• Robert Spicer

EP Thompson on the rule of 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!

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