The Rule of Law: An Unqualified Human Good?

Abstract

In his brilliant book, The Making of the English Working Class, E.P. Thompson, the author of one of these volumes and a contributor to the other, underlined "the paradox" in 18th-century England of "a bloody penal code" existing "alongside a liberal ... administration and interpretation of the laws."This paradox raised a problem for Marxist historians like Thompson: While they portrayed the 18thcentury English legal system as an instrument of class repression by a property-holding Whig elite, they nevertheless felt compelled to concede that "[a] quite surprising consensus of opinion," among gentry and common people alike, had successfully opposed establishment of a repressive system of police."[T]he conviction that the rule of law was the distinguishing inheritance of the 'free-born Englishman', and was his defence against arbitrary power, was upheld even by the [English] Jacobins."And as Thompson perceived, this system of law actually served to restrain the intrusion of arbitrary authority "upon personal or property rights."In an important and perceptive essay in Albion's Fatal Tree, Douglas Hay illuminates and explains this basic paradox of 18thcentury English law. 2 Hay argues that "the criminal law, more than any other social institution, made it possible to govern eighteenthcentury England without a police force and without a large army.The