Bringing Law and Lawyers to the People: Statism and Anarchy in Left-Wing Legal Thought
| DOI | 10.1177/096466390201100309 |
| Date | 01 September 2002 |
| Published date | 01 September 2002 |
| Author | David Campbell |
| Subject Matter | Articles |
TO THE PEOPLE: STATISM AND
ANARCHY IN LEFT-WING
LEGAL THOUGHT
DAVID CAMPBELL
Cardiff Law School and ESRC Research Centre for Business Relationships,
Accountability, Sustainability and Society, UK
AS AN undergraduate, I was led to the then recently published Images
of Law (Ban´kowski and Mungham, 1976) while studying the
unorthodox English Legal System course which Phil Thomas, who
played some part in the writing of the book,1 taught in what is now the
Cardiff Law School. I read the book a number of times with great enthusi-
asm, and though I cannot claim to have referred to it other than occasionally
and briefly since graduating, certain passages in it have remained fixed in my
mind and, more importantly, the book’s basic atmosphere has had a consider-
able influence on my thinking. I have come to know Zenon Ban´kowski and
Geoff Mungham (who also taught me while I was an undergraduate) since
reading their book, and have admired such of their later work as has come
to my attention, though while I have followed with reasonable diligence the
jurisprudence on which Ban´kowski has focused, it is only since my recent
return to Cardiff that I have taken even a sporadic interest in the Welsh
political journalism and party political activism that have since preoccupied
Mungham.
I therefore was very glad of the opportunity to speak at the seminar cele-
brating the 25th anniversary of the publication of Images of Law, and this
brief article is a polished version of what I said there. But I am afraid that the
note I struck at the seminar and no doubt will strike here is critical of left-
wing legal thought since Images of Law. It is the anarchistic atmosphere of
Images of Law that had such an influence on me, and what I will claim has
happened over the 25 years of the book’s life is that left-wing legal scholar-
ship and activism have become increasingly statist. When asked to speak at
the seminar, I read Images of Law right through for the first time in more
SOCIAL & LEGAL STUDIES 0964 6639 (200206) 11:3 Copyright © 2002
SAGE Publications, London, Thousand Oaks, CA and New Delhi,
Vol. 11(3), 413–424; 027072
414
SOCIAL & LEGAL STUDIES 11(3)
than 20 years and I have just read it again. It has an exhilarating, liberating
feel, and this is the last thing I would say about the statist quality of current
left-wing legal thinking to which I want to draw attention. Reflecting on
Images of Law confirms my belief that recapturing something like the anar-
chistic spirit expressed in that book is necessary for a left that is being drawn
towards authoritarian views about the law.
Lawyers are attacked outright in Images of Law. In the argument of the
book that remains most directly relevant, its criticism of ‘bringing law and
lawyers to the people’ (p. 49), ‘movements to liberalise law’ (p. xi) which seek
to remedy ‘unmet legal need’ by providing ‘relevant’, ‘poor man’s law’
(pp. 1–6) are mercilessly exposed as generating valuable work for the legal
profession, but yielding only unclear benefits for clients: ‘it can be seen that
the lawyer has need of the poor, but what we have yet to establish is whether
the poor have need of the lawyers’ (p. 79). In Images of Law, the legal
profession and, because ‘it should not be thought that lawyers are the sole
crusaders on behalf of the new law’ (p. 149 n. 5), the entire gamut of welfare
(aspirant) professionals and ‘experts’ such as social workers, are excoriated
for being a ‘power elite’ (ch. 4) pursuing worthy social policies through
legally sanctioned state intervention. Ban´kowski and Mungham’s remarks
obviously would also apply a foriori to ‘lawyers stuck in the confines of black
letter law . . . concerned with the traditional lawyers’ role of working for the
rich’ (p. 2), but their concern is with left-wing politics, in essence to argue
that the ‘idea that law can be used to transform society . . . cannot work’
(p. xi) because ‘radical’ or ‘critical’ law is an oxymoron:
the law, in bringing its gifts, forces people to accept its own definitions of reality
and so strengthen legal and thus capitalist society’s definitions of control . . . It
convinces them that the world cannot be changed; that things might become
better but only with the help of autonomous agencies staffed by experts . . .
This celebrates a society where there are experts who ‘know best’ . . . Social
change becomes a weak-kneed utilitarian affair . . . what change can come about
must come through a certain class of people in society – the scientist or his
surrogate. In law this is transformed into the doctrine that the lawyer knows
best. (pp. 110–11)
It was the then novel Cardiff duty solicitor scheme that was empirically
examined in Images of Law, but the critique of radical law was extended to
welfarism tout court; and its further extension to the now much wider range
of worthy schemes which keep lawyers in funds, from personal injury
compensation to the passage of the Human Rights Act,2 seems obvious to
me (whether one agrees with it or not).
It is against this background that what remain the most striking parts of
the book are put forward. These are celebrations of the disruptive trial tactics
(if ‘tactics’ is the right way to put it) of, for example, Abbie Hoffman and his
co-defendants in the Chicago conspiracy trial, who would not accept the
formal and informal rules for the conduct of their trial but who disrupted
that trial in order to lay bare the oppression by command of force that under-
lies all trials and all law properly so-called. I do not have space here to quote
CAMPBELL: STATISM AND ANARCHY
415
sufficiently to give even a flavour of the way these admirable activists made
mock of these proceedings (p. 132), but I urge those who have not done so
to read chapters 4 and 5 of Images of Law (and then perhaps Hoffman’s
[2000] autobiography) to taste some of this flavour. These were defendants
‘whose primary interest was not in scoring legal points (even for the further-
ance of radical causes) but in seeking to expose the domination of law, and
to demystify law through the weapons of political speech, ridicule and a
contempt for courtroom convention’ (p. 113). Ban´kowski and Mungham
wrote from a self-avowed marxist standpoint (p. xi), but though this led them
to say some superior things about the anarchistic politics of courtroom
disruption (pp. 132–3) which are so trite as to best be ignored, these ‘marxist
politics’ are merely gestural and what emerges from the book is a thorough-
going distrust of left-wing legal solutions to political problems – an anarchist
tone, if not theory.
Whatever one may say about the development of social theory since
Images of Law was published, there can be no doubt it has become more
sophisticated, and compared to this sophistication some of what is said in
Images of Law looks naive, indeed gauche. Images of Law worked with a
crude conspiracy theory of ideology, in which the ruling class knew what was
really going on but used the law to disguise it. Ban´kowski and Mungham
were able to find an appalling piece of judicial conceit for which Lord Radcliffe
was responsible which, in retrospect, was too apposite for their purposes:
However various the sources of our accepted law, no part of it has ever made
itself. At the centre of the thing there has always been the judge . . . We all know
this, it is a commonplace among lawyers. It recognises, of course, the judge’s
law-making capacity, a capacity which only judges themselves, and that for
excellent reasons, are likely to dispute. It is to me...
To continue reading
Request your trial