• Robert Spicer

E P Thompson on law

EP Thompson Thompson was a leading English historian, writer and peace campaigner. His leading work is generally recognised to be The Making of the English Working Class (1963). A former member of the Communist Party, he left the Party in 1956 following the Soviet invasion of Hungary. In Thompson’s opinion, there is a difference between arbitrary power and the rule of law. We ought to expose the shams and inequities which may be concealed beneath this law. But his view was that the rule of law itself, the imposing of effective inhibitions upon power and the defence of the citizen from power’s all-intrusive claims, is an unqualified human good. To deny or to belittle this good is, in this dangerous century when the resources and pretensions of power continue to enlarge, a desperate error of intellectual abstraction. More than this, it is a self-fulfilling error, which encourages us to give up the struggle against bad laws and class-bound procedures, and to disarm ourselves before power. It is to throw away a whole inheritance of struggle about law, and within the forms of law, whose continuity can never be fractured without bringing men and women into immediate danger. It is difficult to believe all this today (1979), argued Thompson, when the nation is being co-opted firmly to conservative ideology, when the “rule of law” passes silently to the “rule of existent capitalist law”, when politicians and some lawyers are continually thinking of new ways to law us all into subordination. The temptation grows for us to react by unmasking all law and to speak of abolishing it, of exposing the rule of law. Thompson’s view was that, in this country, the successive constitutional and legal rights of the citizen, from habeas corpus and the jury system onwards, rights of the press and of speech, rights of trade union organisation, cannot be seen as the products of bourgeois cunning, but as the products of successive struggles. The jury system originated when the bourgeoisie was not yet a glint in feudalism’s eye! Thompson stated that law matters. He commented that much law is now a very nasty business, in the service of money and property, and that some of the best-paid lawyers in London were in effect paid for finding out ways of breaking the law, finding loopholes for money to run through. Law, Thompson wrote, matters very much to a historian. The struggle to change class-bound laws and corrupt or class-bound procedures, and to preserve and extend the real gains of the practical struggles of the past, and to defend not only the trade union and labour movement but also the individual from the new pretensions and resources of state power, remains on the daily agenda.

Thompson, Writing by Candlelight Thompson commented further as follows: • Under the common law an Englishman is to be tried by his peers. These peers are to be selected at random, without respect to their beliefs or opinions, and to be subject to no influence of state. • When jurors enter the box, they enter also upon a role which has certain inherited expectations, and these expectations are inherited as much from our culture and our history as from books of law. There have been occasions in our history when that anonymous Gang of Twelve has withstood the whole awful pressure of both court and Crown. • The jury is the last place in our institutions where the people take a hand in administering themselves. • In the old days the profession of the law attracted many members of an uppish middle class. Lawyers might have Whiggish propensities, as advocates of the people against the Crown. Or they might have propensities which, while Tory, were profoundly paternalist, in which they could posture as fathers and protectors of the poor. • All this has long gone away (1980). There have been in this century, and there still are, outstanding and liberal-minded advocates. But this minority, for the purposes of promotion, put themselves out of court. A few have been permitted to pupate, but scarcely a single one to blow in ermine as a judge. Thompson referred to lawyers employed in the service of those who are working out means of avoiding tax and estate duties, setting up evasive trusts, engineering property-development and outwitting planning officers, promoting and merging companies in dubious ways, scrutinising complex legislation to find the pin-hole of unsealed logic through which money can make its leaky way. Law today, commented Thompson, can be a profoundly corrupting profession. In Thompson’s view, the rule of law is an unqualified human good. The rule of law must always be historically, culturally and, in general, nationally specific. It concerns the conduct of social life, and the regulation of conflicts, according to rules of law which are exactly defined and have palpable and material evidences – which rules attain towards consensual assent and are subject to interrogation and reform. That this itself is an ideal definition, which takes little account of social and ideological determinants of property and class, and which has never been matched by social reality, does not mean that the aspiration towards that state is not a human good.

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