The Online Library of Liberty

A project of Liberty Fund, Inc.

• Associate Editors
• Editorial
• Bibliographic Essay: Forrest Mcdonald, a Founding Father's Library
• Bibliographic Essay: Murray N. Rothbard, Modern Historians Confront the American Revolution
• I: Paradigms of Freedom
• Conflicting Paradigms
• Paradigms As Procrustes' Bed
• Interest and Ambition
• Thesis and Antithesis
• Freedom and Authority
• Sin and Society
• Autonomy and Authority
• Virtue and Status
• Utility and Progress
• Diversity and Equality
• II: Nonspontaneous Order
• State Vs Society
• The Therapeutic State
• Order and Elites
• Order and Virtue
• Self-perfection
• Socialism and Freedom
• Market Socialism
• Centralism Vs Decentralism
• Voluntary Servitude
• Authority and Obedience
• Social Control
• Power and Ideology
• Hegemony
• III: Spontaneous Order
• Freedom and Knowledge
• The Case For Government
• The Case Against Government
• Community Vs. State
• State and Morality
• Freedom and Creativity
• Order Without State
• IV: Individual and Social Good
• The Right to Privacy
• Autonomy and Psychiatry
• Personal Choice
• Individuals, Groups, and States
• Social Dynamics
• Social Engineering
• Individuals and Groups
• Personal Vs. Social Goods
• Individual Rationality
• Self-interest and Social Good
• Self-interest Vs. Slavery
• Art and Autonomy
• Radical Individualism
• V: Ethics, Rights, and Freedom
• Objective Values
• Natural Law
• Preambles to Freedom
• Social Sciences and Values
• Reason and Change
• Reason and Choice
• Economics and Values
• Legal Naturalism
• Justice As Restitution
• Justice As Punishment
• Rights and Contract
• Virtue In the Market
• Justice Under Capitalism
• Profits and Choice
• Social Framework and Prosperity
• Ecology and Rights
• Business' Social Ethics
• VI: Equality
• Problems With Inequality
• Equality, Power, and Values
• Unequal Income
• Equal Opportunity
• Equal Liberty
• Equality of Condition
• The Egalitarian State
• Sexual Equality
• VII: Power
• Empire, Equality, and Envy
• Imperial Presidency
• Empire and Inflation
• Watergate As a Symptom of Empire
• The Pragmatic Presidency
• “absolute Power” and Corruption
• VIII: Planning Vs. Choice
• Origins of Planning
• Bureaucratic Growth
• Prediction and Control
• Government Planning
• Government Experts
• Useless Usury Laws
• Wartime Regulation
• Government Inflation
• Neomercantilism
• Compulsory Schooling
• Planning In Nonprofit Agencies
• Private Capital and Education
• Choice and Spontaneous Order

Power and Ideology

Hay, Douglas

“Property, Authority and the Criminal Law.” In Douglas Hay et. al. Albion's Fatal Tree. New York: Random House, Pantheon Books, 1975, pp. 17–63.

How does the state's ruling class engineer the consent of the governed to its authority and legitimacy?

In brief, the ruling class uses the power of the state to secure its privileges. Force is one technique, but force must seem legitimate otherwise the majority (the ruled) will revolt. Therefore, to win the assent of the ruled, the ruling class cultivates ideology and loyalty through discretionary law enforcement. The criminal law's lessons (justice, majesty, and mercy), elicit the sanction of the victimized subjects. This benign face of criminal law masks the gallows and the death sentence.

Rulers and feudal property owners know that they must solve the problem of how to induce the many to submit to the few. In the long run, terror and coercion alone cannot cow the more powerful (but ruled) majority. Not physical strength but good “opinion” must win over the people. The ruler wields ideology or propaganda to win the minds of the people; the criminal law serves as a powerful ideological technique to maintain the bonds of obedience and deference to authority. Criminal law protected rulers, their revenues and authority through a mixture of terror and mercy, gallows and pardons, fear and gratitude.

Eighteenth century England illustrates how criminal law functions as ideology and induces “voluntary” obedience. A paradox presents itself: the number of capital statutes (offenses subject to the death penalty), increased fourfold between 1680 and 1820. Almost all these capital offenses concerned crimes against land. Government and its criminal law thereby protected the interests of the feudal governors. Yet the number of public executions for property offenses remained relatively stable. Thus, eighteenth century criminal law upheld the rulers' interests with bloody sanctions but claimed relatively few lives.

How can we explain the coexistence of bloody laws and increased convictions along with a proportional decline of actual executions? Because royal pardons increased and the courts grew more lenient. But why the “mercy”?

The paradox is resolved in the social and political function of criminal law as ideology to buttress the rulers by winning the deference, assent, and obedience of the ruled. Law appeared to the governed as a Janus-faced force, displaying alternately a stern or a merciful countenance, which molded popular opinion to submit to the few.

As ideology, law combined majesty (awe-inspiring spectacle and the quasireligious pageantry of court proceedings), the appearance of fair justice to the governed (actually a mix of the rulers' self-interest and paternalism), and a show of mercy. By granting mercy to the convicted through royal pardons, the rulers won the gratitude of criminals and the credulous awe of noncriminals. Pardons granting mercy were selective instruments of class justice. They allowed the powerful to bestow favors and thus win the support of the governed.

The law's majesty, justice, and mercy forged the ideological chains of consent and submission (Blake's “mind-forged manacles”). The rulers managed this consent by mixing firmness and “delicacy,” the carrot and the stick. Leniency and pardons in capital cases were tools to maintain the rulers' authority. Their motives were not simply humanitarian; they intended their “delicacy” to defuse possible riots.