8/11/2019 Douglas Hay
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78 Part II : The Search for Law Section III: Three Dilemmas of
Social Organization
ion' prevailed over 'physical strength.' Theopinion was that of
the ruling class; the lawwas one of their chief ideological
instru-ments. 8 It combined the terror worshipped byNourse with the
discretion stressed by Paley,and used both to mould the
consciousness bywhich the many submitted to the few. More-over, its
effectiveness in doing so depended in
large part on the very weaknesses and incon-sistencies condemned
by reformers and lib-eral historians. In considering the
criminallaw as an ideological system, we must look athow it
combined imagery and force, idealsand practice, and try to see how
it manifesteditself to the mass of unpropertied English-men. We can
distinguish three aspects of thelaw as ideology: majesty, justice
and mercy.
Understanding them will help us to explainthe divergence between
bloody legislationand declining executions, and the resistanceto
reform of any kind.
II
of the most powerful psychic components!religion. The judge
might, as at Chelmsforiemulate the priest in his role of human
agerhelpless but submissive before the demainof his deity. But the
judge could play the rolof deity as well, both the god of wrath
andtlmerciful arbiter of men 's fates. For the righteous accents of
the death sentence were niai
even more impressive by the con tras t with tiltreatment of the
accused up to the moment (1conviction. The judges' paternal concern
fjthei r pr isoners was remarked upon by foreigvisitors and
deepened the analogy with tlChristian God of justice and mer cy ..
..
JU STIC E
'Justice' was an evocative word in the eighteen th century, and
with good reason. Th(constitutional struggles of the seventeentlhad
helped to establish the principles of thrule of law: that offences
should be fixed, noindeterminate; that rules of evidence shoulibe
carefully observed; that the law should b
8/11/2019 Douglas Hay
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80 Part II: The Search for Law Section III: Three Dilemmas of
Social Organization
Eighteenth-century 'justice' was not, how-ever, a nonsense. It
remained a powerful andevocative word, even if it bore a much
morelimited meaning than a twentieth-century
(orseventeenth-century) egalitarian would giveit. In a society
radically divided between richand poor, the powerful and the
powerless, theoccasional victory of a cottager in the courts
or the rare spectacle of a titled villain on thegallows made a
sharp impression. Moreover,it would be wrong to suggest that the
law hadto be wholly consistent to persuade men of itslegitimacy.
'Justice,' in the sense of rational,bureaucratic decisions made in
the commoninterest, is a peculiarly modern conception. Itwas
gaining ground in the eighteenth century.Most reformers worked to
bring about such
law, and of all schemes Jeremy Bentham's wasthe logical
conclusion. Yet his plan for a crimi-nal code that was precise,
consistent andwholly enforced was alien to the thought ofmost
eighteenth-century Englishmen. Theyt d d t thi k f J ti i l t
escaped legal categories altogether. Althouglhe frequently made
obeisance to the rulewhen convicting, as we have seen, he
coulidispense with them when pardoning, and tilabsence of a ju ry
made it even easier for himto do so. Latitude in the direction of
merecaused some critics to complain that man;
jus tices, partly from laziness or carelessnes
but frequently from benevolent views im-proper ly indulged,'
judged cases 'partly or entirely by their own unauthorized ideas of
eq-uity. Th is element of discretion impressedWeber when he
examined the office of JP. Htcompared it to Arabic 'khadi
justice'1formal is tic admi nis tra tion of law that
wasnevertheless based on ethical or practical
judgements rather than on a fixed, rational
set of rules. It could combine rigid traditionwith 'a sphere of
free discretion and grace olthe ruler.' 11 Thus it allowed the
paternalist]!to compose quarrels, intervene with prosecu-tors on
behalf of culprits, and in the final in-t t di i ti l Th ight l
