Project I: An Odious Instrument of the Laws: Common Informing and the English State, c.1485–1951

Research conducted by Hannes Ziegler

The planned monograph is concerned with the long history of common informing in England. The central argument is that common informing played a crucial and hitherto unacknowledged role in the rise of the modern state and particularly the way in which private interest was interwoven with state authority. Based on the medieval common law principle qui tam, common informing was a dynamic by which private individuals were permitted to pursue criminal proceedings on behalf of both themselves and the crown (‘qui tam pro domine rege quam pro se ipso’) against any violation of statutes that contained a qui tam clause. Such proceedings were open to anyone, regardless of whether they were the injured party, and were typically motivated by the prospect of monetary rewards. Because of this, and because subsequent verdicts were binding even to the crown, common informing has enjoyed an evil reputation. In social terms, it was regarded as an outlet of greed and malice rather than an instrument of the common good. In constitutional and political terms, its obvious substitution of agents of the executive by private individuals as well as its openness to all kinds of fraud were regarded as a potential subversion of sovereign authority. These problems notwithstanding, common informing was a central feature of English statutory law from the late Middle Ages until its abolition in 1951. During this time, hundreds of statutes contained qui tam clauses and despite even legislators’ abhorrence of the instrument, the enforcement of penal laws systematically rested on common informing. The reason for this is as simple as it is obvious: enforcement of penal statutes could not otherwise be achieved.

© British International Pictures

The planned monograph is the first history of common informing in England. Thematically, it breaks new ground. Apart from occasional case studies, the history of qui tam remains relatively unexplored even among legal historians. This affects chronology: The established historiographical position that common informing was on a rapid decline by the end of the Tudor reign is starkly contradicted by its thriving legacy in the seventeenth to nineteenth centuries. The insistence, too, that the rise of the modern police by 1829 made private initiative in the enforcement of the law redundant has recently been called into question. Simply put: There is currently no reliable account of the breadth and frequency of the application of qui tam legislation by parliament. This unsatisfactory state of research, moreover, also affects the matter of the political significance of common informing: Where historiographical accounts exist, they are essentially unsure how the critical reliance on private activity for the enforcement of penal laws reflects on the nature of the English state. Such uncertainty, it is worth noting, is to some extent also a result of the lack of a reliable chronology of common informing. The present study, therefore, attempts both. In establishing, for the first time, the basic features and chronological fluctuations of common informing over the longue-durée, the book also provides an explanation regarding its political significance. It does so with a revisionist perspective: Rather than private initiative gradually being subordinated to state authority and supplanted by state institutions, the book argues that it remained key to the functioning of the modern state. The study thereby challenges, in other words, the master narrative of the rise of the modern state in one of its key assumptions. It exposes the idea that the modern state came to rest exclusively on the official as a convenient fiction that overlooks the extent to which private interest was deeply interwoven with even its supposedly most exclusive functions. In a fundamental arena of its own claim to modernity, the modern English state remained pre-modern.

The book is, in many ways, a timely one. Common informing may have officially ended, in England, with the 1951 Common Informers Act, but its legacy lives on. Recent years have seen debates and legislative initiatives in the UK, but also in Europe, to partially revive the instrument in the enforcement of specific laws. In the US, moreover, qui tam legislation remains firmly part of the legislature, generally in corporate law. Beyond the legal realm, too, common informing retains an important cultural significance. The idea of whistleblowing, which, in the US, is directly connected to qui tam legislation, has emerged as an important corrective tool in political and corporate cultures of corruption across the world. If not in strictly legal terms, then at least in cultural terms the popular figure of the whistle-blower is the direct descendant of the common informer, clearly discernible in their structural ambiguity. The significance of this particular cultural tradition was most openly exposed in political and societal discussions during the Covid19 pandemic. To give but one example: Whereas Priti Patel, then Home Secretary, insisted in autumn 2020 that people ought to report their own neighbours to the police if they suspected them to be breaking the ‘rule of six’, Boris Johnson imminently maintained that the UK was not a ‘snitch culture’. At the time, this exposed a crucial contradiction at the heart of government about how the lockdown was to be enforced. In wider society, too, the pandemic has highlighted the contradictory status of private initiative in the context of the executive monopoly of the state. Significantly, this is the same contradiction that accompanied the use of qui tam legislation and common informing before 1951 in England and in contemporary US. How much private initiative - and what kind? - does the modern state rely on in the enforcement of its authority? How much of it is beneficial to the goals of the state and to what extent is it permissible in the light of the state’s claim to sovereignty? What amount of social animosity, that the instrument naturally ignites, is tolerable? In critical contemporary matters such as these, the proposed book can be read as a deep historical commentary to current debates. In this regard, the study closely links with academic discussions in sociology, law, and the political sciences.

© Hannes Ziegler

Professor

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Prof. Dr. Hannes Ziegler

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Professur für Geschichte der Frühen Neuzeit

Professur für Geschichte der Frühen Neuzeit

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