The Sense of Public Order

With the widespread social unrest unfolding in the USA following the police murder of George Floyd in Minneapolis, we are once again confronted by the horrifying exceptionality of public order enforcement. The problem, however, is that we understand the videos of police beating, shooting and gassing protestors as the contemporary meaning of public order. In other words, public order is understood as the power that the police deploy when the populace is restive. In Law and Disorder, (the book Ive been working on for most of the last decade, and soon to be out Routledge), I insist that we must go beyond this sporadic view of public order. Instead of something police do dressed in body armour, public order needs to be understood as an everyday affective structure of the sovereign order. It is the way in which the sovereign order constitutes a racialised atmosphere in public space. Once we understand this everyday sense of public order, we can begin to see that what the protestors across the US are doing is tearing up precisely that order that kills black men and women every day. They insist that the murderous, racialised or tilted affective field of everyday public order cannot continue. What follows is a brief excerpt from the book:

In a widely cited police case from 1930, Justice McCardie makes a useful observation about the nature of public order. He explains that ‘order’ is the condition established by the state, upon which (what he calls) the ‘honest citizens’ ‘may go about their affairs in peace’.[1] Public order is understood as the condition on which everyday life can subsist. There is a certain calm or orderliness, which is difficult to identify precisely because when undisturbed it is nothing but the background of everyday activity. Public order is precisely what fades into the background, becoming hidden from sense perception.[2] Arthur G. Keech (the Inspector in charge of training the Kent County Constabulary in the UK) gives us a different way into the same question. He explains the importance of building a feeling of security for the populace at the very end of a short pocket-book aimed at a police audience. This is done, he argues, in a police officer’s minute interactions on the beat, on the street-corner, or outside the school gates. ‘This is the man who has built up the feeling which, on the part of the public, means security’.[3] Keech meant to leave the police who would be reading this pocketbook with that warm and fuzzy feeling. They could rely on the general public for support and cooperation, just as the public could rely upon them for security. The police officer should radiate this feeling, leaving his affective trace as he moved through the populace. As the guardian of the sovereign’s order, the police officer had to understand the affective fug through which he moved and act upon it. While Justice McCardie’s observation zooms us out, providing a god’s-eye view of public order, Keech’s police officers were in the midst of this affective life.

In his Hamlyn Lectures of 1953, Sir Carelton Allen briefly underscores the affective structure of this sense of public order. He writes:

The ‘peace of our Sovereign Lady the Queen’ [public order] has been described by… Maitland, as an ‘all-embracing atmosphere’ in our law, and, we may add, in our whole social life. We could not breathe in any other atmosphere, and we take it for granted as if it were part of the order of nature.[4]

Allen gives thanks to the sovereign for creating a sort of biosphere, an affective atmosphere of peace that facilitates human life. ‘[E]ach of us is a trustee of that ‘peace-and-quiet’ which is all men’s desire’ he says.[5]… But Allen also underlines an an-aesthetic function which was hinted at by Keech and McCardie. He writes: ‘we take it for granted as if it were part of the order of nature.’ His point is that this atmosphere is not ‘natural’ order, it is not just found out there in the world. It has to be produced. But when it is produced effectively, we attune to it. The populace is not supposed to feel it because it works affectively, shifting their bodily reactions.

I say that the populace is not supposed to feel it, but actually this is not exactly correct. If we return to Justice McCardie’s formulation, we can see an important delineation. If public order is sound and secure, the ‘honest citizen’ can go about his own business, moving through the smoothed space of the public sphere. However, within this is the implication of certain ‘others’ – the not-so-honest citizens, the suspect populations for whom public space is striated.[6] For them public order cannot fade into the background. When Eric Garner died in Brooklyn insisting that he could not breathe beneath the chokehold of the police officer, his final words seemed to crystallise a sense of a public order that renders certain bodies ‘suspect’.[7] He could not breathe beneath the intense police discipline; He could not breathe as a black man; He could not breathe and it killed him. In the claustrophobia of public order, the atmosphere itself was hostile. Racialised discipline, police power, these are modes of asphyxia. When Allen writes that public order is an atmosphere where ‘we’ can breathe, and that ‘we’ take for granted, he invisibilises those suspect populations. They are not part of his ‘we’.

Allen misses what the old critical legal theorists used to call ‘tilt’. Thinking about public order as a tilted affective field draws us away from the familiar knots of disagreement, where these questions can be reduced to bad police officers, or a mud-slinging contest about whether some offense might have occurred before the police arrived on the scene. Public order is a tilted affective field, it is tilted in a systematic way.[8] The atmospheres of public order are not neutral and inert. They are one of the ways in which the sovereign’s order can enhance the capacity of the ‘honest citizen’ to undertake an almost infinite variety of acts in public, but it also must diminish the capacity to act of suspect populations.[9] This is the crack from which the latent exceptionality of public order seeps out into the everyday. Crucially, these suspect populations cannot afford to take the benignness of public order for granted. There is no anaesthetics for these bodies, they must be affectively hypersensitive.

When disorder breaks out, the suspicion begins to spread. The state apparatus focuses in on the protest organisers and organisations. The state of enmity that existed for the suspect populations is extended to those who enact their dissent. The difference, however, is that the general disorder begins to tear the fabric of normality wherein the populace is anaethetised to the affective order of sovereignty. The temper of the populace is excited. Irritated and angry, people come to the streets. Their force of numbers builds new atmospheres, which then seep out into the streets. In other words, the calm order of sovereignty is increasingly in question. Both protests and their policing are focused upon the affects of the disorderly scene. The state of unrest names the point in time where sovereign affects no longer dominate the affective life of the populace, and desires and beliefs around new forms of sovereignty begin to emerge.

 

[1]  McCardie J. in Fisher v. Oldham Corporation [1930] 2 KB 364

[2] Illan rua Wall, ‘Law’s Ordinary Affects’ Law Culture and the Humanities (forthcoming)

[3] Arthur Keech, Public Order (Jordan and Sons Ltd: London, 1952), 46. The police create a feeling of security, but as we have seen in Benjamin, it is exactly the question of a ‘security situation’ that allows police to deploy their exceptional force. For a intriguing analysis of security atmospherics, see Peter Adey, ‘Security Atmospheres or the Crystallisation of Worlds’, 32 Environment and Planning D: Society and Space, (2014) 834

[4] Sir Carelton Kemp Allen, The Queens Peace (Stevens and Sons Ltd, 1953), 3. I am extremely grateful to Nina Power for this reference!

[5] Allen The Queen’s Peace, 183

[6] Darren Ellis, Ian Tucker and David Harper underline the role of surveillance in this type of striation. See Darren Ellis, Ian Tucker and David Harper, ‘The Affective Atmosphere of Surveillance’ 23.6 Theory and Psychology (2013), 716

[7] For a full account of Garner’s death see: Matt Tabbi, I Can’t Breathe: A Killing on Bay Street (New York: Spiegel & Grau, 2017) For a specifically atmospheric account of breath, see Marijn Nieuwenhuis ‘Breathing Materially: Aerial Violence at a Time of Atmospheric Politics’ 9.3 Critical Studies on Terrorism, (2016) 513. Kashif Jerome Powell ‘Making #BlackLivesMatter: Michael Brown, Eric Garner, and the Spectres of Black Life – Towards a Hauntology of Blackness’ 16.3 Cultural Studies – Critical Methodologies (2016) 253

[8] Tabbi, I Can’t Beathe, 136, 300. Paul Passavant ‘I Can’t Breathe: Heeding the Call of Justice’ 11.3 Law, Culture and the Humanities (2015), 330

[9] Alison Young writes: ‘What is the secret that is obscured in our cities? It is the secret of everyday violence, raining down upon individuals as they attempt to move through everyday life.’ (Alison Young, Arrested Mobilities: Affective Encounters and Crime Scenes in the City’ Law Culture and the Humanities (forthcoming) 17).

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