“Quis custodiet ipsos custodes?¹”

For legal rules to have any effect, someone has to enforce them, usually by making violation costly. This raises an obvious, indeed proverbial, problem: Who is to enforce rules upon the enforcers, and how? It is a particularly serious problem given that the powers used to enforce rules may also be used for other, and possibly less desirable, purposes—extortion, intimidation of political opponents, facilitating the commitment of ordinary crimes such as robbery. It is a problem brought home by recent news stories such as the account of the NY city police union demonstrating against trials of officers caught fixing traffic tickets—and arguing that the right to fix tickets is a perquisite of their job,² or reports of policemen planting drugs on people in order to fulfill their quota of drug arrests.³The problem was brought home to me after a flight a few days before the subject was scheduled to be covered in my seminar, when I concluded that the contents of one of my checked suitcases had been deliberately vandalized by the TSA agent who had searched it.

How has that problem been dealt with in different legal systems?

The simplest solution is not to have any specialized enforcers. Consider, for one example, a system of social norms. What prevents me from teaching classes stripped to the waist is not the fear of being arrested but the expectation that doing so would lower my reputation, social and professional, changing the behavior of people with whom I interact in ways that would make me worse off. Norms are potentially enforced against me by everyone I interact with, and by me against everyone I interact with. That describes not only the social norms I face but the norms of neighborly behavior in Shasta County, California, as described by Robert Ellickson in Order Without Law, enforced by both legal and mildly illegal acts of neighbors against norm-violating neighbors.

Another type of legal system without specialized enforcers is a feud system, such as traditional Somali law or the legal system of saga period Iceland. The rules are enforced by the threat of the private use of force—by anyone, against anyone. Individuals vary in their ability to use force, some being more formidable or having more allies than others. But nobody has any special set of rights or special legal status associated with the job of enforcing rules, and anyone who uses his particular advantages to try to abuse the system risks bringing into existence a stronger coalition to block him.

For a third and final example, consider England in the 18^th century, a society with modern criminal law but no police. Constables were needed for the procedure that led to a trial [check on the details of this], but had no real power. Since any Englishman could prosecute any case, the fact that an offense was approved of by the authorities was no guarantee that it would not be prosecuted.

A different solution to the problem, observed in a variety of forms, is a second layer of enforcement charged with the duty of enforcing rules on the enforcers. One version in the modern U.S. is a civilian review board to review charges against police officers. In Islamic law, the nazar fil-mazalim , “investigation of complaints,” was a prerogative of the caliphs by which they “or, by delegation, ministers or special officials and later the sultans, heard complaints concerning miscarriage or denial of justice or other unlawful acts of the kadis, difficulties in securing the execution of judgements, wrongs committed by government officials or by powerful individuals …, and similar matters. Very soon formal courts of complaints were set up.”⁴ In imperial China, the censorate “had as its primary general purpose the investigating and impeaching of governmental wrongdoing or corruption wherever uncovered.”⁵ While this approach may limit the ability of ordinary enforcers to abuse their powers, it raises the obvious risk of abuse by the layer of enforcement above them.

A variant on this approach is to use one part of the legal system against other parts—as when, in the U.S., the FBI or state police investigate corruption by local police. A more decentralized version is the use of tort law to punish the misuse of the powers of the enforcers of criminal law. I am told [check this for details] that, whereas modern law students study what rules police must follow in order that the evidence they procure will be admissable, the equivalent section in 19^th century textbooks dealt with what police had to do in order not to be subject to civil suit. And in a number of prominent cases in recent decades, such as the shooting of Black Panthers Fred Hampton and Mark Clark in Chicago in 1969 and the Steve Jackson case in Texas in 1990, victims of law enforcement abuse sued those responsible and collected either a damage judgement or an out of court settlement.

A famous 18^th century example of the use of tort law to restrain the enforcers of criminal law was Hinkle v. Money, one of the earliest punitive damage cases in English law. Issue 45 of The North Britain, an anonymous anti-government publication, contained an article attacking in strong terms a royal speech;⁶ the government responded by sending out Kings’ Messengers, roughly the 18^th c. equivalent of Secret Service agents, with a general warrant authorizing them to arrest any person and seize any papers that they believed were connected with the publication. They arrested 49 people, one of whom, a journeyman printer, sued on the grounds that holding him prisoner for six hours while searching his papers on the authority of a warrant that did not name him was illegal. He won the case and collected three hundred pounds from the Secretary of State.

One final approach to controlling enforcers is suggested by The Transparent Society, a book by science fiction author David Brin. He argues that improvements in surveillance technology, combined with the usefulness of surveillance for law enforcement, are in the process of producing a society where everything that happens in any public place will be recorded and findable, putting enormous potential power into the hands of law enforcement. He argues that the best way to control the abuses that may result is for transparency to run in both directions, the police able to watch the citizens but the citizens equally able to watch the police.

Recent high profile cases such as the Rodney King case, where law enforcement agents got into serious trouble as a result of video recording of their misdeeds by bystanders, suggest that something along the lines he suggested may be occurring. The technology is new, but the method of control is not. One very ancient approach to limiting the misdeeds of government actors is for the ruler to hold open court at which any of his subjects may approach him to complain of the acts of his officials.⁷

Both the old and the new versions suffer from the same limitation. The police can watch us, we can watch the police, but the police can also arrest and, with the cooperation of other parts of the law enforcement apparatus, jail or execute us, and we cannot do the same to them.⁸ Brin’s approach depends on a system of government where it is in the interest of the ruler to regulate enforcers in the interest of the general population, and the only limit is in his ability to do so. So does the older version.

For evidence that, even in a modern democratic society, rulers cannot be relied upon to act that way, consider the TSA. When an agent searches a suitcase, he leaves a note behind to tell the owner that it has been searched. The obvious way for the organization to reduce pilferage and vandalism by its agents is for the note to include a number identifying the  agent who did the search; if they get a lot of complaints from travelers whose bags were searched by a particular agent, they could investigate and take any needed action.

The TSA has been searching bags for more than ten years now, and has not yet bothered to take that simple precaution. I take that as strong evidence that the organization does not much care if its agents take advantage of their powers to vandalize or steal from the luggage they are empowered to inspect, and some evidence that the organization would prefer to have an excuse not to investigate such complaints.

H.L. Mencken, in a satirical discussion of the problem of controlling misdeeds by government actors,⁹ described two solutions, one German, one American. The former consisted of a special court for trying errant officials; it worked because, by Mencken’s account, “a Prussian official was trained in ferocity from infancy, and regarded every man arraigned before him, whether a fellow official or not, guilty ipso facto; in fact, any thought of a prisoners’ possible innocence was abhorrent to him as a reflection upon the Polizei, and by inference, upon the Throne, the whole monarchical idea, and God.”

That approach would never work in America, Mencken argued, since “even if they had no other sentiment in common, which would be rarely, judge and prisoner would often be fellow Democrats or fellow Republicans, and hence jointly interested in protecting their party against scandal and its members against the loss of their jobs.” He therefor proposed an alternative better suited to American conditions: “… any [American citizen], having looked into the acts of a jobholder and found him delinquent, may punish him instantly and on the spot, and in any manner that seems appropriate and convenient―and that, in case this punishment involves physical damage to the jobholder, the ensuing inquiry by a grand jury or coroner shall confine itself strictly to the question of whether the jobholder deserved what he got.”

Think of it as a modified version of the tort law approach—using a decentralized and privately prosecuted part of the legal system to control the public enforcers.

Add point about voters as rulers and limits of transparency.

More explicit about tort vs crime, divided law enforcement, consistent with enforcing.

Mention shunning as another “no enforcers” approach

Mention religious controls

Somewhere mention legal systems superimposed rather than embedded: Catholic in medieval Europe, Sharia over Muslim nations, Anglo-American common law

In customary law discussion, mention germanic law, common to many nations.

Mention Risinger (2007) for 3-5% wrongful conviction rate for rape/murders
Risinger, Michael. 2007. Innocents Convicted: An Empirically Justified Factual
Wrongful Conviction Rate. Journal of Criminal Law and Criminology, 97:
761-806.