Diggers in the system

LIBERTY AGAINST THE LAW: Some Seventeenth-Century Contrversies by Christopher Hill, Allen Lane pounds 29.50
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The Independent Culture
"Liberty under the law" is the one of the most persuasive ideas of modern civic culture. Like other great political slogans, it gains much of its power from its ambiguity. In the "official" liberal ideology, law guarantees freedom. The rule of law applies equally to the government and the citizen (or "subject"). Law is made by democratic, or at least representative bodies, and is therefore consensual rather than coercive. Fundamental rights, "civil liberties" in English parlance, are guaranteed. The orderly society built on this basis inevitably restricts some individual freedoms in the common interest, but only those which might damage the social fabric. "Liberty" thus constructed is contrasted (as in Milton's denunciation of the Ranters) with disorderly and dangerous "licence".

But what if law, instead of guaranteeing liberty, destroyed it? Christopher Hill, now in his 85th year, remains one of the most tireless critics of the official ideology. His latest intervention is aimed at all who maintain that there was a great struggle for liberty in the 17th century. For Professor Hill, what happened was the victory not of a principle but of a class, those who "do eat their bread in the sweat of other men", and who in Goldsmith's words "call it freedom when themselves are free". What was achieved was the economic freedom suitable for the growth of capitalism. The English Revolution defeated democracy and enshrined the sanctity of private property on the ruins of ancient traditions of community and customary liberties.

The key issue in this argument is a simple one: who made the law? The parliamentary electorate was a small minority of the population; the majority was truly silent. Were the people represented, or were they, in Hill's stark phrase, "legislated against"? His contention is that vernacular evidence - plays, ballads, and other popular literary forms - shows us a robust demotic culture which was remorselessly strangled by the power of the law. The counter-social values celebrated in Hill's keynote plays, A Jovial Crew and The Beggar's Opera, indicate the strength of an alternative vision of freedom, in which the lives of vagabonds, bandits, smugglers, poachers, gypsies and pirates were not deviant. His essays on each of these groups brilliantly trace a pattern of "lawlessness" which is positive rather than negative, anarchic but not disordered.

But Professor Hill needs to do more than demonstrate that this stateless version of freedom was attractive: many people, even no doubt some members of the order-loving bourgeoisie, will see its attraction. The real question is whether it provided a viable basis for an alternative social development. This is where (those familiar with his earlier work will not be surprised to find) the Diggers come in. On 1 April 1649, Gerrard Winstanley led a small group of workers in an attempt to establish agrarian communism by occupying common land on St George's Hill, Surrey. The nature of their ideas and aims has been a matter for lively debate over the last 30 years or so. Winstanley is one of the most radical and fascinating of all English political thinkers, and Christopher Hill has always been a brilliant exponent of the view that the Digger vision of a propertyless society was not only modern but also feasible. The commons could have supported the people, and the process of enclosure, which was so disastrous to traditional communities, could have been halted or even reversed.

Winstanley attributed all social ills to private property, seeing true freedom as emancipation from selfishness and covetousness, and the rediscovery of community. This ideal went some way beyond conventional politics, even the radical variety of the English Levellers. Its millenarian tone (the Diggers seem to have thought, for instance, that the soil would actually become more productive once the curse of property was lifted from it) makes many people see it as theological rather than political.

Professor Hill resists this kind of labelling. In his view Winstanley believed that heaven could be established on earth. He understood the need for law to create freedom, but called for it to be radically simplified, since there was nothing common or accessible about so-called "common law". The defeat of the Digger movement was due not to its impracticality but to the fierce hostility of the interests it challenged. The English revolution was choked off by those who could manipulate the law. Enclosures rolled on, and the last lament of the lost freedom was to be sung by that displaced soul, John Clare, the subject of the final chapter.

Professor Hill takes a hostile view of the law that lawyers made - and that made lawyers. He indulges in some fashionable lawyer-bashing, showing that this is a long and respectable tradition: the 18th-century American democrat William Manning held that they were "the most dangerous to liberty and the least to be trusted of any profession whatsoever". But why, if the law was so bad, did the people eventually come to accept it, indeed embrace it?

He offers a rather cursory answer. Since the 17th century, he says, law has been "progressively modified to meet a slowly expanding democracy". It is not clear whether this modification took the form of liberalisation or popularisation (the two, as with the issue of capital punishment, do not always fit). Did it represent the fulfilment of Winstanley's hope for a better system of law? Or was the modification merely cosmetic? Hill's view that "democratisation has made the law seem less alien" does not clarify things much. If he has in mind the interactive process E P Thompson called "imbrication", in which the law became sufficiently autonomous to exert real restraint on the powerful, he does not quite say so. It seems that in the radical as well as the official interpretation, the rule of law, like liberty, remains an ambiguous idea.