“Anarchist Objections to Law and State”

11 11 2009

I just wanted to share with you the following, taken from a Legal, Jurisprudence Textbook. It has to be one of the most objective overviews of Anarchism I’ve seen around, which is surprising considering the extract was contained in a textbook intended for potentially hostile audiences — law schools.

The Limits of Law: Anarchist Objections to Law and State

Laws, decrees, edicts, ordinances, resolutions, will fall like hail upon the unfortunate people.

Third philosophical thesis: We are not cabbages

All of which is to say that, beyond being boring, jurisprudence is about the ways that all sorts of laws which define our society, our political agendas, our sexuality, our visions of reality and our day-to-day struggles intersect.  Is law, then, simply a repressive agent from which we need to be freed in order to recover, or discover, our true selves? As I noted, one of the interesting things about Foucault’s Chinese encyclopaedia is that it demonstrates to us the limitations of our own thought processes. Is law only a distortion or reduction of what could otherwise be? Does it suppress our individuality and freedom?  DH Lawrence thought so. In his Study of Thomas Hardy, he wrote that under the influence of too many laws people are like “the regulation cabbage” — going rotten at the centre instead of blooming.

DH Lawrence

Study of Thomas Hardy

[Making laws] is like protecting the well-being of a cabbage in the cabbage patch, while the cabbage is rotting at the heart for lack of power to run out into blossom.  Could you make any law in any land, empowering the poppy to flower? You might make a law refusing it liberty to bloom. But that is another thing. COuld any law put into being something which did not before exist? It could not. Law can only modify the conditions for better or worse, of that which already exists.

But law is very, very clumsy and mechanical instrument, and we people are very, very delicate and subtle beings.  Therefore I only ask that the law shall leave me alone as much as possible. I insist that no law shall have immediate power over me, either for my good or for my ill.  And I would wish that many laws be unmade, and no more laws made.  Let there be a parliament of men and women for the careful and gradual unmaking of laws.

… we are like the hide-bound cabbage going rotten at the heart. And for the same reason that, instead of producing our flower, instead of continuing our activity, satisfying our true desire, climbing and clambering till, like the poppy, we lean on the sill of all the unknown, and run our flag out there in the colour and shine of being, having surpassed that which has been before, we hang back, we dare not even peep forth, but, safely shut up in bud, safely and darkly and snugly enclosed, like the regulation cabbage, we remain secure till our hearts go rotten, saying all the while how safe we are.

There may be much value in what Lawrence says. Insofar as laws (of society, thought, the legal system) provide us with a way of existing without giving too much thought to what comes next, and without having to make difficult decisions or reflect upon the assumptions we are making, they can be a deadening influence which both capitalise on our desire for safe answers and encourage complacency.  But, as we have seen, law is also arguable the basic condition of meaning: law defines, categorises and sets conditions for communication.

Lawrence’s sentiments raise the question of whether law is necessary to human society at all, and — supposing that it is necessary — what form it should take. These are the questions which have not traditionally been central to legal theory, so persuaded are we that law is a necessary and (probably) a positive element of social existence.  However, political philosophers and, in particular, anarchists, have challenged the traditional acceptance by Western cultures of the state and its associated concept of law imposed by a sovereign.  Although anarchist thought has never been regarded as “belonging” to legal philosophy, it does in my view offer some interesting contributions to an understanidng of law.

This neglect of anarchist thought is hardly suprising: law is typically regarded by legal theorists as imposing order on a society, while anarchism is frequently associated with chaos and disorder.  However, while the “anarchist” label is sometimes adopted by people wishing to reject order altogether, that is not the primary use of the term is political philosophy.  Anarchist theory does not reject order as such, but it does reject order imposed on a society by a centralised hierarchical authority such as a state.  The political motivations behind this rejection vary considerably between anarchists: broadly speaking, some are libertarians or anarcho-capitalists who see the state as an obstacle to radical individualism or a completely free market; others hold communitarian ideals, and regard the state as a violent institution which creates inequalities between people (through institutions such as private property), which prevents people from taking responsibility for ordering their own communities, which obstructs human potential and mutual co-operation, and which perpetrates more violence and war than it prevents.

Early anarchists tended to identify the concept of law with state-based authority, meaning that their rejection of the state also entailed a rejection of law.  For instance, Peter Kropotkin observed that law is seen to be remedy for all evils: “Instead of themselves altering what is bad, people begin by demanding a law to alter it. — A law about fashions, a law about mad dogs, a law about virtue, a law to put a stop to all the vices and all the evils which result from human indolence and cowards.”  In placing our reliance on laws given to us by the state, according to Kropotkin, we fail to exercise our own judgement and initiative in ordering our existences, and become subservient to both the law and the state.  Reliance on the state prevents us placing reliance on ourselves and from forming co-operative relationships with others.  Similarly, Leo Tolstoy, a Christian anarchist, defined laws as “rules, made by people who govern by means of organised violence for non-compliance”.  Rather than representing the will of the majority, for Tolstoy, law represents the subjective wishes if a few privileged people, who create laws which server their own interests and protect their private property.  Tolstoy argued that the violence of law cannot be justified: if people are irrational and need violence to exist, then everybody must have the right ot use violence, not just the few who have power; if, on the other hand, people were (as he thought) rational, “then their relations should be based on reason, and not on the violence of those who happen to have seized power”.

Any anarchist rejection of law is, however, tied to its rejection of the state.  Anarchism does not entail a rejection of law as such, as long as it is possible to disengage the concept of law from the presence of a state.  In other words, law may be acceptable, necessary, and even positive for anarchists, as long as it is not arbitrarily imposed by a superior and oppressive institution such as the state.  Such a non-state law may be difficult for modern Western lawyers to envisage: after all, our very concept of law tends to assume the existence of state coercion.  But anarchists have argued that we do not need to think of laws as a hierarchical institution which forces its subjects into compliance.  Nor should law necessarily be regarded merely as a set of rules or static limits.  Rather, it might be “a design, an experiment, and a learning process”.  More practically, it could be created and enforced by consensus and with the co-operation of all members of a society.  Such a law may seem idealistic, impracticable, even impossible. (Though when we think that something is impossible it is important first to remember Foucault’s Chinese encyclopaedia.  Is the object impossible, or are we simply limited in our imagination?)  Clearly, a greater awareness of the law of non-Western and indigenous cultures has led in recent years to some acceptance of broader concepts of law, which are not based upon the presence of centralised state authority…

All citations have been left out — it took me long enough to re-type the whole passage. (my apologies for any errors)  Extract taken from Margaret Davies, “Asking the Law Question” (3rd ed, 2008).  It should also be noted that the opening quote is taken from PJ Proudhon’s General Idea of Revolution in the Nineteenth Century, page 132.

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3 responses

13 11 2009
Mike Gogulski

Thanks for putting this online.

I found this interesting:

The political motivations behind this rejection vary considerably between anarchists: broadly speaking, some are libertarians or anarcho-capitalists who see the state as an obstacle to radical individualism or a completely free market; others hold communitarian ideals, and regard the state as a violent institution which creates inequalities between people (through institutions such as private property), which prevents people from taking responsibility for ordering their own communities, which obstructs human potential and mutual co-operation, and which perpetrates more violence and war than it prevents.

In particular, since I subscribe to both of the viewpoints described.

13 01 2010
Objecções anarquistas à Lei e ao Estado « AGITAÇÃO

[…] retirado do Urban Dissent […]

27 12 2010
johannesott

Hello, found your blog through an automated link on my blog. you may want to check my review on law and especially my take how we got into all this mess.

In today’s world I am still against anarchism. Law is better than no law however I can see the reasoning behind it and if we can isolate what anarchism’s true driving motivation and modus operandi are we might be on a winner. In its existing form it is too much of a utopia that doesn’t work because of its individual parts, namely us.
http://ottjo.wordpress.com

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