The law when considered as institution (the courts, with their class theatre and class procedures) or as personnel (the judges, the lawyers, the justices of the peace) may very easily be assimilated to those of the ruling class. But all that is entailed in ''the law'' is not subsumed in these institutions. The law may also be seen as ideology, or as particular rules and sanctions which stand in a definite and active relationship (often a field of conflict) to social norms; and finally, it may be seen simply in terms of its own logic, rules, and procedures - that is, simply as law. And it is not possible to conceive of any complex society without law.
The law (we agree) may be seen instrumentally as mediating and reinforcing existent class relations and, ideologically, as offering to these a legitimation. But we must press our definitions a little further. For if we say that existent class relations were mediated by the law, this is not the same thing as saying that the law was no more than those relations translated into other terms, which masked or mystified the reality. This may, quite often, be true, but it is not whole truth. For class relations were expressed not in any way one likes, but through the forms of law; and the law, like other institutions which from time to time can be seen as mediating (and masking) existent class relations (such as the church or media of communication), has it's own characteristics, its own independent history and logic of evolution.
Moreover, people are not as stupid as some structuralist philosophers suppose them to be. They will not be mystified by the first man who puts on a wig. It is inherent in the especial character of law, as a body of rules and procedures, that it shall apply logical criteria with reference to standards of universality and equity. It is true that certain categories of person may be excluded from this logic (as children or slaves), that other categories may be debarred from access to parts of the logic (as women or, for many forms of eighteenth-century law, those without certain kinds of property), and that the poor may often be excluded, through penury, from the law's costly procedures. All this, and more, is true. But if too much of this is true, then the consequences are plainly counterproductive. Most men have a strong sense of justice, at least with regard to their own interests. If the law is evidently partial and unjust, then it will mask nothing, legitimize nothing, contribute nothing to any class' hegemony. The essential precondition for the effectiveness of law, in its function as ideology, is that it shall display an independence from gross manipulation and shall seem to be just. It cannot seem to be so without upholding its own logic and criteria of equity, indeed, on occasion, by actually being just. And furthermore, it is not often the case that a ruling ideology can be dismissed as a mere hypocrisy; even rulers find a need to legitimize their power, to moralize their functions, to feel themselves be useful and just. In the case of an ancient historical formation like the law, a discipline which requires years of exacting study to master, there will always be some men who actively believe in their own procedures and in the logic of justice. The law may be rhetoric, but it need not be empty rhetoric.
We reach, then, not a simple conclusion (law equals class power) but a complex and contradictory one. On the one hand, it is true that the law did mediate existent class relations to the advantage of the rulers; not only is this so, but as the century advanced, the law became a superb instrument by which these rulers were able to impose new definitions of property to their even greater advantage, as in the extinction by law of indefinite agrarian use-rights and in the furtherance of enclosure. On the other hand, the law mediated these class relations through legal forms, which imposed, again and again, inhibitions upon the action of the rulers. For there is a very large difference, which twentieth-century experience ought to have made clear even to the most exalted thinker, between arbitrary extralegal power and the rule of law. And not only were the rulers (indeed, the ruling class as a whole) inhibited by their own rules of law against the exercise of direct unmediated force ( arbitrary imprisonment, the employment of troops against the crowd, torture, and those other conveniences of power with which we are all conversant), but they also believed enough in these rules, and in their accompanying ideological rhetoric, to allow, in certain limited areas, the law itself to be a genuine forum within which certain kinds of class conflict were fought out. there were even occasions (one recalls John Wilkes and several of the trials of the 1790s) when the government itself retired from the courts defeated. Such occasions served, paradoxically, to consolidate power, to enhance its legitimacy, and to inhibit revolutionary movements. But, to turn the paradox around, these same occasions served to bring power even further within constitutional controls.
The rhetoric and the rules of a society are something a great deal more than sham. In the same moment they may modify, in profound ways, the behaviour of the powerful, and mystify the powerless. They may disguise the true realities of power, but at the same time, they may curb that power and check its intrusions. And it is often from within that very rhetoric that a radical critique of the practice of the society is developed: the reformers of the 1790s appeared, first of all, clothed in the rhetoric of Locke and of Blackstone.
The notion of the regulation and reconciliation of conflicts through the rule of law - and the elaboration of rules and procedures which, on occasion, made some approximate approach toward the ideal - seems to me a cultural achievement of universal significance. I do not lay any claim as to the abstract, extra-historical impartiality of these rules. In context of gross class inequalities, the equity of the law must always be in some part sham. Transplanted as it was to even more inequitable contexts, this law could become an instrument of imperialism. For this law has found its way to a good many parts of the globe. But even here the rules and the rhetoric have imposed some inhibitions on the imperial power. If the rhetoric was a mask, it was a mask with Gandhi and Nehru were to borrow, at the head of a million masked supporters.
I am not starry-eyed about his at all. I am insisting only on the obvious point, which some modern Marxists have overlooked, that there is a difference between arbitrary power and the rule of law. We ought to expose the shams and inequities which may be concealed beneath this law. But the rule of law itself, the imposing of effective inhibitions on power and the defense of the citizen from power's all intrusive claims, seems to me to be an unqualified human good. To deny or belittle this good is, in this dangerous century when the resources and pretensions of power continue to enlarge, a desperate error of intellectual abstraction. More than this, it is a self-fulfilling error, which encourages us to give up the struggle against bad laws and class-bound procedures, and to disarm ourselves before power. It is to throw away a whole inheritance of struggle about law, and within the forms of law, whose continuity can never be fractured without bringing men and women into immediate danger.