From Socialist Review, No.1, April 1978, pp.23-24.
Transcribed & marked up by Einde O’Callaghan for the Marxists’ Internet Archive.
The Politics of the Judiciary
‘DENNING HITS AT STRIKERS LEGAL BACKING’ shouts the main headline on page 2 of my Daily Telegraph this morning (March 3). Lord Denning (who told a reporter the other day that he normally buys the Sunday Telegraph rather than the Sunday Times ‘because it is cheaper’) is Master of the Rolls, the second most important judge in the country. He is long past the age when most working people retire, but he still gets £22,000 from the taxpayer. He is widely regarded in the legal profession as a ‘bit of a boy’ for some of his ‘unconventional judgements’. But when it comes to the important things in life, Lord Denning is not at all unconventional.
He hates strikes, he regards the legal immunity for strikers which has existed on and off since 1906 as a scandal. He would love to be able to put strikers where he believes they ought to be – in prison. And he is not afraid to say so – on this occasion on his inauguration as President of the Holdsworth Club, which is the law society of Birmingham University. As is usual on such occasions Lord Denning made it clear that his views as President of the Holdsworth Society would never, in any circumstances, influence him as a judge from faithfully administering the law which with he so passionately disagreed.
Lord Denning has been President of a lot of other things in his time. In 1972, he was chairman of the Marriage Guidance Council. He chose his chairman’s address that year to make a scurrilous attack on Bernadette Devlin, then MP for Mid-Ulster. The noble Lord has nothing against Bernadette’s politics, of course, (judges don’t have political views). What annoyed him about Miss Devlin was that she was about to give birth to a child which had been conceived out of wedlock! The ‘fabric of society’ was being ‘ripped apart’, Lord Denning mused, when elected representatives started getting themselves in the family way, and then openly admitting it right out loud, like an usher farting in court!
The judges are not automatons or neuters as they sometimes like to pretend. They are men; men with ideas and prejudices just like anyone else. What sort of men are they? Lord Justice Lawton, who started his career at the bar by joining the politically neutral British Union of Fascists, said in the Riddell lecture in 1975: ‘Judges are drawn from all ranks of society’.
By this the Lord Justice meant, of course, that you will find judges who went to many different schools: not just Eton, that is, but Harrow, Winchester and even Repton. Not all went to Oxford or Cambridge either. A few even went to Leeds University, or Birmingham or Manchester. There’s a sprinkling of the nouveaux riches on the bench along with the aristocrats. And that, as far as Lord Justice Lawton is concerned, makes up ‘all ranks of society’. ‘Society’ as far as he is concerned, can’t possibly be said to include the offal and dregs some of whom appear before him from time to time in the courts.
All judges, even the ten per cent who didn’t go to public school, are lawyers. That means that they have all passed through the peculiarly constipated education which law affords. They have all been barristers, that is they have ‘done their time’ in chambers, which is still impossible for anyone without substantial private means. They have all ‘eaten their dinners’ and solemnly performed (until it seems almost natural) in the bizarre ceremonial of the Inns of Court. Their class origins and ideas have been nurtured in the sealed hothouse of the British legal system. They are stronger-rooted and more ostentatious than in any other section of the British oligarchy.
If there is anyone left who still believes that the judges are ‘neutral’ or ‘objective’, John Griffith’s book will open their eyes. He has collected together a body of case law which proves beyond any shadow of doubt the heavy bias of the judiciary in every part of the law. When the government passes laws which threaten property-owners, the judges go to every length to fight for ‘the right of the individual’. When the government pass laws to keep out immigrants, the illegal immigrant has to prove he is not guilty before he can be released. When squatters claim that their eviction means homelessness and despair for their children, the judges (Lord Denning in particular) declare that that has ‘nothing to do with law’. Yet when prostitutes or editors of radical papers come before the courts on a non-existent charge (’conspiracy to public morals’), the judges make up the charge, and find the defendants guilty on it, in order, as one Law Lord put it, ‘to uphold the moral welfare of the state’. In perhaps the most impressive section of book, John Griffith compares the treatment of expelled students and expelled union members. In both cases, he points out, people have, been expelled or dismissed in a way which could threaten their livelihood.
Yet the existing laws, and the judges’ conception of ‘natural justice’ is stained out of all recognition in order both to uphold the dismissal of students and to annul the dismissal of trade unionists by their union. ‘Why’ asks John Griffith ‘is the expulsion of the union member almost always set aside, and that of the student almost always upheld? The answer lies in the general attitude of the judiciary ...’ Yes, the ‘general attitude’, which supports the discipline of the headmaster or the board of governors, who curb the spirit of protest or rebellion or rule-breaking, but detests the discipline of the trade union, which threatens the property of employers and shareholders.
The bias of the judiciary is not changing for the better. John Griffith has not selected a lot of cases from the ‘bad old days’ when judges were monsters, and everyone knew it. Almost all his cases, including some very recent ones indeed, come from the ‘bad new days’ when the judges are monsters, but very few people realise it.
The trend, he points out almost incidentally, is for judges to allow more power to the police, a wider use of conspiracy laws, a sharper interference with any progressive legislation by a Labour government, and a more overtly racialist oppression with black defendants or deportees.
His little book all points in an obvious direction until its conclusion, which doesn’t point anywhere at all. He makes a desperate effort to free himself from the stigma of Marxism by asserting that the Marxist view of the law ‘takes us only some way along the road’.
‘The function’ he explains ‘performed, by the judiciary in our society is not a peculiarly capitalist function. Some of its manifestations – such as its tenderness towards private property and its dislike of trade unions – may be traced to such a source. But its strong adherence to the maintenance of law and order, its distaste for minority opinions, demonstrations and protests, its indifference to the promotion of better race relations, its support of governmental secrecy and its concern for the preservation of the moral and social behaviour to which ills accustomed, these attitudes seem to derive from a different ideology.’
This is the familiar, unedifying spectacle of the powerful left-wing academic, at the end of a painstaking work, seeking to wriggle off the Marxist hook by inventing a narrow view of Marxism, and dissociating himself from it. All ruling classes have survived by disguising their robbery with a way of thinking which extends far outside the field or the factory. Discipline in the streets and in the home, conformity of ideas, racialism, government secrecy and the ‘preservation of a moral and social order to which it is accustomed’. All these are not incidental but fundamental to the maintenance of capitalist robbery (as they were to the maintenance of any other system of robbery). That is all very clearly explained by Marx and Engels, and John Griffith’s characterisation of Marxism does no one any credit. He will (and has been) denounced as a Marxist anyway by the supporters of the judiciary. And rightly so. For his facts and research lead inexorably in that direction.
His second major argument that the judiciary is not pursuing a capitalist role is that the judiciary in Russia and Eastern Europe are equally repressive and reactionary! There is another conclusion to that, which is that the systems of society in Britain and Western Europe have more in common with those in Eastern Europe in Russia than they have in conflict.
The wriggling and squirming at the end of the book however has a more serious consequence. ‘Our freedoms’ writes John Griffith ‘depend on the willingness of the press, politicians and others to publicise the breach of those freedoms
‘The Press, politicians and others’. These are the people to whom John Griffith would have us turn for the protection of our freedoms. Yet the Press, by and large, is wound into the same web as are the judges. So are most politicians. If our freedoms depended only on these, there would be less of them even then there are.
The people who established the freedom of the press were the people who sold the Poor Man’s Guardian on the streets in the 1830s and established by sheer organisation and weight of numbers the right of papers to be published without the penal ‘stamp’. The people who broke the Combination laws were the weavers and stockingers who went on strike in spite of them. The people who established the right of procession were the hundreds of thousands of working people who marched with the Chartists. The people who wiped the Industrial Relations Act off the Statute book were the dockers and the printworkers who went on indefinite strike and forced the Industrial Relations Court to tree the five dockers arrested for contempt of the legislation. Yet this episode, because it ridiculed the ‘rule of law’, is described by John Griffith as a ‘calamity’. It wasn’t a calamity. It was a victory. The rule of law is the rule of the capitalist class, and the more it is ridiculed, the better.
I mustn’t give the wrong impression, John Griffith’s book is first class. It is an unanswerable exposé of judicial hypocrisy and prejudice and it has made him a lot of powerful enemies. All socialists should read it. The waverings and wrigglings at the end are easy to spot, and easier to straighten.
Last updated on 7 May 2010