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Police and the Liberal State$
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Markus D. Dubber and Mariana Valverde

Print publication date: 2008

Print ISBN-13: 9780804759328

Published to Stanford Scholarship Online: June 2013

DOI: 10.11126/stanford/9780804759328.001.0001

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Limited Liberty, Durable Patriarchy

Limited Liberty, Durable Patriarchy

Chapter:
(p.74) Four Limited Liberty, Durable Patriarchy
Source:
Police and the Liberal State
Author(s):

Mark E. Kann

Publisher:
Stanford University Press
DOI:10.11126/stanford/9780804759328.003.0005

This chapter presents an account of the failure of American criminal law to rethink the patriarchal foundations of English criminal law in light of the liberal principles of the Revolution. Despite the Revolution's rights rhetoric, criminal law remained grounded in the state's sovereignty, with the public peace simply replacing the king's peace as the formal object of protection. Police power was the king's (and later the public's) patriarchal power to regulate, in Blackstone's words, “the individuals of the state, like members of a well-governed family.” The king's power to keep the peace in turn traced itself back to the householder's peace of medieval law and, eventually, to the power of the Roman paterfamilias over his familia and the Athenian oikonomikos over his oikos. Prisons, which emerged as the predominant American penal sanction, were organized like households, under the discretionary authority of the warden-householder. Drawing on prisoners' memoirs, among other sources, the chapter evokes the experience of objects of penal police in the early Republic, placing the prison household within a structure of patriarchal government ranging from the family and the plantation, the workplace and the church, the military and the city, to the macro household of the (invisible) American state.

Keywords:   American criminal law, English criminal law, Revolution, state sovereignty, police power, prisons, household, patriarchal government

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