Markus D. Dubber – The Police Power (2005)

The PoliceA state institution responsible for maintaining public order, enforcing laws, and preventing crime. Power: Patriarchy and the Foundations of American Government (2005) is a foundational work by German-American legal scholar Markus D. Dubber. Following the tradition of critical legal philosophy, Dubber uncovers the genealogical and ideological roots of the state monopoly on violence—particularly executive power that operates not through criminal law, but through mechanisms of social control. His central concept is that of “police power”—a form of state authority that does not stem from the rule of law but from premodern notions of order.

Social Context and Theoretical Framework

Dubber’s analysis is embedded in a critical reflection on the liberal rule-of-law state. He shows that modern societies are governed not only through laws and individual rights, but also through deeper control mechanisms: policing, administration, surveillance, discipline. Drawing on Michel Foucault’s concepts of governmentality and disciplinary power, Dubber sharpens these ideas through a legal-historical lens.

At the core of his argument is the distinction between two types of power:

• Law PowerThe capacity to influence others and shape outcomes, even against resistance.: Traditional criminal law power, bound by procedures, legality, and constitutional guarantees.
• Police Power: The broad executive authority to guarantee order, security, and morality—even without individual wrongdoing or judicial oversight.

According to Dubber, this “police power” is not a remnant of premodern rule but the very foundation of state power—particularly in the United States.

Examples: Typical Applications of Police Power

Beyond conventional criminal law, police power manifests in numerous practices, such as:

• Preventive detention: Detaining individuals without specific criminal acts to maintain “public order”—common during protests or football matches.
• Risk-based policing: Measures like identity checks, stop-and-search, or dispersal orders triggered by abstract suspicion rather than concrete offenses.
• Preventive video surveillance: Monitoring public spaces without individual suspicion, justified by generalized risk scenarios.
• Administrative restrictions: Imposing conditions or bans on assemblies and protests based on “police risk assessments.”
• MigrationThe movement of people from one country or region to another for residence, work, or protection. control: Deportation custody, residency obligations, or anchor centers operating outside the scope of criminal law.
• Child protection: Juvenile courts and welfare agencies intervene preemptively based on moral or pedagogical concerns, not necessarily criminal acts.

Key Points

Core Arguments

Dubber argues that modern criminal law represents only the visible tip of a much broader apparatus of power. Beneath formal punishment lies an executive state authority aimed at control, prevention, and discipline—active in policing, administration, healthcare, and immigration. This power structure is modeled on the patriarchal household, with the pater familias governing not by law, but through care, surveillance, and sanction.

“Police power,” then, is a premodern form of rule in modern guise. It operates not through legally defined offenses but through the perception of risk, threat, and deviance. It legitimizes preventive action, free from legal constraints—seen in deportations, preventive detentions, or surveillance operations.

Dubber criticizes the lack of reflection and legal limits surrounding this power. It is often seen as “natural,” “necessary,” or “technical,” even though it structurally enables authoritarianism and reproduces social inequality.

What Is “Police Power”?

In Anglo-American legal thought, police power refers to the broad authority of the state to act in the interest of public order, health, safety, and morality. It goes far beyond traditional policing—it encompasses all executive measures aimed at social regulation and discipline, from health codes to preventive confinement.

Dubber’s critique: This power is historically rooted in patriarchal, absolutist thinking and remains largely unchecked. Contrasted with liberal “law power,” it becomes clear how pervasive—and simultaneously vague—police power is as a tool of governance.

Contemporary Relevance

Dubber’s analysis remains strikingly relevant. In June 2025, President Donald Trump deployed over 4,000 National Guard troops and 700 Marines to Los Angeles without the consent of California’s government, aiming to suppress protests against his immigration policies (see Blood, 2025). This incident illustrates how police power is politically instrumentalized—an executive capacity that bypasses ordinary legal limits. It confirms Dubber’s thesis: In times of crisis, the concept of “police” becomes less about law and more about power.

Conclusion

The Police Power is a groundbreaking contribution to critical legal and criminological scholarship. It exposes how authoritarian, patriarchal, and premodern conceptions of order continue to shape modern institutions—particularly where control, surveillance, and prevention are concerned.

Dubber’s work sheds light on the everyday workings of state power: Police, immigration agencies, regulatory authorities, and public health institutions often act not in the name of law, but under the veil of a historically embedded, largely unregulated police power. For critical criminology, Dubber provides a normative and analytical framework that moves far beyond traditional critiques of criminal law—toward a comprehensive theory of the security state.

Further Reflections: Dubber vs. Foucault

In Discipline and Punish (1975), Michel Foucault traces the historical development of punishment and power technologies. His focus lies on the shift from sovereign power to disciplinary and biopolitical control through institutions like prisons, schools, and hospitals.

Markus Dubber builds on Foucault’s insights but emphasizes the legal-historical and institutional dimensions of state control. With the concept of police power, he shows that such control is not just a modern development, but rooted in patriarchal forms of authority—particularly the household model of the pater familias.

Similarity: Both authors reject the notion that modern societies are governed solely by law and liberty. They highlight control, discipline, and prevention as central pillars of state power.

Difference: Foucault explores the microphysics of power and its historical transformations; Dubber analyzes the legal continuity and ideological persistence of executive authority within the security state.

Reception and Current Significance

Since its publication in 2005, The Police Power has had a wide impact on legal theory, political science, and critical criminology. Dubber’s critique of the premodern logic behind the security state resonates in debates about racial profiling, mass incarceration, and immigration enforcement.

More recently, the Black Lives MatterA social movement against systemic racism and police violence. movement has drawn attention to exactly those executive practices that Dubber critiques: police violence, selective control, and structural discrimination. In Europe, too—regarding the treatment of refugees or the expansion of police powers—Dubber’s distinction between police power and law power is gaining analytical traction.

His work remains highly relevant: It challenges us to rethink the hidden foundations of state authority—beyond criminal codes and courtrooms, embedded in the administrative governance of everyday life.

References

• Dubber, M. D. (2005). The Police Power: Patriarchy and the Foundations of American Government. New York: Columbia University Press.
• Blood, M. R. (2025, June 11). California governor says ‘democracy is under assault’ by Trump as feds intervene in LA protests. The Associated Press. https://apnews.com/article/donald-trump-gavin-newsom-california-immigration-protests-a6467fcd3fa66c945ac7c15c40362972
• Foucault, M. (1975). Discipline and Punish. New York: Pantheon Books.
• Wacquant, L. (2009). Punishing the Poor. Durham: Duke University Press.