• Join over 1.2 million students every month
  • Accelerate your learning by 29%
  • Unlimited access from just £6.99 per month
Page
  1. 1
    1
  2. 2
    2
  3. 3
    3
  4. 4
    4
  5. 5
    5
  6. 6
    6
  7. 7
    7
  8. 8
    8
  9. 9
    9
  10. 10
    10
  11. 11
    11
  12. 12
    12
  13. 13
    13
  14. 14
    14
  15. 15
    15

A Critical Review of 'Property, Authority and the Criminal Law' by Douglas Hay.

Extracts from this document...

Introduction

Ellen Jones A Critical Review of 'Property, Authority and the Criminal Law' by Douglas Hay This essay is a critical review of the first chapter of 'Albion's Fatal Tree', 'Property, Authority and the Criminal Law' written by Douglas Hay. It will look in turn at Hay's article and subsequent publications produced as a result of, or in response to the article. Each of the four authors discussed, through his differing politics, offers a different explanation of the relationships between class and crime in eighteenth century England. They try to account for large number of capital statutes that were produced, 'from about 50 to over 200'1, alongside the lack of corresponding numbers of subjects receiving the sentence of death. Hay's thesis covers many points about the systems of control in eighteenth century society. Its main line is the proposition that a small ruling elite created a paternalistic system controlling the larger population through the criminal law. This criminal law was concerned primarily with authority and secondly with the protection of property. Hay offers a range of ways in which this was carried out, such as upper class control of the legislative process in parliament, reflected in legislation that mostly 'concerned offences against property', and in the actual prosecution process in which he suggests the judge, jury and character witnesses were largely drawn from the upper classes 2. The small ruling elite had therefore placed themselves in a position from which they could further control the process and thus the population at large. Hay also sees ideology as 'crucial in sustaining the hegemony of the English ruling class'3. In this process he sees 'three aspects of the law as ideology: majesty, justice and mercy'4. Eighteenth century England differed from other European states as it lacked a police force. Hay suggests the reason for this was that the gentry were not willing to permit, or perhaps to risk, power being taken out of their hands. ...read more.

Middle

especially where the prosecutor was a landed gentleman'20. Thus when the poor had been checked and the message made clear 'it was the duty of the gentleman to protect his people' in this paternalistic structure. He tells us that in fact about half of those sentenced to death were not executed. The use of the royal pardon enabled the ruling class (who alone were in a position to solicit it) to decide if offenders could be spared their lives and instead transported or imprisoned. Hay also draws attention to the fact that transportation could be of benefit to the ruling class through the labour it created, more evidence of a system designed for their needs. So it can be seen that the ruling class created not just laws that worked in their favour, but a whole system which they were best placed to manipulate. Hay suggests they did so at their discretion and in their interests through the use of patronage, pardons, petitions, and character witnesses, in all of which 'the word of a man of property had greatest weight', and also through benefit of the clergy, and the inefficiency of the law.21 This being so he states that the majority of the population, the poor, who lacked any substantial property, 'met the law as criminal sanction: the threat' and reality of punishment should they break the law. 22 Hay looks at the involvement of the jury to show the hand of the ruling class at work. To be tried by one's equals was part of the guarantee of a fair trial. However imposition of a property qualification prevented a majority of the population from participating. The ruling class did not feel that the 'common Englishman' could be trusted, on the ground that his interests differed from those of the elite. As a result their notions of crimes would also differ. Hay offers as an example the claim that 'a panel of poor would not convict a labourer who stole wood from a lord's park', yet this would have dismayed the elite. ...read more.

Conclusion

In the last article, which is mostly a response to Langbein and a defence of Hay, Linebaugh jumps on this comment to state that people were without pockets to be picked or shops to be lifted in that period, also pointing out that the importance of the venue of the crime was also now a significant factor. As a result Linebaugh claims that Langbein is extraordinarily unhistorical and takes a very narrow view, unsupported by detailed evidence of the quality that Hay produces to support his argument. (this whole paragraph needs sorting!) An interesting point raised by King is how significant the poor laws were compared to the criminal law. It seems that there were ties of patronage travelling vertically between the lower, middle and upper classes. It perhaps also follows that the more national and lethal system of control through criminal law was a product of, and controlled by the upper class, and the poor law was more in the hands of the middle class. The concerns of the criminal law certainly make it seem likely that they are a product of the upper class. Hay's article has been given most space in this essay because I judge its fundamental assertions to be correct. Its main shortcoming is that it lacks part of the picture through neglect of the part the middle class played in the system. This is neatly accounted for by King leaving only minor discrepancies between the two works. Langbein, by misinterpreting a statement in Hay (concerning conspiracy of the upper classes), is led to attack the whole piece unconstructively and with little evidence to support his preferred views. Lastly, Linebaugh raves in defence of Hay and criticism against Langbien, offering an enjoyable article despite adding little more to the picture, apart from his treatment of sanitation. In conclusion Hay's article tells us the criminal law wasn't just a legal system but a system of social control. If this is true and the criminal law was crucial for sustaining the hegemony of the upper class then it 'helps us to explain their resistance to suggestions for drastic legal reform'35. ...read more.

The above preview is unformatted text

This student written piece of work is one of many that can be found in our University Degree English Legal System section.

Found what you're looking for?

  • Start learning 29% faster today
  • 150,000+ documents available
  • Just £6.99 a month

Not the one? Search for your essay title...
  • Join over 1.2 million students every month
  • Accelerate your learning by 29%
  • Unlimited access from just £6.99 per month

See related essaysSee related essays

Related University Degree English Legal System essays

  1. Euthanasia: a Critical Analysis.

    In reality, this is simply not the case. Euthanasia is defined in the report as "a deliberate intervention undertaken with the express intention of ending a life to relive intractable pain".6 Thus, Euthanasia is defined as involving a positive human act and this decisively changes the value of the report.

  2. Intellectual Property Law.

    For instance, when you buy a protected CD and make a tape of that CD for a friend, it is fairly proper at first glance, but actually this behavior is not legal. Therefore we must pay attention to the extent of permitted use of business and manufacturing software; care about

  1. Law of Evidence

    required to adopt an approach that is based on admitting similar fact evidence.50 The actual effect this provision will have in allowing sexual history evidence to be permitted has been questioned and McEwan has argued that in many circumstances there will be no coincidence of circumstances between the various sexual

  2. Lon Fuller - professor of Jurisprudence at Harvard.

    a legal system is humbled by the lowly tennis club's capacity to fine, suspend or expel members non-compliant to its rules. The identification of law and Power is thus misguided and obstructive. Moreover, because law is an enterprise it must necessarily be concerned about what ought to be as well as about what is.

  1. "What are the distinctions if any between civil and criminal law?"

    It is sometimes referred to as the rule in Heydon's case ((1584). It can be used by the court to interpret a statue but must consider the common law before the act was introduced. A look at the dictionary would reveal that the word 'mischief' has numerous meanings, such as harm or wrong.

  2. law of evidence

    At one time there was also the rule that expert opinion evidence was inadmissible on the ultimate issue in the case. Traditionally, this rule prevented the expression of opinion on the very point that the trier of fact was to decide; primarily this was seen as a usurpation of the

  1. Write an essay summarising and evaluating the Law Commission's Report on Partial Defences to ...

    For Gardner and Macklem, the difference between the two pleas lies in the fact that in the case of the provocation defence, the "rationality deficit" or emotional disturbance is of relevance only to the action, but not to the "fury that impelled the action" whereas in the diminished responsibility plea, the "rationality deficit" applies to both.

  2. Intellectual Property –Copyright.

    relevant to copyright, gives copyright to an original literary work4 which is outlined as 'any work, other than a dramatic or musical work, which is written, spoken or sung'5. As only originality is required and even words spoken extempore will constitute a literary work at the time they are recorded6 it is quite clear that the conversations receive copyright protection.

  • Over 160,000 pieces
    of student written work
  • Annotated by
    experienced teachers
  • Ideas and feedback to
    improve your own work