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THE opening moments of 2021 have seen a good deal of attention focused on the law.
A request by the US to extradite Julian Assange, essentially for exposing its role in the Iraq war, was turned down by a judge.
Not because it would be a fundamental attack on journalistic freedom but because incarceration in a US prison might further worsen Assange’s health, which has already been damaged by the British state keeping him locked up in Belmarsh.
The judge then went on to deny him bail.
Just days later, alt-right and fascist protesters promoted by Donald Trump, stormed the Capitol building in Washington and temporarily halted the confirmation of Joe Biden as the next president.
This was definitely against the law, but few arrests were made. In fact video evidence showed some police officers colluding with the mob.
Comparisons with how the US police treat Black Lives Matter protesters were widely and rightly made.
A conclusion might well be that the law in bourgeois market societies is designed to protect the wealthy and their interests — in property, business and land particularly — and only notionally at best to offer any kind of protection to working people, either at work or in terms of political rights.
The labour movement has had a complex view of the law since its origins in the 19th century.
In general, trade unionists preferred the law to keep out of their affairs — the exception being legal immunity from being pursued for damages by employers during strikes.
The state, by contrast, has shown great interest in regulating the activities of labour. To a degree this has been replicated to the modern day.
Laws around, for example, equal pay may be poorly implemented but at least they offer some kind of minimum standard and limit the ability of employers to exploit workers.
There is a degree of mutual interest here. The state seeks to create equal conditions of exploitation, while unions want some equality of protection.
EP Thompson identified the rise of this process from the 1860s.
In order for workers to achieve some protection from capitalism, there was a need to be involved in its processes.
Thompson took a view of the rule of law in his book Whigs and Hunters which was a minority one for a Marxist, as he recognised.
His view was that, while law was an instrument of class power, as Priti Patel for example undoubtedly sees it, it was also something that was contested with conclusions in specific matters, not a foregone conclusion.
In that space rights to protest and liberties exist; Patel doesn’t like that and perpetually tries to close down that space.
Thompson wrote in a brief conclusion to Whigs and Hunters, a book about late 18th- and early 19th-century battles over the rights to land and land use: “We reach then, not a simple conclusion (law = class power) but a complex and contradictory one.
“On the one hand … 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…
“On the other hand the law mediated these class relations through legal forms, which imposed again and again, inhibitions upon the actions of these rulers.”
Is the law enough, however, to inhibit the activities of Trump’s supporters? Many might think that mass mobilisation from below is a better way forward.
Keith Flett is a socialist historian.
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