Monday, February 22, 2010

Rule of law? It's in the cards

Today I came across something I haven’t known yet. In Germany, there are things called police lawcards. These are tiny cards that fit your pocket and that contain (in tiny letters) the legal provisions and rules that guide certain (frequent) police measures: There is a card called ‚search and seizure’, ‚arrest’, and so forth. Police officers are supposed to carry these with them; and, yes, to look at them whenever they conduct these measures. I’m not sure whether American police uses cards like these. Do they?

The ads for the German cards usually argue: Faced with the situation, police officers need quick advice on what legal restraints apply to the measures they are about to conduct. German lawyers smile at these little cards or like to make fun of them. I think they shouldn’t. I think the cards are great and important and appropriate. It is a huge problem that the executive whose only job is to apply the law usually does not know the law. Especially where this application is potentially the most harmful to civil rights: police officers did not go to law school. I know they can’t. But Germany would benefit tremendously from a legal theory that views police work as what it is called in the US: law enforcement. I always loved that term. The police enforces the law, no more and no less. To know the law is not also important, it’s the most important part of their job. German legal theory is quite different. Germans think the police enforces security; if they obey the laws doing that, well, even better. That's unconstitutional. And German police officers need to be taught this. Perhaps with more cards.


  1. Interesting post, Viktor.

    As for you liking the term law enforcement, and thinking that the police do this, no more and no less, I would like to differ. The police have a tremendous amount of discretion on whom to approach, to detain, to interrogate, to let go with just a warning, etc. Studies on police discretion in the US have demonstrated the wide array of decisions police officers make. For example, for various reasons police officers will notice a violation of the law and decide not to proceed with the law enforcement process.

  2. Dear Adam, I believe you miss the essential point: All this is law. It is LEGAL discretion you are talking about. There is no discretion for police officers but the one they are provided with by the law. Of course, especially in the preventive area of police work, discretion is the very pillar of any police work. But this discretion has to be granted by the law and has to be used along legal guidelines which exist for the police as much as it does for the prosecution. Law enforcement in the preventive line of police work is, therefore, law enforcement and nothing more. If a police officer decides not to proceed with what you call the law enforcement process he is doing what I call law enforcement because the law allows him to do so; if the latter does not he is not allowed to make that decision.

  3. I actually prefer the term Sanford and Mortimer Kadish gave to the phenomenon of police discretion, such as not proceeding with an interrogation: "lawful departures from law".


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