Anarchist Law: Some Hard Questions
by Keith Preston
Many would no doubt find the idea of "anarchist law" to be an oxymoron. One
of the most common objections to anarchism raised by lay people involves
the misperception that "anarchy" would be no more than a free-for-all on
the part of brigands and criminals. Informed people know better, although
some anarchists do profess opposition to "law" rhetorically. However, this
is simply a matter of semantics. With the possible exception of certain
extreme Stirnerites, nearly all anarchists believe that such acts as
robbery, rape and murder should be socially disallowed. It is not my aim
here to outline a model for an anarchist crime control system, as I have
done that elsewhere (1). Instead, I want to address the broader questions
of how anarchist legal institutions might be structured and what the
content of anarchist law would be, along with the thorny matter of the
presence of non-anarchist or non-libertarian ideological or cultural groups
in a predominately anarchist society.
Unfortunately, the classical anarchists left this area of their respective
ideological systems quite underdeveloped. Proudhon, Bakunin and Kropotkin
each indicate in their scattered writings that the inviolability of
contracts would serve as the basis of an anarchist legal order (2). Each of
these classical European anarchists claimed to oppose "The Law" as an
institution. Yet each of them hinted that something similar to common or
customary law would replace formal statist legistlation following the
demise of the state. Something akin to the modern libertarian notion of the
"non-aggression axiom" is implicit in many of their comments on these
matters. It is important to remember that Proudhon, et. al. came out of
what was largely a feudal society and were heavily influenced by
continental European and, to some degree, classical Greek conceptions of
justice, freedom and the like. The Anglo-American notions of individualism
were largely absent from their culture. So some of their ideas in this area
seem a bit muddled from the perspective of modern North American
libertarian sensibilities.
Contemporary leftist-anarchists are hardly any help on these matters. The
more articulate and thoughtful persons among their ranks generally claim to
favor a social system that resembles nothing quite so much as a New England
town meeting combined with economic arrangements closer in form to the
Israeli kibbutzim than anything else, with a prevailing
egalitarian-humanist-multiculturalist-feminist-ecologist-gay
liberationist-animal liberationist cultural ethos. I see nothing inherently
"wrong" with this model, although the way it is described it often sounds
more similar to old-style British Fabian municipal socialism than any sort
of actual anarchism. "Anarcho-social democracy", as I call it (3). On one
hand an America composed of hundreds of miniature Swedens might well be
preferable to the current system (at least World War Three would not be
looming) (4). However, given the fractitiousness of left-anarchist groups,
I doubt their ideal of "consensus-based direct democracy" could maintain
much of an actual consensus for long. Also, given the infatuation with
neo-Leninist "political correctness" displayed by many in this milieu, I
suspect "direct democracy" would more closely resemble a synthesis of a
Maoist self-criticism session and outright mob rule. Perhaps mob rule at
the neighborhood level would not be all that pernicious.
Not surprisingly, it was the American anarchist Benjamin R. Tucker who had
the most well-developed conception of law of any of the classical
theorists. His ideas on these matters were quite similar to those of modern
free-market anarchists and, indeed, Tucker was a major influence on Murray
N. Rothbard. Tucker did not reject "law" per se and accepted the
possibility of prisons, torture and even capital punishment under an
anarchist legal system. He seemed to favor something akin to common law
juries and regarded what is now called "jury nullification" as the primary
safeguard against potential oppression by legal institutions. Rothbard
developed the idea of free market law much more thoroughly and modeled his
system on non-statist legal codes from the past-Roman private law, medieval
Law Merchant, admirality law and British common law (5). Rothbard's views
on the proper application of libertarian law could be rather doctrinaire
and the British classical liberal writer Geoffrey Sampson once speculated
that Rothbard probably would have considered any deviation from his system
to be a form of cryto-statism to be suppressed by force (6).
Other anarcho-libertarian legal theorists including David Friedman, Bruce
Benson, Randy Barnett, Morris and Linda Tannehill, Jarrett Wollstein, Hans
Hermann Hoppe and George H. Smith have attempted to outline models for
potential anarchist legal systems. Typically, this will include some scheme
where private insurance agencies are the primary providers of crime control
or "law enforcement" services with legal institutions resembling the
private arbitration services currently in existence. This perspective seems
to me to be as legitimate as any. However, critics of these schemes who
suggest such a system might more closely resemble a form of industrialized
feudalism than anarchism do not seem to be without some justifications for
their arguments. Also, it should be remembered that one of the things that
caused the anarchical Icelandic Commonwealth to drift into statism was the
securing of a monopoly over protection services by a handful of individuals
or families (7). Randy Barnett suggests that "Rights-Maintenance
Organizations" might provide protection services in the same way that HMOs
currently provide health care. However, HMOs are to a large degree
oligopolies made possible by state intervention and the rate of consumer
satisfaction with HMOs does not seem to be particularly high (8).
A number of other possibilities exist. Some in the
militia-patriot-constitutionalist movement have sought to set up "common
law courts" as a parallel to the state's legal system. There are some
fairly solid ideas to be found in this milieu: opposition to victimless
crimes, jury nullification, an emphasis on self-defense and victims'
rights, and an implicit free market economy. Critics have expressed concern
that such a system might result in vigilante violence and private
lynchings. Vigilantism is over-criticized in my view, and vigilance
committees often served as a rather effective and beneficent force in the
Old West and other frontier societies, yet the legacy of racist lynchings
and mob action at certain points in the history of the US is unfortunately
still with us (9). The model of "participatory democracy" practiced by the
ancient Athenians is sometimes praised by modern anarchists and
libertarians (10). However, a closer look at the actual social structures
of Athenian society shows a self-indulgent aristocracy that kept most of
the population as slaves, relegated women to a similar status as that
imposed by the Taliban and practiced military aggression against
neighboring city-states and on the Mediterranean with its superior navy.
The Athenian practice of choosing "leaders" through a random drawing of
lots might be an interesting model to draw from, but it should also be
remembered that it was Athenian democracy that sentenced Socrates to death,
thereby souring his successors Plato and Aristotle on the very idea of
democracy (11).
Many traditional societies maintained a system where village or tribal
elders were called upon to arbitrate or adjudicate disputes among members
of the community, but, as the anarchist anthropologist Harold Barclay
points out, such systems amounted to a gerontocracy more than anything else
(12). An anarchist society could theoretically develop a type of hereditary
system whereby those trained in the mediation of disputes passed their
skills and their position down through their line of descendenants, or
where specially trained communities of scholars, kind of like medieval
monks, served as ultimate legal authority. However, it should be easy
enough to recognize that such arrangements could become the foundation for
a caste system that could eventually evolve into a formal state. Coming
back a little closer to institutions with which we are most familiar, a
network of "protection and arbitration" cooperatives, modeled on
contemporary neighborhood committeees, homeowners' associations and
neighborhood watch programs, could potentially replace the state system.
Yet neighborhoods and small towns alike are frequently known for their
clannishness and intolerance of outsiders or non-conformists.
It appears that virtually any alternative to the modern state one can
conceive of is not without its flaws. This in no way diminishes the
viability of the anarchist critique. I believe any one of the models
outlined above would be an improvement over the current police state and
gargantuan bureaucracy. Even a return to blood feuds, duelling and formal
bribery of the type still practiced in some remote areas of the world would
not be particularly unattractive when weighed against the status quo (13).
The current system is an abomination that all decent people should
vehemently oppose. The US maintains the world's largest prison population,
with the worst prison conditions of any industrialized nation. Most of
these people are imprisoned for "offenses" that are entirely arcane,
esoteric, archaic or victimless. The US is second only to China in the
number of its citizens it executes annually, many of them no doubt
wrongfully convicted. When Republican governors begin commuting the
sentences of death row inmates and even some law and order "conservatives"
start to come out against capital punishment, we know something is
seriously wrong. Murders of unarmed civilians at the hands of the police
have become routine. Under the guise of the "war on terrorism", a parallel
totalitarian legal system is being created along Orwellian lines. Compared
to what the future likely holds, a system of neighborhood-based mob rule,
feudatories run by private defense insurance agencies or local
gerontocracies with occasional vigilante lynchings would be a veritable
paradise.
Whatever the structure of anarchist legal institutions might be, this has
nothing to say about the content of anarchist law itself. This would likely
be a source of considerable controversy if the anarchist "movement" were to
continue to expand. Most free market anarchists hold to some variation of
the non-aggression axiom: "No one may initiate force against the person or
property of another". Immediately the conflicts between leftist and market
anarchists become apparent. Many leftist anarchists consider virtually all
forms of private property ownership to be a form of violence. I suspect
many of these people would also regard any act or even opinion that could
be construed as racist, sexist, homophobic, et.al ad nauseum to be the
equivalent of a violent crime as well. Leftist anarchist communities of
this type would likely be enclaves of politically correct totalitarianism.
As for other anarchists, there is the matter of defining "initiating force"
and property rights. Most anarcho-libertarians recognize the right of
self-defense, but how far are self-defense rights to be expanded? Is a
"preemptive strike" against someone who has repeatedly made credible
threats but has yet to act ever justified? If someone murders a member of
my family am I allowed to retaliate in whatever way I choose, or do I have
to call the local protection cooperative or defense company and summon the
offender to a common law court? If someone threatens me with their fists am
I allowed to defend myself with a gun?
As for the question of property rights, most libertarians favor defining
such rights according to the dictates of John Locke or Murray Rothbard.
This seems to me to be fairly arbitrary. The idea of property rights
definded according to traditional usufructuary principles (occupation and
use) seems equally valid. Why not define property rights according to the
ideas of Henry George or Hillaire Belloc or Peter Kropotkin or G. B. H.
Cole or Ronald Coase or, for that matter, Karl Marx or Gregor Strasser?
What about property currently owned by the state or by "private" groups
whose ownership is derived from state intervention? Who will receive the
title to "public" roads and highways following the demise of the state?
Private road maintenance companies? A motorists' cooperative? Will
neighborhood associations obtain the rights to streets in their own
precinct? Will individual homeowners receive exclusive rights to the
sidewalk in front of their residence? What about state-owned industries?
Will these be taken over by the workers, sold to bidders on the market or
forfeited to creditors? What if the creditor is a state-supported bank?
Will government buildings and facilities become the property of former
government employees, opened to squatters and homesteaders, or turned over
to organizations of those who consume their services? Can a village or
community claim the right of "common property" to certain resources (14)?
Can corporations originally created or chartered by the state continue to
claim property rights following the demise of the state?
Controversial social issues are equally difficult. The matter of children
is particularly tedious. Is there going to be an "age of majority"? If so,
what? Can runaways be forcibly returned to their parents? Until what age?
Can parents sell their children to other families? Are sexual relations
between adults and children going to be legally prohibited and, if so, what
will be the age of consent? Can parents be held legally liable for the
material neglect of their children? Would this not be a forcible
redistribution of wealth? Can a man impregnate a woman and then refuse to
provide any support for the resulting child? Do fathers have equal
custodial rights to their children or are children the sole property of
their mothers? Is abortion aggression or is a woman who desires an abortion
simply exercising her property rights over her own body? Should animals
have any legally enforceable protection? Or should even gratutious cruelty
to animals be beyond the reach of the law? How are criminals to be handled?
According to the paradigms of retribution, restitution, restoration,
rehabilitation or some combination of these? Is there ever going to be
capital punishment? Is mercy killing ever acceptable and, if so, under what
circumstances? Is drunken driving an act of aggression if no one is
actually harmed? Has a crime taken place if someone attempts murder but
fails to kill or even injure their intended victim? Is blackmail a form of
extortion or the simple acceptance of payment for withholding information?
Are acts of "consensual violence" such as duelling or Roman-style blood
sports akin to "victimless crimes" such as drug use or prostitution or are
these something entirely different (15)? If someone sells me a television
set I know is stolen am I a participant in a theft or an honest buyer of
merchandise whose source is not my responsibility? Is "mental incompetence"
ever a legitimate defense on the part of those accused of a crime? Of
course, environmental problems provide many unique difficulties of their own.
Still more complications arise when the matter of the presence of
"authoritarian" cultural or ideological groups in an anarchist society is
figured into the equation. David Friedman speculates that anarchist legal
institutions could even generate drug prohibition laws if public support
for such laws was overwhelming enough (16). For reasons I will explain, I
tend to be skeptical of this claim. However, it is quite likely that local
communities would form that would enforce their own cultural, moral,
philosophical or religious norms within their own ranks. These could
include not only anarcho-socialists, anarcho-syndicalists or
anarcho-capitalists but also anarcho-conservatives, anarcho-theocrats,
anarcho-nationalists, anarcho-white separatists, anarcho-black nationalists
or anarcho-monarchists (yes, all of these actually exist). Additionally,
there would likely be territories or enclaves dominated by communists,
nationalists, nazis or theocrats as well as remnants of the present system.
There might even be localities controlled by overtly criminal
organizations. For example, sections of urban areas might come under the
control of gangs following the disappearance of the state. Even this might
not be wholly undesirable (17). Tribute rates tend to be lower than tax
rates. I once met an anarcho-Satanist who insisted that in a stateless
society contract murder and car theft would become legitimate, respectable
professions. While it is theoretically possible that mafia-like
organizations might develop their own courts and "defense" organizations
that did not recognize their favorite forms of aggression as crimes, such
groups of outlaws would still be opposed by nearly everyone else and would
find themselves in a state of perpetual war against the rest of society.
At this point, one might be tempted to argue that the kind of pluralistic
anarchism I have described here could end up more closely resembling Beruit
circa 1984 than any sort of social system conducive to freedom, prosperity
and peace. However, I doubt this would be the case. The ideas of
decentralization and voluntary association that are central to anarchist
thought imply that those with common beliefs and values will naturally
drift towards one another and engage in mutual self-segregation with those
whose views are incompatible with their own. We see elements of this even
in the current system. Some states have capital punishment, others don't.
Gambling is legal in some localities and illegal in others. The "age of
consent" in thirteen in some states and eighteen in others. Some remote
counties even continue alcohol prohibition. The primary disadvantage of
decentralization is the persistent threat of tyranny of the majority.
Kirkpatrick Sale notes that is will always be difficult to be the black in
the white supremacist community, the Nazi in the Jewish community or the
atheist in the fundamentalist community (18). The antidote to this problem
is the relative ease with which persons who are outcasts in a particular
community can migrate to a more hospitable community, or perhaps form their
own community, in a decentralized system (19).
To some degree, the current international system is a "state of anarchy".
America, China, Saudi Arabia and the Netherlands all have radically
different cultures and social systems. Yet persons from each of these
nations regularly travel to other nations and maintain personal or business
relationships with others of completely different belief systems or
cultural backgrounds. Secular, democratic, capitalist America regularly
exchanges people and goods with theocratic, monarchical, feudal Saudi
Arabia. I suspect that a particularly effective anarchist method of
eliminating the persecution of some social groups by others would be the
abolition of state-organized, tax-funded police, courts and prisons. Under
the present system, the state seeks to expand its power by aligning itself
with private power groups seeking to use the state to repress their
ideological, cultural or economic competitors. The "process costs" and
"enforcement costs" of such state actions are then passed on to the whole
body of taxpayers and distributed throughout society as a whole. When this
avenue is closed off, those seeking to attack others will simply have to
pay for such efforts themselves. No matter how much some people may
disapprove of guns or drugs, how many of them would be willing to pay the
salaries of DEA or ATF agents out of their own pockets? Economic incentives
would likely restrict protection services and legal institutions to the
chores of settling interpersonal contractual or common law disputes and the
repression of serious crimes. Consensual activities and even some "petty"
crimes would largely be ignored or handled by means of informal sanctions.
For example, the simple apprehension and expulsion of shoplifters from
retail outlets without formal legal prosecution. Coercive enforcement of
cultural mores would largely be impossible beyond the neighborhood level.
Hayek concluded that the hallmark of totalitarian law is not so much its
brutality as much as its arbitrariness. This describes the legal regime
that currently rules over us rather aptly. Orwell once remarked that the
perfect totalitarian state would be a formal democracy where thirty percent
of the population lived directly or indirectly off of the government. This
too has a ring of familiarity about it. The only good thing about Leviathan
states is that they eventually collapse under their own excess weight. When
the American Empire finally dissolves, perhaps pluralistic anarchist law
will be given a chance to thrive.
Notes
See my "Dealing With Crime In A Free Society"
"Anarchism: Exponents of the Anarchist Philosophy" by Paul Eltzbacher
See my "Anarchism or Anarcho-Social Democracy?"
Lest I be accused of socialist bias, let me say that I would also consider
an America composed of hundreds of Hong Kongs to be an improvement over the
current system.
"For A New Liberty" by Murray Rothbard
"An End of Allegiance" by Geoffrey Sampson
"Anarcho-Iceland", from the Ludwig von Mises Institute.
"The Structure of Liberty" by Randy Barnett
"Gunfighters, Highwaymen and Vigilantes" by Roger McGrath
London Spectator
Of course, it needs to be recognized that decentralized Athenian
participatory democracy had little in common with "mass democracy" of the
modern corporate statist variety.
"People Without Government" by Harold Barclay
"Tribe Still Means All In Afghanistan" by Charles Lindholm March 31, 2002
Richmond Times-Dispatch
Carlton Hobbs, for Anti-state.com
Some libertarians argue that duelling or gladiatorial competitions involve
an alienation of the self and the "right to life" and cannot be consented
to just as voluntarily agreed upon slavery contracts cannot be consented to
as they involve alienation of the will. Personally, I find this logic
highly questionable.
"The Machinery of Freedom" by David Friedman
I am widely criticized for holding the view that street gangs are a bulwark
against the state. I once saw a Chicago police official on television
saying that many of these gangs view themselves as independent nations at
war with the government. I see no difference between them and secessionist
movements in the US who are not necessarily libertarian but whom many
libertarians nevertheless support as a decentralizing force.
"The 'Necessity' of the State" by Kirkpatrick Sale in "Reinventing Anarchy,
Again"
The Green Panthers, a drug war resistance group, favors establishing a
"stoner homeland" in the marijuana farming regions of northern California
and southern Oregon.
http://www.anti-state.com/article.php?article_id=379
