The substance of Thompson's socialist humanism lay in his conviction that capitalist society offers a thoroughly inhuman form

of political community and that this was mirrored rather than overcome in actually existing `socialist' states. Not surprisingly, the historian Thompson was tempted to look backward to an earlier era - mainly the eighteenth century - for images of human community prior to its disintegration in modernity. I tentatively put forward the proposition that there were three separate phases in his formulation of the problem. I recognise that these phases overlapped chronologically and sometimes even co-existed within the same texts. I am not claiming any watertight divide between them; indeed the daring of Thompson was to affirm them all as one. They still seem to me, however, to represent distinct moments in his formulation of ideal political community. In the first phase Thompson sought to recapture the moral community of eighteenth century plebeian movements committed to upholding traditional use rights against modern laws of private property. In the second phase Thompson defended the ideality of the rule of law as an unqualified human good and its necessity as an inhibition on power. In the third phase he embraced antinomianism and the community of love against law. The journey took him from customary right to the rule of law and finally to the antinomian rejection of law. Each phase was an attempt to grasp law through history. What they had in common was an image of human community asserting itself in the face of the `exterminism' and inhumanity of modern society. 2) Moral Community And Customary Right In the first phase of his exploration, Thompson linked the idea of moral community to the upholding of traditional use rights against modern laws of private property. It is a theme which pervaded much of his historical writing. Thus in The Making of the English Working Class Thompson wrote that eighteeenth century food riots were `a last desperate effort of the people to reimpose the older moral economy as against the economy of the free market ... a last desperate attempt to enforce the old paternalistic consumer-protection' ( i). The theme was pursued in `Peculiarities of the English' where he wrote that `the common people adhered to a deeply felt "moral economy" in which the very notion of an "economic price" for corn ... was an outrage to their culture' (ii). Thompson read popular struggle in the eighteenth century as `a movement of resistance to the annunciation of economic man'. In Whigs and Hunters he characterised the infamous Black Act as the culmination of a struggle through which the customary economy of forest-dwellers was destroyed and replaced by a market-oriented regime based on capitalist property rights. During the eighteenth century, he wrote, `one legal decision after another signalled that the lawyers had become converted to notions of absolute property ownership and that ... the law abhorred the messy complexities of coincident use-rights' (iii). The dominant motif of his essay on Eighteenth Century English Society continued in this vein: capitalist logic and `non-economic customary behaviour are in active and conscious conflict, as in resistance to new patterns of consumption ... time-discipline ... technical innovation or work rationalization which threaten to disrupt customary usage ... Hence we can read eighteenth century social history as a succession of confrontations between an innovative market economy and the customary moral economy of the plebs' (iv) In these texts Thompson sought to recapture the spirit of protest which attended upon loss of common rights and detachment of property right from usage; to bring into question the employment of law as an instrument of agrarian capitalism: `If it is pretended that the law was impartial, deriving its rules from its own self-extrapolating logic, then we must reply that this pretence was a class fraud' (v) The idea of `custom' was crucial to the argument. It lay, Thompson argued, `at the interface between law and agrarian practice', deriving originally from praxis and eventually obtaining the force of law. Thompson likened it to Bourdieu's concept of `habitus': `a lived environment comprised of practices, inherited expectations, rules which both determined limits to usages and disclosed possibilities, norms and sanctions both of law and neighbourhood pressures' (vi). The concept of `custom' was Thompson's mediation between law at one extreme and practice at the other. The framework of custom was itself one of conflict between classes striving to maximise their advantages as they disputed over common right; but it was the introduction of modern property right which qualitatively transformed the situation by making

the poor `strangers in their own land' (vii). The displacement of custom by law was at once the expropriation of power from the poor. To be sure, Thompson added all manner of qualifications to his thesis. He acknowledged that appeal to the past was sometimes no more than a cloth in which new rights were dressed. `All reformers before Paine', he wrote, `commenced with the "corruption of the constitution", the constitution in question being imaginary versions of the Revolution of 1688 or even of old Saxon law' (viii). He distinguished between the form and content of plebeian culture: `this is a conservative culture in its forms; these appeal to custom and seek to reinforce traditional usage... But the content of this culture cannot so easily be described as conservative' (ix). He warned against `sentimentalising this customary pre-enclosure consciousness, which was the vector of its own kind of narrowness, brutality and superstition' (x). And he cautioned that `we shall not ever return to pre-capitalist human nature, yet a reminder of its alternative needs, expectations and codes may renew our sense of our nature's range of possibilities' (xi). He succeeded in bringing to life the contestability of capitalism as a moral order. Despite these and other qualifications, it still seems to me (in part on the basis of Thompson's own evidence) that Thompson was over-simplifying when he reduced these eighteenth century struggles to a conflict between traditional use rights and legally enforced private property rights. Plebeian rebellion crossed class lines and many of its participants were advocates of private property rights. To take one example, popular struggles against game laws were supported by a cross-class alliance of peasants, labourers, craftspeople, small gentry, capitalist tenant farmers and merchants. This broad alliance arose from the class character of the poaching laws, which held that in order to hunt game, one had to be a freeholder earning a minimum of 100 pounds a year; a condition which excluded all but the large landowners. `Middling men' were among the foremost in protest against these laws. Doug Hay further points out that, as the commercial exploitation of game by innkeepers, poulterers and victuallers became more viable, so too their resentment against the game laws which prohibited selling of game joined up with the resentment of tenant farmers (xii). Game was important because it represented land against commerce: Game laws were the only enforceable remnant of the mass of statutes which once fixed status among Englishmen... Game could not be legally bought and sold because it was meant to symbolize prerogatives, to show that its owner held power and prestige in landed society. (xiii) The game laws were themselves an expression of a traditional property right. The landed gentry were less concerned with setting in motion capitalist productive forces than with the appropriation of a finished product. As Christopher Hill put it, `Landlords sought prestige through conspicuous investment ... buildings, parks, paintings. But such investment ... stimulated the economy far less than a planned programme of investment in the capital goods sector' (xiv). The very form of the game laws - first established in 1389 - was archaic. They established the hunting of game as a privilege of the landed gentry and excluded wealth unconnected with land; the basis of law enforcement was the manor where the lord had the power to appoint a gamekeeper who combined the public function of enforcing law and the private function of serving the landowner; direct links between the landowners and the judiciary showed little evidence of separation of powers; even the public hanging of miscreants was a military ceremony which displayed the coercive power of the sovereign over the people. Should not eighteenth century game laws - and the Black Act in particular - be re-read as a lastditch enactment of customary law in opposition to growing popular demands for a modern rule of law? It is remarkable how deeply the idea of `primitive rebellion' against the introduction of laws representing capitalist private property took root in Thompson's writing in spite of the contradictory elements which ran through his text. I would suggest that behind Thompson's resistance to historical refutation on this point, there lay a romanticism which for all his qualifications presented pre-capitalist property relations as more `human' than what followed and which refused to recognize that popular resistance could be thoroughly modern. The argument is in need of more historical development, but it seems to me that the more traditional Marxist view of plebeian protests during the development of capitalist - that they represented a modernizing drive to overcome traditional fetters as much as a traditionalist drive to retain customary rights - offers a more persuasive interpretive framework. Beneath this historical debate, however, the underlying issue must be Thompson's own flight from modernity.

3) Moral Community And The Rule Of Law In the 1970s and '80s Edward Thompson polemicized widely against the threat posed to civil liberties and democratic rights by modern government. In his own imagery, the branches of the `liberty tree' were being lopped off one by one and the `free-born Englishman' was in danger of becoming a chattel to the state. Thompson identified the main `muggers of the constitution' not as `criminals, terrorists and subversives' but as the state itself (xv). In the context of this drift to authoritarian statism, Thompson thought it essential for Marxism (including his own) to put its own house in order and especially to abandon its proclivity to dismiss all law as an instrument or camouflage for class rule. If human rights were merely an illusion obscuring the harsh realities of wage slavery, then the only significance of their loss would be to clarify the class struggle. If all states were inherently authoritarian and if all inhibitions on their power were but `masks or disguises or tricks to provide it with ideological legitimation', then the movement from one state form to another would make no essential difference. This `Marxist' rhetoric, Thompson argued, was in fact an exercise in cynical reason, dulling the `nerve of outrage' and inducing its own passivity. In the twentieth century `even the most exalted thinker' ought to be able to note the difference between a state based on the rule of law and one based on the exercise of arbitrary, extra-legal authority. (xvi) Thompson ridiculed the theoretical premises of this neo-Marxist critique of law and the state: its essentialism which substituted `a platonic notion of the true, ideal capitalist state' for actual capitalist states ( xvii); its functionalism which defined the idea of rights exclusively in terms of the reproduction of class domination; its reductionism which turned rights into no more than a confirmation of existing property relations. Rights, he argued, should rather be seen as a form of mediation: their function being to impose `effective inhibitions on power' and defend the citizen from `power's all-inclusive claims' (xviii). If law is to be effective as a form of legitimation, then the rulers must to some degree live up to or be subjected to its universal and egalitarian standards. Thompson warned against the identification of law with the state. This could take two forms: either idealising the state in all its aspects as a public good (as was common in both Stalinism and Social Democracy), or denigrating the state in all its aspects as an alien power (common within the New Left). Thompson argued that a distinction needs to be drawn between the democratic aspects of the state, which he identified with its legal and representative institutions, and the anti-democratic aspects, which he identified with its bureaucratic institutions. Despotism, he argued in the language of classical liberalism, is the subordination of the state as a whole to the bureaucracy; liberty is the subordination of bureaucracy to parliament and the law. Thompson here embraces the classical liberal conviction that the rule of law marks the dividing line between liberty and despotism. He argued that this doctrine had, however, been corrupted by modern thought which put in its place the positivistic dogma that there is an unconditional obligation to obey whatever the state dictates. The modern corruption of the rule of law, though often put forward in the name of liberalism, abandoned the heart and soul of the classical liberal conception: its `bloody-minded' distrust of the state. A doctrine which started its life as a bulwark against the state was turned by modernity into a support for the state - a travesty of its former self. Thompson's political purpose was to rally behind the defence of the rule of law against its corruption by the modern state (xix). Though born as the child of history - out of the work of 16th and 17th century jurists supported by the practical struggles of men such as Hampden and Lilburne, passed down as an often violated legacy to 18th century rulers, adopted by the emergent bourgeoisie in the 19th century after direct repression failed to stem the tide of working class resistance, and now threatened by authoritarian government - the rule of law appears nonetheless as a timeless ideal which a socialist future based on egalitarian productive relations would still require. Any belief to the contrary, Thompson asserted, is a utopian projection without historical warrant. The message was equivocal: there could be no modern society without law and no just modern society without the rule of law; yet modernity itself - with its vast administrative imperatives and narrow dividing lines between welfare state and police state - threatened ever to corrupt this classical ideal. Dig your ditches deep and firm up your fences, was Thompson's advice.

This characterisation of the rule of law has been criticised for its `idealism' (xx). This criticism may be true, but everything depends on the standpoint from which it is made. The Stalinist charge of `idealism' was raised as a term of abuse against any theory which sought to recapture the revolutionary experience of the working class from its bureaucratized and statized appropriation by the Communist Party. In the eyes of such critics Thompson's conception of the rule of law was `idealist' because it violated the Party's arrogation of power. Since Thompson challenged this view of the state's absolute and exclusive right to define, adjudicate and enforce law and to demand submission to its `rule of law', he had to be denounced as `idealist'. In fact, Thompson's idealization of the rule of law was a revolutionary response to the docility demanded by both `Natopolitics' and official Communism. Nonetheless Thompson too found it hard to avoid the `closures' for which he had attacked modern Marxism. Thompson himself eventually reduces the multiple functions of law - as instrument of domination, means of exchange, measure of right, source of punishment, framework of state, etc. - to one seemingly unique function: the inhibition of power. He loses sight of the specific limitations of the legal form: its tendency to work through individual cases, its abstract standards of comparability, its retrospective sanctions, its mediation through officialdom, etc. Thompson postulates the essence of law as `equity' and argues that its class character is the result of a corruption of this essence by class-bound procedures and institutions which are `alien to its own logic, rules and procedures ... simply as law' (xxi). He treats the eighteenth century Black Act thus as an example of `bad law, drawn by bad legislators and enlarged by the interpretation of bad judges' ( xxii); a result of the fact that certain class forces `grabbed hold of the law, throttled it and forced it to ... will into existence forms appropriate to the mode of production' (xxiii) and not symptomatic of the essence of law itself. Finally, perhaps, Thompson criticises the `isolation of law from productive relations', but this was precisely the situation in which he finds himself, when he isolates the rule of law as an ideal from capitalist productive relations. This is most marked in his opposition between an impassioned criticism of the economics of the `free market' and an uncritical defence of the rule of law. Thus the political economist, Adam Smith, who in Thompson's account of The Moral Economy of the English Crowd personified the introduction of market forces in the distribution of grain, was at once a champion of the rule of law against the privileges of landed property (xxiv). It makes no sense to paint the rule of law as an unqualified human good while painting market relations as an unqualified human bad; they are too closely related according to Thompson's own premise. Thompson's political prescription is that socialists should ally with liberalism in defence of human rights, but he says little about the terms and conditions of such an alliance. Who is to lead whom? who is to set the intellectual agenda? It would appear that by presenting the rule of law as an unqualified human good, Thompson rightly or wrongly subordinates any recognisably Marxist paradigm to the presuppositions of liberalism. Today the debate has shifted inasmuch as the true `legal nihilists' of the present age are more likely to be found in post-modern and deconstructive circles than in Marxism (xxv). By displacing Marxist critiques of the `abstraction of law' in favour of a re-formed `rule of law', it might be said that Thompson helped leave the more radical ground open to forces other than those of Marxism. What greatly modifies this picture, however, is the final thread which runs through Thompson's work.

4) Moral community and a3Antinomianism The third and final phase of Thompson's journey through law was his attempt to rescue from the condescension of history the antinomian tradition of Protestant sects. This was most famously expressed in Spring 1968 at Columbia University when he declared himself - incomprehensibly to most - a `Muggletonian Marxist'. This theme was developed in Witness Against The Beast, Thompson's posthumous publication on William Blake and the Moral Law. The `antinomian' was one who maintained that the `Moral Law' was not binding upon Christians. Thompson located the start of this tradition of dissenting Protestantism in John Bunyan's Pilgrim's Progress. It was here that that `very judicious man', Legality, tempted Christian to his house on the hill, where he might have perished had he not been rescued by Evangelist who revealed to him that Legality was a `cheat' and that `by the Works of the Law no man living can be rid of his Burden' (xxvi). In the 17th century Bunyan inaugurated the antinomian oppositions between Legality and the Gospel of Forgiveness,

the Moral Law and the Gospel of Love; the Ten Commandments - a code of repression and prohibition and the Gospel of Mercy. This doctrine of `justification by faith alone', Thompson argued, was borne by a plethora of sects, including the now famous Muggletonians, before it was inherited by Blake. He first put its words in the mouth of the devil - `I tell you no virtue can exist without breaking these ten commandments ... Jesus was all virtue and acted from impulse, not from rules' (xxvii); soon he found his own voice. Nothing drew more savage commentary from Blake than submissive obeisance to law: `No individual can keep these Laws, for they are death'; `Jehova's fingers wrote the Law / Then wept' (xxviii). Law may discover sin, but it cannot remove it for `it changeth not the heart'; its leading principle is envy, whereas the principle of the Gospel is love. The doctrine of love against law was to usher in, after the fall of Rome, the New Jerusalem: an image of spiritual community where God lives in the heart and laws are relegated to the status of mere carnal ordinances. The characteristic antinomian opposition was that law is warlike and punitive, the Gospel is merciful and pacific; envy is the leading principle of law; love is the leading principle of the Gospel. To the antinomian consciousness law and reason were aligned. Satan for the Muggletonians was the God of Reason: Reason's god is in all life, Human, brutal,vegetive, Which, at first, from nothing came, And must to nothing return again. (xxix) It was in the nature of reason to `fight and plunder and kill' (xxx); reason `acts his nature in going to war' (xxxi). The Moral Law given by Moses `was written in the nature of reason, and so had death written in it' (xxxii ). Reason, the fruit of the Tree of Knowledge, is the devil that `tempts men and women to all unrighteousness' (xxxiii). Against reason, `love is the fiery chariot sent from on high'. Thompson argued that this antinomian tradition had the potentiality, best realised in Blake, to `challenge very radically the authority of he ruling ideology and the cultural hegemony of Church, Schools, Law and even of "common-sense" Morality' (xxxiv). He says `I like these Muggletonians', though it was clear to him that they were not among history's winners nor did they wish to be (xxxv). Thompson certainly recaptured the `radicalism' of the antinomian challenge, but there seems to me to be a lack of reflection on its limitations. Perhaps least edifying to my mind are those passages which Thompson quotes uncritically from Blake which identify Law with Jewishness: The laws of the Jews were... the basest and most oppressive of human codes, and ... were what Christ pronounced them: The Abomination that maketh desolate, i.e. State Religion, which is the source of all cruelty. (xxxvi) When Thompson quotes Blake condemning `the wickedness of the Israelites in murdering so many thousands under pretence of a command from God' (xxxvii), he comments that this was writing which comes out of a tradition of political argument - one that displayed a combative polemic against the `Beast' of the State. Yes, but it is also part of a well-oiled tradition of Christian anti-jewishness, counterposing Jewish `vengeance' to Christian `love'. This particular anomaly points to a more general problem concerning the affinity between antinomianism and notions of `community of the heart'. There is a dark side to antinomian radicalism which sets the scene for regressive forms of political community through. Antinomianism was the ideology of sects: its premise the negation of the Other who lies outside the community. The association of this doctrine with all manner of anti-democratic movements - from anti-semitism to ethnic nationalism - ( xxxviii). points firmly to its dangers. What I am saying is that the brilliance of Thompson's reconstruction of Blake's relation to the antinomian tradition obscures the warts of the antinomian impulse itself.

CONCLUSION: COMMUNITIES OF STRUGGLE, LAW AND LOVE I hope after this long journey that the reader is not too weary and at any rate is in a better position to understand the `contrariness' of Thompson's critiques of law. What holds them together is Thompson's engagement with and disengagement from modernity. Let me explain what I mean.

Thompson, the historian, was to my mind engaged in an unfinished search for moral community in the period prior to the full development of capitalism. Of the three moments in this quest, the first had all the political activism of the New Left of 1968; its design was to recover the rationality of traditional forms of plebeian struggles against the rise of capitalism. The second moment was rooted in the 1980s defence of legality, when Thompson sought to recover the classical conception of the rule of law as a standard against which to measure and resist the authoritarianism of the modern state. The third expressed a more inward-looking Protestantism, as Thompson sought to recover for the 1990s the most radical, antinomian wing of that tradition. What we find in this progression is a growing despair about the structures of modernity, but one which never lost sight of or faith in the power of human agency. This was manifested not least in his political practice through European Nuclear Disarmament and in his struggle against the risks of exterminism. The outcome, however, was an increasing disjunction between agency and structure. Each attempted solution individually threw up its own internal problems. Taken as a whole, they expressed Thompson's difficulty in reconciling himself to modernity. Thompson postulated the unity of experience against the fragmentation of theory, but he could not address the fragmentation of experience which arises out of the real fragmentation of modern social life. Thompson postulated the unity of experience against the privilege of science, but the category of experience did not allow for any differentiation between truth and opinion. It was not enough to recover lost voices; what is needed is to hear the voice and comprehend it critically as a transitory moment in the development of freedom and rationality. Love is all you are left with when you are confronted first with the fall of politics and then with the fall of the law (xxxix). This was the experience on which Thompson ended his quest. But the antinomian values of love, forgiveness, mercy and alterity themselves search for an organic integration with politics and law, not opposition. The modern state is a complex articulation of many parts; it seeks to embrace each of these elements within an organic whole. In response, we cannot privilege politics or law or love in isolation. It seems to me that Thompson advanced many times to the threshold of immense insight into the unity of this differentiated whole. Each time, however, he recoiled back from the modern state into the simpler choices of the eighteenth century: either politics or law or love but not their organic unity. In this sense, and this sense alone, as Hegel once put it, `history has no lessons'.
i

.op.cit.??? .EPThompson,`PeculiaritiesoftheEnglish'inPovertyofTheoryandOtherEssays(1978)82. iii .EPThompson,WhigsandHunters(1977)?? iv .EPThompson,`EighteenthcenturyEnglishsociety:classstrugglewithoutclass'(1978)3(2)SocialHistory 133. v .EPThompson,`Custom,LawandCommonRight'inCustomsinCommon(1991)176. vi .op,cit.102. vii .op,cit.184. viii .EPThompson,TheMakingoftheEnglishWorkingClass(1976)p.??? ix .EPThompson,`EighteenthcenturyEnglishsociety:classstrugglewithoutclass'(1978)3(2)SocialHistory ??? x .EPThompson,`Custom,LawandCommonRight'inCustomsinCommon(1991)182. xi .EPThompson,`Customandculture'inCustomsinCommon(1991)15. xii .DHay,`PoachingandtheGameLawsonCannockChase'inDHayetal.(ed.s),Albion'sFatalTree(1977) 189. xiii .op.cit.246. xiv .CHillReformationtoIndustrialRevolution(1979)242. xv .EPThompson,`Introduction'toReviewofSecurityandtheState(1978)i. xvi .EPThompson,WhigsandHunters(1977)`Theruleoflaw'. xvii .ibid. xviii .ibid.
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.ThompsonwasofcoursenotthefirstMarxisttodefendtheruleoflawasthespectreofetatismloomed; thenameofFranzNeumanncomesstronglytomindinthisrespect.See,forexample,FranzNeumann'sthree majorworks:TheDemocraticandAuthoritarianState(1957);TheRuleofLaw(1986);andBehemoth:The StructureandPracticeofNationalSocialism(1942). xx .SeeRichardJohnson,`EdwardThompson,EugeneGenoveseandSocialistHumanism'(1978)6History Workshop;andmyownessayonThompsoninDemocracyandtheRuleofLaw,1985169.Someofmypresent argumentsdrawonthisessaybutIthenisolatedThompson'sidealismfromhismaterialism. xxi .EPThompson,WhigsandHunters(1977)260. xxii .ibid. xxiii .EPThompson,ThePovertyofTheoryandOtherEssays,(1978)288. xxiv .EPThompson,`ThemoraleconomyoftheEnglishcrowdintheeighteenthcentury',inCustomsin Common(1991)185258. xxv .SeeJDerrida,`TheForceofLaw:TheMysticalFoundationsofAuthority'(1992)CardozoLawReview? xxvi .EPThompson,WitnessAgainstTheBeast:WilliamBlakeandtheMoralLaw(1993)4. xxvii .op.cit.19. xxviii .op.cit.225. xxix .op.cit.71. xxx .op.cit.72. xxxi .ibid. xxxii .op.cit.92. xxxiii .op.cit.94. xxxiv .op.cit.5. xxxv .op.cit.90. xxxvi .op.cit.61. xxxvii .ibid. xxxviii .Hegelidentifiedthisconnectioninhiscriticismofthe`radical'butantisemiticGermannationalist,Fries whenhewrote:`Byattributingtofeelingwhatreasonanditsunderstandinghavelabouredtoproduce...all thetroubleinvolvedinrationalinsightandcognition...canofcoursebeavoided'andquotedGeothe's Mephistopheles:`Dobutdesisereasonandscience/Thehighestofallhumangifts/Thenyouhave surrenderedtothedevil/Andmustsurelyperish'.Hegel,ElementsofthePhilosophyofRight,(1991)`Preface' 16.SeealsoMarcuse'scritiqueoftheideologuesofNationalSocialisminHerbertMarcuse,Reasonand Revolution,(1986)409. xxxix .HannahArendttriestocapturethisexperiencethus:`Thehumanbeingwhohaslosthisplaceinthe community,hispoliticalstatusinthestrugglesofhistime,andthelegalpersonalitywhichmakeshisactions andpartofhisdestinyaconsistentwhole,isleftwiththosequalitieswhichusuallycanbecomearticulateonly inthesphereofprivatelifeandmustremainunqualifiedinallmattersofpublicconcern.Thismereexistence... canbeadequatelydealtwithonlybytheunpredictablehazardsoffriendshipandsympathy,orbythegreat andinclculablegraceoflovewhichsayswithAugustine,"Voloutsis"(Iwantyoutobe)'.HannahArendt,The OriginsofTotalitarianism(1986)ch9301.