History, Critical Legal Studies and the Mysterious Disappearance of Capitalism

Published date01 January 2002
Date01 January 2002
AuthorPaddy Ireland
History, Critical Legal Studies and the Mysterious
Disappearance of Capitalism
Paddy Ireland*
Ron Harris,Industrializing English Law, Cambridge: Cambridge University
Press, 2000, xvi + 331 pp, hb £37.50.
Not long ago the work of E.P. Thompson was widely regarded as having made an
important contribution not only to the then fledgling critical legal studies
movement but to legal scholarship in general. Whigs and Hunters, for example,
probably his most famous work directly to address legal issues, was published as
recently as 1975 and in the following decade provoked considerable comment and
discussion.1Since then, however, so rapid and comprehensive have been the
changes in intellectual fashion that Thompson is now, one suspects, little read, let
alone understood or valued, by the current generation of legal scholars claiming
radical credentials. In short, Thompson and the historical materialist tradition of
which he was part have fallen from grace and are no longer considered central to
critical legal studies or critical legal theory: ‘not [so much] heretics but barbarians,
who desecrate with [their] presence the altars of the liberal Gods’, as Thompson
himself put it in a slightly different context.2Thompson’s brand of materialism
was, to be sure, never one that people found easy to categorise. For some, it was
too ‘humanist’, underestimating the historical importance of structure and
overemphasising that of human agency; for others it was precisely its focus on
ideology, culture and lived experience that made it attractive. Arguably, however,
Thompson, more perhaps than any other historian, met Marx’s challenge,
identifying within history the formative role of modes of production while at the
same time encompassing historical particularity and human agency. This essay
seeks to remind us of the contours of Thompson’s historical materialism and to
explore how its abandonment has weakened critical legal studies, both
intellectually and politically.
Theorising the relationship between economy and law
My point of departure is a recently published book examining legal developments in
the eighteenth and early-nineteenth centuries to which Thompson devoted so much
of his life as an historian. Ron Harris’ Industrializing English Law is an important
addition to the literature on business organisation during early industrial capitalism
ßThe Modern Law Review Limited 2002 (MLR 65:1, January). Published by Blackwell Publishers,
108 Cowley Road, Oxford OX4 1JF and 350 Main Street, Malden, MA 02148, USA.120
*University of Kent.
1 E.P. Thompson, Whigs and Hunters (London: Allen Lane, 1975).
2 That of the treatment of communist intellectuals in Britain after 1956, see E.P. Thompson, The
Poverty of Theory (London: Merlin, 1978) 94.
which can lay genuine claim to being the most significant contribution to the field
since those made by Hunt and DuBois over sixty years ago.3The book also
endeavours to make a theoretical contribution of wider import, however, offering a
more general analysis of the relationship between the legal and the economic and it
is this, as much as the period that it covers, that connects it to Thompson.
Harris sets out not only to report the findings of his considerable primary-source
research but to correct the many misunderstandings surrounding the history of
business organisation during this period. This revisionism animates some of the best
parts of the book. Drawing on the work of legal and financial historians, for
example, Harris provides a highly illuminating account of the general context in
which the infamous Bubble Act of 1720 was passed and of the chronology of events
immediately preceding its enactment. In so doing, he identifies the interest groups
responsible for the Act and their motivations, showing that far from being directed,
as some have argued, at deterring the formation of joint stock companies following
the bursting of the bubble, the Act was, in fact, passed while the market was still
bullish and sought to stem the tide of small bubbles competing with the company.
Harris concludes that the Act was neither, as often claimed, a decisive turning point
in the history of the joint stock company, nor a major attempt to regulate the stock
market. It was, rather, a much more parochial affair, ‘intended to have an immediate
short-term impact on the events of the coming weeks rather than introduce a long-
term change of course’ (pp 60–81). Harris provides similarly enlightening accounts
of the revival of the Bubble Act in 1808 and of the judicial attacks on
unincorporated joint stock companies in the years following (pp 235–249); of the
circumstances surrounding the repeal of the Bubble Act in 1825 (pp 250–266); and
of the passing of the 1844 Joint Stock Companies Act (pp 277–286).
Harris also sets out to correct the widely-held view that joint stock companies
were of little economic importance in the eighteenth and early nineteenth centuries,
arguing, on the basis of a series of sectoral analyses, that they were rather more
numerous and important than most histories allow (pp 85–109, 168–198). He also
tracks the development of the various legal forms adopted by unincorporated
companies in the absence of generally available incorporation, laying bare the
practical and legal problems which they faced (pp 137–167). He concludes that
despite the best efforts of contemporary lawyers, and contrary to the view
expressed by many subsequent historians, the multiplicity of legal forms and
arrangements which emerged – generally comprising a mixture of trust, contract
and partnership – never constituted a satisfactory substitute for the corporate form,
even in the years before the unincorporated company began to be subjected to open
and concerted judicial attack.
Good though Harris’s account is, however, it is not without weaknesses, many of
which stem from his conceptual and theoretical framework. Early in the book,
Harris argues that legal histories tend to adopt one of two radically different views
of the relationship between the legal and the economic, either treating law as an
essentially autonomous phenemonon, developing according to its own internal
logic – a view, he suggests, which characterized traditional legal history in the
United States up to the 1950s and 1960s, and which still underlies ‘some of the
mainstream legal history literature written in Britain’ – or seeing it as an essentially
functional reflection of economic development. Within the latter camp, Harris
3 B.C. Hunt, The Development of the Business Corporation in England 1800–1867 (New York: Russell
& Russell, 1936); A.B. DuBois, The English Business Company after the Bubble Act 1720–1800
(New York: Octagon, 1938).
January 2002] History, CLS and Capitalism
ßThe Modern Law Review Limited 2002 121

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT