By Finley Hammatt
Law is and has historically been elevated to a divine status. In 1776, during the revolutionary war against Britain, the thirteen colonies put forth the declaration of independence whereby they laid down supposedly “self-evident” “truths” intended to form the foundation of the colonies governing ideology. Among them was the proclamation that “men are… endowed by their creator with certain unalienable rights”.
This classical liberal view sees jurisprudence as ahistorical and above society rather than springing from it. The task of the historian is to obliterate this illusion and show how jurisprudence is chronologically contingent. Furthermore, as I will argue law is and has historically acted as the logic and doctrine of the ruling classes, a doctrine that although in the British case is uncodified, evolutionary, flexible and politically contested (currently through democratic means), nonetheless serves the interests of those ruling classes. British law is a political tool, not a contract we have submitted to so that we may avoid a nasty, brutish and short existence (as in the Hobbesian view) or consented to (as Rousseau argued). We must recognise that legal structures are imposed on us, non-consensually, through the process of history despite the fact that contemporary actors must constantly produce and reproduce them. It is for this reason that institutions, which create, administer and enforce law often clutch onto the present like a dead hand.
The basis of this theory of law stems from the simple fact that people make law. In British history these people have overwhelmingly been of a certain class, ethnicity and gender. In all cases law serves the perceived interests of those historic and contemporary agents or broader ideological goals prominent among those agents. Where law appears to contradict those interests as Bukharin writes it is just a concession, “a necessary condition, the conditio sine qua non for the existence of state power” as was the case for the 1867 Reform Act passed in response to the radical chartist movement and other calls for the expansion of the franchise in the mid-19th century.
Following from this is the fact that legislation often lags behind cultural attitudes. Law is implemented in a latent fashion in many instances because it often serves the purpose of pacifying a social group. For this reason gay marriage was only legalised by the Marriage (Same Sex Couples) act in 2013 whereas most adults supported gay marriage far sooner.
The theory also holds true for the example of women’s legal position. It was only in 1919 following the Sex Disqualification (Removal) Act that women could sit on juries and join the legal profession. This means that women’s influence on the written law was of a secondary nature until a little over 100 years ago. This manifested in a litany of patriarchal legislation and constitutional principles. Importantly until the Married Women’s Property Act (1870), all of a women’s property (apart from a dowry from her father) was subsumed by her husband under the ‘legitimate’ constitutional principle of coverture. As William Blackstone, a 19th century English judge, jurist, and Tory proclaimed “By marriage, the husband and wife are one person in law: that is, the very being or legal existence of the woman is suspended during the marriage, or at least is incorporated and consolidated into that of the husband; under whose wing, protection, and cover, she performs everything”.
Law is socially constructed, this does not make it any less real or important as it remains a major institution in determining political, economic and cultural outcomes. However, it does mean that law should be understood as one component producing outcomes, not a structure that encompasses all others. Law is thereby an influence on history through the same basic mechanisms as are other ideological doctrines. In the same way that revolutionary “theory… becomes a material force as soon as it is gripped by the masses” as written by Marx, the law becomes a material force when it is enforced and when it is followed and upheld by the masses. If most of society acts as if law is illegitimate it becomes so and vice-versa. It is for this reason that police brutality and state oppression towards homosexuals did not end following the 1967 Sexual Offences Act that decimalised private homosexual sex between consenting adults over 21. Entrenched Homophobia could not be buried by parliament because legislation and culture exist in a dialectical rather than a causal relationship.
British law has been constructed through a process of evolution despite certain periods or moments of dramatic change. In this process, it has been constructed for certain ends albeit often disparate and sometimes contradictory ends due to its piecemeal development. This is demonstrably true because; legislation is manufactured through coalitions, Common law develops gradually as each decision builds on the other due to the principle of ‘Stare decisis’,/ ‘let the word, stand’ -although exceptions to this rule exist-, and constitutional conventions develop organically exiting through social practice rather than enforced as formal unbending axioms thereby they adapt to serve different interests under different historical circumstances.
Understanding that law is developed to serve certain interests gives us a better framework for understanding why events occur, the abandoning of certain constitutional principles for certain periods are not violations of the rule of law but rather conditions of that rule and should be understood as concrete manifestations of it. Or if one prefers, it allows us to recognise the rule of law as conditional and thereby fictitious. Take for example the principle of habeas corpus, which ‘guarantees’ that people will not be detained without trial or charge and must be bought before a court to determine such. As a theory, it stretches back to the Magna Carta (1215) and is therefore foundational to the British constitution although its contemporary form finds its genesis in the Habeas Corpus Act (1679). However it was abandoned and internment was utilised to serve perceived state interests in 1793 because of the French revolution, during world war one and two and multiple times to ‘quell civil unrest’ in Northern Ireland such as by Edward Heath in 1971.
Although as I have argued law is made by people with particular interests it is equally true that law shapes people back because it governs political economy. The two, therefore, influence one another and develop together. The most prominent example of this are the Acts of Enclosure (1604-1914) whereby open and common land that people had rights to use for pasture, estovers and/ or pannage (although often owned by the lord of the manner) were made legal property. This pushed many off the land, which they could no longer use to sustain themselves, into the towns contributing to the industrial revolution and therefore having a direct revolutionary impact on the way people live their lives and the material culture that surrounds them. In turn this led to new organisations and ideas.
To conclude it is obvious that law has had many functions, causes and aspects outside those detailed in this article. However I hope this piece has clearly shown that law is not natural, it does not exist as a power outside society and was not handed down from the heavens. It is contingent and has been perpetuated, developed, changed, challenged and undermined through human action. Moreover, although rulers claim to dominate society for the general interest of society, today as in ancient Babylon, the claim is an example of false consciousness. It is not the case as is written in the code of Hammurabi (constructed 1755-1750 BCE) that “the [purpose of the] establishment of law within the country, [is] the elimination of wickedness and evil, in order that the strong shall not harm the weak.”.
Image: Report of the Committee on Homosexual Offences and Prostitution, The British Library