I

It is rare for specialized historical investigations to resonate far beyond their primary discipline, still less to entrance (and enrage) readers quite innocent of the period discussed. Precisely forty years ago, however, this occurred to two essays from a common, collaborative, project: “Property, Authority and the Criminal Law,” by Douglas Hay (Hay Reference Hay and Hay1975); and the concluding section of the concluding chapter of Whigs and Hunters. The Origins of the Black Act, by Hay's mentor, E. P. Thompson (Thompson Reference Thompson1975).

Both attracted hordes of critics and admirers, though not always the same ones. Hay was harshly criticized by some as too Marxist (Langbein Reference Langbein1983); Thompson as not Marxist enough (Collins 1982, 144). That, given Thompson's long eminence among British Marxists, implied that he was not merely a miscreant nor even a heretic but an apostate (Merritt Reference Merritt1980, 210: “The nub seems to be that Thompson is not a Marxist historian”).

Both Hay and Thompson spoke to a widespread concern of the time, particularly on the academic Left: how to explain relationships between law and social (specifically, “ruling‐class”) power in a manner that avoided treating law either simply as a coercive instrument of class domination (“vulgar Marxism”), or as a good for all (a view often attributed to “liberal legalism”). Since these questions can arise outside England, and beyond the eighteenth century, Hay's and Thompson's ways of answering them could travel far and last long, as models for some, antimodels for others; and so they have. And while Marxist historical explanation is less fashionable now than once (no bad thing in my view: Krygier Reference Krygier1990a, Reference Krygierb), these remain exemplary works of rare force, imagination, and insight.

Hay's specific concern was to explain the coincidence of “one of the great facts of the eighteenth century” (Hay Reference Hay and Hay1975, 18)—the “flood” of capital offenses that engulfed England with unprecedented speed—with the relatively small number of executions compared to earlier centuries with fewer such penalties, and at a rate that did not rise, throughout the century. While many complained of a failure in the criminal law, Hay saw this apparent mismatch of law and enforcement as an ingenious success, its discordant parts fitting together like hand in glove.

Hay put this apparent paradox of increasingly harsh laws but frequently lenient implementation down to a sophisticated choreography of “terror,” “majesty,” “justice,” and “mercy.” Terror, effected, inter alia, by the increase of capital crimes, formed the ever‐present backdrop, but could not be used routinely, if only (though not only) because England did not have a professional police force.

In such circumstances, more subtle ideological means of invoking awe, deference, gratitude, and obedience served. “[T]error alone could never have accomplished those ends” (Hay, Reference Hay and Hay1975, 25). Indeed with its much embroidered majesty, exemplary pardons, and parades of fairness, law was well constituted to legitimate domination in a way that pure resort to brutal force would not have been. Hay concedes that this parade of ideological appearances was not always empty—“eighteenth century ‘justice’ was not … a nonsense” (Hay Reference Hay and Hay1975, 39)—indeed, could not be; that was a source of its ideological charm. But that had no independent significance for him. What mattered was its contribution to “allow[ing] the rulers of England to make the courts a selective instrument of class justice, yet simultaneously to proclaim the law's incorruptible impartiality, and absolute determinacy” (Hay Reference Hay and Hay1975, 48). In his telling, apparently ill‐fitting elements of the legal order came to form an elaborate kind of integrated mosaic—the way “a ruling class organizes its power in the state”—its bits and pieces gelling into coherent patterns of purpose and effect. The apparent incoherencies of the criminal law were the very elements—all over the place in detail, all falling into place in function—that conspired to legitimize force in “a society with a bloody penal code, an astute ruling class who manipulated it to their advantage, and a people schooled in the lessons of Justice, Terror and Mercy” (Hay, Reference Hay and Hay1975, 62–63).

Whigs and Hunters was a close reconstruction, from masses of fragmentary evidence, of the origins and social meaning of the Black Act of 1723. “Black” referred to camouflage used by poachers on the job, and the Act “at a blow” created around fifty new capital offenses, to do mainly with deer poaching from forests owned by the propertied. It provided, Thompson writes, “a versatile armory of death apt to the repression of various forms of social disturbance” (Thompson Reference Thompson1975, 191–92), and was the model for the legislation that was to follow, with which Hay was concerned.

As one of the most distinguished Marxist historians of his generation, Thompson did not need to be told that this and other laws might be of use to ruling classes, and indeed he emphasizes that new propertied wealth was the source of this armory. In a conflict between “users” and “exploiters,” “petty predators” and “great predators,” the Act was crafted and employed, he argues, by the latter, “men who had developed habits of mental distance and moral levity towards human life, or more particularly towards the lives of the ‘loose and disorderly sort of people’” (Thompson Reference Thompson1975, 196).

Had Thompson stopped there (which, given that the offending section starts at page 258 of 269, he almost did), it is unlikely fierce controversy would have erupted. But to the dismay of erstwhile comrades, he made bold to conclude and, more, to find confirmation in his bleak story, that while:

In a swingeing polemic against monochrome reduction of law to the interest of ruling classes, Thompson's eleven pages elaborate the claim that the “rule of law,” notwithstanding that it included the law he had excoriated in the rest of the book, was a “cultural achievement of universal significance.” Not all who had learned from him over the years were happy with this conclusion, least of all coming from him. Friedrich Hayek (see, e.g., Hayek Reference Hayek1960) could be left alone to say such things: Who in the early 1970s, and on the Left, cared about him? But E. P. Thompson!

At several levels, including those of description and explanation, there is not a huge distance between Hay and Thompson. Each was indebted to the other, and to Marx, each believed that the law served the interests of a ruling class, and that central to this accomplishment were the ideological uses of law. Yet the differences are more significant than might appear.

Hay's article is a literary and intellectual tour de force, but his style of account can easily generate a kind of closed circle of interpretation and argument that allows nothing to evade its explanatory reach and threatens to flatten all before it. Whatever happens is grist to the explanatory mill. Thus, if a regime brutally oppresses the poor, that is how the ruling class dominates them. If it does not—listens to lawyers’ arguments, issues pardons, respects judicial independence, and so on—then it is doing the same job but in a more clever if roundabout way. Thompson's account has the same culprits using many of the same methods, but they do not call all the shots, and not everything can be reduced to their interests. Moreover, to use an expression of Arthur Lovejoy's (Lovejoy [Reference Lovejoy1936] 1964, 10–14), the “metaphysical pathos”—the mood, tone, sentiment, emotional coloring—evoked by the two pieces differs radically. So, too, the extent that ambiguity and complexity survive their explorations, and also the normative implications to be gleaned from them—particularly implications about “the rule of law” and its value.

Ii

In recent decades, the rule of law has become hugely fashionable around the world, in a way and to an extent that no one could have predicted in 1975 (see Krygier Reference Krygier, Nobles and Schiff2014). International development agencies would be lost for words without it. From Afghanistan to Zambia, billions of dollars are spent on it. Thousands of intelligent, committed, often brave people are devoted to it. But the results have not been especially happy.

Why? Well, for one thing, it is not easy. You try instituting useful and sustained changes, likely to hit powerful interests, in societies presently or recently wracked and rocked by despots, war, poverty, pestilence, ethnic and religious divisions, and often perennially weak institutions. Or sometimes strong institutions but not the ones you want. And not everyone wants what you want; this is a lesson that often takes a lot of learning. Sometimes, it is far from clear whether anyone should want what you want; learning that can also take time. There is also the distance between what you want and what you know how to do. It should not therefore come as a shock (though often it has) that “we know how to do a lot of things, but deep down we don't really know what we are doing” (Carothers Reference Carothers and Carothers2005, 15).

We can learn a great deal about “what we are doing” if, inevitably, less about what we should do, from Law's Fragile State (Massoud Reference Massoud2013), a book exemplary in many ways—as history, ethnography, normative and explanatory theory. Others who have not learned from this book all they know about Sudan can comment on its ethnography and history. I will stick to theory. But that is more than enough, for Massoud wrestles with, indeed agonizes over, general normative and theoretical conclusions to be drawn from his exploration of “what law does, and what it fails to do, in [one of] the world's most desperate environments” (Massoud Reference Massoud2013, xv). Those conclusions include the following.

First, and contrary to widespread assumption, a state like Sudan—“failed,” fragile, war‐torn and authoritarian though it is—is not lawless. On the contrary, law “is, in fact, everywhere one turns” (Massoud Reference Massoud2013, 26); it “matters hugely in a nation as fragile as Sudan” (Massoud Reference Massoud2013, 5). Sudan's longest‐serving and current dictator/president, Bashir, “made the largest investment in courts and legal infrastructure that the nation had ever seen” (Massoud Reference Massoud2013, 213). This was not by accident or absent‐mindedness, but by design. Law is helpful to him. More generally, law is a key part of the armory of all the elites Massoud treats: colonial and local rulers, and nonstate actors, local and international.

Second, “the practice of promoting law—and ultimately the law itself—must be understood primarily as a social and political process” (Massoud Reference Massoud2013, 212), not just a technical one. Whoever wields it, law is a weapon in legal politics and enmeshed in local social practices. Unless one understands those politics and practices, and how law interacts with them, one will fail to understand its role and significance. It is malleable, and so too are its normative implications.

Third, law and legal politics are profuse in unintended consequences, especially it seems for would‐be good guys. Human rights and civil society activists who seek to enlist and reform the law in the service of the poor have so far failed to do much of that, but have on occasion helped to legitimize the power of the dictatorship, “already accustomed to using any available legal tools and resources for political gain” (Massoud Reference Massoud2013, 206).

Fourth, and perhaps a reason for their disappointments, reformers, particularly internationals, often do not know much about what they seek to reform. They apply general templates drawn from elsewhere and find it difficult, even if they try, to acquaint themselves with local realities, among them legal realities. One result is that while reform efforts might have important and positive side‐effects for the elites who promote them, it is less clear that they do much to better the conditions of the poor and displaced millions in Sudan for whom they are ostensibly intended. This might mean not only that they fail to help those most in need, but also that they can prove self‐subverting. For in contexts where dictators find law so useful, “the activities of legal politics that constitute a program to promote the rule of law—training judges, police and prison wardens to abide by human rights and educating survivors of war to demand those rights—are inseparable from activities that also strengthen law in a given country. While the two concepts are analytically distinct, it has practically proved challenging if not impossible to build the rule of law without building the law itself” (Massoud Reference Massoud2013, 215).

For someone with a soft spot for the rule of law, this is not a happy story, but it is highly persuasive: insightful, disturbing, and, more than once, moving. In particular, Massoud's insistence on law's inextricable social and political embeddedness, his examples and critique of reform‐by‐template, his stress on the pluripotency, multifunctionality, indeed rampant promiscuity of law, all ring true. Rule‐of‐law promoters are often disarmed by such facts. Sudanese dictators, by contrast, appear well aware of them.

No one who has read Hay and Thompson would be surprised by these findings, though they would certainly be enlightened by Massoud's account of them. If one is interested to draw general implications from this account, however, what would they be? Here I think the book points in several directions, and the answer is not altogether clear.

It can be hard to sustain a coherent overall interpretation of the huge and long surfeit of manmade disasters that Massoud has witnessed and described, and it may not be wise to try. His book is remarkable for the extent to which it illuminates as much as it does. However, the strain sometimes shows, in at least two ways. First, in a tendency to reify and homogenize “law,” where more disaggregation would have been useful: less gathering of many different policies, practices, forms, aims, and ideals under one short noun; more exploration of adjectival forms. Second, in a certain ambivalence in the telling, a not completely resolved reliance on two interpretive modes, perhaps sensibilities, that compete for his own, though their implications can differ. Let us call one sensibility Douglas; the other Edward. E. P. for short.

First, reification. Massoud writes that “law can serve tyranny and violence as easily as it can serve liberty and peacebuilding” (Massoud Reference Massoud2013,10), and “[l]egal resources are just as likely to strengthen a dictatorship as they are to embolden people to overthrow it” (Massoud Reference Massoud2013, 12). Again, he argues that “[d]espite conscious political and rhetorical efforts to distinguish themselves from the colonial past, postcolonial governments in Sudan have been strikingly similar to one another and to the colonial administration” (Massoud Reference Massoud2013, 211–12). Elsewhere, “more than simply sharing the same space, the judiciary under Bashir has been dedicated to the same repressive goals as Sudan's former colonial masters” (Massoud Reference Massoud2013, 119).

Yet, of the period between 1956 and 1989, we learn that “[i]n many ways, Sudan's legal order was as abused and traumatized by these postcolonial political machinations as its people were” (Massoud Reference Massoud2013, 118). One chapter is devoted to the successful efforts of President Bashir, who seized power in 1989, to emasculate the legal profession, academy, and judiciary. He “turned the law into a servant of his political agenda to an extent unmatched by any of Sudan's previous governors” (Massoud Reference Massoud2013, 119). He conducted a “full frontal assault against the legal profession” (Massoud, Reference Massoud2013, 121), “altered the system of legal education to undermine the prestige of the legal profession” (Massoud, Reference Massoud2013, 131), and engaged in a comprehensive and successful campaign to “limit the ability of judges to pose a threat to his regime” (Massoud Reference Massoud2013, 131). These were deliberately imposed differences in aims, values, and practices between the colonial and immediate postcolonial regimes, on the one hand, and the dictatorships that followed, on the other. One learns of them all from Massoud's book, but it might have been useful to explore a bit more the implications of such differences and why they were imposed.

For, and second, these differences relate directly to the value of the rule of law, which, as Massoud's whole book and particularly his last pages show, concerns him deeply. Though the phrase is invoked for too many purposes these days, a central and fairly uncontroversial element in the ideal involves hostility to the arbitrary exercise of power. More might be involved, but that is key.

Not everyone is, equally or indeed at all, hostile to arbitrariness. At home the British legal tradition, more than many, embodied such a concern (see Reid Reference Reid2004). Of course, it was often honored in the breach, and it is always fundamentally compromised in colonial settings, if only because it demands that persons be treated without arbitrary discriminations, and that is one thing colonists do not do (see Krygier Reference Krygier2005). And yet, recall Thompson:

In similar vein, Massoud writes frequently of the attractions and uses of English law to anti‐ and immediate postcolonial activists, and with his typical fair‐mindedness he notes more generally:

He never suggests that Nimeiri or Bashir share the value. As he says, they ruled by law, among other things; but on his account, constraint was far from their minds. Massoud defines rule by law (by contrast with rule of law) as “a structure of governance in which law exists at the service of government officials, rather than as a force that constrains state behavior” (Massoud Reference Massoud2013, 21). That captures what we learn from him about the dictators, but we hear a more complicated story about the colonizers. They appear to have been committed both to service and constraint, however uneasy, tension‐ridden, and hypocritical that combination necessarily was. Just to say they all found “law” useful is not to say enough.

And indeed that is not the whole of Massoud's story. He agonizes about good possibilities that law, and in particular the rule of law, might yet serve, and in fact at times did serve, and worries aloud about Thompson's claim that the latter is an “unqualified human good.” Thus, while Douglas‐Massoud tends to homogenize the uses of law by all the regimes of which he writes, as in several of the passages quoted above, Massoud is different. Though he has no time for the colonial government, he finds complexity in its use of law and in the consequences of that use. Indeed, at one point he notes that “[w]hile [Thompson's] study concluded that law existed … as an ideology to serve and to legitimize power tightly controlled by elites, he also demonstrated that law served to constrain those powers. My findings about colonial law in Sudan come to a similar conclusion” (Massoud Reference Massoud2013, 224). It does not always sound similar, however.

But sometimes it does. Thus, “[t]he perception that the [colonial] judiciary was independent was not illusory and has remained among many lawyers in Sudan” (Massoud Reference Massoud2013, 64). In cadences worthy of Thompson, Massoud reports: “[l]ike all foreign diplomats, members of the Sudan Political Service were appointed to serve the interests of the metropole. But unlike many of their colleagues stationed in other British colonies, many SPS officials saw themselves as obligated to serve the Sudanese as well. They sought to promote an authority in Sudan greater than their own: the authority of law … the rule of law was not just lipstick on the face of an authoritarian pig. On some level, however limited it was, norms of fairness did guide Britain's representatives in Sudan.” What E. P. gives with one hand, however, Douglas immediately withdraws with the other: “But by cultivating an image of fairness and justice, the colonial regime was also able to maintain its essentially unjust and authoritarian rule” (Massoud Reference Massoud2013, 82).

There is no logical inconsistency between the two Massouds. Law can ultimately serve bad purposes even if it does some good; indeed, as Massoud—like Hay and Thompson—stresses, doing good can be one way of doing bad because it legitimizes power, distances it from (its own) distasteful acts, can act as a pressure release valve. But sometimes, even in the midst of bad, doing good just does good; sometimes it is even intended to. We should leave conceptual space for those possibilities. E. P. is more open to them than Douglas.

Though Massoud is drawn both to Hay and Thompson, then, he does not quite resolve the tension between them and, indeed, I suspect, within himself. He is torn. I would hope that the sometimes Procrustean allure (and real power) of Hay‐style unmasking not blind him to bits that do not fit, to often tension‐filled complexities and ambiguities, more evident in some legal orders than others, and to the potential richness of accounts that strive to accommodate them. Still less blind him to the value that Thompson, who recognized such complexities and ambiguities, deems precious.

Iii

But what of the failures and pathologies of rule‐of‐law promotion that Massoud so perceptively and convincingly documents? Do they not show that Thompson and others who value the rule of law should just get real, since it does not serve the goals they pretend to honor? Not quite.

Recall Thompson again. First, note where he starts: with a valued achievement, not a bunch of hallowed official institutions. Perhaps fortunately, Thompson was not a lawyer or a rule‐of‐law promoter. Unlike most who write about or seek to promote the rule of law today, he did not identify it with any particular checklist, recipe book, or template of legal and institutional hardware. Rather, he began with the “obvious point” that “there is a difference between arbitrary power and the rule of law,” the latter identified by a valued achievement—“the imposing of effective inhibitions upon power and the defence of the citizen from power's all‐intrusive claims.” It was only to the extent such “inhibitions” existed that so did the rule of law. This order of proceeding is not the same as, and makes a lot more sense than, beginning with some particular box of legal tricks and identifying it as the rule of law (see Krygier Reference Krygier and Fleming2011), wherever it happens to be planted or transplanted.

Second, where did Thompson look for evidence of the existence of the rule of law? Again, not in particular legal forms and institutions, which, he noted, were constantly being “created … and bent’ by a Whig oligarchy … in order to legitimize its own property and status” (Thompson, Reference Thompson1975, 260). Still, that oligarchy could not do as it wished; its hands were often tied by the law it sought to exploit. How did Thompson show this? He called in aid facts such as that “[w]hat was often at issue was not property, supported by law, against no‐property; it was alternative definitions of property‐rights … law was a definition of actual agrarian practice, as it has been pursued ‘time out of mind’ … ‘law’ was deeply imbricated within the very basis of productive relations, which would have been inoperable without this law. And … this law, as definition or as rules (imperfectly enforceable through institutional forms) was endorsed by norms, tenaciously transmitted through the community” (Thompson, Reference Thompson1975, 261).

Thompson was right to begin where he did—with a valued end rather than some contingent set of legal means—and he was also right to seek his evidence where he did, in social facts rather than merely in official institutional artifacts. In doing so, he confirms Massoud's observation that “accounts that separate institutions from actors succeed in telling only half the story of the politics of law …. Courts are one visible manifestation of the legal order, but other indicators include basic legal awareness and street‐level empowerment of the poor” (Massoud Reference Massoud2013, 31). By contrast, many reformers think they are building the rule of law, or bringing it to benighted countries whose deepest problems might have little to do with any particular list of legal bric‐à‐brac for export and installation, but more, as Massoud stresses, with social and political realities of which lawyers are often typically ignorant.

It may just be that we do not have a clue how, deliberately and quickly and in dire circumstances, to move toward the value Thompson attributed to the rule of law. Perhaps we should just settle for the advice of the Irishman who asked for directions to Dublin: “I wouldn't be starting from here.” But we should not easily give up on the ideal, even in face of the many follies of those who imagine they are “building” it. It should always stand as both a critical principle by which to evaluate their/our efforts, and, more hopefully, as one among the regulative ideals for which they/we should aim.

Those who would “promote” the rule of law should not imagine that they can easily cook it up from the legalistic recipes so widespread these days. These, as Massoud has so powerfully shown, often produce tasteless meals, and not always for those who most need a feed. But nor, again, should they quickly discard, as a good in itself, the ideal of reducing arbitrariness in the exercise of power. This remains a “cultural achievement of universal significance,” as complex, valuable, variably and variously approached as it is difficult to attain. The last pages of Law's Fragile State, full of anguished acknowledgment of ambivalence and complexity, suggest Massoud might agree.