Thursday, April 23, 2009
E. P. Thompson on the Rule of Law
"I sit here in my study, at the age of fifty, the desk and the floor piled high with five years of notes, xeroxes, rejected drafts, the clock once again moving into the small hours, and see myself, in a lucid instant, as an anachronism. Why have I spent these years trying to find out what could, in its essential structures, have been known without any investigation at all? And does it matter a damn who gave Parson Power his instructions; which forms brought 'Vulcan' Gates to the gallows; or how an obscure Richmond publican managed to evade a death sentence already determined upon by the Law Officers, the First Minister and the King?
[. . . .]
"I have shown in this study a political oligarchy inventing callous and oppressive laws to serve its own interests. I have shown judges who, no less than bishops, were subject to political influence, whose sense of justice was humbug, and whose interpretation of the laws served only to enlarge their inherent class bias. Indeed, I think that this study has shown that for many of England's governing elite the rules of law were a nuisance, to be manipulated and bent in what ways they could; and that the allegiance of such men as Walpole, Hardwicke or Patton to the rule of law was itself humbug. But I do not conclude from this that the rule of law itself was humbug. On the contrary, the inhibitions upon power imposed by law seem to me a legacy as substantial as any handed down from the struggles of the seventeenth century to the eighteenth, and a true and important cultural achievement of the agrarian and mercantile bourgeoisie, and of their supporting yeomen and artisans.
"More than this, the notion of the regulation and reconciliation of conflicts through the rule of law--and the elaboration of rules and procedures which, on occasion, made some approximate approach towards the ideal--seems to me a cultural achievement of universal significance.
[. . . .]
"I therefore crawl out onto my own precarious ledge. It is true that in history the law can be seen to mediate and to legitimize existent class relations. Its forms and procedures may crystallize those relations and mask ulterior injustice. But this mediation, through the forms of law, is something quite distinct from the exercise of unmediated force. . . . And if the actuality of the law's operation in class-divided societies has, again and again, fallen short of its own rhetoric of equity, yet the notion of the rule of law is itself an unqualified good.
[. . . .]
"[T]he trouble about law and justice, as ideal aspirations, is that they must pretend to absolute validity or they do not exist at all. . . . For 'the law', as a logic of equity, must always seek to transcend the inequalities of class power which, instrumentally, it is harnessed to serve. And 'the law' as ideology, which pretends to reconcile the interests of all degrees of men, must always come into conflict with the ideological partisanship of class."
--E. P. Thompson, Whigs and Hunters: The Origin of the Black Act, viz. part iv of "Consequences and Conclusions," "The Rule of Law," 258-269.