Whigs and Hunters: The Origin of the Black Act

Thompson argues that the Black Act of 1723, which made capital offences of activities like deer-stealing in disguise, was a product of Whig class interest: the ruling oligarchy used law to criminalize customary practices that threatened their control over forests and property. Yet he rejects the simple Marxist conclusion that law is nothing but class power. His most famous claim is that the rule of law itself is 'an unqualified human good,' because the forms of law impose real inhibitions on rulers. This paradoxical conclusion—acknowledging law's class character while defending its civilizing function—is the book's defining argument.

The book introduced the influential claim that the rule of law, despite its entanglement with class oppression, constitutes a genuine human achievement that restrains arbitrary power. Thompson argued that when rulers govern through law rather than pure force, they become 'prisoners of their own rhetoric'—bound by the forms they must invoke to legitimize their power[citation:1]. This concept reshaped Marxist legal theory by refusing to reduce law to mere ideology, and it continues to frame debates about whether legal formalism serves or constrains ruling-class interests[citation:7][citation:9].

Orthodox Marxist accounts tend to treat law as a superstructural instrument of class domination, a mask for coercion. Thompson partially agrees: he documents in forensic detail how the Black Act served Whig property interests. But he insists this is not the whole story. Law that never delivered real justice, he argues, would legitimize nothing and could not function as hegemony. The law's relative autonomy—its capacity to inhibit rulers and provide genuine recourse—is not a sham but a substantive achievement. This position drew criticism from Marxists like Morton Horwitz, who rejected the claim that the rule of law could be an 'unqualified' good[citation:7].

The debate centers on whether Thompson's conclusion is a betrayal of materialist analysis or a necessary correction to it. Critics like Horwitz argued that no legal system can be unqualifiedly good, given its historical complicity in injustice[citation:7]. Defenders, including Gabrielle Clark, contend that Thompson's ambivalence—calling the rule of law both 'humbug' and an 'unqualified human good'—captures a real tension: working people could win genuine victories through law while also being crushed by it[citation:9]. The controversy persists because it raises a fundamental question: can institutions born of oppression also be sources of liberation?

The book's impact extends far beyond its eighteenth-century subject. Luise White has documented its enormous influence on African historiography, particularly in articulating how colonial law criminalized customary practices and reshaped property relations[citation:4][citation:8]. The book's themes—the criminalization of customary rights, the relationship between property and law, and the role of law in mediating class conflict—have become central to studies of colonialism and postcolonial legal history. White argues that Africanists have underused other facets of the book, including its attention to animals, notions of the wild, and the politics of hunting.

A frequent misreading treats Thompson's conclusion as a straightforward endorsement of the English legal system or a retreat from class analysis. In fact, Thompson is emphatic that the law is not neutral: he documents with forensic precision how the Black Act served Whig interests and how judges and legislators were complicit in class terror[citation:1]. His point is subtler: the rule of law, as a set of forms and procedures, has a logic that can constrain the powerful even when it serves them. He was, as he put it, not at all 'starry eyed' about the law—but he refused to dismiss it as mere hypocrisy.