Thorburn, Malcolm, "Policing and Public Office" 70 University of Toronto Law Journal 248-266 (2020).


In this paper, I argue that policing can be defended as consistent with the equality of all before the law – but not by denying that policing occupies a special place in our legal order that is dangerously close to certain ancien régime privileges. In order to defend the special privileges of policing, it is essential to show that they are something quite different from the ancien régime privileges that they in some respects resemble. The crucial conceptual tool for making that argument is the idea of public office. Policing, I argue, is a public office and like other public offices, it comes equipped with a number of special rights, privileges, powers, and immunities that are not generally possessed by all persons in their private capacity. But that situation is no challenge to the equality of all persons before the law. Those special rights do not belong to the office-holder as their private property, to do with them just as they would like. They belong, instead, to the office itself, and they may be exercised only by someone duly appointed to the office (who may also be duly removed from office) and only in pursuit of the purposes that define her office. The idea of public office is what makes possible a necessary and acceptable kind of inequality – that between individual private persons on the one hand and the collective person of the state on the other – while maintaining the kind of equality that matters, which is the equality of all persons vis-à-vis one another.