Muir, James --- "Property, Authority and the Classroom" [2006] AULegHist 12; (2006) 10(1) Legal History 29

• Property, Authority and the Classroom

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Property, Authority and the Classroom

JAMES MUIR^[∗]

After more than thirty years, Douglas Hay’s ‘Property, Authority and the Criminal Law’ remains a provocative work for many people concerned about the relationship between law and society historically and in the present. The article is still read and taught in a number of disciplines and still has a moving effect on readers. It was, to cite a personal example, the most important thing I read in inspiring me to become a legal historian. As with most scholars my age, my first encounter with the article was in the classroom. Having had it assigned to me (four times) and teaching it myself (three times), here I examine how I had it taught to me and how I have taught it. Considering its importance beyond English history, its greatest power comes from how Hay opens up interpretive doors independent of time and space.

The article’s continued relevance to scholars can be seen in reviewing how and where it is still taught. In a Google search I found it listed as required or supplemental reading in many syllabi for courses offered since 2001.^[1] It appeared in courses in history and law, but also in anthropology, sociology, criminology, political science, and english; it was taught in Australia, Canada, the U.K., the U.S.A., France and Turkey. It is taught enough to merit a review paper available for purchase (as a study aid?) from an on-line essay service.^[2] To understand its appeal we must understand it as a work of history and theory.

As a legal historian in training, I had ‘Property, Authority and the Criminal Law’ assigned to me in both undergraduate and graduate classes. It was almost always assigned in conjunction with John Langbein’s ‘Albion’s Fatal Flaws’^[3] and, sometimes, Peter Linebaugh’s ‘(Marxist) social history and (Conservative) legal history: a reply to Professor Langbein.’^[4] The pairing of Hay and Langbein remains common, and the trio of articles is also still taught, though less frequently. Such a tendency is understandable: both of my co-contributors draw attention to the particular, English, eighteenth-century focus of Hay’s article. Langbein’s critique meets Hay’s article on the grounds of historical evidence, method and the interpretations one should be able to draw from the evidence. Linebaugh’s reply defends Hay’s interpretation and method (as he sees it) in light of the evidence.

As a pedagogic exercise, walking through the three articles can be instructive. We see disputes over historical interpretation, generalising from rural or urban studies, and dealing with gaps in available records. But, except in historical methods focused courses, such a reading is unlikely. Instead students will be drawn along an ever-narrowing path as they rethink ‘Property, Authority and the Criminal Law’ in light of Langbein’s and Linebaugh’s particular readings of the piece.

Langbein and Linebaugh place Hay’s article within a Marxist tradition of history (and legal studies), the first to criticise, the second to praise, both article and tradition.^[5] Such a linking is understandable: Hay wrote the piece while a student of E.P. Thompson, the leading Marxist historian writing in English in the 1960s and 1970s. Hay’s concern with the ideology of law tied his work to many Marxist works, legal or otherwise, of the era.^[6] As John Beattie points out in his piece, Albion’s Fatal Tree was explicitly concerned with the class politics of crime and the law in the eighteenth century.^[7] Hay does indeed argue that the criminal law in practice supported the interests of the ruling class. But in doing so, he does not seek support in Marxist theory. On the contrary, he notes that the idea of a property-holding English ruling class in the eighteenth century is ‘Far from being the property of Marxist or marxisant historians, the term is a leitmotif in studies of the period.’ The one time Hay explicitly refers to theory for support he relies on the conservative, but class-aware, Max Weber.^[8] Hay’s position here may be read both as an attempt to situate his argument within mainstream eighteenth-century historiography and to distance his own history from explicitly Marxist historical work.^[9] Neither Langbein nor Linebaugh acknowledge this.

Langbein is responsible for the greater misrepresentations, however. He begins with the assertion ‘Hay’s main thesis is that some of the most characteristic features of eighteenth-century English criminal procedure for cases of serious crime require to be understood as ‘a ruling-class conspiracy’ against the lower orders.’^[10] This is the first and signal misreading of Hay’s piece by Langbein, as it takes him, Linebaugh, and their readers further and further from Hay’s own position. ‘Conspiracy’ is, as I read Hay, a metaphor for explaining how the ideology of law worked its way out in the practice of prosecutors, judges, jurors, churchmen, justices of the peace, lawmakers, and others as they dealt with crime in their individual circumstances. Hay does not intend to paint the ruling class as a well-ordered cabal that worked surreptitiously against all others. Rather, the ruling class’s own unquestioned common sense led them to act through the law in ways that served to perpetuate their power as a whole. He writes first, ‘the legal definition of conspiracy does not require explicit agreement, those party to it need not even know one another, provided they are working together for the same ends.’ He then notes that much like Adam Smith’s invisible hand of the market, ‘the ideological structure surrounding the criminal law was the product of countless short-term decisions.’^[11] Langbein acknowledges that Hay does not expect the active agreement of all the ruling-class, but fails to see it as the metaphor for elite ideology that Hay portrays. Linebaugh notes that in focusing on the ‘ruling class conspiracy’ Langbein ‘not only takes a phrase out of context, but wholly misinterprets Hay’s analysis.’^[12] The bulk of his response is taken up revealing Langbein’s own ideological assumptions in his use of evidence and historical analogy. It is a useful article, and Langbein should not be read without Linebaugh’s reply, but while Linebaugh corrects and refutes Langbein’s multiple assumptions and errors, his reply does little to reinvigorate the truly exciting elements of Hay’s original piece.

A close reading of evidence and historical methods, a search for the spectres of Marx, or a consideration of sarcasm and nastiness in academic writing may be of interest to some who read ‘Property, Authority and the Criminal Law’ for the first time. For most, however, such readings do nothing but drain the article of its most exciting potential. It is fair to say that the majority of teachers and readers of ‘Property, Authority and the Criminal Law’ are not scholars of eighteenth-century English history. What draws us to this article is first, Hay’s beautifully constructed explanation of how a legal system, practice and ideology maintained authority at a particular time and place. Second is Hay’s explanation that this practice and ideology works to preserve the status quo in the service of existing power structures.

When I teach ‘Property, Authority and the Criminal Law’, I try to get my students to apply those ideas beyond the time and place of the piece itself. After discussing the piece, I ask them to think about how it might relate to law in the present. I suggest that much of our awareness of law-in-practice today comes not from witnessing the trial and punishment of offenders (including in the news media). Most of my students’ knowledge of the law comes from (U.S.) television, movies and related pop culture. So, I have them think about ‘Property, Authority and the Criminal Law’ in light of the television crime drama Law & Order. In the original series, the hour-long episode is broken into two parts: investigation by the police for half an hour, then prosecution of the accused (‘offender’ in the language of the opening narration) in the second half. The spin-off series that remain on television have focused on the police, but lawyers in the District Attorney’s (D.A.) office (responsible for prosecution of state criminal offences) are still core characters.

Ignoring for the moment the fictional, entertainment aspects of the programme (but I will return to this), I have my students think about majesty, mercy, and justice as found in the show.^[13] Justice, as Hay describes it, is the easiest of the three to find played out in the show, although it must be distinguished from justice for the victim (a major theme in Law & Order). For example, in many episodes either or both the police and the D.A. break constitutionally protected rights of the accused to get the evidence they need for arrest and prosecution, such as searching without warrants, questioning suspects after they requested a lawyer, or failing to turn over potentially exculpatory evidence. The heroes break these rules to get the criminal, but the judiciary often steps in to protect the rights of the accused by excluding evidence. The judiciary, the heroes’ superiors, and outside bodies at times also discipline characters that break the rules. The message here in part is that while the police and prosecutors may be over-zealous, even abusive, the system as a whole will protect the accused and ensure justice.

A second aspect on the question of justice in Law & Order is the racial and class make-up of offenders. Criminals are spread across class and race in the show, with, if anything, an over-representation of criminals as white, middle and upper classes, middle-aged males. Like the execution of Lord Ferrers, highlighting or presenting the arrest and prosecution of these men hides the real race, class and age dimensions of criminal law enforcement.

Mercy is a theme in Law & Order in both weak and strong modes. Weak mercy is the regret shown by police officers and prosecutors when, in just ‘doing their job’ they arrest or prosecute people with whom they have some sympathy. Strong mercy is most clearly seen where light penalties are offered in plea bargaining or suggested as sentences because of some extenuating circumstance in the accused’s life or the crime. These can be discussed as interesting analogies to Hay’s description of the pardon process.

Majesty is most difficult as a theme in the programme. While the judges are distinguished by their robes, the raised bench, and their power over the running of the trial, they are often cast as blocks to the heroes’ attempts to prosecute. While this does buttress ‘justice’ in the show, it limits the majesty of the judges. More generally, the shows aspire to a look of gritty realism, which likewise cuts into the majesty of the law.

Looking for majesty, mercy and justice in Law & Order does some disservice to Hay’s argument because he chooses those three aspects of the law as ideology because of their importance in eighteenth-century England, not universally. Nevertheless, having found them, at least in part, I can turn my students on to the larger question of the ideological effect of such shows. In part this has already been discussed in relation to justice. At this stage, however, I am more forceful in asking why the shows tell these tales? Although there is seldom agreement, my students start arguing about who is served by the legal narrative presented in Law & Order, and alongside this they consider the differences between those who make the shows and those who make up the audience. From here I can bring them back to the actual practice of law in the present, and the more general question of the law’s role in maintaining not just order, but a particular social, economic, and political order now and in the past.

Many teachers address the piece in other ways. But, as their courses move further and further from eighteenth-century England, their concerns focus less on the peculiarity of the English and more on the general potential for Hay’s piece. Such interest in generality might be contrary to Hay’s own original goal, but as authors we often cannot control how our work is read or used after it is published. Langbein and Linebaugh were not alone in casting ‘Property, Authority and the Criminal Law’ as a Marxist text. Even today, it is at times taught as an exemplar of a particular line of Marxist legal studies. But, it is still taught when other works more explicitly engaged with Marxist theory and written at the same time or since have been left aside. The continued use of ‘Property, Authority and the Criminal Law’ in the classroom rests on its general interpretive power, not the strengths or weakness of its particular historical argument.

For me, as both historian and teacher, the class argument Hay makes remains very important, yet the assertion of law’s ideological effects need not be limited to class. Hay does not address race, gender, or age in his article, but by applying his vision of law as ideology, students and researchers can address the way the law works on any of those (or other) vectors. As John Beattie has shown in his piece here, the particularities of Hay’s historical argument have been the focus of much debate in eighteenth-century English legal and social history. Jim Phillips has shown that historians in their research can benefit from a nuanced application of Hay’s insights and arguments. But, for a great many readers these critiques are of little importance in the classroom. Rather, for us, Hay’s clearly laid out thesis and argument posit a way to think about the law in action and, for some, to then turn to Beattie and Phillips’ points and spur us on in our own research and thinking about the law.

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^[∗] Assistant Professor, Department of History and Classics and Faculty of Law, University of Alberta, BA (Manitoba), MA (York), MPhil (Waikato), PhD (York).

^[1] Search terms: must contain phrase ‘property authority and the criminal law’ and one of ‘syllabus outline readings’; conducted 7 July 2006. Searched from <www.google.ca> with no domain qualifiers. I stopped collecting at 27. The list, with web addresses to the syllabi, can be obtained from the author.

^[2] Ellen Jones, ‘A Critical Review of 'Property, Authority and the Criminal Law' by Douglas Hay’, <http://www.coursework.info/University/Law/A_Critical_Review_of_Property_Authority_and_the_Criminal_L49766.html> . For purchase for as little as 6p.

^[3] John Langbein, ‘Albion's Fatal Flaws’, Past & Present 98 (1983): 96-120.

^[4] Peter Linebaugh, ‘(Marxist) social history and (Conservative) legal history: a reply to Professor Langbein. (John Langbein's view of 18th century English social history criticized).’ New York University Law Review 60 n 2 (May 1985): 212-243.

^[5] Langbein, above n 3, 97; Linebaugh, above n 4, 216-17. Langbein claims he does not ‘wish to bring the general tenets of Marxist theory into question’ (97), but Linebaugh correctly pricks this conceit, particularly in his discussion of the flush toilet (238-42). See also Langbein’s discussion of the ‘legitimation trick’ in Marxist work (114).

^[6] On ideology and the law work from the period, see for example, Colin Sumner, Reading Ideologies (1979) and Hugh Collins, Marxism and Law (1982). Terry Eagleton’s Ideology, an Introduction (1994) offers a good, if idiosyncratic, introduction to ideology and Marxism generally. A somewhat different perspective, on the question of ‘legitimacy’ is taken in Alan Hyde, ‘The Concept of Legitimation in the Sociology of Law’ (1983) Wisconsin Law Review 379-429 (see especially 404-06). Hyde casts Hay as both neo-Marxist and Weberian.

^[7] For example, the preface reads, in part: ‘it is not just a matter of ‘crime’ enlarging [over the 18^th century] but equally of a property-conscious oligarchy redefining, through its legislative power, activities, use-rights in common or woods, perquisites in industry, as thefts or offences...And the ideology of the ruling oligarchy, which places supreme value upon property, finds its visible and material embodiment above all in the ideology and practice of law’ (13).

^[8] The quotation on ruling class from (60), historians and the bloody code are discussed (22-4), Weber is cited on (40) in introducing the discussion of ‘mercy.’

^[9] Self-identifying as a Marxist may still have been an impediment to employment in 1975, so Hay may have been hiding his Marxist beliefs. His subsequent work, however, shows a continued concern for social class and inequality, but does not have any significantly more theoretical passages, Marxist or otherwise. We may contrast the lack of an explicitly Marxist argument in ‘Property, Authority and the Criminal Law’ with Thompson’s discussion of the rule of law in the final part of his conclusion to Whigs and Hunters.

^[10] Langbein, above n 3, 96.

^[11] Hay, 52-3.

^[12] Linebaugh, above n 4, 216.

^[13] I leave out explicit discussion of ‘delicacy and circumspection’, but parallels between Hay’s discussion of this (49-56) and Law & Order can be made.