by Keith Preston

Anarchist Law: Some Hard Questions

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, 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:

1) See my “Dealing With Crime In A Free Society”
2)”Anarchism: Exponents of the Anarchist Philosophy” by Paul Eltzbacher
3) See my “Anarchism or Anarcho-Social Democracy?”
4) 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.
5) “For A New Liberty” by Murray Rothbard
6) “An End of Allegiance” by Geoffrey Sampson
7) “Anarcho-Iceland”, from the Ludwig von Mises Institute.
8) “The Structure of Liberty” by Randy Barnett
9)”Gunfighters, Highwaymen and Vigilantes” by Roger McGrath
10) London Spectator
11) 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.
12) “People Without Government” by Harold Barclay
13) “Tribe Still Means All In Afghanistan” by Charles Lindholm March 31, 2002 Richmond Times-Dispatch
14) Carlton Hobbs, for Anti-state.com
15) 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.
16) “The Machinery of Freedom” by David Friedman
17) 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.
18) “The ‘Necessity’ of the State” by Kirkpatrick Sale in “Reinventing Anarchy, Again”
19) The Green Panthers, a drug war resistance group, favors establishing a “stoner homeland” in the marijuana farming regions of northern California and southern Oregon.

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