'The Human Pared Away: Hilary Mantel’s Thomas Cromwell as an Archetype of Legal Pragmatism' by David Kenny in (2020) Law and Literature comments
Hilary Mantel's Wolf Hall trilogy are iconic pieces of literature, but also represent a hugely insightful commentary on the law. Her protagonist, Thomas Cromwell, is the archetype of a philosophical legal pragmatist: willing to use the law and its language to achieve his ends, but regarding adherence to any principled or abstract account of the law as misleading and even dangerous. With striking parallels to the pragmatist philosophy of William James, Richard Rorty, Richard Posner and others, Mantel's Cromwell illustrates both the promise of legal pragmatism—its ability to get results without false compunction about means—but also its dangers: that one may pick the wrong prince, or make flawed or base calculations on how to act. The Wolf Hall trilogy shows this in a manner far more clear and far more vivid than any purely philosophical accounts, and capture something deep about the theory and practice of law. As such, their commentary on the law, authority and governance deserves our close attention.
Kenny states
Hilary Mantel’s Wolf Hall trilogy is not, in a direct sense, about law. It is about the politics of the Tudor court: the intrigue, the plotting, the struggles for influence and power. It is about the whims and vicissitudes of Henry VIII, and the incredible competence and brilliance of his chief minister, Thomas Cromwell, in carrying them out. But law looms large in the books: Cromwell is a lawyer, in self-image and self-presentation, and law is the primary tool he wields in executing his schemes and stratagems to do Henry’s will. But his respect for the law seems, from some perspectives, to be severely lacking. He bends the law—fudges it, manipulates it, cynically exploits it—to achieve his ends. In short, he is unprincipled in his use of the law.
In other works of fiction—most famously, a Man for All Seasons — the author clearly wants our sympathies set against the unprincipled Cromwell and with the saintly Thomas Moore, whose respect for principle is so unmatched that it costs him his head. Mantel’s vision is very different. First, in Mantel’s telling, Cromwell — while being unprincipled in his use of the law — has a clear, deep, abiding respect for the law. He believes it to be extremely important that the law is respected, obeyed and upheld, even at the same moment he is manipulating it to get his way. He is wedded to law’s appearance—its form, its seeming coherence—and to preserving the respect which it is owed, while seemingly agnostic as to its substance. This is a complexity that Bolt’s play entirely lacks.
Secondly, Mantel’s portrait of Cromwell is deeply sympathetic. He is our protagonist. We are in Cromwell’s head - the present tense prose making ancient events feel immediate - and are with him through his brilliant execution of the will of the king. We are on his side, and his unprincipled actions start to make sense to us, even as he effectively frames Henry’s wife and courtiers for treason. Mantel’s account seems to justify Cromwell, for the most part, or at least to explain him.
It is my case that Cromwell’s use of the law in Mantel’s novels are coherent and justifiable, from a certain point of view: the viewpoint of philosophical pragmatism as applied to the law, or legal pragmatism. This philosophy, found in the writings of Stanley Fish, Richard Rorty, Richard Posner and others, is derived from the “American pragmatism” of Dewey and James, and makes the case for not adhering to principles but focussing on outcomes. It requires you to set your highest goals, and to do whatever you need to do to bring them about, calculating the worth of particular actions not by principled accounts of their rightness but by their effects. Principles, on this view, are meaningless abstractions that get in the way, muddy the water, and distract you from your goals. The pragmatist, William James tell us
turns away from obstruction and insufficiency, from verbal solutions, from a priori reasons, from fixed principles, closed systems, and pretend absolutes and origins. He turns towards concreteness and adequacy, towards facts, towards action, and towards power.
He is against “going by principles”; his optimism “is apt to be decidedly conditional and tremulous”; he is “hard headed” or “tough minded”; he is a fatalist in respect of free will. These traits, as we shall see, perfectly describe Mantel’s Thomas Cromwell.
Many lawyers, whether framing it in philosophical language or not, come to view the law in this way. It is often interpreted as cynicism, but this is not necessarily so. It does not mean that you have no limits, that you will do anything. It rather means that, having set your priorities and highest values, nothing is a priori off the table to achieve them: all things must be considered in context, and if you think the outcome is so important that it worth the cost, you should take the action without regard to principles that are, in the end, without meaning.
By these lights, Cromwell’s actions are almost all either justified or potentially justifiable on the basis of upholding his priorities: to serve the will of his master, and to be true to God. In the end, when these priorities begin to clash, Cromwell has to choose between them. But if there is fault in Cromwell’s actions, the fault is in his king’s desires, or in what Cromwell might call “base calculation” - misjudging the pragmatic balance on which actions are necessary and appropriate. Cromwell is an archetype of legal pragmatism, and Mantel’s account paints clearly the merits of this approach when Cromwell excels, and its dangers when he veers into error.
In Part I, I explore philosophical pragmatism, setting out its case against abstraction and principle, and its application to law, where it counsels adherence to form and use of principles only as rhetorical tools to achieve legal ends. Part II describes Cromwell’s pragmatist world view, which maps perfectly onto James’ and Dewey’s: based on an epistemological uncertainty, but armed with his experience and knowledge of the world, Cromwell will act in a profoundly unprincipled way to achieve his ends. He does not care about principle or consistency, only results and effects. In Part III, I examine how this pragmatism relates to lawyers in the world of Hilary Mantel, and the power law has in spite of—and indeed because of—the ability of lawyers to manipulate it and spin stories to achieve their ends. This shows the power of the legal pragmatist’s approach, facilitating as it does Cromwell’s exceptional competence. In Part IV, I examine how Cromwell’s mistakes in the books—in particular, his bloody and vindictive killing of Henry’s courtiers as Anne Boleyn’s alleged loves, and his equivocation between different masters that leads to his downfall—show the problems of legal pragmatism: that you can pick the wrong prince, devote yourself to the wrong objectives, or engage in base calculation, making judgments that are (by some measure) ultimately prove incorrect. In this, the books show us both the promise and the perils of legal pragmatism.
Mantel, who studied law at the LSE and Sheffield, reaches the heart of the law and what it is to be a lawyer: to both respect it and manipulate it all at once; to circumvent its restrictions while insisting you are not; to construct a new path as you walk along it and insist it was there all along. To understand Cromwell as she paints him is to understand this view of the law all the way down. Her books are masterpieces of law and literature that merit our close attention.
