2000s >> 2000 >> no-1155-november-2000

The Law Society of England and Wales represents 76,000 solicitors. At the end of 1999 in the Society’s official poll for “Lawyer of the Millennium” the clear victor was Sir Thomas More the 16th-century Lord Chancellor. In some ways such a result seems unsurprising as More was an eminent lawyer of his day and has been respected by many subsequent generations of lawyers. On the other hand, it can be seen as a little more surprising when you consider that in Utopia, his most famous book, More depicted with apparent approval a society without law or lawyers. Turkeys don’t vote for Christmas, but lawyers, it seems, are possessed of a little less electoral foresight.

Sir Thomas More’s Utopia
More began writing Utopia in 1515 and it was published the following year. There is academic argument about whether the text should be read as a blueprint for More’s desired future or whether it should be seen simply as a provocative picture designed to generate debate. Either way, it is certainly worthy of our close consideration. Let me quote to you a few extracts. This is Raphael, the traveller who had visited the island of Utopia:

“I don’t see how you can ever get any real justice or prosperity, so long as there’s private property, and everything’s judged in terms of money—unless you consider it just for the worst sort of people to have the best living conditions, or unless you’re prepared to call a country prosperous, in which all the wealth is owned by a tiny minority—who aren’t entirely happy even so, while everyone else is simply miserable” (Penguin, 1961, translated by Paul Turner, p.63).

And again, and this is a theme worth warming to:

“I am quite convinced that you’ll never get a fair distribution of goods, or a satisfactory organisation of human life, until you abolish private property altogether. So long as it exists, the vast majority of the human race . . . will inevitably go on labouring under a burden of poverty, hardship and worry. I don’t say that the burden can’t be reduced, but you’ll never take it right off their shoulders. You might, of course, set a statutory limit to the amount of money or land that any one person is allowed to possess . . . You might make it illegal to buy, or even to apply for public appointment . . . laws of that type would certainly relieve the symptoms, just as a chronic invalid gets some benefit from constant medical attention. But there’s no hope of a cure, so long as private property continues” (p.66)

He goes on later to say that it was better “to provide everyone with some means of livelihood, so that nobody’s under the frightful necessity of becoming first a thief and then a corpse”.

In More’s perfect society there are no lawyers and every citizen was counted a legal expert. Since Utopians needed so few laws the simplest interpretation would always be the right one:

“they think it is better for each man to plead his own cause . . . the point at issue is less likely to be obscured . . . for if nobody is telling the sort of lies that one learns from lawyers, the judge can apply all his shrewdness to weighing the facts of the case”.

In Utopia he also says “they have no lawyers among them, for they consider them as a sort of people whose profession it is to disguise matters . . .” and as for the Utopians themselves he said,

“everyone of them is skilled in their law, for as it is a very short study, so the plainest meaning of which words are capable is always the sense of their laws . . . for it is all one, not to make a law at all, or to couch it in such terms that without a quick apprehension and much study, a man cannot find out the true meaning of it . . .”

Marx and Engels on law
In the 19th century the views of Karl Marx and Frederick Engels included an analysis of the way that law worked. In general it was their view that law was made to serve the interests of a ruling elite. For example consider this view from Engels:

“Laws are necessary only because there are persons in existence who own nothing; and although this is directly expressed in but few laws, as, for instance, those against vagabonds and tramps, in which the proletariat as such is outlawed, yet enmity to the proletariat is so emphatically the basis of the law that the judges and especially the Justices of the Peace, who are bourgeois themselves, and with whom the proletariat comes most into contact, find this meaning in the laws without further consideration. If a rich man is brought up, or rather summoned, to appear before the court, the judge regrets that he is obliged to impose so much trouble, treats the matter as favourably as possible, and, if he is forced to condemn the accused does so with extreme regret, etc etc and the end of it all is a miserable fine, which the bourgeois throws upon the table with contempt and then departs. But if a poor devil gets into such a position as involves appearing before the Justices of the Peace—he has almost always spent the night in the stationhouse with a crowd of his peers—he is regarded from the beginning as guilty; his defence is set aside with a contemptuous ‘oh, we know the excuse’, and a fine imposed which he cannot pay and must work out with several months on the treadmill.” (The Condition Of The Working Class In England).

In some ways, things appear to have changed:

• Today’s judges, most of whom are younger than Mick Jagger, are proponents of human rights and are against the death penalty
• The law is sometimes seen to be applied against erstwhile very powerful figures like Jonathan Aitken and Jeffrey Archer
• The 30,000 magistrates of England and Wales are drawn from a wider social band within the working class—witness last year’s poster campaign from the Lord Chancellor’s Department “Have you thought about being a Magistrate?”, depicting ordinary people standing at a bus stop or mending a road

But all these recent changes to the composition of the judiciary are rather superficial and cosmetic.

 

The class system, and the chasm between the rich and poor is still here. Look at Bill Gates. As Bill Bryson points out in his marvellously funny book Notes from a Big Country (1998), if you initialled one dollar per second you would make $1,000 every 17 minutes. After 12 days of non-stop effort, you would acquire your first $1 million. Thus it would take you 120 days to accumulate $10 million, and 1,200 days—something over three years—to accumulate $100 million. After 31.7 years you would become a billionaire, but it would still take you over 1000 years of signing a dollar every second to become as rich as Bill Gates.

The bulk of law accepts and promotes the existing set of social relations. It could when you think about it, do no other.

Writing in Theories of Surplus Value, Marx is quite sardonic about what it is that law has actually contributed to civilisation, he notes,

“The criminal moreover produces the whole of the police and of criminal justice, constables, judges, hangmen, juries, etc; and all these different lines of business, which form equally many categories of the social division of labour, develop different capacities of the human spirit, create new needs and new ways of satisfying them. Torture alone has given rise to the most ingenious mechanical inventions, and employed many honourable craftsmen in the production of its instruments.”

There is an absolutely enormous quantity of law (and lawyers) governing our social relations today. And it is growing. There has certainly been a significant increase in the number of lawyers per capita of the general population. In 1968 there were 54 million people in Britain of whom 23,000 were solicitors, whereas today we have a population of 60 million (11 per cent growth) and 75,000 solicitors (44 per cent growth).

The law in the library has also grown considerably over the years. In his inaugural lecture at Oxford in 1883, the distinguished constitutionalist A.V. Dicey noted that even until well into the 19th century it was possible for a person to read the entirety of English law (presumably within the compass of an ordinary adult life). It could be contained in under 200 volumes. Today, an earnest reader would probably need to live for over 600 years to read all law and regulations applicable in Britain.

But, after all, law does confer some advantages on us. Listen to Marx again:

“The effects of the criminal on the development of productive power can be shown in detail. Would locks have ever reached their present degree of excellence had there been no thieves? Would the making of bank notes have reached its present perfection had there been no forgers? Would the microscope have found its way into the sphere of ordinary commerce . . . but for trading frauds? Doesn’t practical chemistry owe just as much to adulteration of commodities and the efforts to show it up as to the honest zeal of production? Crime through its constantly new methods of attack on property, constantly calls into being new methods of defence, and so is as productive as strikes for the invention of machines. And if one leaves the sphere of private crime: would the world market ever have come into being but for national crime? Indeed, would even the nations have arisen? And hasn’t the Tree of Sin been at the same time the Tree of Knowledge ever since the time of Adam?”

Law as propaganda
There are, of course, a great many branches of law, of which Criminal Law is only one. The question sometimes arises as to why this particular area of law plays such a vital part in ordinary public discussions, is covered so extensively by the mass media, and is always high on political agendas? A proposed change to the perpetuity rule in constructive trusts would not usually be the newspaper editor’s choice for a front page banner headline, whereas a relatively small and technical change in the criminal law or procedure (like the current debate about the right to jury trial) is usually presented as a major item of news. The basic reason for this is that criminal law carries a symbolic and propaganda value as well as being the main set of rules to govern public order. Alan Norrie has pointed to the political use to which the criminal law was put in the 19th century, quoting the 1843 Report of the Criminal Law Commissioners:

“The high and paramount importance of the Criminal Law consists in this consideration, that upon its due operation the enforcement of every other branch of the law . . . depends. [And] there is [no branch] which is so capable of being made intelligible to all classes of persons, or which, in its relations and bearings, is calculated to excite greater attention and interest—none, the knowledge of which can tend more effectually to convince all ranks of Your Majesty’s subjects that the laws are founded on just principles.”

The historian Douglas Hay’s Albion’s Fatal Tree (1977) has also looked at the operation of law in a class context. In his account of Criminal Law Processes in 18th-century England it is Hay’s opinion that “criminal law more than any other social institution made it possible to govern the country without a police force or large army”. He looks at the apparent paradox that this century witnessed—both an enormous expansion in the number of capital offences, but at the same time a weak and declining enforcement of the law with frequent acquittals of defendants on technical grounds as well as frequent pardons or commutations of the death sentence.

Contemporary reformers of that time argued to little avail that property could be better protected and crime more efficiently controlled by a more serious commitment to the detection of crime and to certain but graded punishments. This argues Hay, though seemingly irrational, is explicable if we adopt the perspective that the social function of the criminal law was not the management of crime but the sustenance of the moral authority of the gentry and the creation of a complex and richly articulated system of social relationships of personal dependency that constituted the structure of power. The law was important as gross coercion. But it was equally important, he argued, as ideology. It’s majesty, justice and mercy helped to create the spirit of consent and submission, the “mind—forged manacles” which Blake saw binding the English poor.

Not all rules are law
The Soviet jurist Eugene Pashukanis in his work Law and Marxism: A General Theory (1929) developed a theory of law which saw it as arising from commodity relations. He used an example provided by Marx who analysed exchange in terms of the labour theory of value, albeit that the price-form of commodities extends to cover things which do not contain labour or have no economic function at all, e.g. a rare bird. In much the same way Pashukanis claimed that public law relations, for example criminal law between the state and the individual are simply an extension of forms generated by relations between commodity owners, albeit that the contents of such public law relations are less than adequate to this form.

In bringing out the specific character of legal regulation of behaviour, Pashukanis contrasts it with technical regulation by arguing that in the latter, singleness of purpose can be assumed whereas the basic element in legal regulation is contestation—two sides defending their rights.

Pashukanis illustrates the distinction between technical and legal regulation by assigning to the former such a thing as a railway timetable and to the latter a law concerning the responsibility of the railways to the consignors of freight. Those drawing up the timetable assume that all concerned are interested in the smooth running of the service whereas those parties to the freight contract have an eye to such things as who should suffer the consequences if something gets lost.

Pashukanis (who was liquidated by Stalin in 1937), wrote:

“human conduct can be regulated by the most complex regulations, but the juridical factor in this regulation arises at the point where differentiation and opposition of interests begin”.

In a socialist society, critical decisions affecting whole communities will not, as is so often the case today, be made undemocratically by a Board of Directors meeting privately or by some autocratic state committee as in China or Cuba. Decisions will have to be made democratically by anyone in the community who wishes to participate in the process and vote. Everyone will need to have access to any information they require. There will be no separate economic interests, as now, but there will of course be multifarious social interests. Experts and campaigners will disagree. If that sort of debate and progression through the clash of ideas ever ceases, society will stagnate. Some people will favour more rail transport infrastructure and others will be opposed, some will favour one form of energy development while others will disagree. These disputes will need to be democratically settled according to set procedures not dealt with all over society in a sort of random, capricious, chaotic way according to whatever mode of decision-making happened to prevail in a particular area at a particular time.

In order for this to be done reliably, and in a way which allows all citizens the comfort of knowing in advance of any decision how it will be made and how, if need be, it can be challenged, there will need to be rules. Anyone who thinks that all rules, by definition, are bad would need to ask whether he or she would say, if caught in a hotel fire, “bugger the Fire Rules about the procedures to be followed in the case of a fire, I’m not being dictated to, I’m jumping out the 12th floor window”. Rules are not always made by one person or group to oppress another.

A socialist society will have to operate according to rules. There will be lots of them. Who can practise medicine, who can pilot planes, who can drive cars, what procedures will be required to be followed in order to stop an allegedly incompetent person from practising, the procedures for deciding on whether society wishes to build more roads, and the priorities of using resources will all need to be governed by a democratic process which will require rules. A democratic process is not something you can make up as you go along.

Laws are a consequence of a buying and selling society that casts people in oppositional positions. And as Gerrard Winstanley put it in an early observation in 1649:

“. . . we must make use of gold and silver, as we do other metals, but not to buy and sell withall; for buying and selling is the great cheat that robs and steals the earth from one another. It is that which makes some lords, others beggars, some rulers, others to be ruled; and makes great murderers and thieves to be imprisoners and hangers of little ones, or of sincere hearted men” (“A Declaration from the Poor Oppressed People of England”, in The Law of Freedom and Other Writings, ed. Christopher Hill, 1973, p. 101).

GARY JAY