutional as well as criminological arguments. The Second Amendment has been argued to render any effort to limit the availability of firearms as a priori unconstitutional. The possession of firearms by law-biding citizens can also be argued to serve as a deterrent to criminal activity, which would imply that gun control laws effectively reducing the level of gun ownership would lead to an increase of criminal behavior. Such oppositions make any effective legal solution to the gun and violence dilemma in the United States unlikely.

Terrorism and Counterterrorism

It is no exaggeration to claim that the dawn of the 21th century has been marked by an age of terrorism and counterterrorism. With precursors in the 1980s and 1990s, terrorism has moved to the center of political and legal debates following the attacks of September 11, 2001, when members of al-Qaeda attacked the United States by targeting important symbols of its economic and political power. Despite the occasional definitional quarrels meant to divert attention from the reality of terrorist organizations and their violent activities, terrorism refers to the use of illegitimate means to advance political-ideological objectives (Deflem, 2010). Historically originating in the Reign of Terror of the French Revolution, the term terror specifically implies the instilling of fear by more or less targeted acts of violence. In terms of its means, terrorism therefore most typically relies on violent tactics aimed at innocent civilians on a relatively massive scale. Unlike warfare, terrorism purposely violates the international standards that are in place to wage war legitimately, instead seeking to sow fear and confusion on the part of the population of a nation or a political regime which the terrorist organization and its members seek to undermine. Terrorism is, as a kind of collective violence involving illegal and often violent activities, motivated by ideological goals typically related to political power.

In response to the threat and reality of terrorism, various counterterrorism have been taken within nations as well as internationally (Deflem, 2010, 2020). At the political level, the governments of national states have developed a number of policy measures that target terrorism as a matter of national security. Examples include the formation of specialized branches of government, such as the Department of Homeland Security in the United States, and the engagement of military forces in the war on terror. Internationally, likewise, intergovernmental arrangements focus on terrorism as a problem of collective violence that affects many nations at once. In the context of the United Nations, for instance, countries participate in a Global Counter-terrorism Strategy as a supranational effort complementing national measures. Internationally, such initiatives exist along with other global responses to important problems of violence at the international and transnational levels, most problematic among which are, besides terrorism, gross human rights violations and genocide (Savelsberg, 2010).

The political dimensions of counterterrorism go hand in hand with various legal efforts (Deflem, 2020). In the United States, terrorism was already legally regulated in the 1980s, specifically by means of the 1986 Omnibus Diplomatic Security and Antiterrorism Act that federally regulated terrorism against American citizens abroad. During the 1990s, US counterterrorism law turned inward, as it already had in other nations, when in 1996 following the Oklahoma City Bombing of April 19, 1995 a comprehensive Antiterrorism and Effective Death Penalty Act was passed. After the attacks of 9/11, the US legal response to terrorism was strengthened and expanded by means of the USA PATRIOT Act (the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act) that was signed into law on October 26, 2001.

Apart from the political and legal response to terrorism, the world of police and security organizations has also responded to terrorism, in ways, moreover, that are driven by a relative independence of relevant agencies as efficiency-oriented instruments to control crime and maintain order. Notwithstanding variations across the world, it is again striking, as is the case with respect to counterterrorism policies and laws, that many nations have seen similar developments in terms of counterterrorism policing, especially after 9/11 (Deflem, 2010; Deflem and Chicoine, 2019).

The most striking characteristic of counterterrorism policing in the post-9/11 era is that police agencies rely on their professional expertise to develop what are held to be the most efficient means to police terrorism as a criminal offense. In the United States, these enforcement tasks are primarily overseen by specialized federal agencies such as the Federal Bureau of Investigation (FBI) and US Immigration and Customs Enforcement (ICE), although state and municipal law enforcement agencies engage in counterterrorism efforts as well. In other countries, likewise, counterterrorism policing involves agencies at various levels that cooperate with one another as well as internationally. Important variations among nations exist, however, in the extent to which police and security measures are subject to governmental control and centralization and, in more or less harmonious ways, co-exist with military forces. As such, the violence of terrorism can be seen to be variably met with more and less legitimate forms of state-sanctioned coercion.

Policing Violence and Police Violence

The early 21st century has witnessed a variety of issues emerge that indicate continued complexities in the dialectical relationship between law and violence. Besides ongoing concerns over terrorism and well as other forms of criminal violence, it has been perhaps most striking to observe that recent years have experienced a return of inter-personal violence in the form of homicides and other forms of violent crimes as well as, even more dramatically, concerns over the police use of deadly force.

Law Between Violence and Police

Recent years have made it clear that the general civilization process that has marked past centuries of human evolution is, on more times than might be expected, disturbed by renewed and intense instances of violence, both collectively as at the individual level (Rojas, 2002). Various instances of ethnic conflict, civil war, and genocide must be noted in recent decades even as the level of violence in society has decreased and contemporary warfare has not matched the global carnage brought about by the two world wars during the first half of the 20th century. Within nations, moreover, inter-personal violence has continued as well and has occasionally proliferated, especially in urban environments.

It is a primary task of police and law enforcement institutions to maintain order and control crime, including criminal violence. When modern police institutions evolved from informal private efforts to formally organized public forces legitimated by governments, various models emerged. In continental Europe, policing was and is until this day organized nationally and centralized alongside the military. In the United States, the British system of a civilian police system was applied to organize law enforcement primarily at the local level.

Several differences in the history of police across the United States can be noted. Most large municipal police forces, for instance, first developed in the North-Eastern states where urbanization was relatively advanced. In the slave states, by contrast, economic conditions related to slavery also drove social control, though largely independent from the development of public police institutions. Indeed, while slave patrols are not the forerunners of police institutions in the United States, it would also be false to say that these systems of enforcement are unrelated. Both the existence of slave patrols and of law enforcement in the same society will lead to similarities in the structures and mechanisms of social control. Most remarkably, the function of policing across multiple systems and agencies can historically be seen to affect certain classes of people (slaves, the poor, minorities, immigrants) more than others, a differential effect, rather than any intent, which can generally be noted among police institutions and control practices until today.

It is an intrinsic component of the dialectical relationship between law and violence that the police function is justified to rely on force when necessary. It is in this respect no doubt a most remarkable development that the year of the coronavirus pandemic has witnessed a striking increase in concerns over the police use of force, especially deadly force. Public response has ironically also involved protest activities against police violence that have at times devolved into riots, disorder, and violence. Indeed, although originally driven by concerns over police violence following the videotaped police killing of George Floyd on May 25, 2020, the unrests from June 2020 onwards considerably evolved and took on many different guises.

Particularly following various instances of videotaped and much discussed cases of police killings, the issue of the police use of deadly force has become a matter much more discussed among the public at large and in the news media precisely because and when these deadly instances of police violence were captured on video. The recording of police conduct and misconduct is today more likely than ever before because of the ubiquity of smart phones. In the United States, the publicity of police killings and other problematic police conduct historically recalls the impact of the photographed and televised police violence during the Birmingham unrests of May 1963, when police used dogs and fire hoses were used to physically attack high school students walking in a demonstration. Since then, instances of visual recordings of police violence have increased exponentially. Among the most discussed and impactful of these incidents until the Floyd killing, mention can be made of the Rodney King beating in March 1991 and, in more recent years, the police killings of Eric Garner in July 2014, Michael Brown in Ferguson in August 2014, and Walter Scott in North Charleston in April 2015. The publicity given to such cases may not present an accurate view, however, because the vast majority of police killings receive very little if any attention, as the following overview of the problem will demonstrate.

Police Killings in the United States

The police function is arguably more decentralized in the United States than in any other country in the world. No less than an estimated 18,000 police agencies exist in the US, the vast majority of them at the local level. No central unified system of data collection exists to chart instances of police killings in the United States. Nonetheless, relying on the best available data from private and public sources, certain discernable patterns emerge (Mapping Police Violence website; Statista, 2020).

The rate of police killings in the United States has generally decreased over the last half-century, the sharpest drop occurring between the late 1960s and early 1980s. However, most recent years, since the 2010s, have seen relatively steady levels of police killings, with many variations and differences among racial and other groups. Statistics reveal that the number of police killings have remained relatively stable between 2015 and 2020. Although the estimates differ, police in the United States killed at least about 1,000 people each year over the course of these five recent years.

Most people killed by police in the United States are white, but the rate of police killings is disproportionally higher for Blacks and, to a lesser extent, Hispanics. Taking into account racial groups’ relative share in the population (and all other conditions held constant), the chance of being killed by police is at least two times higher for Blacks than for Whites. Per one million people, the chance of being killed by police is presently estimated to be 2.5 for Whites, 3.8 for Hispanics, and 6.6 for Blacks. Between 2015 and 2020, an annual average of some 400 people killed by police are White, more than 200 are Black, some 150 are Hispanic, and the rest are of another or unknown racial/ethnic group. Native Americans are most at risk of being killed by police, with a rate that is about 3.1 higher than for Whites. With a small share in the total population, the absolute number of Native Americans killed by police is about 25 to 30 a year. Men make up the vast majority of victims of police killings, about 95% for the period 2015-2020. The majority of victims are armed, from anywhere between 70% to 85% since 2015. The number of police killed in the line of duty is about 150 annually in these years.

Besides race and ethnicity, there are many other variations in police killings across the United States and the many police agencies that are involved. In large metropolitan areas, police killings are relatively high, but several differences across cities exist. Police killings in cities have decreased over the past decade, while they have increased in suburban and rural areas. Police killings across cities are not shown to be related to local levels of violent crime. Among the 50 largest cities in the United States, New York City is estimated to have among the lowest rates of police killings, whereas St. Louis, Missouri has the highest rate. Variations between states are revealed as well. By example, data show that police killings are six times more likely in Oklahoma than in Georgia.

Scholarship on the police use of deadly force is divided over the conditions that drive observed levels and trends of police killings, especially to account for the observed differences between racial groups. What is hereby often overlooked is that the single most uncontestable finding on police killings is that both the number and rate of people killed by police is much higher in the United States than in any comparable country in the world. While the chance of being killed by police is always small, the differences that exist in the United States among racial groups, for example, are dwarfed by the differences between police killings in the US and other wealthy nations. The numbers in the United States are from anywhere between 3 to 60 times higher than in other capitalist democracies. On the basis of such cross-national evidence, the notion should be entertained that the relatively high level of police killings in the United States relates to the country’s overall level of violence, which is indeed much higher than in other comparable countries. This finding would suggest that the problem of police killings in the United States is primarily a matter of violence rather than race and other variables.

Problems and Prospects for Law Without Violence

As this chapter has hoped to reveal, the relationship between law and violence is a tightly interwoven and complex one. Violence of various kinds performed by multiple institutions has played fundamental and symbolic functions in the development of modern legal systems. Violence has been employed to contribute to the development of laws and social orders as well as to preserve existing laws and social orders. All governmental formations based on laws maintain a considerable level of investment in the formation and maintenance of an official enforcement apparatus to apply coercion.

The enforcement and control measures of modern systems of law are also applied against various forms of violence. But it is clear that no efforts to eliminate or reduce specific kinds of violence have ever been completely successful. Although it can be observed that levels of violence have over the centuries declined, various outbursts and manifestations of violence continue to exist and, at certain times and in certain places, even increase. Moreover, modern systems of law and social control also display an internal dynamic to continue to evolve, grow, and intensify irrespective of the problems they are meant to respond to. The development of counterterrorism police measures, for instance, can clearly not be explained only as a functional response to terrorism, but also displays independent forces that propelled a strengthening of police and an increase in police activities. Justified on the basis of a general terrorism threat, the elaboration of police and security in the post-9/11 world has spill-over effects into areas of law enforcement wholly unrelated to terrorism. The continued police killings as well as the violence by police employed during the 2020 unrests publicly and clearly displayed the enormous militaristic police apparatus that has been formed since 9/11, now used against protesters and the criminal and politically-motivated violent offenders involved in the disorders.

Given these complex conditions, it is difficult to ascertain if there can ever be any hope of developing a social order in which violence does not play a major role in defining the social fabric. Relying on the model of social order suggested by Morris Janowitz (1978), the forces of coercion would have to see their role diminished in favor of increasing mass persuasion. This development would mirror what social theorists such as Michel Foucault (1977) and Norbert Elias (2000) have argued about the increasing processes of discipline and civilization in modern societies. Yet, it is also clear that these trends have not been steady over historical time and are not evenly accomplished either.

Turning again to the work of Janowitz (1978), the argument can be made that what is ultimately needed for violence to decrease besides persuasion and coercion is a greater level of self-control as a major mechanism for social order. For any realistic measure of self-control to become an effective building block required for maintaining a nonviolent and functioning social order, citizens must be integrated into a broader pattern of social norms. The problem of social integration is far from new, but was already apparent from the 19th century onwards when modern societies faced disintegrative tendencies as a result of such developments as rapid industrialization, urbanization, and increasing individualism. These concerns were what propelled the development of the social sciences. Until this day, it remains true, albeit in a different circumstances than before, that social order requires the integration of individuals into strong communities and the integration of strong communities into more encompassing collectivities. Such conditions also need informed, empowered citizens with a concern for the collective good and a sense of membership in the American societal community to be willing and able to take advantage of all available opportunities to actualize their own human potential.

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Biographies

G. David Curry (1948-2015) was Professor Emeritus of Criminology and Criminal Justice at the University of Missouri at St. Louis. He was an expert in the criminology of organized violence, with a focus on gangs, hate crime, and domestic violence. A Vietnam War veteran, he was in 1982 convicted, on the basis of testimony from an undercover police officer, on charges of supplying illegal drugs to war veterans he was counseling. After the undercover officer himself was convicted of murder, Dr. Curry filed for and received a pardon from President Bill Clinton in November 2000. He retired in 2011 and died of congestive heart failure on April 27, 2015.

Mathieu Deflem is Professor of Sociology at the University of South Carolina. His research and teaching specialties include sociology of law, policing and social control, popular culture, and sociological theory, areas in which he has published widely. He is the author of four books, including Policing World Society (Oxford University Press 2002) and Sociology of Law (Cambridge University Press 2008), and has edited more than a dozen anthologies, including The Handbook of Social Control (Wiley-Blackwell 2019) and Homicide and Violent Crime (Emerald 2018).