EP Thompson, Donald Trump and ‘so called’ judges
Donald Trump has revealed himself to be in the same Judicial Fan club as Iain Duncan Smith after tweeting that the judge who stayed his Muslim immigration ban was only ‘so called’.
The left generally are not enthusiasts for the ‘rule of law’ and particularly employment law. Those who fulminate about the importance of judges and the law are often seen as being Tories intent in preserving the practices of an unjust society. Often they are.
Of all the post-1945 figures to have considered the Rule of Law the one who arguably wrote most powerfully on it was E.P Thompson.
He devoted a concluding section of his book Whigs and Hunters to the matter. In the book Thompson looks at the eighteenth century Black Acts which listed a growing number of often petty offences for which offenders could be hanged. It was the period of the ‘Bloody Penal Code’. In practice matters often did not work quite like this as Jurys refused to convict people.
Thompson recognised that defending the Rule of Law from the left was not a popular thing to do He noted that ‘I stand on a very narrow ledge, watching the tides come up’. [p260]. However he argued that ‘it is not possible to conceive of any complex society without law’ [p260].
Indeed as he knew well from his researches, ‘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’ [p261].
This was not just an individual thing but a collective position. Thompson argued that the rhetoric of the plebeian crowd, of the free born Englishman’ was centrally focused on ’inviolable privacy.. habeas corpus…equality before the law’ [p264] In other words a workable system of law was basic to a defence of popular rights.
He recognised of course that the law was ‘devised by men of property as a defence against arbitary power’ [p264] but argued that a system that provided defence against arbitrary use of power by authority was important to working people as well as the bourgeois [p266].
In short Thompson saw ‘a whole inheritance of struggle about law’. The Rule of Law and what it means is important in any complex society but it is also something to be argued about, and struggled over.
Here Thompson made a clear distinction between the role and judgements of individuals judges- not by any means all reactionary- and the system that underwrote them. Judges and judgements might be wrong or right and could and can be challenged. Challenge the basis of that and you end up as the eighteenth century men of property understood all too well with autocracy. See President Trump.
The Black Acts decreed that many should hang for petty offences. Not that many actually did. That is the point of a system of law. It can be challenged and disputed with a view to justice being obtained. Occasionally it actually is.