Is ideology a weapon in the hands of the powerful? Our reviewer argues in the affirmative: legal ideology “masks the gallows and the death sentence.”
How does the state’s ruling class engineer the consent of the governed to its authority and legitimacy?
“Property, Authority and the Criminal Law.” In Douglas Hay et. al. Albion’s Fatal Tree. New York: Random House, Pantheon Books, 1975, pp. 17–63.
In brief, the ruling class uses the power of the state to secure its privileges. Force is one technique, but force must seem legitimate otherwise the majority (the ruled) will revolt. Therefore, to win the assent of the ruled, the ruling class cultivates ideology and loyalty through discretionary law enforcement. The criminal law’s lessons (justice, majesty, and mercy), elicit the sanction of the victimized subjects. This benign face of criminal law masks the gallows and the death sentence.
Rulers and feudal property owners know that they must solve the problem of how to induce the many to submit to the few. In the long run, terror and coercion alone cannot cow the more powerful (but ruled) majority. Not physical strength but good “opinion” must win over the people. The ruler wields ideology or propaganda to win the minds of the people; the criminal law serves as a powerful ideological technique to maintain the bonds of obedience and deference to authority. Criminal law protected rulers, their revenues and authority through a mixture of terror and mercy, gallows and pardons, fear and gratitude.
Eighteenth century England illustrates how criminal law functions as ideology and induces “voluntary” obedience. A paradox presents itself: the number of capital statutes (offenses subject to the death penalty), increased fourfold between 1680 and 1820. Almost all these capital offenses concerned crimes against land. Government and its criminal law thereby protected the interests of the feudal governors. Yet the number of public executions for property offenses remained relatively stable. Thus, eighteenth century criminal law upheld the rulers’ interests with bloody sanctions but claimed relatively few lives.
How can we explain the coexistence of bloody laws and increased convictions along with a proportional decline of actual executions? Because royal pardons increased and the courts grew more lenient. But why the “mercy”?
The paradox is resolved in the social and political function of criminal law as ideology to buttress the rulers by winning the deference, assent, and obedience of the ruled. Law appeared to the governed as a Janus‐faced force, displaying alternately a stern or a merciful countenance, which molded popular opinion to submit to the few.
As ideology, law combined majesty (awe‐inspiring spectacle and the quasireligious pageantry of court proceedings), the appearance of fair justice to the governed (actually a mix of the rulers’ self‐interest and paternalism), and a show of mercy. By granting mercy to the convicted through royal pardons, the rulers won the gratitude of criminals and the credulous awe of noncriminals. Pardons granting mercy were selective instruments of class justice. They allowed the powerful to bestow favors and thus win the support of the governed.
The law’s majesty, justice, and mercy forged the ideological chains of consent and submission (Blake’s “mind‐forged manacles”). The rulers managed this consent by mixing firmness and “delicacy,” the carrot and the stick. Leniency and pardons in capital cases were tools to maintain the rulers’ authority. Their motives were not simply humanitarian; they intended their “delicacy” to defuse possible riots.