Cassandra Voices

Tag: E. P. Thompson

  • The Relevance of Jurisprudence to Law Part 3

    The remains of unquestionably the greatest intellect of the nineteenth century, Karl Marx, are buried in Highgate Cemetery in London. I recently tossed a red rose on the site. I doubt whether Judge Gerard Hogan, to whom I have addressed previous articles in this series, or any other legal positivist, would do likewise.

    While positivists often engage, though disagree, with rights-based -thinkers such as Ronald Dworkin, most exhibit a level of incomprehension, and often outright hostility towards certain forms of Radical Jurisprudence. No doubt the often unclearly expressed ideas of late Marxism, structuralism and post structuralism often are a factor, but that is only a partial excuse.

    Noam Chomsky – himself a linguistic positivist – once made a comment to the same effect on these authors, exempting Michel Foucault. He had developed a rational understanding of Foucault, but none for example of Derrida, who many including myself regard as largely intellectually fraudulent. Indeed, many Cambridge University philosophers objected to the conferring of an honorary degree on him, although I believe there is an element of truth to his babbling on relative truth or foresight.

    This plan of Jeremy Bentham’s panopticon prison was drawn by Willey Reveley in 1791.

    Panopticon

    It is, nonetheless, easy to see why, as far as my harsh assessment of post-structuralism Foucault is exempted. Foucault makes very relevant contributions to Jurisprudence and the practice of law.

    First, the transplantation of Jeremy Bentham’s idea of the panopticon – the all-seeing surveillance prison such as Kilmainham in Dublin – is in Foucault’s view a depiction of modern society, where a uniform doctrine is enforced in schools, law courts and hospitals, leading to blind conformity.

    Foucault presaged the age of Surveillance Capitalism and 24-hour data surveillance in Ireland, achieved in camera in the Quirke Case through the representations of the Minister for Justice Helen McEntee. Thus, we have a global panopticon wherein the value of privacy and freedom is thrown to the wolves.

    Now our judges aside from Hogan, most recently in the Dwyer Case restricting the privacy right, ignore ECHR and EU law. This undermines an ideal of liberty, at least as old as J.S. Mill in modern times, and in fact going back to the Greeks. So, Foucault’s insight is not about postmodernism. It translates into the destruction of rights under Article 3 of the Irish Constitution and 8 and 5 of the Convention.

    The second of Foucault’s contribution is his book on madness in the age of reason. The fundamental tenet is that the Enlightenment / Age of Reason involved the necessity, intellectually and then institutionally, to confine the unreasoned – those who were called mad – into asylums. Well, who is mad and who is clinically insane?

    The recent US Democrat convention, with the rather wonderful Mr Walz speaking from the heart on middle-class US conservatism about banning books and depriving choice stands against that Twitter conversation between Musk and Trump.

    The problem of reason and madness is also clear earlier in Ken Kesey’s masterpieces ‘One Flew Over The Cuckoo’s Nest’ (1962). What happens when the lunatics have taken over the asylum and a dissident voice says no? What of when the man or woman of reason, the pursuer of nuance and grey, the boy who cries wolf, the creature of the Enlightenment is locked up by those who are in fact self-interestedly insane.

    Foucault was apparently not on the UCD Jurisprudence syllabus in the late 1970s. A short journey to the Arts block to encounter Richard Kearney’s expertise in Continental Philosophy would have been beneficial.

    Marx and Engels in the printing house of the Neue Rheinische Zeitung. E. Capiro, 1895.

    The Crucial Figures

    The crucial figures of radical jurisprudence are not the structuralist, even Foucault, but the great Marxist theoreticians. For Marx law was a mirage, an ideology upholding the interests of the bourgeoisie, He considered it a mere superstructure determined by the economic base. Law, he observed, served the interests of the ruling class.

    Thus, in Marxist terms Hogan’s analysis of Kelsen is a form of intellectual masking or ideology justifying a form of state authoritarianism, which Marx would surely have interpreted precisely as the Populism of the petit bourgeoisie. No judicial deferral should be granted to the popular sovereignty of the mob.

    Marx though is not consistent about law. He argues that in the properly ordered Communist society there would be no need for laws, as we would spontaneously co-operate in our Communist Nirvana. But at times he concedes, inconsistently, that law is not always bad, and a close textual analysis of his views on property rights, and the freeing up of the alienation of estates to facilitate greater capital, shows that sometimes the superstructure can influence the base, and thus influence economic relations.

    So, what of Ireland controlled by a landlord class achieving nothing and facilitating careers going nowhere except to Microsoft and criminal banks, or the legal service class who act like vultures preying on the vulnerable on behalf of the powerful?

    The legal realist Oliver Wendell Holmes in his famous rebuke to unregulated free market economics in Lochner (1905) said the Fourth Amendment does not enact Mr Herbert Spencer’s social statics, and nor should the Irish Supreme Court enforce the interests of the commercial fat cats of Aran Square or elsewhere.

    Many Marxists, such as Lenin, saw the necessity for rules in a never-ending interregnum on the way to a Communist Utopia, which is never to be achieved. More pragmatically, the fundamental question for any judge which the Marxists pose is: whose interests do the rules serve?

    The Marxists influenced the critical legal studies movement, which to some extent educated me, adopting the radical indeterminacy thesis, an idea borrowed at one level from the legal realists. They argue that given the plasticity and malleability of rules, legal outcome can be very unpredictable and in fact subjective.

    There really is no such thing as a ‘plain fact’ or literal interpretation of almost any legal text. To avoid nihilism we should invoke moral principle as a corrective.

    Alienation

    The term alienation coined by Marx more generally to describe exploitation of workers serves as a warning as to how our government is destroying both the working and middle classes,

    Subsequent Marxist have been more approving of law. The legendary Antonio Gramsci, while imprisoned by Mussolini, adopted the phrase ‘hegemony’ to suggests as necessary a form of co-operation in law, politics and culture between the proletariat and the bourgeoisie. Now this coalition argument suggests law can be used as an instrument of social change. That depends on a desire to change for the good.

    One wonders whether the new, petite bourgeoisie-aligned Keir Starmer government in the U.K. should be a source of optimism or seen as a false dawn? More taxes on the wealthy, or further savage austerity for the poor?

    The Rule of Law is a central concept in jurisprudence, though hotly contested, and Marx aside, it has dominated the thinking of some of the main Marxists thinkers of recent vintage.

    In his codicil to Whigs and Hunters (1975), E.P. Thompson expressed a view on the Rule of Law as an unqualified good, which at times could check arbitrary authority. That of course assumes the Rule of Law exists in an ethical polity. It is not that evident in Ireland today as core principles are violated or improperly implemented.

    Thus, the independence of the judiciary is not obvious in Ireland, the use of in camera proceedings, akin to the promulgation of secret laws, is a cardinal violation of the notion that justice must be carried out in public. We also find an apparent tolerance of police corruption, the abandonment of substantive rather than formal equality, and indeed the abandonment of constitutional rights.

    Thompsons argument is premised on the idea that the judges are willing to enforce the rule of law, often with the effect of unsettling vested interests, as in the recent, painfully prolonged, Assange case. Irish judges are more likely to do the opposite.

    Jürgen Habermas

    Habermas

    Jürgen Habermas is, as ever, a crucial contemporary thinker, and, with all due respect to Gerard Hogan’s veneration of Kelsen, he is not just the world’s leading intellectual figure but the towering German intellect along with Thomas Mann and Kafka of the 20th century.

    Since Habermas abandoned the Frankfurt school, and thus post-structuralism, he has become, for over fifty years, one of the great proponents of the Rule of Law and legalism. He stresses the importance for judges not to subvert rights and parliamentary laws protecting civil liberties including the right to protest, viewing civil disobedience as central to revitalizing democracy.

    In contrast, the knee jerk reaction in Ireland and the UK has been to give more powers to the police to regulate dissent.

    Habermas’ other idea of communicative action, borrowed at one level incidentally from the arch positivist Austin, is the elaboration of the idea of ideal speech. His ideal for the vindication of speech rights is the eighteenth century salon. The ideas of communicative action in legal and judicial terms blends into the ideas audi alterum partem (‘listen to the other side’), and the obligation not to be either subjectively or objectively biased.

    Ideology, a term adopted by Marx, has been reinterpreted by Slavoj Žižek, drawing on another Marxist in Lacan, as ideological misidentification. In both instances, and applied to law, there is the sense that the bureaucratic class are engaged in false consciousness or deceptive ideas.

    Lon L. Fuller, who is not a Marxist but a natural lawyer, argued that once a legal system has not a tinsel of legality left, but enforces barbarism, it is no longer a legal system.

    To round the series off, a Marxist would fully understand the rage of Populism, but not necessarily approve of it. Of course pure Communist societies do not work, but nor does pure neo-liberalism. Indeed, Ireland is not working except for the landlord class.

    What does work legally ethically and morally is a social democratic Just Society advocated by the master John Rawls. What does work is Sweden, Denmark, Norway and much of northern Europe, where people are not in Marxist terms commodified and viewed as product, but in the moral Kantian sense things in themselves.

    John Rawls intellectually speaking would never have existed but for Karl Marx and a difficult thing for a legal positivist practitioner to realise is that Marx is in fact the greatest of all legal, political and economic philosophers. This is not to say he is entirely correct or a model to be followed in overall societal regulation, but a useful corrective to interpret laws and asses whose interest they serve and, if necessary, to bend rules to achieve socially just outcomes.

    Dworkin in fact argued that the South African judges during Apartheid should potentially have lied about the content of a racist law. I also agree or rather at the very least that they should have interpreted it to bring about socially just outcomes.

    Marxism at its best focuses on civil and in particular social and economic rights, and the judiciary responsibility to enforce them into the law and the Constitution, to the extent that this is consistent with the Rule of Law.

    Feature Image:Tomb of Karl Marx, East Highgate Cemetery, London.

     

  • 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