This article explores the history of vagrancy laws in England, the British Empire, and the British colonial world, the significance of those laws, the various challenges that were made to vagrancy laws in the twentieth century, and the limits of those challenges to date. While vagrancy laws preceded the nineteenth century, the 1824 Vagrancy Act in England set a new model, which proved extremely influential around the world over the following centuries. Between the early nineteenth and the early twentieth centuries, vagrancy laws were adopted or reformulated almost everywhere the British left a footprint. The laws that were adopted covered a broad range of (what the authorities considered) offenses and offensive ways of being, including impoverishment, idleness, begging, hawking, public gambling, sex work, public indecency, fortune-telling, traditional religious practices, drunkenness, homosexuality, cross-dressing, socializing across racial groups, being suspicious, and many other activities as well. They were adopted for a range of purposes: to control labor and limit workers' bargaining positions, including after the abolition of slavery; to define the boundaries of civilized, industrious, and moral society; and to "clean up the streets" and reinforce urban boundaries. Most overarchingly, vagrancy laws served as a practical and rhetorical means through which the discretionary power of the authorities, as enforced through the police and magistracy, was expanded. Far from constituting an object of challenge for 'rule of law' advocates, expansion in such discretionary authority was closely bound up with the expansion of the rule of law in theory and practice. While vagrancy laws began to be challenged in the mid-twentieth century, including through a decades-long anti-vagrancy law campaign in the United States that had significant success, they remain part of the law of numerous states around the world. In addition, even where explicit vagrancy laws have been abolished, vagrancy-type laws—laws that have granted the police discretionary authority to commit arbitrary detention, of the poor in particular—remain deeply embedded in the criminal law regimes of all former British jurisdictions. Overcoming the vagrancy law legacy will require recognizing and taking measures to reform the arbitrary, class-discriminatory police power vagrancy laws have helped entrench in common law legal orders.
Christopher Roberts, Discretion and the Rule of Law: The Significance and Endurance of Vagrancy and Vagrancy-Type Laws in England, the British Empire, and the British Colonial World, 33 Duke Journal of Comparative & International Law 181-251 (2023)
Available at: https://scholarship.law.duke.edu/djcil/vol33/iss2/2