Wednesday, 19 February 2014

On Legal Theory in Practice

Precis: It is fashionable to use to legal or economic theories to explain or justify events.  Examines how legal or economic theories can be useful in attempting to explain or justify events. While legal theories can illuminate events, they are not reliably used for predictive purposes.

[These notes are for a series of lectures on jurisprudence.  I have singled out the 'Marxist theory of law', but could have applied the same treatment to other economic or legal theories.]

The research set out in the notes on the prosecution of governors has been a passion of mine for many years - which has seen me squeezed into all manner of small spaces around the world studying fading manuscripts.

A variant of the issues came to a head in the confrontation between the ACT and the Commonwealth in relation to civil union law.  The Commonwealth Governor-General disallowed ACT law.  The Governor-General's power to disallow ACT legislation was later removed from the Governor-General's office.  The notes refer to those developments.]

William III of England - Was he acting against class interests when he signed into law 11&12 William III ch12 - Crimes by Colonial Governors ?

An Economic Theory

Today we are going to put one of the older economic theories to test.  

We are going to consider the Marxist view of law and ask whether it really can offer some insights into the way the law operates in practice.  For this purpose we will look at prosecutions against one of the highest offices of state, the governor of a colony or modern state.

On first blush, the Marxist theory would suggest that a prosecution against a high office is highly unlikely.  Contrary to theory, prosecutions started on a number of occasions and the underlying law still exists.  It still acts as a tangible constraint on the actions of our Governor-General, state Governors and the Northern Territory Administrator.

To what extent does Marxist theory offer a satisfactory explanation of the use of the law against governors.  

Marx died before he definitively mapped out the dialectical relationship which he had postulated to exist between law and economics.[i]  We are left with a number of disjoint statements, and that these statements neither sufficiently expound the dialectic nor presented an approach free from ambiguity is made clear from the multiplicity of accounts which purport to be representative of the Marxist approach to law.  However, a number of commentators have attempted to resolve the difficulties presented by Marx’s legacy in order to establish the basis of Marx’ and Engles’ approach to law.  Indeed, Cain has gone so far as to establish a sociological account of the dialectical relationship involved in this process.  In the following discussion, I will deal with Marx’ and Engles’ approach to law, as it is expounded by Cain and O’Malley.

Briefly, Marx and Engles regarded law as being a primary factor in what could be conveniently described as a ‘social matrix’.[ii]  Other less important factors in this matrix would be such fields as religion, philosophy and the social sciences in general.  The overall effect of this social matrix is to create an attitudinal or ideological unity between the members of this matrix: which are isomorphic to the members of a specific society.  The outward manifestations of this social matrix are, among other things, state institutions: parliament, the judiciary, the military, etc.  The members of the social matrix can be arranged hierarchically according to their relative importance within this matrix.  These members would assume a different hierarchical order if such were relative to different factors, such as the mode and means of production.  For convenience, the term ‘economic matrix’ will be used to describe this relationship, the most striking feature of which is the obvious differentiation of society into classes of people who hold similar economic interests.

The “glorious” revolution of 1688-9 represents the culmination of a gradual change in the status of the English economic matrix.  Marx claimed that it saw:
“...the old landed aristocracy having been defeated and the bourgeoisie not being able to take its place except under the banner of moneyocracy, or the “haute finance”.” (Marx, 1968, 45)
In Marxist terminology, the ‘big land owners’ and the ‘upper strata of the commercial bourgeoisie” replaced the old “reactionary feudals” [iii] in the hierarchical structure of the economic matrix.  The English social matrix mirrored these changes.  Parliament declared in 1702 that “[t]rade ought to be free and not restricted…”[iv], whilst in 1701, a Chief Justice claimed that Stuart attempts to restrain trade were void because they were “…contrary to the liberty of the subject” [v].

Basic to Marxist theory is the proposition that the social matrix is subordinate to the economic matrix, or as in the above example, that the English Commons and the King’s Bench was subordinate to the interests of the bourgeoisie.  However, the degree to which subordination has effect is one of the greatest problems of Marx’ legacy, there seem to be many inconsistent statements dealing with the dependence/independence of the two matrices.  O’Malley uses a variation of the paradigm theory to explain these apparent contradictions between the determinist and loose accounts of the relationship between law and economics, or the social and economic matrices.  Cain avoids the need to take this approach by concentrating on what she sees as key passages in Marx’ Capital and Engles’ Anti-Durhing which deal with law in sufficient depth to represent a sustained effort to indicate the dialectic.

Between the two matrices there is a great deal of interdependence. Engles claiming that the social matrix would not exist without the economic matrix, and that if state power were to run against the interests of the economic matrix “... it [state power] will go to pieces in the long run.”[vi]  Marx was stating the same thing when he said that the essential “…character and direction [of law] are determined by the economic conditions of …class.” [vii]  Conversely, the social matrix has importance to the economic matrix because although:
“The modern state [the manifestation of the social matrix]… is only the organisation which bourgeois society provides for itself in order to support the general conditions of the capitalist mode of production against encroachments of the workers as well as of individual capitalists…” (Engles, cited in Cain, 1974, 140)

The social matrix is also a means whereby the economic matrix can establish such legitimising and coercive forces as to maintain the status of the hierarchy in the economic matrix.  As it is not in the economic matrix’s interests to have to resort to the type of direct coercion, as in the 1688-9 revolution, when ever its status is threatened, it is necessary to give the social matrix the semblance of independence fro the dominating class in the economic matrix.  As Cain shows[viii], this independence can take ideological or political forms which seem to indicate that the repository of effective power is to be found within the structural manifestations of the social matrix.

Indeed, it is then inevitable that this ‘false’ independence leads the social matrix to the position where it can exercise some ‘real’ power over and against the economic matrix.  However the extent to which elements in the social matrix can adversely affect the ordering of the economic matrix is strictly limited by the dialectical relationship between law and economics.  Cain states that:
“The legal conception shapes the external reality, develops with it, and is developed by change within the new external world thus created… The conception becomes the material world as the material world gives rise to the conception.” (Cain, 1974, 145)
The parameters of this reciprocal effect are delineated by the economic matrix; in its own interests, it might choose to lose a battle than to lose the war.[ix]

A real world circumstance - the prosecution of Governors of Colonies

It would best serve the interests of the Marxist approach to law to study an area wherein the interests of the dominant class in the economic matrix were opposed by a policy pursued by the members of the social matrix.  It is in this context that a law made immediately after the Glorious Revolution dealing with prosecuting governors of 'plantations' (11&12 William III ch12) is of some relevance. (Note that the reference to 'plantations' covers all forms of old or modern colonial or self-rule polities.)  

Not only does this law appear to subject the interests of the dominant class to crucial restrictions, but this act was also generically operative against people, the Colonial Governors, who, in the historical context, were important elements of a social matrix structure which protected the economic matrix’ status.  The act was and remains a doubled edged weapon.  Not only could it be used by the dominant economic class to further their interests in critical areas, but it could be used to defeat such interests by non-dominant classes in the economic matrix. 

There seems to be three distinct phases in the useage of the Act.  In the initial period, the Act was used by the Board of Trade, which represented the dominant economic class of the time.  In the period 1725-60, a foreign element of the dominant class, represented by the colonial Assemblies, was able to subvert this control, using the Act to extend their own interests.  In the last period, to present, the Act was effectively used by non-dominant class interests.  Through all these phases, the Marxist dialectic is vindicated, the path of history not contraverting its application at any stage save the first: why was it passed initially?

Overseas colonies after Elizabeth became an important factor in the development of the economic matrix of England.  This factor became of critical importance with the “Peace of Paris” in the first quarter of the Eighteenth Century, when England was excluded from European markets.[x]  Initially colonial development had been left to the landed aristocracy and monopoly trading companies.[xi]  However, towards the end of the Seventeenth Century, these old interests became increasingly under attack, and with the Glorious Revolution, the new economic matrix was able to exert pressure on William’s parliaments to effectively destroy their old legal rights of monopoly.

There was, and remained, a major obstacle to the development of the new dominating classes’ interests in the economic potential of the colonies, an economic potential critical to the survival of their new position.  Hill states that, after 1688 “[a]n essential prerequisite for industrial revolution was large and sable colonial monopoly markets.”  The stability of the colonial monopoly markets depended on the political administration of the various colonies, and particularly on one administrative office: the governor.  After the Glorious Revolution, the colonial governors established by the Stuarts were overthrown by colonials.[xii]  Capable administrators such as Governor Andros (New England) were replaced by incompetents such as Governor Leisler (New York) under the guise of local patriotism and anti-Catholism.  As a result trade was severely disrupted.  The new governors, it seems, pursued a policy of enlightened self-aggrandisement characterised by an open disregard of the law.[xiii]

Petitions to Commons with respect to the situation were received by every Parliament[xiv] until William III dismissed the old Privy Council Committee of Trade, and appointed the Board of Trade in 1696.[xv]  The petitions ceased soon afterwards.  The Board of trade was controlled by the new dominant economic class, and many of the members of the fist Board such as John Locke and Pollexfen had personal interests in the colonial trade.  The Board’s commission was wide, giving it virtual control over all aspects of colonial administration.  It became the office through which all colonial grievances were to be aired until about 1720.  But despite this, the Board of Trade did not concern itself with the establishment of proper government in the colonies:
The most important duty of the Board was to make the colonies commercially profitable to the mother country.  (Dickerson, O, 1912, 24)
The legal responsibilities of governors to individuals were considered to be of slight economic importance to the Board of Trade, which could appoint and dismiss errant governors at will.

The King’s Bench did no make things better.  The decisions of the Rowel v. Dyon[xvi] and Groenvelt v. Burwell[xvii] effectively put the governors outside the jurisdiction of English Courts for wrongs and criminal offences committee overseas.[xviii]  In fact the only way to seek redress for such actions lay in the risky[xix] procedure of petitioning the King or Commons in England, a course destined to fail unless the Governor in question offended either the King or his ministers.

It is within this context that the law 11&12 William III ch12 was promulgated.  The reasons for the promulgation are enigmatic and unsatisfactory.  The economic matrix did not require the criminal sanctions provided for by the Act, indeed the existence of the Act constituted a threat to the economic matrix control over colonial affairs through the Board of Trade.  In retrospect some might claim that the Marxist approach to law is not contraverted by this instance, for the subsequent use of the Act proceeds along Marxist lines of explanation.  It might be claimed that the Act was merely one part of a plan conceived by Attorney-General Northey and William III to further destroy the old proprietorial stranglehold on the southern colonies, and indeed there is evidence supportive of this.[xx]  However, of the acts passed previously and those to be passed concerning governor liability[xxi], this act is the most lethal, making governors responsible to the people of the colonies for oppression they were responsible for.

When the initial Bill was placed before the Commons, it was not subject to heated debate, and it received no criticism, despite the fact that the economic interests it was to usurp had successfully bought there was into William’s parliaments.[xxii]  Even later, when the Act was placed before the Lords Commissioners of Trade, they did not object to the act even though, as early as 1704 with the attempted prosecution of Governor Granville, their monopoly over control of the colonies and plantations was to be eroded.[xxiii]

The Act then, from the start indicates a cleavage of interests within the dominant economic class.  The commercial bourgeoisie’ and the landowners’ interests were already satisfied by the existence of the Board of Trade and the Lords Commissioners of Trade.  The Act prepared by Solicitor-General Hawles, actually was not in the primary interests of these classes as it left the way open for other non-dominant classes in the economic matrix to progress changes in what had become a critical economic area.  The Marxist approach to law would deny the possibility of the Act actually being used to defeat these critical interests, and in fact the Act was not used in this way.  By the time the Act was used to defeat the governor, the office was no longer of critical importance to the dominant economic class.

However, after the Act was passed, there were no ‘class’ restrictions on the usage of the Act.[xxiv]  It was possible for non-dominant class-members to institute proceedings before the King’s Bench by either an indictment before a grand jury, or through the Attorney-General or Solicitor-General, or a direct appeal to the court by a person who had been wronged.[xxv]  Until after 1720, there is no evidence to suggest that the first or the latter courses were employed with regard to this Act: Governor Norton, Nanfan, Parke, Cary, Douglass and Lowther were all prosecuted by way of an information laid by the Attorney-General of the day.  In all of these cases the Lords Commissioners directed the prosecutions to take place, and, again, in all cases, all of the governors prosecuted had a history of unstable economic handling of their respective colonies.  Indeed the equality to commence proceedings was only such “on paper”.[xxvi]

Hamilton, in the Zenger trial forcefully stressed this point, claiming that only the very rich in the colonies and those back in England could afford to start proceedings against the governors[xxvii], who maintained agents in London for the purpose of preventing such actions.  Of the two classes of people who had the potential to take proceedings against the governors, the Board of Trade, and the rich landowners in the colonies, only the former was able to use the Act initially, the later probably only succeeded in forcing the Board of Trade to prosecute Governor Lowther in 1720.  However, prior to Lowther, colonial economic interests had attempted to secure a prosecution against Governor Granville in 1704.  An official report of this incident claims that:
The Gentlemen [who had been suspended from the Bermuda Council for their attempts to deadlock it] who were displaced, finding now they could not play their game no longer at home, resolve to carry on their malice by sending over petitioners to H M, against the Governour, and to spare no cost, as some of them have bragg’d to gett him removed, in the hopes of being able to manage his successor. (SP/CS, 1705, a106)

With the decline of the influence and power of the Board of Trade after 1720, the colonial economic interests became a predominant factor in the control of the governors.  The governors’ position was effectively subverted by these elements when they, the governors, became dependent on the local Assemblies for finance.  Governor Shute and Governor Belcher both complained bitterly of this, but the Board of Trade, increasing stacked with position men after 1714[1] did nothing.
Governors and other people interested in colonial affairs found little heed paid to their communications addressed to the board.  (Dickerson, 1912, p.36)

With the colonial control of the governors secure in the hands of the dominant class, of those colonies, there were no more prosecutions until that of Governor Mostyn in the 1770’s.  Consonant to Marxist theory, this colonial class sought, and achieved control over the nomination and dismissal of governors by way of an informal arrangement with the Secretary of State’s Office[2], and consequently the act was not employed.

The loss of the American colonies and Mostyn’s Case mark a change in the use to which the Act was put.  From that stage onwards, the Act was used against the dominant class interests.  The most obvious factor in the prosecution of Governors Mostyn, Wall, Picton, Eyre and Governor-General Hastings, is that the complainants did not belong to, or have any connection with the dominant economic class[3]: in England or the colonies, while the accused did belong to such a class, and was, at least nominally, representing its interests.[4]  

Does this change constitute a situation that Marxist theory cannot explain?  The position of the governor from the late Eighteenth Century onwards was different from that of preceding time.  Local economic interests had captured the governor’s independent standing.  Henceforth, governors, like Bligh, who attempted to meddle with the dominant classes’ economic interests could be removed, often forcibly, and returned to England.  Political power in the colonies has similarly been subverted by this dominant class, and the governor was no longer the most important administrative office in the colony.  Hence the successful prosecutions in the third period were battles the economic status could afford to lose.

Yet the successful prosecution of these later governors did not only affect the actors involved.  All the cases were widely published and all continued, on and off, for more than four years.  Hence the use of the Act may have successfully projected a new set of parameters to the type of governor behaviour which would be tolerated.  This situation far from disapproving the Marxist approach to law then is consistent with the dialectical account presented by Cain.

It is possible to construct hypothetical cases within the framework of the Act wherein the Marxist account of law would be sufficiently contraverted as to be disproved.[5]  Had the Act been used against British influence in the June 1976 disorders in Jamaica, against Governor-General Kerr in December 1975 or to forestall the disallowance of Australian Capital Territory same sex union laws in the last decade, Marxist theory might not have been able to explain the use of the Act.  However, apart from such hypothetical cases, there is no recorded example whereby it could be said that the Act was able to effectively defeat the dominant economic classes’ interests to such an extent as to force a reorganisation in the status of the economic matrix. However, a major factor in the non-use of the Act, which despite the fond wishes of a number of constitutional writers has not fallen into desuetude[6], is the inexplicable fact that there is only one recorded case was actually used to prosecute a governor.  Hence the actual survival of the Act might be a function of this failure, within the social matrix.

More recently though, it might be possible to reflect on the consequences of the disallowance of Australian Capital Territory same sex union legislation in 2006.  Initially proposed in 2006, the ACT Civil Unions Bill 2006 provided for civil unions for same sex couples.  The Bill was opposed by a conservative Commonwealth Government.  After the Bill was passed by the ACT Assembly on 11 May 2006, Commonwealth Ministers instructed the Commonwealth Governor-General to disallow the law.  The ACT Assembly remonstrated, arguing in the terms of the old law that this would amount to oppressive conduct.  Nevertheless, the Governor-General followed the advice of the Commonwealth Ministers and disallowed the law.  A couple of years later, the Commonwealth Parliament removed these powers from the Governor-General.

The subordination of the governor of the colonies and plantations after the Glorious Revolution firstly to the Board of Trade and then the local Assemblies or ‘planters’ reflects the use of the Act through this period. It shows a subordination of the legally irresponsible and independent position of governors in their own local social matrix to the interests of the dominant economic class.  The latter use of the Act, whilst also altering the position of the governor in this matrix [by altering the definition of what was legally and morally acceptable], did not subvert the critical interests of the economic matrix, and, hence, in Marxist terms, was not effective.

Ultimately, like any theory of law, the Marxist theory helps to illuminate or explore the practical usage of the law.  But like all other theories, it fails at predicting the course of actual events.

[i] Cain, M., “The Main Themes of Marx’ and Engles’ Sociology of Law”, British Journal of Law and Society, v.1, 1974, p.136
[ii] The term “social matrix” corresponds with the “traditional” Marxist “superstructure”.  Likewise, “economic matrix” corresponds to economic “substructure”.  Both substructure and superstructure, as terms, are archaic and misleading.
[iii] Marx, K., On Colonialism, Moscow, 1968, 45 and see note to ‘glorious’.
[iv] Hill, C., A Century of Revolution 1603-1714, Edinburgh, 1961, p.263.
[v] Ibid: This statement is probably more significant in indicating change, as law is a most conservative profession.
[vi] O’Malley, P., Theoretic Idealisation and the Interpretation and Development of Marx’s Theory of Law, unpublished paper, cited Engles at p.9
[vii] ibid, p.1
[viii] Cain, op cit, p.140ff
[ix] Cain, op cit, p.141
[x] for an account see Hill, C., Reformation to Industrial Revolution, London, 1968
[xi] Guttridge, G., The Colonial Policy of William III, Cambridge, 1922, gives a good account of this.
[xii] Exceptions being the proprietal colonies: Southern North America
[xiii] see letter from Randolph to the Lord Commissions of Trade in 1699, in Calendar of State Papers, Colonial Series, America and West Indies, 1699, Public Records Office, G.B., 1860+, [hereafter cited as SP/CS] a.326
[xiv] Commons Journal, vol.10: pp 493, 546 ,457 ,493…  vol.11: petitions on 17/12/94, 3/1/95 etc
[xv] Commons forced the King’s hand.
[xvi] 2 Lutwyche 944
[xvii] 1 Salk. 396
[xviii] The only other case of the pre-Act operation period is Dutton v. Howell Show. 24, a reserved decision similar to the cited two.
[xix] Colonel Bayard found out how risky when he was tried for high treason for attempting to petition these bodies: The Case of Colonel Nicholas Bayard, 14 How S.T. 471
[xx] SP/CS, 1700, a.566
[xxi] 6 Anne, ch 41; 7&8 Will III,  ch 22; 13 Geo 2, ch 63; 24 Geo 3, ch 85; 42 Geo 3, ch 83
[xxii] Hill, op cit, 1861, p. 285
[xxiii] SP/CS, 1700, Feb 2nd
[xxiv] As in later Acts such as 42 Geo 3, ch.85… or under most Constitution Acts.
[xxv] Ogg, D., England in the Reigns of James II and William III, Oxford, 1963, p.103.  Alternatively, the Act itself provided that the King could appoint commissioners to examine a cause of action in the colony.  However the Commissioners system was not used with respect to the Act until Governor Wall’s case in 1802.  It was notoriously unfair in the Eighteenth Century, such Commissioners could be interminably delayed like the one appointed in 1695 to investigate the Glen Coe incident on 1689.
[xxvi] Engles claimed that such equality is not real: Cain, op cit, 1974, p.142.
[xxvii] 17 How.S.T. 707; also cited in Greene, E., The Provincial Governor in the English Colonies, London, 1969, p.198.

[1] Dickerson, O., American Colonial Government, 1912, p.34.
[2] Greene, op cit, p51ff and p202 gives a brief account of this.
[3] Much of the evidence in Mostyn’s Case was concerned with the low origins of the complainant Fabrigas, and justice Gould’s summation reflects this evidence.  An Analysis of the witness brought forward in R. v Picton 30 How. S.T. 225 emphasises this – the only notable prosecution witness was a local priest.
[4] Note that Governors Wall and Picton were not sued under the Act but under the similar 42 Geo 3, ch.85 and 33 hen 8, ch 23.  The language of the prosecutor in the Wall case, the Attorney General, Sir Edward Law was ermeated with the language of the Act; a circumstance to be repeated by him as Lord Ellenborough, in Picton’s Case.
[5] This is implicit in O’Malley, Theoretical Implications…, pp 13-4
[6] esp Keith, Wade & Bradley

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