David Sugarman 254 From this perspective, the adoption of the mores and repertoire of the landed by lawyers and other professions as well as by other middle class groups was not a weakness. Instead, we see an established repertoire and mores being adapted to suit new interests, being pressed into the service of new groups. In short, a camouflage which conceals very significant changes in polltics, economy, state and society - as well as law.*^- To characterise such phenomena as “feudal”, “pre-modern” or “irrational” is to obscure the ways traditions, mores and power relations are continually re-made; and howa pattern of struggle results in the constitution of a neworder. Apparent continuities are not continuities. Traditions turn out to be modern inventions. One of the most famous accounts of such phenomena is Bagehot’s celebrated study. The English Constitution published in 1867.'^'^ Bagehot contrasted the paper description of the English constitution with the living reality. He distinguished between what he called the “efficient parts” of the constitution such as the Cabinet, from what he called the “dignified parts” of the constitution such as the House of Lords and monarchy. Whilst the Lords and Crown retained the same name, Bagehot recognised that their real power had significantly weakened. Moreover, he argued that the newascendant middle classes had not followed Bentham and swept away anachronisms such as the Lords and monarchy because these “dignified parts”, however cumbersome and irrational, disguised real changes in power that had occurred and secured allegiances to the new order. This mixture of modernity and efficiency, combined with an age-old Gothic exterior, was the secret of the English constitution as well as English political stability. In other words, the peculiarities of the English lies, in part, in the preservation of all kinds of values, forms and institutions alien to industrial capital but not antithetical to it. A further way of taking irrationality (in the Weberian sense) seriously is to abandon the so-called “economic man” conception of human relations that informs Weber’s sociology, and much liberal and radical social thought. This entails transcending the view that law and state have a monopoly over coercion, ordering and organisation. The dominant tradition of liberal and radical theories and histories, exaggerated the need for a legal regime to facilitate certainty See, generally, Johnson, op. cit., pp. 57 and 61. See, generally, Hobsbawn and Ranger, (eds.), op. cit., and Rolakowski, op. cit., p. 11. Some of the difficulties may have resulted from the assumption that “pre-industrial society” had a single meaning for all groups in society; and that those who used the rhetoric or image of pre- industrial society were backward-looking. If we explore the use made of the discciurse of “pre-industrial society”, we find that it signified different things to different individuals and groups; and that it was no simple “opposition to “the spirit of industrialism”. Indeed, in one sense, it can be viewed as an asset, for the purposes of securing compromises among disparate groups and responses to industrialisation. See, also, the discussion of reflective theories of knowledge, infra. W. Bagehot, The English Constitution, (London: Watts &Co., 1964 ed.).
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