ASSIGNMENT 1

LAW AND THE MODERN MAKING OF INDIA

REACTION PAPER TO HAY-LANBIEN DEBATE

READINGS

Hay, Douglas. “Property, Authority and the Criminal Law,” Albion's Fatal Tree (1975), pp. 17-63

Langbein, John. “Albion's Fatal Flaw,” 98 Past and Present (1983), pp. 96-120

Linebaugh, Peter. “(Marxist) Social History and (Conservative) Legal History: A Reply to
Professor Langbein,” 60 New York University Law Review (1985), pp. 212-243

COURSE COORDINATOR: Dr Javed Wani

BY: RACHIT SETH

rachit2699@gmail.com

THE TREE, ITS LAND AND MUCK

`The HAY-LANGBEIN DEBATE is an interesting read which provides us with a useful insight as to how
the narrative is an important aspect of history writing. Hay expounds the criminal code of the 18th century
England as an ideological pillar on which the property-owning “elite” roofed their dominance upon the
many but underprivileged non-propertied. He presented a background to the gentry’s tool of “law” having
three aspects which furthered their schema to stasis their dominance, namely Majesty, Justice & Mercy.
Majesty was that aspect which the poor saw, Hay talks about the assizes. Majesty of the half-yearly
assizes not only gave a shot to local gentry to swank their position but more than that it helped establish
“Law” as an entity different and above the humankind, as a supplant to religion and the crown’s
preeminence. Justice, the idea of ‘equality before law’ was cemented by the executions of elites like Dr
Drodd and Lord Ferrers. Justice legitimized the merit of ‘law’ being these superior phenomena. Mercy
was the fruit that this pious law provided to its pupils. Hay argues that this majestic ‘law’ was a creation
of the gentry, its justice was mostly only reserved for the gentry, where otherwise it was just a mirage
created by the gentry and its fruit of mercy was given to the suppressed by the gentry. This argument of
Hay was backed by stats that difference between convictions and their actualization in executions. The
reduced amount executions as compared to that of the convictions were a result of increased pardon
recommendations. Hay points out that this variation between the parliament’s intention and judiciary’s
implementation did not lead to a political conflict because this fissure was systematically dug by the
ruling elite to harden their ideology of ‘law’. Langbein counters the Hay narrative by arguing that 18th

 ‘law’ was an important aspect of the society for the ruling class but it was nowhere a conspiracy
Century

which helped them keep their dominance static. He gives an interesting analogy of the ‘law’ being as
important to the elite as the sanitation system. Prof Langbein’s paper presents the data of the four sessions
of the Old Bailey Trail (The Judges Notes of Sir Dudley Ryder), where he reflects that the propertied that
the criminal code protected was not only the elite but was an overwhelming amount of people that
belonged to the lower order, the parliament passed legislation to reward successful prosecutions hence
countering the advantage of discretionary prosecutions which were according to Hay an important elite
privilege. Ryder’s data also answered the questions raised about clemency, the basis and merits of
clemency are an important aspect of the recordings. According to him the pardons were granted
reasonably and had very little to do with the elite proving their dominance. Peter Linebaugh responds to
Langbein’s narrative by pointing out the statistical shortfalls of his arguments which according to him
misrepresented and misconstrued Hay’s ‘ruling class conspiracy’. He argues that Langbein’s data had
inadequacies, like the self-acknowledged problem of being exclusively of London (ignoring the
countryside which accommodated most of the English people), secondly, the arrangement of data in lay
categories of offences, to give a sense of them being prosaic and having a sanction even in ancient times,
ignoring the changes of the objects of crime, like from sheep theft to shop theft. Linebaugh points out at
micro aspects of cases like that of Michael Harris which elaborates the law ignoring ‘usages of trade’ for
reimbursement of the poor labourers. He also catches on to Langbein’s analogy of law being as important
to the elite class as the sanitation system, both according to him were designed by and for the elite and
both resulted in the suffering of the poor. The terror of execution in the case of the laws and poisoning due
to pollution in case of the sanitation system

The reading perfectly embodies Haydon White’s theory regarding the techniques used by a historian to
write history. Hay’s paper could be put in the category of explana on by argument that is the laws of the
18th century England were such that they resulted and in further exploita on and further worsening of
the poor. Here the narra ve was that the criminal code of the 18th century England was designed by the
gentry in such a manner that their interests, the safety of their property would be the most sacred
human right in the 18th century England. The revolu on of 1688 helped the power to be shi ed to the
gentry, which then devised this criminal code which seemed at the surface level to be aimed at
protec ng the property but instead was an elaborate tool to keep the non-proper ed bowed down to
them while believing the merits of the gentry to be the controllers of the order. On the other hand
professor, Lanbein’s strategy around the piece was the explana on by Implotment where he elaborates
the Old-Bailey trails, narra ng the period’s criminal code in a sa rical form where he denies the deeper
meaning of Hays’ ‘criminal conspiracy’, while he acknowledges the importance of the legal system for the
gentry. The tle of the third reading ‘(MARXIST) SOCIAL HISTORY AND (CONSERVATIVE) LEGAL HISTORY’
by Peter Linebaugh itself could be an example of the ideological posi ons that historians could take
while explaining the history. Linbaugh’s strategy would be of that of an explana on by ideological
implica ons. He elucidates how factually ambiguous and misrepresen ng the ‘conserva ve’ outlook of
Langein was by poin ng out various errors in his analysis.

The usages of laws by social elements as highlighted in the readings give us a very good perspective of
recent times as well. How most laws today are somehow drafted and implemented either to favour those
in power or to help the forces that helped the ruling class get to power. Various examples can be drawn
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about how laws do way with the idea of equality due to the influence of certain sections for instance those
engaged in the legal services. Lawyers have held the top-most position in most governments since
independence and remain to be one of the most influential classes of professions. The proposal to bring
legal services in the ambit of service tax was first proposed in 2007 but could be brought only in 2012
that to partially. Even the GST regime provides a very restrictive policy as far as taxation for lawyers is
concerned. Most types of legal services GST are exempted and even in the service where tax is levelled
the burden falls on the service provider instead of service giver. While even a small hairdresser who
wished to be registered in GST is supposed to pay a tax of 18% and bear the cost filing formalities that
come with the registration in the act. The reduction is another phenomenon that is hailed as a reform to
develop the economy but a reduction in corporate tax without a reduction in government expenditure only
burdens the already burdened small taxpayers. Reduction of govt expenditure would lead to doing away
of welfare policies of the majority of the vote bank of the policymakers. This shift of the burden to
impress the financiers and well as the vote bank of the elected.

All three readings although providing a different narrative could fit in the image of the tree, the land on
which it grows and the muck that could surround it (taking cue from Gillray). Hay’s narrative would be
the tree in the image, the tree has stability like the tree that Gillray depicted in his print but has an
unsettling aesthetic to it, on the tree some branches have beautiful fruits, fruits for the elite of property
owners of England and the other branches had nooses for the poor, underprivileged to be executed.
whereas Langbein’s piece fits in the description of the land on which the tree grows, he explains the
criminal code of the 18th century as a result of the situations of evolving law, he accepts shortcomings but
categorically denies as the master conspiracy of the gentry to keep the poor, the underprivileged
submissive to their position and power in the society. Linebaugh on the other hand supports Hay’s
analysis, his description of the criminal code and response to the ‘Albion's fatal flaws’ would be the muck
in this picture. This muck adds another unpleasant aspect to the picture, it is through this manure of class
dynamics the tree is fertilized itself and yields the fruits of property safety, cheap labour as a result of
increased transportation and of course the dominance in the social stature for the privileged and
executions and transportation for the poor.

The readings provided an excellent illustration as to how history could be narrative-sed to tell a different
tale about the same period, around the same subject.