Vol 12, Issue 1
Can an Anarchist Respect the Law?
Identifying as an anarchist, I have often over the course of my law degree pondered how I should understand my subject - particularly given the common perception that an anarchist studying law is akin to an atheist joining a monastery.
Though there is not much intellectual guidance on this specific issue in the anarchist tradition, I have come to believe that this perception is wrong. In the following, I’ll first explain why I think it’s wrong - and why anarchists should in fact have a deep respect for the law, if that term is properly understood. I’ll then describe the philosophy of law that has helped create this perception of a tension between anarchism and respect for law.
In his Demanding the Impossible, a now classic text on the history of anarchism, Peter Marshall gives the following by way of a definition of anarchism:
“All anarchists reject the legitimacy of external government and of the State, and condemn imposed political authority, hierarchy and domination. They seek to establish the condition of anarchy, that is to say, a decentralised and self-regulating society consisting of a federation of voluntary associations of free and equal individuals. The ultimate goal of anarchism is to create a free society which allows all human beings to reach their full potential”.
This I think is best summarised in the ethic that Chomsky argues underlies all anarchist political philosophy: that any kind of authority is not self-justifying; that “the burden of proof has to be placed on authority, and that it should be dismantled if that burden cannot be met”.
There’s almost zero discussion of anarchism within formal institutions of education. An exception was in my first year of law school when we were given a reading in Legal Theory about it, but even this was misleading. The reading was In Defense of Anarchism, in which Paul Wolff states that anarchists consider that “all authority is equally illegitimate”. Notice this is quite different to the definitions I gave above. The former definitions did not mention all authority. They stated that the burden of proof is on those in authority; that illegitimate authority is that which is imposed.
This means that anarchists are not required to reject all formal organisational forms. Indeed, anarchists have not only thought very carefully about the design of, but have also developed, formal organisational forms that create a politics in which individuals have power over the outcome of some decision in proportion to the extent that they will be affected by that decision. This is what Marshall references when he speaks of the “federation of voluntary associations of free and equal individuals” that would exist in an anarchist society. Anarchists in fact see formal organisational forms as an unavoidable feature of society, agreeing with Aristotle that “we are above all social beings, and have a need to associate, and to care for our own kind”. Anarchism simply provides an ethic for how to do so if a society is to be a free one.
So what about law? Even ardent legal positivists (positivists in effect represent the liberal strand of jurisprudential thought) such as Raz agree that laws are a different kind of thing than “an order or threat of a gangster who cares for and considers only his own good”. They agree that law is ultimately a mechanism for coordination - about what a legal system’s “subjects should do”. Anarchists, however, will only understand law as a useful measure for coordination so far as it is a mechanism for cooperation, for helping to achieve the federated networks of voluntary associations.
Indeed, it is when law is treated as a mechanism for cooperation that it is most successful. For example, it has been substantiated that laws that are designed for the purpose of imposing punitive sanctions on deviants have the effect that cooperators will rebel and general compliance in the population as a whole will be reduced. It is for this reason that philosopher Philip Pettit suggests using measures which are supportive of spontaneous or virtuous compliance. In turn, virtuous compliance, writes cognitive scientist Robin Dunbar, is achieved through mechanisms “that create a sense of communality”.
So how do we create a sense of communality which leads to spontaneous or virtuous compliance with law? Murray Bookchin, one of the most influential anarchist thinkers in the post WWII period, held that “selfhood” is not merely a personal dimension but also a social one: “The self that finds expression in the assembly and community is, literally, the assembly and community that has found self-expression – a complete congruence of form and content”. Communality of this kind occurs through politics, which Bookchin defines as an organic activity of a public body, just as “flowering is an organic activity of a plant”. This can only be achieved, however, where participating citizens are operating at a “humanly scaled” level. The “authentic unit of political life” is, therefore, the municipality. The mainstream understanding of politics – that of attempting to win and retain control of government – Bookchin says is properly understood as mere Statecraft. Statecraft does not involve politics; rather, it involves violence and bureaucracy.
According to an anarchist, therefore, law, properly understood, is a product of communal self-expression attained through a process of politics, which has the function of facilitating the cooperative activities of freely associating individuals. So far as law has these characteristics, anarchists have a deep respect for it.
So why does anarchism appear antithetical to law? One reason is that anarchists themselves have promulgated this idea. Emma Goldman, for example, has said that anarchism involves “liberty unrestricted by man-made law”. I believe, however, that this makes the mistake made by all people who associate too closely their concept of law with the laws created by States. As held by Bookchin, Statecraft is a practice based on bureaucracy and violence rather than on politics, and so laws created by State systems are better understood as bureaucratic rules and commands, perhaps more comparable to Raz’s notion of “an order or threat of a gangster who cares for and considers only his own good” than to a system of laws.
Indeed, the legal positivist tradition could be understood as a form of State-worship, engaged in the almost Orwellian task of defining law so that it is tautologically identified with State systems. Hart, for instance, understands the legal systems of modern States as the “standard case” of a legal system, and holds this as an unquestionable presumption which “no one in his senses doubts”.
The authoritarian nature of this ideology is revealed by the insistence, as stated by Raz, that legal systems come into existence only at “the moment the power to decide upon the application of… sanctions [for rule violations] is concentrated in the hands of relatively few people”. He agrees with Hart that, so long as these few people continue to understand the system as a legal system from their “internal point of view”, then the system is by definition a legal system. Hart goes so far as to hold that the internal point of view can be “confined” to the elites, and the rest of society, “sheeplike”, can “end in the slaughter-house”.
Anarchists, who dispute the legitimacy of imposed authority, would argue that a system imposed by elites involves a system of orders or threats rather than a system of law. Indeed, that positivists are arguing for a system of orders and threats, rather than a system of laws, is shown by the extraordinary extent to which law is tied to coercion in the positivist mind. One of its most influential early proponents, John Austin, held that laws couldn’t exist at all without sanctions. This stemmed from the Hobbesian defence of monarchy as against democratic rule, which argued that all laws were coercive such that a polity with the least laws had the most liberty. And, as said by Sir Robert Filmer, a 17th century defender of the ‘divine right of kings’, since “there are more laws in popular estates than anywhere else”, there is consequently more liberty under a monarchy. Monarchy is therefore preferable to democracy.
Despite these less than erstwhile foundations for their tradition, the legal positivists have been hugely successful in their bid to associate law with the institution of the State. One of the most respected legal philosophers of the contemporary period, Ronald Dworkin, described the unquestioning acceptance of this positivist thesis as “curious”. But when one considers the tremendous power – bordering on omnipotence – of the modern Nation State, perhaps it is understandable.
I believe that if we are to truly respect the law, however, we must escape the intellectual grip of the State. We must move away from ideas put in place to protect kingly rule, towards a more accurate philosophy which can help us towards freedom.
Duncan Wallace graduated from the JD in July 2017, he was the chief editor of De Minimis in 2016 and is probably De Minimis' most prolific writer ever
More articles by this author:
The rest of this issue: