Cassandra Voices

Tag: David Langwallner Cassandra Voices

  • Reform of Defamation Law in Ireland

    Irish Times journalist Naomi O’Leary wrote an article recently commenting on how journalists are curtailed in what they can write by the threat of defamation actions, which contributes to an omerta or code of silence, undermining free speech.

    This leads to self-censorship, dictated by fear of suit. But the Irish Times trust also appears to be compromised by association with vested interests, which dictate the blandishments and glorified stenography passing for journalism commonly encountered in its pages.

    In the aforementioned article, O’Leary cited emotive evidence of a landlord attempting to evict ‘an entire apartment block’, and a civil society group ‘highlighting privatisation in healthcare’ being silenced. She notes, fawningly, that Minister for Justice Simon Harris this week ‘laid out a planned defamation reform, saying it should not be perceived as a “rich man’s law”.’

    Does she seriously think that any reform of defamation laws has simply been designed to restrict the casino capitalism of the current level of awards in defamation cases?

    Indeed, in some instances a high level of damages is appropriate. For example, Lord Aldington was entitled to millions in damages for the outrageous slur that he had participated in sending the Cossacks back to Stalin. The unjustified staining of reputations with crimes against humanity requires vigorous restraints.

    Reforms

    Predictably, the draft guidelines for what lies in store do not look auspicious, as it appears designed to protect the powerful, who dominate legacy media.

    It should be noted that recently both Taoiseach Leo Varadkar and Tánaiste Micheál Martin suggested that Sinn Féin were using legal action and menacing solicitors’ letters to undermine free speech and robust questioning of political motives. There was obvious concern arising out of strict conditions for an RTÉ interview with Shane Ross, discussing his biography of Mary Lou McDonald.

    I have some empathy with Ross – whose views I generally find abhorrent – as when I went on RTÉ they stipulated certain matters, such as overt criticism of the Gardaí, were out of bounds.

    What Ross wrote about the Sinn Féin leader may not have been defamatory, but simply ideologically tainted.  After all, Ross has what might be regarded as extreme views on certain issues, as, arguably, do elements within Sinn Féin. The difference is that Ross is indulged by the establishment with publishing deals and a column in a Sunday paper. Go figure.

    If you want to be a journalist in Ireland it is generally advisable to espouse neo-liberal views.

    Leo-Liberal.

    Village’s ‘Putinistas’

    Moreover, remarks made by Leo Varadkar last year in an interview with the Sunday Times to the effect that those associated with the Leo the Leak story in Village Magazine were Russian sympathisers is a classic example of the degradation of contemporary political discourse, conveyed by media which offers an uncritical platform to those in power. It was, of course, clearly defamatory towards its editor Michael Smith, who has been vocal in his condemnation of Vladimir Putin.

    He might not expect a justified windfall, however, if the case comes before a Fine Gael-appointed judge, as opposed to a jury, as the defamation bill proposes.

    The renowned jurist Geoffrey Robertson QC has criticised gagging orders silencing critics, which serves the interests of the kleptocracy, including Russian oligarchs, in a recent book. but be we should be careful for what we wish for.

    A gagging orders might have been appropriate to counter Labour’s recent absurd slur against Rishi Sunak, which Keir Starmer doubled down on despite internal criticism from within his own party. All too often it has been the fake left, epitomised by Alastair Campbell, which has pandered to press hysteria in criminal justice in the UK.

    Blackmail

    I note the word ‘aggressive’ being used by Ms O’Leary in the context of pre-emptive threats, which is similar to the menace required to ground the criminal offence known as blackmail; the definition of which is menace backed by threats. Such tactics are something the government parties in Ireland and apparatchiks in the police and justice department know a considerable amount about.

    So, spurious defamation actions for ulterior motives may come close to the criminal charge of blackmail backed by threats, but only if these are spurious and untrue. But what if they are true? And where should the balance lie?

    It is almost universally agreed, including, apparently, by the incumbent Minister for Justice, Simon Harris that ‘Democracy cannot truly flourish without robust protection for the right of freedom of expression.’ In a certain respect, however, this Bill will in fact seriously curtail freedom of expression, a point that Naomi O’Leary strikingly ignores.

    Indeed, one wonders whether the whole article was conceived in cahoots with said Minister, who she has previously quoted approvingly over his role in the repeal of the Eighth Amendment, while ignoring that he once adopted a Pro-Life stance. The article is also presented with a flattering shot of the Minister emblazoned over it, depicting him as the champion of free speech.

    Online Disclosure

    Freedom of expression is the central hallmark of a democracy. Anthony Lewis, referring to the First Amendment of the US Constitution, said that free speech should be a search engine for the truth. The great legal scholar Ronald Dworkin argued that free speech is a condition of legitimate government and a counterweight to hysteria and unreason. Stephen Sedley, a great English judge, called it the lifeblood of a democracy. Freedom of speech also opens the government and indeed opposition to intense scrutiny. The prior restraint of gagging orders invites scepticism.

    So, bearing this in mind, let us explore the motivation of the current government for reforming the defamation laws.

    The proposed government Bill on Online Disclosure applies to all media, including Twitter, and potentially criminalises certain categories of ‘hate’ speech.

    It could amount to the most dramatic curtailment of free speech in the history of the state. Thus, if Naomi O’ Leary had the temerity to compare Leo Varadkar to a wart on the sole of one’s foot in jest she might be prosecuted, and appear before a Fine Gael appointed judge.

    The much-trumpeted new Whistleblowing Act ineffectively opposed, and badly amended, is also worth considering. It does not protect media breaking stories; nor does it adequately protect employees including journalist from reporting externally.

    A legal environment that favours legacy publishers that employ expert legal advice in advance of publication, as opposed to private individuals ranting on Twitter – often to very small audiences – also ignores the restraints imposed internally by an increasingly corporatized press, which acts as a stenographer to the powerful. This is a role which Naomi O’Leary herself seems proud to perform.

    The Irish Times is a trust, but dependent on its sponsors and connections; so it does not, and arguably cannot, provide genuinely truth-driven coverage that a true democracy requires. It is institutionally neutered and not just by prospective defamation actions.

    Defamation suits and pre-emptive injunctions chill free speech, and are frowned on by lawyers and responsible journalists. Such injunctions sought to shut down Watergate and Wikileaks. The judgment in the seminal US constitutional case the Pentagon Papers frowned on it. Politicians ought to be thick-skinned when it comes to obloquy and ridicule, it goes with the territory of assuming power.

    What we are dealing with is a far wider problem in contemporary political discourse. Jürgen Habermas – perhaps the leading public intellectual alive on the planet – developed the crucial idea of ideal speech or communicative action, which serves as an argument to the effect that speech should be proper and non-ideological in order to achieve optimum technical outcomes that are also morally purposeful.

    Sadly, most of what passes for debate in Dáil Eireann would be at the very opposite pole to the kind of Enlightenment salon discussions he imagines.

    Outer Limits of Free Speech

    The criminalisation or suing or gagging of speech – generally of those that most need protecting – is an awful feature of these woe-begotten times.

    Given the approving coverage that legacy media already provides to representatives of the parties representing large corporations in Ireland, the least we might expect is that debate on online fora continues remains robust, and, in general, conducted without fear of suit.

    Rarely, if ever, does the Irish Times land a blow against vested interests in Ireland, channelling instead a latent anger against distant caricatures over whom we have no control. Online fora at least offer an opportunity for citizen journalists to provide accounts that challenge dominant narratives in a way that legacy media does not.

    Naturally, speech has its outer limits. Hate speech that inspires violence against minority groups cannot be tolerated in a civilised society. Social media publishers have a responsibility to moderate content, but cannot be allowed to decide what constitutes ‘disinformation’, and censor according to the whims of bodies that may be subject to regulatory capture. Censorship is always dangerous.

    Surely, with respect to Fine Gael for example, one should be allowed to describe them as crypto-fascists, or indeed suggest that Mary-Lou McDonald is associated with terrorists as Mr. Ross seems to have done.

    Fintan O’Toole constantly warns against the dangers posed by Sinn Féin, but rarely does he offer a searing critic of the corporatocracy and dominant political parties. His sympathies seem to lie with a weary establishment, which ‘have no choice’ but to coalesces with the neoliberal parties.

    Untrammelled freedom of expression should only be accorded to those who say something of significance – those who have something to lose by speaking out.

    Robust Debate

    The solution, of course, is not litigation but robust debate in civil society; as one of the great defenders of speech the late great Christopher Hitchens put it: ‘If you disagree with me, do so and stand in line so I can kick your ass.’ Or words to that effect. Possibly slurred.

    A defamation action can ruin a person’s life. A casual disregard for the truth in Ireland and premptive publication fed by the police and its journalistic cohorts in the gutter press can have serious consequences. The Irish Independent and much of RTÉ deserve no special protection.

    Given the platform he is accorded, nor should the gaffe-prone Leo Varadkar be allowed to shelter behind loose laws that should be designed to protect real journalists. His big mouth was most recently in evidence with his crass sub–American Monica Lewinsky comment.

    Indeed, give the parlous state of media in Ireland, one shudders to think what nonsense will be published if we are to dispense with reasonably strict defamation laws, and jury trials.

    Nonetheless, I can agree with a certain amount of what Naomi O’Leary’s recent article argues. No doubt defamation awards should be curtailed and are out of kilter with other jurisdictions, but negating jury trials where liars are exposed would be a retrograde step, and the criminalisation of the nebulous concept of hate speech could be disastrous, rendering satire almost impossible.

    Freedom of expression has its limits. Indeed, one wonders about the responsibility of a publisher such as the Irish Times, which gives a platform to an ideologue like Michael McDowell, who attributes the world’s problems to Vladimir Putin as opposed to the neo-liberal shock brigade that he and his Irish Times acolytes belong to. They have provided cover for mass evictions, a declining quality of life and incipient far-right fascism.

  • Recalling W.G. Sebald

    The attention in W. G. Sebald’s writing to the fascist era in European history anticipates many of the controlling measures of our time. Images abound throughout his work, leading to observations and recollections both of historical incidents, literary tradition and the lives of friends and immigrants, as well digressions on nature. We find a unique blend of memoir, historical and philosophical disquisitions, and a form of narrative storytelling based on fact with the occasional intrusion of fiction.

    W.G. Sebald

    Sebald’s oeuvre represents a novel semi-fictional genre with precedents in Nabokov’s Speak Memory (1951). In effect, he subverts fiction and its use of metaphor. He may be considered British in the sense that every European émigré from Otto Khan Freund to Sigmund Freud has been, and the speckled observations of an outsider about a new homeland permeate the texts.

    A professor of literature for many years in East Anglia University, Sebald died in a car crash following a brain aneurism. This ended a meteoric rise, and thwarted the possibility of a Nobel Prize for Literature. Albert Camus at least lived to receive the accolade before dying in similar circumstances.

    At many levels, Sebald’s books display a sense of impending mortality and certainly schadenfreude. He invokes a feeling of being among the last of the U.K. émigré intellectuals of cosmopolitan sophistication, and his work merits inclusion in the great Middle European intellectual canon of Franz Kafka, Joseph Roth and Stefan Zweig, among others. There is an abundance of cultural references that recalls this heritage.

    There is also an unmistakable Proustian feel to the descriptions, though oddly that author is never expressly invoked in what is Sebald’s factual narrative of ideas, or of images which play with memory though reflections distinct from Proust’s technique. Thus, we find no attention to high society, or social politics and love affairs, as much as memories of dislocation, a recurring outrage at man’s inhumanity towards his fellow man, and an acute sense of transience and fungibility.

    The Rings of Saturn

    The Rings of Saturn (1995) is the most obvious example of an exhumation of the European intellectual tradition. It begins with an admission that this is a reconstruction of notes a year after a hospital admission.

    An evocation of Rembrandt’s painting ‘The Anatomy Lesson of Dr. Nicolaes Tulp’ (1632) suggests more than a brief flirtation with the possibility of his death. He also compares himself to Grigor in Kafka’s Metamorphosis, when he awakens as powerless as a slug, and indeed Kafka is omnipresent throughout his work.

    Rembrandt’s ‘The Anatomy Lesson of Dr. Nicolaes Tulp’

    Visits to the most mundane of buildings or scenery stoke foreboding and evanescence. In a striking passages he visits the British coastline, where he equates declining fish stocks with human destruction and desecration in Belsen. It is a shocking juxtaposition of ecocide with murder and genocide, especially the Shoah or Holocaust, which also pervades this work, and indeed is all-pervasive as a backdrop or synonym.

    The great Irish humanitarian revolutionary Roger Casement features heavily in The Rings of Saturn  (1995), with the inherent contradictions in his life – receiving a knighthood prior to negotiating with the Kaiser during World War I – examined thoroughly. Casement’s gun running led to a show trial culminating in his execution, a scene masterfully conveyed in Sir John Lavery’s painting ‘High Treason: The Appeal of Roger Casement’ that hangs in the King’s Inns in Dublin where I lectured for many years. It is a sage warning that sympathy with the oppressed rarely, if ever, coincides with the interests of the establishment.

    High Treason: The Appeal of Roger Casement by Sir John Lavery.

    Vertigo

    Vertigo, (1990) is another non-novel featuring a trip to mainland Europe. It succeeds in stirring the same reflections on human infamy and cruelty as in his other work. This includes a disquisition on the incarceration of Casanova by the authorities for vice. Vertigo represents a grand tour through historical sites, with attendant horrors recollected, and brought into a contemporary frame.

    Italy is a prevalent and semi-fictional narrative chapter where we meet Kafka’s Dr K, before proceeding through personal narratives on friends and relatives disappeared, or driven mad or suicidal, with linkages to landscape and cultural artifacts. Here, we seem to be witnessing the unravelling of the immigrant through displacement.

    The book concludes in England with a vertiginous dream of environmental destruction influenced by a passage from Samuel Pepys – a description of the Great Fire of London of 1666.

    It occurs to me that it is exactly the sort of book that fascist authorities, presently resurfacing throughout Europe, would ban or burn. Or perhaps it is more likely to be the victim of a broader loss of historical memory, best described as a social media auto-da-fé.

    The Great Fire of London, depicted by an unknown painter (1675).

    Other Works

    The Emigrants (1992) is a story of dislocation obviously personal, but using the lives of others to show how awfully sad immigrant experiences can be. Suicides are much in evidence along with mental institutions. Cultural adaptation is always difficult for the emigrant.

    Furthermore, the grim industrial buildings of the North of England are wonderfully evoked in an analysis of the life and work patterns of the artist Herbert Ferber, who he met many times in Manchester.

    The book concludes with images of Jewish graves and a fascinating codicil on how even the ghettos maintained an appearance of normalcy, with functioning post offices and judicial systems, throughout the carnage of the war.

    The most famous and lyrical of his books is Austerlitz (2001), stemming from an apparently fictional conversation with a gentleman of that name in Belgium. Among his works, it is the one that most resembles a conventional novel.

    The oeuvres is virtually unclassifiable, albeit threading through it we find a transplanted and expatriated lens on a European history of cruelty, barbarism and murder – also evoked in Francisco Goya’s black paintings.

    Goya’s (La romería de San Isidro), A Pilgrimage to San Isidro, 1819–1823.

    Through the endurance of his writing, as the perpetual outsider, Sebald operates from outside time to provides a distinct perspective on what is happening in our present age.

    In a clairvoyant way Sebald’s books anticipate the revived relevance of the Holocaust, and spotlights the immigrant experience, while emphasising the importance of civility and culture. He also presage an impending environmental collapse.

    One of the last of the great European intellectuals seems to have anticipated what we are seeing in this period of greatly diminished civil and human rights; yet at a certain level he was merely asking us to remember, in a culture of casual forgetfulness.

    Feature Image: The Liberation of Bergen-belsen Concentration Camp, April 1945 Overview of Camp No 1.

  • The British Radical Tradition: E.P. Thompson

    Britain has produced its fair share of major public intellectual figures. Having surveyed the legacies of George Orwell, Christopher Hitchens, the Irish-born Edmund Burke and contemporary leading lights John Gray and Jonathan Sumption, I now turn my attention to the great radical historian E. P. Thompson.

    Intellectuals often stand apart from a mainstream radical tradition. Hitchens, for example, while broadly adhering to Thomas Paine and The Rights of Man was a contrarian and dedicated atheist who tendentiously supported George W. Bush’s War in Iraq, although perhaps the waterboarding he voluntarily submitted to, and declared to be a form of torture, acted as a form of atonement.

    It is unthinkable, however, that Edward Palmer (E. P.) Thompson (1923-1993) would have performed such a volte-face. Thompson held himself squarely within the English radical tradition of William Cobbett, Thomas Paine and Robert Owen, as well as his hero the poet William Blake, and to a lesser extent William Morris. Thompson’s ideology was a form of socialitist libertarianism for the ordinary man.

    I grew up reading his work, and indeed watching his grey mane flowing in the wind as he addressed CND rallies, although I understand he was a difficult colleague, a hopeless administrator and an egotist. It seems to have been another case of don’t meet your heroes.

    The Making of the English Working Class

    His lasting contribution is the seminal The Making Of The English Working Class (1980), possibly the greatest work of history of the twentieth century that emphasised a new form of bottom-up history, related to the subaltern history that was emerging at the same time in former colonial societies. Notably, Edward Said’s Orientalism, which was published in 1978.

    Thompson methodology is well captured in the following quotation from this canonical text:

    I am seeking to rescue the poor stockinger, the Luddite cropper, the “obsolete” hand-loom weaver, the “utopian” artisan, and even the deluded follower of Joanna Southcott, from the enormous condescension of posterity. Their crafts and traditions may have been dying. Their hostility to the new industrialism may have been backward-looking. Their communitarian ideals may have been fantasies. Their insurrectionary conspiracies may have been foolhardy. But they lived through these times of acute social disturbance, and we did not. Their aspirations were valid in terms of their own experience.[i]

    Also, In The Making Of The English Working Class, Thompson places himself firmly within the British rights-driven tradition and focuses on The Liberty Tree, and its essential components of freedom under the law, freedom from arbitrary arrest, trial by jury, habeas corpus and the spectrum of individual rights now under threat of obliteration.

    I suspect, just as Lord Sumption is a libertarian, albeit in a different sense, who has spoken out about the restriction on our current restrictions on liberties, Thompson would be horrified at the course of current events in the U.K. ushered in by Coronavirus Emergency legislation and recent Counter Terrorism Legislation.

    https://twitter.com/RTUKnews/status/1296487156198903808

    The Poverty of Theory

    Although a Marxist – albeit unlike his contemporary historian Eric Hobsbawm he resigned from the Communist Party of Great Britain after the Soviet invasion of Hungary in 1956 – he was also a historian in the empiricist tradition, distrustful of great meta narratives and the abstract musings of structuralists, which culminated in his famous polemic against Althusser The Poverty of Theory or an Orrery of Errors (1978).

    He argued that individuals were agents of activity though caught within the agency of history. They have room to achieve what they do, but only under specific conditions and defined constraints. His sense of the developmental nature of the working class is perhaps best illustrated in the following quote: ‘The working class did not rise like the sun at an appointed time. It was present at its own making.’[ii]

    This led to the famous opening passage of The Making of the English Working Class, and his emphasis in his teaching on bottom-up or grassroots analysis, rather than a top-down, theory-driven, approach. He prized empirical evidence derived from the activities of human subjects. A true historian.

    That great book in fact has many resonances for our age, not least in how the chiliasm of despair and poverty awakened renewed religiosity – Wesleyan Methodism in particular. His bottom-up analysis pointed to how religion became the opium of the people. This may also explain the rise of religious fundamentalism in our own period of profound economic security.

    Thompson demonstrated how local worker communities were often collective, and how a moral economy operated that distributed goods and services according to the respective needs of those who traded and bartered. These localized and community-driven economies were also explored by the late David Graeber in his Debt: the First 5,000 Years (2011).

    It would be a mistake to view Thompson as anti-religious, or to put it another way, he saw a values in religion or in certain religions. On the one hand he rejected what he saw as an authoritarianism implicit in the hierarchical structure of Catholicism, but in Protestantism he found a pragmatism that chimed with his distrust of system-building.

    Influence of Antonio Gramsci

    Thompson was greatly influenced by Antonio Gramsci, in particular his famous concept of hegemony and a war of position for proletarian emancipation. Gramsci identified an ongoing war of position occurring between the elites and workers, a category which extends conceptually to embrace anyone who is not part of an ever-narrowing plutocracy or billionaire class.

    Gramsci allocated a substantial role to intelligentsia and politicians, but also to workers’ councils in altering the course of history to achieve a Communist society. The working class would first have to attain a cultural hegemony before gaining political power he argued: ‘The workers could only win if they achieved cultural hegemony before attaining political power.’

    Occasionally, he seems to identify it (hegemony) with political power exercised by coercion, but as a rule he distinguishes the two concepts, so that hegemony signifies the control of the intellectual life of society by purely cultural means. Every class tries to secure a governing position not only in public institutions but also in regard to the opinions, values and standards acknowledged by the bulk of society. The privileged classes in their time secured a position of hegemony in the intellectual; as well as the political sphere; they subjugated the others by this means, and intellectual supremacy was a precondition of political rule. The main task of the workers in modern times was to liberate themselves spiritually from the control of the bourgeoisie and the church and to establish their own cultural values in such a way as to attract the oppressed and intellectual strata to themselves. Cultural hegemony was a fundamental and prior condition of attaining political power. The working class could only conquer by first imparting its world view and system of values to the other class who might be its political allies; in this way it would become the intellectual leader of society just as the bourgeoisie had done before seizing political control.[iii]

    The Rule of Law

    Thompson diverged from conventional Marxist theory in his approach to the role of law. A conventional Marxist view consider this as:

    by definition a part of a ‘superstructure’ adapting itself to the necessities of an infrastructure of productive forces and productive relations. As such, it 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. Hence the rule of law is only another mask for the rule of a class. The revolutionary can have no interest in law, unless as a phenomenon of ruling-class power and hypocrisy; it should be his aim simply to overthrow it.[iv]

    In contrast Thompson was a qualified supporter, arguing that: ‘Law may be seen,’ he argued, not only instrumentally and ideologically, but also ‘simply in terms of its own logic, rules and procedures – that is, simply as law.’

    In Whigs and Hunters: The Origin of the Black Act (1975) Thompson argues against the idea that the law could be reduced to a superstructure, reflecting the class interest of the ruling class, but offered instead a more complex truth inherent to which was the fact that ‘it could not be reserved for the exclusive use only of their own class.’

    He concluded that the law did mediate existing relations and was ‘a superb instrument by which these rulers were able to impose new definitions of property to their even greater advantage,’ for example, in terms of his historical works by extinguishing agrarian use-rights and by enclosures but on the other hand, the law mediated these class relations through legal forms, which imposed, again and again, inhibitions on the actions of the rulers.

    Also, Thomson argued that rulers ‘believed enough in these rules, to allow, in certain limited areas, the law itself to be a genuine forum within which certain kinds of class conflict were fought out.’ On occasion the government itself was defeated in the courts: ‘Such occasions served, paradoxically, to consolidate power and to enhance its legitimacy,’ but also ‘to bring power even further within constitutional controls.’

    Thompson suggested  that this role of law was in essence: ‘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,’ and further that ‘the notion of the regulation and reconciliation of conflicts through the rule of law’ was ‘a cultural achievement of universal significance’

    He asserted that though imperial in its origin, the rule of law inhibited that imperial power such that:

    Transplanted as it was to even more inequitable contexts, this law could become an instrument of imperialism. For this law has found its way to a good many parts of the globe. But even here the rules and rhetoric have imposed some inhibitions upon the imperial power. If the rhetoric was a mask, it was a mask which Gandhi and Nehru were to borrow, at the head of a million masked supporters.

    His classic position from Whigs and Hunters is encapsulated in the following statement:

    But the rule of law itself, the imposing of effective inhibitions upon power and the defence 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.

    Later he elaborated that:

    If I have argued elsewhere that the rule of law is an ‘unqualified human good’ I have done so as a historian and a materialist. The rule of law, in this sense, 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.

    Criticism

    Thompson has been criticised for upholding what is considered by some to be the conservative doctrine of the rule of law, and not an unqualified good according to Morton Horowitz; or as Adrian Merritt argues: its logic is ‘the logic of class formation.’

    Bob Fine also suggests that the Rule of Law need not be characterized as ‘an unqualified human good’ for one to recognize that it is superior to bald authoritarianism, and that other institutions such as democratic elections limit power and that, rather than limiting power, the law serves in various ways to enhance the power of the ruling class.

    Nonetheless, in Thompson’s defence it can be argued he is only suggesting that the rule of law was neutral and not conservative and neither promoted nor impeded substantive justice. In this context  Thompson insists that he was ‘not starry-eyed’ about the law. On the contrary he was bent on ‘exposing the shams and inequities which may be concealed beneath this law.’

    Nevertheless, for Thomson the rule of law was ‘an unqualified human good,’ because it is invariably superior to unbridled authoritarianism, and what makes the rule of law an unqualified human good for Thompson is the lack of any available substitute mechanism for limiting arbitrary power in complex societies.

    His faith in the common man is again evident in his assessment of jury trial.

    Jurors have found, again and again, and at critical moments, according to what is their sense of the rational and just. If their sense of justice has gone one way, and the case another, they have found “against the evidence,” … the English common law rests upon a bargain between the Law and the people: The jury box is where the people come into the court: The judge watches them and the people watch back. A jury is the place where the bargain is struck. The jury attends in judgment, not only upon the accused, but also upon the justice and the humanity of the Law.

    British Empirical Tradition

    Like all British empiricists from Burke to Hitchens and Orwell, and especially as an historian, Thompson was acutely sensitive to issues of truth and lies, shabby cover ups, semi-truths and disinformation.

    Thompson’s book on Blake, his last, endorses the attack on the beast, which is in effect the state or state religion classified by Thomson as the whore of Babylon.

    As an educationalist he was incidentally a humanist, recognising the importance in his teaching of objectivity and tolerance, but seeing these not as important matters in and of themselves – in that we are all a product of our time – but as offering useful educational and heuristic methods.

    His focus on ordinary people, on human rights and the rule of law and his distrust of great systems and absurd generalisation and abstractions is now of great relevance, as are his warnings and research into religious fundamentalism. Alas, E.H. Thompson’s devotion to the determination of facts, detail and accuracy is sorely lacking in contemporary discourse.

    [i] E. P. Thompson, The Making of the English Working Class, Victor Gollancz Ltd, London, p.14

    [ii] Ibid, p. I

    [iii] see Lezsek Kolakowski: Main Currents of Marxism: Its Rise, Growth and Dissolution Volume 1: The Founders, Oxford Paperbacks, Oxford pp.241-42

    [iv] Thompson, in Beirne and Quinney, Marixism and Law, Wiley, New York 1982