Law

The anarchists like liberals see the State as primarily a legal association and law as its mode of action.’ It is designed to maintain a compulsory degree of legal order. Its principal bodies — the legislature, judiciary, and executive — are responsible for making, interpreting and enforcing the law. Strictly speaking, a law is a rule of conduct made by government and enforced by the State.

Tolstoy describes laws vividly as ‘rules, made by people who govern by means of organized violence, for non-compliance with which the noncompliant is subjected to blows, to loss of liberty, or even to being murdered’.53 Laws restrict our liberty by making us act or refrain from acting regardless of our wishes; they stand like high hedges, keeping us on the straight and narrow. The methods used by the State to enforce its laws are those of compulsion: the ultimate power of the law is the coercive power of the State. As Hobbes recognized, the authority of Leviathan is ultimately based on the sword — or its modern equivalent, the policeman’s cosh or the soldier’s gun. Indeed, as Tolstoy observed, the characteristic feature of government is that ‘it claims a moral right to inflict physical penalties, and by its decree to make murder a good action’. 54 Since they reject the State, it is therefore inevitable that anarchists reject its most coercive expression in the law; in the words of Jean Grave, ‘anarchy demonstrates that there cannot be any good laws, nor good governments, nor faithful applications of the law . . . all human law is arbitrary.’55

Of all anarchists, Godwin was the earliest and most trenchant critic of law. In the first place, he argued that man-made law is unnecessary since immutable reason is the true legislator’. Men can do no more than declare and interpret the rules of universal justice as perceived by reason. Secondly, the principal weakness of law is its status as a general rule. No two actions are the same and yet the law absurdly tries to reduce the myriad of human actions to one common measure, and as such operates like Procrustes’ bed in the Greek legend which cuts or stretches whoever lays on it. Thirdly, law is inevitably made in the interest of the lawmakers and as such is a venal compact by which superior tyrants have purchased the countenance and alliance of the inferior‘.56  Above all, like government in fixes the human mind in a stagnant condition and prevents that unceasing progress which is its natural tendency.

Godwin was certain that the punishment — the voluntary infliction of evil on a vicious being — threatened or imposed by law is not an appropriate way to reform human conduct. Since men are products of their environment, they cannot strictly speaking be held responsible for what they do: an assassin is no more guilty of the crime he commits than the dagger he holds. Since they are in the grip of circumstances, they do not have free will. There can therefore be no moral justification in punishment, whether it be for retribution, example or reform. All punishment is ‘a tacit confession of imbecility’; indeed, it is worse than the original crime since it uses force where rational persuasion is enough. Coercion cannot convince or create respect; it can only sour the mind and alienate the person against whom it is used.

Godwin was convinced that law, like government, is not only harmful but unnecessary. His remedy for anti-social acts was to reduce the occasion for crime by eradicating its causes in government and accumulated property and by encouraging people through education to think in terms of the general good rather than private interest. Since vice is principally error, enlightenment will be enough to make people virtuous.

Godwin is realistic enough to recognize that even in a free society it may be necessary to restrain violent people on a temporary basis, but they should always be treated kindly and kept within the community as far as possible. Instead of resorting to courts and professional lawyers, disputes could be solved by popular juries who consider the specific circumstances of each case: ‘There is no maxim more clear than this, “Every case is a rule to itself“.’57

The aim should always be to resolve conflict rather than apportion blame. Eventually, Godwin believed, it would only be necessary to recommend rather than enforce the decisions of juries. In place of law, the power of public opinion would suffice to check anti-social acts. And once the ‘rules of justice’ were properly understood by the community, then laws would become unnecessary.

After Godwin, Kropotkin offered the most cogent anarchist criticism of the law. All legislation within the State, he asserted, has always been made with regard to the interests of the privileged classes. He traced the origins of law first to primitive superstitions, and then to the decrees of conquerors. Originally human relations were regulated by customs and usages, but the dominant minority used law to make immutable those customs which were to their advantage. Law thus made its appearance ‘under the sanction of the priest, and the warrior’s club was placed at its service‘.58

Kropotkin divided the millions of laws which exist to regulate humanity into three main categories: the protection of property, the protection of governments, the protection of persons. The first is intended to appropriate the product of the worker’s labour or to deal with quarrels between monopolists; as such they have no other object than to protect the unjust appropriation of human labour. The second category, constitutional law, is intended to maintain the administrative machine which almost entirely serves to protect the interests of the possessing classes. The third category, the protection of persons, is the most important since such laws are considered indispensable to the maintenance of security in European societies. These laws developed from the nucleus of customs which were useful to human communities, but since they have been adopted by rulers to sanctify their domination they have become as useless and injurious as the other categories of law.

Kropotkin argued that the main supports for crime are idleness, law and authority. But since about two-thirds of existing crimes are crimes against property, ‘they will disappear, or be limited to a quite trifling amount, when property which is now the privilege of a few, shall return to its real source — the community’.59 For those people who will still be anti-social and violent, Kropotkin insists that punishment is not appropriate since the severity of punishment does not diminish the amount of crime. Talking from his own experience of Russian and French prisons, he condemned prisons for killing physical energy, destroying the individual will, and encouraging society to treat the liberated prisoner as ‘something plague-stricken’ 60

It is not possible to improve prisons. The more prisons are reformed, the more detestable they become: modern penitentiaries are far worse than the dungeons of the Middle Ages. The best cure for anti-social tendencies is to be found in human sympathy. Kropotkin concludes:

Peoples without political organization, and therefore less depraved than ourselves, have perfectly understood that the man who is called criminal’ is simply unfortunate; that the remedy is not to flog him, to chain him up, or to kill him on the scaffold or in prison, but to help him by the most brotherly care, by treatment based on equality, but the usages of life amongst honest men 61

Anarchists assume that there would be a greater harmony of interests amongst individuals living in a society without government, law and unequal property. But they do not think that everyone would immediately behave in a responsible fashion and there would be no more disputes or conflicts. In place of the force of law, Godwin and Kropotkin recommended the influence of public opinion and mutual censure to reform conduct. There is of course a possibility that the tyranny of public opinion could replace the oppression of law. But while Godwin and Kropotkin allow censure as a form of social control, they insist that people should decide for themselves how they should behave.

Again, in a society where anti-social individuals are considered to be sick and in need of a cure, psychological manipulation can be more coercive and tyrannical than imprisonment. The use of psychiatry to reform dissidents has become notorious in authoritarian societies. Stirner put the problem succinctly: ‘Curative means or healing is only the reverse side of punishment, the theory of cure runs parallel to the theory of punishment; if the latter sees in an action a sin against right, the former takes it for a sin of the man against himself, as a decadence from his health.’62

With their concern for personal autonomy and individual freedom, anarchists more than any other socialists are aware of the inhumanity of both physical punishment and manipulative cure for anti-social members of the community. They look to reasoned argument and friendly treatment to deal with criminals and wish to respect their humanity and individuality.

The Nation-State

The Nation-State has become the norm of modem political organization and the main object of citizens’ loyalties. The State is considered the guardian of a nation’s identity, and colonized peoples who win their independence invariably strive to set up their own Nation-State. Yet many nations exist without their own States, and many States consist of several different nations. The Nation and the State are not therefore synonymous. Nor are they necessarily desirable. From the beginning, the anarchists have questioned the legitimacy of Nation-States and strongly resisted their formation.63 They have not however ignored the strong emotional pull of nationalism and patriotism, and some, notably, Proudhon and Bakunin, have succumbed to it.

Like the ancient Stoics, the anarchists have always been cosmopolitan and internationalist in outlook, and considered themselves ‘citizens of the world’. In general, they have supported national liberation struggles as part of a wider struggle for freedom, but they have opposed the statist aspirations and exclusive loyalties of the nationalists. They are particularly critical of patriotism which makes the ruled identify with their rulers and become their obedient cannon-fodder. They also recognize that rivalry between Nation-States is one of the principal causes of war.

Godwin was highly critical of Rousseau and others who exhorted people to love their country and to ‘sink the personal existence of individuals in the existence of the community’ as if it were an abstract being. The love of our country is ‘one of those specious illusions which are employed by impostors for the purpose of rendering the multitude the blind instruments of their crooked designs’. It makes us consider whatever is gained for country as so much gained to ‘our darling selves’. Patriotism moreover leads to ‘a spirit of hatred and all uncharitableness towards the countries around us’. In place of a narrow patriotism, Godwin taught universal benevolence: we should help the most needy and worthy, regardless of our personal connections. We should act as impartial spectators and not be swayed by the ties of family, tribe, country, or race. And since ideas of great empire and of legislative unity are plainly ‘the barbarous remains of the days of military heroism’, Godwin looked to a decentralized society of federated parishes to replace the Nation-State.64

Tolstoy like Godwin also rigorously condemned patriotism. He saw it inextricably linked with government. By supporting government and fostering war, he declared patriotism to be a ‘rude, harmful, disgraceful, and bad feeling, and above all, immoral’ since it influences man to see himself the ‘son of his fatherland and the slave of his Government, and commit actions contrary to his reason and his conscience’. 65 He felt that if people could understand that they are not the sons of some fatherland or other, nor of Governments, but the sons of God, they would be neither slaves nor enemies to each other.

Not all anarchists however have condemned patriotism so roundly as Godwin and Tolstoy. Proudhon was undoubtedly a French nationalist. As he grew older, he not only celebrated the French revolutionary tradition but also the French people and their heritage. He was markedly anti-Semitic. Nevertheless, he argued that federalism is the only answer to end the rivalry between nations and to dissolve empires. Like Rousseau, he felt that the larger a nation in territory or population, the greater the danger of tyranny. He therefore urged a process of decolonization, as the United States and Canada had from England, and looked to a time when Algeria would constitute itself an ‘African France’.”

Bakunin was a nationalist before becoming an anarchist. He tended to harbour nationalist prejudices, celebrating the freedom-loving and spontaneous Slays and condemning the militaristic Germans. He thought Marx was a thorough-going authoritarian partly because he was a German and a Jew. However, Bakunin’s early support for Polish nationalism and Panslavism was motivated by a desire to break up the Russian empire and to set its colonized peoples free. He expressed ‘strong sympathy for any national uprising against any form of oppression’ and declared that every people hasthe right to be itself and no one is entitled to impose its costume, its customs, its language, its opinions, or its laws’.67

While Bakunin believed that nationalism was a ‘natural fact’ and that each nation had an incontestable right to free development, he did not think nationalism acceptable as a legitimate political principle because it has an exclusive tendency and lacks ‘the power of universality’.” In a subtle analysis of patriotism, he distinguished three types. The first is ‘natural’, an instinctive, mechanical, uncritical attachment to the socially accepted hereditary or traditional pattern of life’. But while it is an expression of social solidarity, it exists in an inverse ratio to the evolution of humanity. The second is ‘bourgeois’, the object of which is to maintain the power of the Nation-State, that is ‘the mainstay of all privileges of the exploiters throughout the nation’. The third is ‘proletarian’, the only truly acceptable form of patriotism, which ignores national differences and State boundaries and embraces the world.”

Bakunin therefore looked to a ‘large, fraternal union of mankind’ and extended the principle of federalism to the world as a whole. As a transition to a federation of all nations, he called for a United States of Europe as the only way of making a civil war between the different peoples in the ‘European family’ impossible. The ‘United States’ he had in mind however would not be a centralized, bureaucratic and military federation, but organized from the bottom up with member nations having the right to secession. True internationalism, he insisted, rests on self-determination: ‘each individual, each association, commune, or province, each region and nation, has the absolute right to determine its own fate, to associate with others or not, to ally itself with whomever it will, or break any alliance, without regard to so-called historical claims or the convenience of its neighbour’.” Only in this way would nations cease to be the products of conquest and historical and geographical distortion. In the long run, however, Bakunin believed that the national question is secondary to the social revolution and the social revolution should become a world revolution.

Rudolf Rocker has provided the most incisive condemnation of the Nation-State in his vast study Nationalism and Culture ( 937). For Rocker, the nation is not the origin but the product of the State: ‘It is the state which creates the nation, and not the nation the state’. The nation cannot therefore exist without the State. But he does not deny local feelings of attachment to a culture and land. He distinguishes between a people, which the ‘natural result of social union, a mutual association’ brought about by a common language and particular conditions of living, and the nation, which is theartificial struggle for political power’ .71 A people always consists of a community with narrow boundaries, while a nation often encapsulates a whole array of different peoples who have by more or less violent means been pressed into the frame of a common state. He therefore condemned nationalism for trying to create artificial barriers and disturbing the organic unity of the community.

Gustav Landauer, who was strongly influenced by Proudhon, made an interesting attempt to combine nationalism and anarchism. He contrasted like Rocker the ‘Community’ against the ‘State’: the people in a statist society do not fmd themselves together in the organism of true community. Community however exists alongside and outside the State, but it has not yet been fully realized. A free community is therefore not the founding of something new, but ‘the actualization and reconstitution of something that has always been present, which exists alongside the state, albeit buried and laid waste’.72 It is necessary to develop this community made from the union of persons and families into various communities, and communities into associations.

The ‘nationhood’ of a people, according to Landauer, remains once Statehood’ has been superseded. Nationhood consists of the closeness of people together in their way of life, language, tradition, and memories of a common fate and works to create real communal living. It follows thatnothing but the rebirth of all peoples out of the spirit of regional community can bring salvation’.” But while Landauer wanted to revive old communal traditions and dissolve the State, his vision was not parochial. It would seem that the essential features of Rocker’s concept of a ‘people’ are to be found in Landauer’s concept of the ‘nation’. The nation for Landauer is not an artificial whole but a community of communities. The individual moreover should not identify only with his nation, but see it as one ring in the widening circle of humanity.

The anarchists have thus mounted the most consistent and rigorous critique of the State, whether in its liberal, social democratic, or Marxist form. While the State may have been intended to suppress injustice and oppression, they argue that it has only aggravated them. It fosters war and national rivalries; it crushes creativity and independence. Governments, and the laws through which they impose their will, are equally unnecessary and harmful. At the same time, their confidence in natural order leads anarchists to believe that society will flourish without imposed authority and external coercion. People thrive best when least interfered with; without the State, they will be able to develop initiative, form voluntary agreements and practise mutual aid. They will be able to become fully realized individuals, combining ancient patterns of co-operation with a modern sense of individuality. The anarchist critique of the State not only questions many of the fundamental assumptions of political philosophy but challenges the authoritarian premisses of Western civilization.

Advertisements