EP Thompson’s classic Whigs and Hunters: The Origins of the Black Act traces the confluence of property, law, and crime in a transitional moment of capitalist development in eighteenth century England. Thompson also shows this same confluence of factors was also tied to tremendously important shifts in class relations underway during the same period. As Thompson puts it: “We appear to glimpse a declining gentry and yeoman class confronted by incomers with greater command of money and influence, and with a ruthlessness in the use of both” (108). Through detailed presentation of a spotty historical record Thompson reveals the tectonic changes put in motion in eighteenth century England. The relevance of his historical analysis impinges on debates regarding the law, state, ideology, property, and class.
Thompson does not hide his political message: the law was and remains a critical site of class struggle that the left cedes to conservatives at its own peril. Rather than “an instrument of class power tout court,” Thompson considers the law a “genuine forum within which certain kinds of class conflict were [and can be] fought out” (265, 262). He considers the Black Acts as not only a constitutive moment of this sort of political struggle, but also as a case that backs his claims about the law as a fruitful site of radical politics.
The meticulous historiographic heavy lifting—though clearly needed and laudable—sometimes obscures Thompson’s main points. For instance, key passages on law and property come nearly two-thirds of the way into the book: “…property and the privileged status of the propertied were assuming, every year, a greater weight in the scales of justice, until justice itself was seen as no more than the outworks of defences of property and its attendant status” (197). The primary concern of the law is being refocused from the protection of people toward the protection of property. Thompson details how lawmakers constantly expanded the scope of “intrusions against property” in what amounted to the “elevation of property above all else” (197).
If any legal measure could be characterized as a class project, the 1723 “Black Acts” package is an ideal candidate. The Black Acts criminalized any transgression against private property with disproportionately draconian punishments. The Acts themselves easily lent themselves to creeping criminalizations of all sorts of practices and populations.
But Thompson presents strong evidence that the Black Act was not a class project plain and simple, just as Blacking was not an underclass insurrection. The Black Act formed part of the consolidation of the formal rationalization of the emergent market economy and the centrality of private property within that system, which was held together by the scaffold of law. But the Whig political class did not propel all the material manifestations of the Black Act. Thompson clearly shows how most conflicts that pitted the Blacks against forest officialdom were driven by locally defined self-interest and bureaucratic momentum.
Thompson acknowledges that making Blacking a capital offense was “an astonishing example of legislative overkill” and how the severity of the punishment sought to sow terror. But he more firmly situates the Act within the “long decline in the effectiveness of old methods of class control and discipline,” which in turn led toward a “an increasing impersonality in the mediation of class relations, and a change, not so much in the ‘facts’ of crime as in the category – ‘crime’ – itself, as it was defined by the propertied” (205-206). When crime becomes something done to things and not people, Thompson argues, the law assumes “with its robes, the postures of impartiality” (207).
Thompson cites Douglas Hay’s argument that “law assumed unusual pre-eminence in [the 18th] century, as the central legitimizing ideology, displacing the religious authority and sanctions of previous centuries” (263). Indeed, land, property and transparency about the “rules of the game” remain implicit in liberal tropes, from Locke to Hayek to Friedman and others, about the “rule of law.”
But Thompson is careful to note that the Black Act was not the creation of private property out of no-property, but rather the parsing of alternate definitions of property rights, listing these as follows: landowner/enclosure, cottager/common rights, forest officialdom/deer grounds, foresters/turf harvesting. The law destabilized a regime of customary rights and its associated set of productive relations by imposing a more rigid regulation of forest activities. Part of the conflict between users and exploiters stemmed from the problem that legalized exclusion constricted the spaces exploited by users to shore up their livelihoods. Thompson explains, “[A forester’s] livelihood depended upon the survival of pre-capitalist use-rights over the land, and upon some form of social organization … by which conflicting claims to use-rights over the same land and timber could be reconciled” (240). But Thompson’s overall point is that this turn of the law is not an unmitigated elite victory. It’s more complex than that; in fact, his arguments seem to suggest that the growing hegemony of the law might stem from a slipping elite hegemony, a product of its own uneasiness before the force of political-economic changes underway.
Thompson firmly lays down his political cards in the final few pages of the book: “I am insisting only upon the obvious point, which some modern Marxists have overlooked, that there is a difference between arbitrary power and the rule of law” (266). And he calls this rule of law “a cultural achievement of universal significance.” The reader is forced to pause in thought by the arresting, counter-intuitive claim, considering the storied history of the Black Acts. From a post-colonial perspective, Ranajit Guha, for one, ridicules Thompson celebratory statement of the law; as I’ve noted, Guha suggests that Thompson has succumbed to the “pervasive power of the ideology of law in English political thought… ‘Rule of law’ is the name given by the common sense of politics to that ideology.”
I agree that it’s hard to reconcile the rule of law with its un-rule in practice, particularly in relation to colonial contexts. And throughout history rule often turns on an actual blurring of the lines between the legal and the illegal—it is a vast gray netherworld, a liminal legal space. What’s more, impunity is entrenched and institutionalized. Still, Thompson is right: the law can’t be ceded as a site of class struggle. Contrary to Guha, another post-colonial scholar, Partha Chatterjee, would seem to offer Thompson an unlikely intellectual ally.
In Chatterjee’s vision of the messiness of “political society,” he sees something particularly subversive in the fact that government is drawn toward de facto acceptance of illegal collective arrangements, thereby transforming the illegal into what could be called “paralegal.” (Chatterjee briefly acknowledges, regimes of paralegality can also work in violently oppressive ways.) I doubt either would be very comfortable with the marriage, but Chartterjee’s ideas about political society—and what I’m calling it’s paralegality—resonates with Thompson’s writings on legality and the “moral economy.” The work of both authors seems to highlight fluid forms of popular consensus on collective, life-dependent subsistence arrangements. The tricky part is that the legal and illegal do not neatly correspond to the legitimate and illegitimate.