Historical, Constitutional and Philosophical Observations on the Tories’ Plans to Privatise the Courts

I have to say that I’m still somewhat stunned by the Conservatives’ suggestion that the court service should be privatised. This seems to be absolutely barking mad, and attacking the most fundamental, basic duty of the state, at least as it has existed in the West since the ancient world. In the Middle Ages the basic function of the state was to provide military protection and promote justice. There were private courts on the manors of the feudal aristocracy, along with the system of royal courts that also dispensed justice at local and county levels. These were the hundred and shire courts of Anglo-Saxon England. After the Norman Conquest, Henry I introduced the ‘justices in eyre’, judges that went on regular set circuits around England hearing cases. I believe the assize system was introduced by that other ‘lion of justice’, Henry II. One of the reasons England never developed the more extreme versions of feudal serfdom that existed on the Continent was because Henry I insisted on his right as king to govern and enforce his laws over the peasantry through the royal courts, thus preventing the aristocracy having the absolute control over their tenants and villeins that their counterparts in the rest of Europe had.

It was during the Middle Ages that the system of royal courts, such as the Court of King’s Bench, developed. In the Middle Ages and 16th and 17th centuries, kings were expected to dispense justice as they were God’s anointed through the coronation ceremony. This did have a very authoritarian aspect to it, as in the views of some constitutional theorists in the Tory party, it meant that as the king was the fountainhead of justice, he was above the law. This view was gradually altered and finally rejected with the growth of constitutional checks on the crown and the Glorious Revolution. Social Contract theory also supplied a rationale for royal government: the king was the people’s representative. Kings had been chosen and set up by their subjects at the very beginning of human society, in order to protect them, their livelihoods and property. As their representative, he had the right to rule them, preserving their freedom and protecting them from injustice and attack. Finally, in an age when all government is personal government, kings had a right to rule because the countries they ruled were literally theirs. It was their property, in the same way landowners lower down the social scale owned their estates, and administer justice over the serfs there.

Clearly the decline of feudalism has removed these circumstances as the basis of royal government, just as centuries of secularisation means that extremely few people would argue for the return of an absolute monarchy on the grounds that they had a sacred right to govern through their coronation. They did, however, act as the core of the modern state through their establishment of the central institutions of justice. Since the time of Oliver Cromwell’s Commonwealth, at least, the state has been recognised as a separate institution to the kings that governed it. Hence Charles I was executed for his crimes against England, an idea that was so radical that it was almost unthinkable then. Nevertheless, the execution established the fact that Crown and state were separate, and that the judicial system, as part of the state, had the power to judge the monarch. Justice and the courts thus became the core feature of the modern concept of the state.

This is threatened by the privatisation of the courts. The ancient conception of the state was t6hat it was something that belonged to the public. For the Romans it was the res publicum, the public thing. The term has survived in the modern English word ‘republic’ and similar terms in the other European languages, including the Russian respublik. 16th and 17th century political theorists, like Locke, used the term ‘commonwealth’, from the words ‘common weal’, the common benefit or wellbeing. The state is therefore something that belongs to and affects everyone, even if it is effectively governed by a very select view, as it was before the extension of the franchise in the 19th century. This is threatened by the privatisation of the courts, which places justice in the realm of the private, rather than the public.

There are important constitutional problems with this. Courts have had the right to impanel juries, and try and punish offenders because they received their legitimacy from the state, either through itself or as a crown institution. If privatised, the courts would not have this source of legitimacy. They would be a private company, acting in its own interest. They would have the administration of justice as their function, but like other companies their main role would be to provide profit to their shareholders. Essentially, the justice they dispensed would be private justice, albeit administered on behalf of the res publicum. Now I can imagine that some traditional Conservatives would object to this. Peter Hitchens on his blog for the Mail on Sunday has stated that he objects to private prisons on the grounds that only the state has the right to persecute and punish crime. This is a very good point. If the courts are privatised, it raises the question of the difference between them and, say, a protection racket run by a local gangster. Both can claim to be providing protection for the people under their rule, and both are equally acting in the interest of private individuals. A privatised judicial system might still have the claim to be providing public justice if it has a contractual relationship with the state, or some other constitutional tie that establishes it as the legitimate source of justice. Nevertheless, its constitutional legitimacy as a public institution would still be considerably weakened.

The idea that courts can be privatised is something that the Tories have taken over from American minarchism and Anarcho-Capitalism. One of the founders of modern Libertarianism, E. Nozick, believed that the functions of the state should be reduced to the barest minimum. This was to be enforcement of contracts. Rothbard, the head of the American Libertarian party, argued that the courts should be privatised and opened up for competition. They would have no power beyond the voluntary acquiescence of the parties in dispute in the courts’ decisions. It’s a small detail, but it also shows the difference between American Anarcho-Capitalism and the libertarianism now promoted by the Tories. Anarcho-Capitalism is peculiar, in that although it promotes capitalism to its fullest extent, it shares many of the same concerns and features as left-libertarianism, such as Anarcho-Communism. Both forms of Anarchism share a common belief in the absolute sovereignty of the individual. Both also view the state as inherently oppressive. The great Russian anarchist, Mikhail Bakunin, declared ‘He, who says ‘the state’, says oppression’. Both types of libertarianism also stress individual’s sexual freedom. They consider that people should be able to engage in whatever kind of sexual relationship they choose, provided that it is reciprocal and between consenting adults. Thus Right Libertarians tend to differ from other Conservatives in their acceptance of homosexuality and free love. There is also a tendency in Right Libertarianism to demand the legalisation of drugs, on the grounds that the individual should have the right to consume whatever recreational substance they choose. Again, this is in marked opposition to traditional forms of Conservatism, which tends to be far more puritanical.

Now it seems to me that the Tories here have lifted some of the ideas of Anarcho-Capitalism but have very definitely rejected the ethos behind them. Margaret Thatcher believed very strongly in ‘the strong state’, reinforcing the powers and providing more funding for the police force and the security services. In doing so, she alienated many Libertarians, who bitterly resented her authoritarianism. Robin Ramsay, the editor of the parapolitical magazine, Lobster, wrote a piece on the death of one of the founders of the Libertarian Freedom Association a little while ago. Ramsay is a member of the Labour Party, although very critical of New Labour and the influence of the transatlantic Right in the Party since the Second World War. He stated in this article, however, that he had been supported in publishing Lobster by the aforementioned Libertarian. This gentleman regarded him as another Libertarian, albeit socialist, rather than capitalist, but felt that he had a common cause with him against the growth of state power. And he bitterly resented Margaret Thatcher for what he saw as her betrayal of libertarian principles. It thus seems to me that if and when the Conservatives privatise the courts, they will nevertheless retain and possibly extend their powers as the agents of state control.

And this raises a further point on the legitimacy of these courts derived from Anarchist theory. 19th century Anarchism and its predecessors denounced the state and its system of justice, particularly because of its class basis. Europe was governed by the very rich – the aristocracy and the rising middle classes – and the laws they passed protected and enforced their power. During the early 19th century, for example, the British government passed a series of punitive legislation curtailing working class dissent and protest in order to prevent a popular uprising, similar to that which had occurred just across the Channel. The governing class was composed of rich landowners, who passed laws heavily penalising poaching. At the time poaching was regarded as a traditional right held by rural labourers. It allowed them to feed themselves during times of famine and economic depression. It did, however, represent a threat to landed property, who responded by passing laws prescribing long sentences and transportation for poachers. Most of the legislation passed in 18th century England was designed to protect property, not human life. Hence the enactment of the death penalty for crimes like sheep stealing. It was in this legal environment that the Anarchists attacked state justice as aristocratic, capitalist justice, and believed that only through the destruction of the state would a truly classless society emerge.

Since the extension of the franchise in the 19th century and the gradual ascension of the House of Commons over the House of Lords, the state and its institutions have had a greater claim to be genuinely impartial. This has been especially true since the rise of the classless society in the 1960s. This would, however, be undermined by a privately-run court system. The courts would be run by their shareholders and investors, who are by definition capitalists, for their own profit. Justice would mean private justice on behalf of the rich. And almost certainly it would lead to corruption and conflicts of interests. How would a system of private courts successfully prosecute a leading shareholder or the chairman of the company that runs them? Everyone is supposed to be equal before the law, but in those cases there would be great opportunity for the accused to interfere with the judicial process in his favour. In short, he could put pressure on the judge, as a friend or employee, and gain acquittal.

The Conservatives have claimed that they are rolling back the frontiers of the state. They aren’t. They are privatising its institutions, but these still have all the authority and coercive power of the state, but are far more likely to be partial in their decisions.

The privatisation of the courts is a profoundly immoral idea, that completely undermines the idea of the state as the dispenser of impartial justice regardless of social origin. It should be rejected without hesitation.

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15 Responses to “Historical, Constitutional and Philosophical Observations on the Tories’ Plans to Privatise the Courts”

  1. Mike Sivier Says:

    The possibility of court privatisation reinforces the view of David Cameron put forward by Michael Meacher MP and quoted in my latest Vox Political article, that “there is no such thing as the rule of law, and that the only things that ultimately matter are power, fear and money”.

    • beastrabban Says:

      Thanks for the comment, Mike. I read that on your blog this morning. And I quite agree: Cameron is a corporate whore, especially when it comes to the Dirty Digger. The only Prime Minister, who considered passing legislation against Dirty Rupe was John Major. Unfortunately, that was after the Digger had dumped him in favour of Tony Blair.

      Michael Meacher’s characterisation of Cameron as feeling that the only things that matter are power, fear and money sound very much like the watchwords of Putin’s Russia. Russian intellectuals have described the current, post-Soviet system as ‘Industrial feudalism’. It’s not democracy. The oligarchs, who control the Russian economy have vast wealth, but they hold their companies on the sufferance of Putin. They made a pact with the man Dubya called ‘Pooty-Poot’. They could buy up and monopolise the vast state industrial combines. In return, they were to give their absolute allegiance to him. Stalin did something similar, when he was president and general secretary of the Soviet Empire. He circumvented the official channels of influence and bureaucratic organisation to establish a direct, corrupt relationship with the leaders of the soviet industries. Khruschev did his best to de-Stalinise Russia, and end the old B*stard’s ‘cult of personality’, but the corruption remained and grew. So now, after the chaos, economic meltdown and massive corruption of Yeltsin’s regime, Russia now has Putin. And Russian dissident intellectuals like Politskaya have said that there is no democracy, no rule of law, just the strong man in the Kremlin. You could almost change that to ‘the man at No. 10’. Which raises the question: is there a difference between Cameron and Yeltsin? Yeltsin’s Russia is corrupt with brutal violence meted out to anyone, who doesn’t toe his line. Journalists are murdered and beaten up. However, one could argue that this is the peculiar result of Russian history, where the state has always clamped down on its perceived opponents. Cameron’s Conservatives have no need to clamp down on most of the press, as it’s part of the same military-industrial complex. One could even compare it to the Fascism-lite Berlusoni’s Italy. A few years ago a British journalist – I think he may have been a writer for the Times, but I can’t remember, wrote a book on Berlusconi’s presidency. He concluded it was a modern form a Fascism. He acknowledged that Berlo and his far-Right cronies – the Northern League, the ‘post-Fascist’ Tricolour Flame and Berlo’s own Forza, Italia! party didn’t goose step about in jackboots holding torchlight processions. But then, he concluded, Berlo controlled so much of the state that he didn’t need to. The same is pretty much true of Putin’s Russia, and becoming increasingly true of Cameron’s Britain.

      • Mike Sivier Says:

        I take it you meant, “Is there a difference between Cameron and Putin?”

        Your comment throws light on part of Mr Meacher’s blog that I did not highlight – Cameron’s refusal to hold a public inquiry into the death of Alexander Litvinenko. Mr Meacher claimed that this may point the finger at a person who is now a member of Putin’s government and under his protection.

      • beastrabban Says:

        I did indeed mean ‘Is there a difference between Cameron and Putin?’ Sorry, it’s been a long day. Yeltsin was corrupt, but I don’t think he was an autocrat like Putin. Putin’s former KGB, and although I’ve been told he was fairly minor and not personally involved in torturing people or unpleasantness like that, he still has the instincts of a KGB man. As for Politskaya, she was murdered under very suspicious circumstances. She was shot at close range near her apartment. I think she was either in it, or on the stairwell. Right underneath, in the basement, was a cop bar. And nobody, needless to say, saw a thing. She hasn’t been the only one, either. So I think Meacher’s probably right, and that Putin, or somebody under him, was involved in Litvinenko’s death.

  2. sparaszczukster Says:

    Thanks for this very eloquent and in depth piece. It makes me realise how little I know about something as basic as our legal system. In respect of what you say about the courts not currently being private companies, there are those who say that all government organisations actually are corporations and that law arising from statute is mainly commercial in nature, whereas as Common Law is not. They advise people to insist on entering any court under Common Law and stress the difference between the terms ‘legal’ (statute) and ‘lawful'(common law). I confess to being somewhat confused about this and wonder if you have anything to say on it. I found the concept on a website called tpuc.org or something similar.
    Another more amusing thing that sprung to mind reading your post was the origin of the word ‘testify’. I’m told it comes from the very old practice of men having to hold their testicles when giving evidence before a judge/feudal lord, which was supposed to signify they were being truthful! One wonders how women went on, or maybe they were thought to be natural liars…?

    • beastrabban Says:

      Thanks, Sparaszczukster, for the appreciation. On the other hand, you have far more knowledge of the NHS, and the way it and the benefits system is being dismantled than I do. I’m afraid I haven’t come across the idea that all government organisations are corporations. It might come from the time when the term ‘corporation’ meant any public body, regardless of whether it was commercial or not. For example, from the sixteenth century to the local authority acts in the 19th and 20th centuries, town councils were frequently called corporations. Yet those councils clearly were not commercial companies, though sometimes the distinction was moot, as they did speculate in the land market by buying up houses. I can well believe that much statute law is commercial, if only because of the way commercial transactions have become increasingly regulated since the Middle Ages. As for Common Law, this is law that has been built up through custom and common practice. Again, it dates from the early Middle Ages – either Henry I, or Henry II, whose justices in eyre had to take into account the customs of the particular parts of the country through which they travelled when trying cases. There was a very, very good programme on the growth and development of the English legal system on Channel 4 with Tony Robinson. It’s worth watching, if they repeat it again.

      As for the story that the term ‘testify’ comes from the custom of men having to clutch their testicles when swearing before a judge or feudal lord, I’ve heard of it. The version I heard, however, was that it came from ancient Rome. I also got the impression that it was a bit of folklore, not based in historical fact. According to Private Eye’s ‘Funny Old World’ column, one Italian town nevertheless made the story the subject of a local festival, in which women baked cakes shaped like testicles, while the men ran about grabbing each other’s crotches. On the other hand, that story’s also likely to be a load of rubbish, as Victor Lewis Smith has been known to take completely bogus stories off the net and put them in his column.

      On the other hand, a custom like that may well have existed. If you read the Bible, Jacob manages to trick his father, Isaac, into giving him his brother Esau’s inheritance, by swearing to him when placing his hand underneath the old man’s thigh. This suggests that the private parts were indeed sacred, and used for swearing oaths. I don’t think there was a similar practice for women, as they couldn’t testify in ancient courts of law. Again, this is all something I’d have to look up and check.

  3. sp4mf15h Says:

    Reblogged this on Oprichnik Rising and commented:
    A core issue thats importance cannot be over emphasied. and goes all the way back via Magna Carta to the anglo saxon times. The idea of private justice in the UK or anywhere for that matter is simply monstrous. We need to end the government of these entitled capitalists right now before it is too late.

    • beastrabban Says:

      Thanks, Sp4mf15h. My guess is that it won’t get to private justice in the feudal sense just yet, but it will create a privatised, semi-public justice, which acts solely in the interest of the propertied and commercial corporations. There seems to be a very strong desire for that amongst sections of the Conservative party. I can remember that a decade or so ago the Financial Times criticised a piece by one of the Conservative journo recommending that the property qualification for juries should be reinstated, so that there would be a proper defence of respectable, middle class people against the depredations of the criminal classes, who naturally had none, and so were free to act irresponsibly.

  4. Michael Harris Says:

    Dear beastrabban, really good post – would you mind if we re-posted it with attribution on our site for frontline bloggers http://www.guerillapolicy.org or contact us via Twitter @guerillapolicy – thanks in advance.

  5. Chris Says:

    I wanted to ‘Like’ the above blog, but only WordPress bloggers can do so. That’s rather shabby 😦 As with this comment, it should be open to Twitter and Facebook users also.

  6. Michael Harris Says:

    Dear Bearrabban, your excellent post is also now on our site at: http://is.gd/OYvkMJ Many thanks for this.

  7. Michael Harris Says:

    Apologies, Beastrabban – typing too quickly. Thanks again.

  8. rainbowwarriorlizzie Says:

    Reblogged this on HUMAN RIGHTS & POLITICAL JOURNAL and commented:
    Surprise, surprise Not!

  9. Frontline Friday 2nd August 2013: Our favourite frontline blogs this week Says:

    […] Historical, constitutional and philosophical observations on the Tories’ plans to privatise the co… […]

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