Over the next posts, I hope to lay out some material on which I have been working lately: material which relates more or less directly to my dissertation in progress.
My dissertation is a study of the “cultural worker” and the twentieth century. Before I sketch out what I think I mean by the “cultural worker” and the “twentieth century” (this gesture of putting-off or procrastination may last for several weeks): maybe I should say a little bit more about where I am coming from.
I think of this project as a work of legal history within the subfield called “law and the humanities.” “Law and humanities” is one of the names–-I don’t think there is a definitive one––for the qualitative study of law and culture, under the influence of Critical Legal and Critical Race Theory. This subfield emerged as an explicit rejoinder to “law and economics” in the 1970s, and persists as a critique of current positivist and data-driven fashions, such as legal behavioralism.
Why approach the question of the “cultural worker” from the perspective of law and humanities? The answer is simple: first, “culture” is the traditional domain of the humanities; and, second, the “cultural worker”––a figure who, by most measures, did not exist in the early nineteenth century, and yet who, today, is a dominant character within the political economy of capitalism––is a product of the law.
This may seem like a stretch, but I mean this is no more exotic a sense than the “manager” or “supervisory” worker is a product of law (as Nelson Lichtenstein has shown in regard to efforts of foremen to form labor unions in the 1940s), or, as Jean-Christian Vinel explains in an excellent recent study, the category “employee” emerged out of a series of legal battles.
My emphasis on the constitutive force of law derives in large part from legal scholars Robert Gordon and Christopher Tomlins. It also owes a great debt to the revisions of Marxist theory and its model of “base and superstructure” proposed, in different ways, by Raymond Williams and E.P. Thompson in the 1970s (revisions that, strangely enough, writers like Gordon and Tomlins sometimes presented as antagonistic to their own projects).
My sense is that Williams and Thompson sought ultimately to erect a “legal Marxism” in place of the various (unsatisfying) “culturalisms” and “structuralisms” that had sprung up within Marxist theory during the New Left Era.
Williams’s notion of the “limits and pressures” imposed by the material “base” upon the ideational realm of the “superstucture,” proposed as an alternative to vulgar “determination,” leads inexorably to a juridical model (not dissimilar, in fact, to the way pragmatist lawyers in the US viewed the common law). In fact, much of the language of contemporary jurisprudence (the “chilling effect” of censorship, the “sting” of a libelous charge, the “total look and feel” of a text in copyright cases) resonates with Williams’s conceptual innovations in “Rethinking Base and Superstructure.”
Thompson, in Whigs and Hunters, provides a strong argument for “legal history” as an alternative to the baroque machinery of structures and last-instance determination. Thus, it is to Whigs and Hunters that we will attend, mostly, today.
Put very crudely—if the problem for a Marxist is how to think about ideas in a manner that is both materialist and historical (how does thinking about ideas as determinant, in other words, not lead us into the forbidden city of “Idealism”?), then Thompson’s solution is: “law.”
Law, for Thompson, is “clearly an instrument of the de facto ruling class: it both defines and defends these rulers’ claims upon resources and labour-power––it says what shall be property and what shall be crime––and it mediates class relations with a set of appropriate rules and sanctions, all of which, ultimately, confirm and consolidate existing class power.”*
But this does not make law merely “another mask for the rule of a class.” The law is surprisingly public: when it dominates, it dominates as “class theater,” not as a secret source of mystification and elite hegemony.
While a Marxist should recognize that the “greatest of all legal fictions is that the law itself evolves, from case to case, by its own impartial logic, true only to its own integrity, unswayed by expedient considerations,” the proper corrective to this vain self-presentation of the law is not the conspiratorial one. Rather, one should insist that class struggle and putatively “exogenous” political and economic forces shape the law at least as forcefully as the abstract currents of juridical philosophy.
“If we suppose that law is no more than a mystifying and pompous way in which class power is registered and executed,” Thompson writes, “then we need not waste our labour in studying its history and forms.”
“It is only when we follow through the intricacies of (the law’s) operation that we can show what it was worth,” he continues.” how it was bent, how its proclaimed values were falsified in practice.”
Our contempt for the hypocrisy of many who have acted as custodians of the law stems not from our hatred “of the notion of a just and equitable law but because this notion has been betrayed by its own professors.”
“For the trouble about law and justice, as ideal aspirations, is that they must pretend to absolute validity or they do not exist at all.” The law, therefore, is the site of contradiction (perhaps the site of the most acute contradiction within capitalism’s ideological field): “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.” 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 a class.”
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.
It seems appropriate to conclude these reflections on Thompson and legal theory with a ridiculously long quote from Whigs and Hunters, justly famous (and yet, it often strikes me, under-read), and always worth another look:
First, analysis of the eighteenth century (and perhaps of other centuries) calls in question the validity of separating off the law as a whole and placing it in some typological superstructure. The law, when considered as institution (the courts, with their class theatre and class procedures) or as personnel (the judges, the lawyers, the Justices of the Peace) may very easily be assimilated to those of the ruling class.
But all that is entailed in ‘the law’ is not subsumed in these institutions. The law may also be seen as ideology, or as particular rules and sanctions which stand in a definite and active relationship (often a field of conflict) to social norms; and, finally, it may be seen simply in term of its own logic, rules and procedures––that is, simply as law. And it is not possible to conceive of any complex society without law. We must labor this point, since some theorists today are unable to see the law except in terms of ‘the fuzz’ setting about inoffensive demonstrators or cannabis-smokers. I am no authority on the twentieth century, but in the eighteenth century matters were more complex than that.
To be sure, I have tried to show, in the evolution of the Black Act, an expression of the ascendancy of a Whig oligarchy, which created new laws and bent old legal forms in order to legitimize its own property and status; this oligarchy employed the law, both instrumentally and ideologically, very much as a modern structural Marxist should expect it to do. But this is not the same thing as to say that the rulers had need of law, in order to oppress the ruled, while those who were ruled had need of none.
What was often at issue was not property, supported by law, against no-property; It was alternative definitions of property-rights: for the landowner, enclosure; for the cottager, common rights; for the forest officialdom, ‘preserved grounds’ for the deer; for the foresters, the right to take turfs. For as long as it remained possible, the ruled––if they could find a purse and a lawyer––would actually fight for their rights by means of law; occasionally the copyholders, resting upon the precedents of sixteenth-century law, could actually win a case.
When it ceased to be possible to continue the fight at law, men still felt a sense of legal wrong: the propertied had obtained their power by illegitimate means. Moreover, if we look closely into such an agrarian context, the distinction between law, on the one hand, conceived of as an element of ‘superstructure,’ and the actualities of productive forces and relations on the other hand, becomes more and more untenable.
For law was often a definition of actual agrarian practice, as it had been pursued ‘time out of mind.’ How can we distinguish between the activity of farming or of quarrying and the rights to this strip of land or to that quarry? The farmer or forester in his daily occupation was moving within visible or invisible structures of law…
Hence ‘law’ was deeply imbricated within the very basis of productive relations, which would have been inoperable without this law. And, in the second place, this law, as definition or as rules (imperfectly enforceable through institutional legal forms), was endorsed by norms, tenaciously transmitted through the community. There were alternative norms; that is a matter of course; this was a place, not of consensus, but of conflict. But we cannot, then, simply separate off all law as ideology, and assimilate this also to the state apparatus of a ruling class. On the contrary, the norms of foresters might reveal themselves as passionately supported values, impelling them upon a course of action which would lead them into bitter conflict–– with ‘the law’…
For what we have observed is something more than the law as a pliant medium to be twisted this way and that by whichever interests already possess effective power. Eighteenth-century law was more substantial than that. Over and above its pliant, instrumental functions it existed in its own right, as ideology; as an ideology which not only served, in most respects, but which also legitimized class power.
The hegemony of the eighteenth century gentry and aristocracy was expressed, above all, not in military force, not in the mystifications of a priesthood or of the press, not even in economic coercion, but in the rituals of the study of the Justices of the Peace, in the quarter-sessions, in the pomp of Assizes and in the theatre of Tyburn. Thus the law (we agree) may be seen instrumentally as mediating and reinforcing existent class relations and, ideologically, as offering to these a legitimation…
For if we say that existent class relations were mediated by the law, this is not the same thing as saying that the law was no more than those relations translated into other terms, which masked or mystified the reality. This may, quite often, be true but it is not the whole truth. For class relations were expressed, not in any way one likes, but through the forms of law; and the law, like other institutions which from time to time can be seen as mediating (and masking) existent class relations (such as the Church or the media of communication), has its own characteristics, its own independent history and logic of evolution.
Moreover, people are not as stupid as some structuralist philosophers suppose them to be. They will not be mystified by the first man who puts on a wig.
It is inherent in the especial character of law, as a body of rules and procedures, that it shall apply logical criteria with reference to standards of universality and equity…
Most men have a strong sense of justice, at least with regard to their own interests. If the law is evidently partial and unjust, then it will mask nothing, legitimize nothing, contribute nothing to any class’s hegemony. The essential precondition for the effectiveness of law, in its function as ideology, is that it shall display an independence from gross manipulation and shall seem to be just.
It cannot seem to be so without upholding its own logic and criteria of equity; indeed, on occasion, by actually being just. And furthermore it is not often the case that a ruling ideology can be dismissed as a mere hypocrisy; even rulers find a need to legitimize their power, to moralize their functions, to feel themselves to be useful and just.
In the case of an ancient historical formation like the law, a discipline which requires years of exacting study to master, there will always be some who actively believe in their own procedures and in the logic of justice.
The law may be rhetoric, but it need not be empty rhetoric…
Douglas Hay, in a significant essay in Albion’s Fatal Tree, has argued that the law assumed unusual pre-eminence in that century, as the central legitimizing ideology, displacing the religious authority and sanctions of previous centuries.
It gave way, in its turn, to economic sanctions and to the ideology of the free market and of political liberalism in the nineteenth. Turn where you will, the rhetoric of eighteenth-century England is saturated with the notion of law.
Royal absolutism was placed behind a high hedge of law; landed estates were tied together with entails and marriage settlements made up of elaborate tissues of law; authority and property punctuated their power by regular ‘examples’ made upon the public gallows. More than this, immense efforts were made (and Hay has explored the forms of these) to project the image of a ruling class which was itself subject to the rule of law, and whose legitimacy rested upon the equity and universality of those legal forms.
And the rulers were, in serious senses, whether willingly or unwillingly, the prisoners of their own rhetoric; they played the games of power according to rules which suited them, but they could not break those rules or the whole game would be thrown away.
And, finally, so far from the ruled shrugging off this rhetoric as a hypocrisy, some part of it at least was taken over as part of the rhetoric of the plebeian crowd, of the ‘free-born Englishman’ with his inviolable privacy, his habeas corpus, his equality before the law…
For in the sixteenth and seventeenth centuries the law had been less an instrument of class power than a central arena of conflict. In the course of conflict the law itself had been changed; inherited by the eighteenth-century gentry, this changed law was, literally, central to their whole purchase upon power and upon the means of life.
Take law away, and the royal prerogative, or the presumption of the aristocracy, might flood back upon their properties and lives; take law away and the string which tied together their lands and marriages would fall apart.
But it was inherent in the very nature of the medium which they had selected for their own self-defense that it could not be reserved for the exclusive use only of their own class.
The law, in its forms and traditions, entailed principles of equity and universality which, perforce, had to be extended to all sorts and degrees of men.
And since this was of necessity so, ideology could turn necessity to advantage. What had been devised by men of property as a defense against arbitrary power could be turned into service as an apologia for property in the face of the propertyless.
And the apologia was serviceable up to a point: for these ‘propertyless,’ as we have seen, comprised multitudes of men and women who themselves enjoyed, in fact, petty property rights or agrarian use-rights whose definition was inconceivable without the forms of law.
Hence the ideology of the great struck root in a soil, however shallow, of actuality. And the courts gave substance to the ideology by the scrupulous care with which, on occasion, they adjudged petty rights, and, on all occasions, preserved proprieties and forms.
We reach, then, not a simple conclusion (law = class power) but a complex and contradictory one. On the one hand, it is true that the law did mediate existent class relations to the advantage of the rulers; not only is this so, but as the century advanced the law became a superb instrument by which these rulers were able to impose new definitions of property to their even greater advantage, as in the extinction by law of indefinite agrarian use-rights and in the furtherance of enclosure.
On the other hand, the law mediated these class relations through legal forms, which imposed, again and again, inhibitions upon the actions of the rulers. For there is a very large difference, which twentieth-century experience ought to have made clear even to the most exalted thinker, between arbitrary extra-legal power and the rule of law.
And not only were the rulers (indeed, the ruling class as a whole) inhibited by their own rules of law against the exercise of direct unmediated force (arbitrary imprisonment, the employment of troops against the crowd, torture, and those other conveniences of power with which we are all conversant), but they also believed enough in these rules, and in their accompanying ideological rhetoric, to allow, in certain limited areas, the law itself to be a genuine forum within which certain kinds of class conflict were fought out…
The rhetoric and the rules of a society are something a great deal more than sham. In the same moment they may modify, in profound ways, the behavior of the powerful, and mystify the powerless. They may disguise the true realities of power, but, at the same time, they may curb that power and check its intrusions. And it is often from within that very rhetoric that a radical critique of the practice of the society is developed: the reformers of the 1790s appeared, first of all, clothed in the rhetoric of Locke and of Blackstone.
These reflections lead me on to conclusions which may be different from those which some readers expect. 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 Paxton to the rhetoric of law was largely 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 do not lay any claim as to the abstract, extra-historical impartiality of these rules. In a context of gross class inequalities, the equity of the law must always be in some part sham…
I am not starry-eyed about this at all… I am insisting only upon the obvious point, which some modern Marxists have overlooked, that 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 the rule of law itself, the imposing of effective inhibitions upon power and the defense of the citizen from power’s all-intrusive claims, seems to me to be an unqualified human good. To deny or 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.