‘An Unqualified Human Good’: E.P. Thompson and the Rule of Law
| Date | 01 June 2001 |
| Published date | 01 June 2001 |
| Author | Daniel H. Cole |
| DOI | http://doi.org/10.1111/1467-6478.00186 |
JOURNAL OF LAW AND SOCIETY
VOLUME 28, NUMBER 2, JUNE 2001
ISSN: 0263-323X, pp. 177–203
‘An Unqualified Human Good’: E.P. Thompson and the
Rule of Law
Daniel H. Cole*
The late E.P. Thompson described himself as ‘a historian in the
Marxist tradition’. But when he embraced the Rule of Law (in Whigs
and Hunters), many of his colleagues on the left ostracized him as an
apostate. This essay argues that Thompson’s critics have largely
misunderstood what he meant by the Rule of Law. His was a minimal
and historical conception, which merely sought to distinguish states
whose rulers had unfettered discretion from states whose rulers were
constrained by legal rules, whatever their source and contents. Also, in
contrast to other radical theorists, Thompson recognized that law
would be a necessary institution in any complex society, no matter
what its economic basis, to mediate social relations. The essay
concludes with some thoughts about the relevancy of Thompson’s
conception of the Rule of Law for ongoing efforts to revitalize a more
‘radical liberalism’.
INTRODUCTION
When Edward Palmer (E.P.) Thompson died in 1993 at the age of 69, he was
hailed as the greatest historian in the English-speaking world.
1
While other
historians focused on the dominant figures and major events of history,
Thompson wrote of the ordinary men and women who both made and
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1 See B.D. Palmer, ‘Homage to Edward Thompson, Part I’ (1993) 32 Labour/Le
Travail 11, at 14. Thompson was also the world’s most often cited twentieth-century
historian, and among the 250 most frequently cited authors of all time. E.
Hobsbawm, ‘E.P. Thompson’ (1994) 58 Radical History Rev. 157, at 157.
*M. Dale Palmer Professor of Law, Indiana School of Law at
Indianapolis, 735 W. New York St., Indianapolis, IN 46202-5194, United
States of America
I am grateful to Al Brophy, Michael Heise, Ron Krotoszynski, Doug Moggach, and
Richard Ross for their many helpful comments and suggestions.
suffered through the epochal upheavals of the Industrial Revolution.
2
In
dignifying them with respect and sympathy, Thompson displayed an
uncommon understanding of the human condition.
Thompson also displayed a great appreciation for law as a social
institution, especially for a (self-described) ‘historian in the Marxist
tradition’. He found ‘the rhetoric of eighteenth-century England .. . saturated
with the notion of law’:
3
The law did not keep politely to a ‘level’ but was at every bloody level; it was
imbricated within the mode of production and productive relations themselves
(as property-rights, definitions of agrarian practice) and it was simultaneously
present in the philosophy of Locke; it intruded brusquely within alien
categories, reappearing bewigged and gowned in the guise of ideology; it
danced a cotillion with religion, moralising over the theatre of Tyburn; it was
an arm of politics and politics was one of its arms; it was an academic
discipline, subjected to the rigour of its own autonomous logic; it contributed
to the definition of the self-identity both of rulers and of ruled; above all, it
afforded an arena for class struggle, within which alternative notions of law
were fought out.
4
Thompson’s identification of law as the locus of political contention led his
student and colleague, Peter Linebaugh, to write that Thompson’s central
message to his readers was ‘Go to Law School’.
5
This essay examines the function of law in Thompson’s historical works
in light of his conception of the Rule of Law, which he articulated as an
inchoate afterthought in Whigs and Hunters (1975). I will argue that
Thompson’s reverence for the Rule of Law was in no way inconsistent with
his derision of the unjust legal rules and procedures that curtailed the legal
and constitutional rights of ‘freeborn Englishmen’ in the eighteenth century.
I will review and respond to criticisms of his espousal of the Rule of Law.
And I will suggest that Thompson’s conception of the Rule of Law (although
or, perhaps, because he left it incompletely theorized) points the way toward
a possible reconciliation of liberal and radical approaches to law.
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2 As Thompson famously expressed it in The Making of the English Working Class,
his aim was ‘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.’ E.P. Thompson, The
Making of the English Working Class (1963) 12.
3 E.P. Thompson, Whigs and Hunters: The Origins of the Black Act (1975) 263.
4 E.P. Thompson, The Poverty of Theory (1995 edn.) 130.
5 P. Linebaugh, ‘From the Upper West Side to Wick Episcopi’ (1993) 201 New Left
Rev. 18, at 25.
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