Anarchism and Law

Posted: July 1st, 2010 by Militant Libertarian

from LifeAfterAuthority

“But who would enforce the law?”

This is a pretty good question, often asked of anarchists, sometimes with the intention of having a serious discussion but usually not.  True, the question is born of the dystopian connotations of the word “anarchy” that people with power have spent centuries trying to associate with any alternative to their rule.  If you think that “anarch-” means a desire for chaos and fear with the result of people being helpless to anyone who wants to lord over them, I would recommend you familiarize yourself with anarchist history and anarchist political thought, and maybe reflect on how little sense that would make.

It’s still a reasonable question, though, that deserves further exploration.  Who would “enforce” “the law”, in the absence of hierarchy or top-down control?  The words “enforce”, “law”, “punish”, etc. have authoritarian connotations, and quickly smuggle hidden assumptions into the discussion.  Yet it can easily be shown that, when “law” is defined so broadly as to includeall methods of upholding social order, it is not only undesirable, but in fact logically impossible to do away with it.  Imagine if anarchism actually were, as a lot of people seem to think, the view that people should be able to kill, burn down houses, rape, and steal and get away with it with no penalty.  (Why anybody would advocate that, I’m not really sure.  Why we would want that when we don’t exactly hide that the reason we hate the state and capitalism is because it does precisely that on a daily basis, lord knows.)  Anyway, in order for this scenario to proceed, it would need to be forbidden for the people you’re attacking to be able to fight back and stop you, otherwise they would probably do that, as people, being living creatures, tend to have a self-preservation instinct.  And that would be, of course, a law.  Otherwise the victims would retaliate and put this behavior to an end.  In fact this is not too far off from how actual law originated — from the murderers and robbers powerful enough to crush any resistance to their actions, who then mystified this state of affairs with religion, mythology, and/or various other forms of gobbledygook.  Whoops!

If everyone can do anything they want, then you end up not with “anarchy”, but with the whole spectrum of possible societies and social arrangements, depending on what it is that people want to do.  People might defend themselves from the aforementioned “anarchic” behavior, and no more.  Or a group of people might organize to bully those around them into obeying their own arbitrary rules.  Or there might be an oppressive ruling ideology that everyone feels bound to.  Or people might believe that there is a group of people with the authority to legitimately rule them.  Or…something else.  There is no historical, etymological or logical reason to call this set of possibilities “anarchy”.  “Anarchy” as opposed to what?  What would be the alternative, exactly?  This is simply the human predicament.  Everything — from warlord-states, theocracies, and traditional monarchies to industrial “social-democratic” and Communist states — falls under this umbrella.

The word “law” itself is misleading, and one might suspect this is intentional on the part of those who create it.  There is in reality a law of gravity, of electromagnetism, etc. but there is no physical law that prevents one from, say, killing somebody.  Rather, there are social restrictions on our behavior, more accurately described as social penalties and patterns of retaliation, since it is practically impossible to literally prevent someone from doing such a thing, if they have a mind to.  Any form of “government” or “law” is not some supernatural source of order imposing itself on the human race, but a specific yet fluctuating pattern of actions, social relationships and ideologies shared by the people in an area, resulting in restrictions on human behavior.  So if “anarchy” meant anything concocted by us ordinary mortals, then of course we would already be there, and we would have no way of getting out of it.  So the real debate would be how best we can create a society reflecting values of freedom, human dignity and justice.  Which, of course, is exactly what we are talking about.

Defining “law” this way still, there can be no deep distinction between “law” and “absence of law”, since “absence of law” is incoherent by definition.  Among any group of people, whether it is only two or millions, there will be a system of “law”*, simply because it would be impossible for there not to be a pattern of responses to actions people take. Any response by anybody to anyhuman action is part of what the “law” is. So what really matters is not whether or not there is “law”, but how societies are organized, since “laws”, being created and enforced by those who are recognized as having the ability/authority to do so, are nothing more than a reflection of the relations that prevail in a society.  Therefore it does no good to define “anarchy” as “the breakdown of law” and thus write it off; depending on whether you define “law” as something that magically prevents us nasty mortals from making decisions about how our lives and communities are organized (or else there would be Hobbesian aNaRchEy!! warlords! humans are evilLlL!!!!!!!) or instead as defined above, either law does not really exist in the first place, or it is something that is embedded in all human relations.

So getting back to this question, “who would enforce the law?” we need look only at what anarchism is: in a nutshell, the belief that social order is best maintained through the free association of equals.  And to put it simply, whatever “law” has any business being “enforced” would be that which is compatible with this social arrangement.  The word “enforce” here, then, is misleading.  Rather, in such a society, a system of social penalties, consistingentirely of the proportional withdrawal of obligations that free people have to one another, would arise to deal with behavior that is truly destructive and harmful to other people — and so yes, force would be used against forceful, harmful behavior.  Based on the principles outlined above, it should be clear that this is by no means a “compromise” with the state or hierarchy.  It is, rather, based on a different paradigm of maintaining social order — one that is actually closer to how those of us who are not psychopaths/sociopaths deal with one another on a daily basis.

It’s true that the whole concept of “law enforcement” as we know it today — people coming to take you away once you do something that’s defined in some book nobody’s really read as “wrong” — would disappear, should an anarchistic society come into existence.  Think of all the victimless “crimes” in most “free” societies today that would vanish in a truly free society: any kind of consensual sexual “deviancy”, public lewdness, unauthorized exchange, drug use, loitering, gambling, creating or having erotic manga with young-looking characters, migration across “borders”, trespassing (unless it’s someone’s personal property), “tax evasion”, “resisting the police”, copyright violation, graffiti (this also depends on where it is), truancy, jaywalking, speeding, not showing up to “school”, not obeying your “employer”, not respecting absentee land claims, not paying rent, violating zoning restrictions, not wearing a seat belt, and things like peeing in the bushes, spitting in the street, and all the other petty things against which the law is generally not enforced anyway but the sheer multitude of which have the effect of creating a general atmosphere of fear and obedience, especially when “officials” are in sight.  Nor, for the most part, should such acts even be discouraged, since trying to use social pressure against them, even actions that one may find objectionable, would be a greater threat to the existence of a free, open society than allowing them to persist.  All of this would result in a society much different and more dynamic than what we are used to, although in fact legalizing these is not the “point” of anarchism, because anarchism is not about law per se.

The dominant mode of “enforcement” in a free society, for behavior that actually does hurt others but not violently, anywhere from failing to uphold your end of a deal to shoplifting to shouting insults in the street to refusing to work with people of a different race, would consist of what may be called “social penalties”.  Social penalties are in fact so powerful a tool of upholding social order that it is important for the health of a free society that peopledon’t use them against those doing things that aren’t harmful (for instance, homosexuality, or even public nudity)**.

What does this mean, exactly?  The truth is that the closest thing there is to “law” in a free society — that which is already present (and then it is not called “law” but social order) in all societies to the extent that they are free — is sustained by people respecting various provisional obligations to one another: not being nasty to people or hurting their feelings or infringing on their time or personal space or honestly acquired possessions/property (whatever you want to call it; I won’t get into that right now), and so on.  This set of mutual obligations is not, of course, something that has to be forced from above; the reason they arise naturally is that the overwhelming majority of humans, as social animals, very much have a rational self-interest in being respected, getting along with others, and sharing in the benefits offered by participating in society rather than as hermits; and almost everyone over the age of five and who isn’t a politician/authority figure (but I repeat myself) knows that the best way to get that from others is to grant it to them.  It’s the Golden Rule for a reason.  Meaning that harmful behavior would be “punished”, as it were, by withdrawing from these obligations to the offender.  Much like now, if a person were simply a nasty jerk, the reciprocal response they would get from others would usually be enough — except now there would be no hierarchies protecting abusive bosses, customers(as employees can’t really argue with asshole customers because then they’d get fired), and other creeps who take advantage of their position to be assholes.  As it is, this is one of the interrelated reasons why any kindness and respect between people exist in the first place: right now, people could be much meaner to strangers and still not be breaking the law.  Which isn’t to say that the creation of a new, nonhierarchical society won’t involve a change in how people interact from right now — just that the interpersonal foundation of such a society is not as alien to “the real world” as we would be led to believe by the Hobbesian doomsday creeps.  If a person stole from their neighbors, not only could you forcibly take back what they stole, but also they would quickly find that those around them would cease to respect their own ownership claims.  If someone were polluting a lake, or turning public land into their private property, you could just go up and stop them, maybe smashing the relevant equipment.  No need for handcuffs or prisons, and it would still be a little strange to call this “enforcing the law”, but that is, by and large, how most of what social order is needed would be upheld.  By withdrawing obligations to the offender, always proportionately to what they are doing in the first place.  The worst that can happen, essentially, is for someone to be forced into self-sufficiency, denied the right to interact with other people (which of course is not a “right”, but is provisional on not harming others).  This form of social order does not by any means require anything that could reasonably be called a State.  Indeed it is really the only viable form of social order — one that, in what will someday be considered an embryonic form, underpins many of our daily interactions even today, as stated.

What about serious physical aggression — murder, rape, mugging, aggressively breaking into people’s homes and attacking people?  Same idea:proportional withdrawal of obligations — in this case, to leave one alone.  Most likely the right to use lethal force on the spot against someone trying to rape or kill you would be recognized, and it’s not like that right goes away if you hunt them down later, or if there is a neighborhood, regional, or informal organization you can call upon for that purpose.  Not all violent crime is as clear-cut as this, though — think drunken bar fights, etc. — and so to minimize conflict (and all of this is assuming that violent crime would be something that would still be an issue in the first place, when we already know that the rate of violent crime is connected to the structure of society, but…)  it is likely that people would create tighter, more formal levels of organization: detectives, seizing the suspect, a trial by jury, and so on.  Sometimes I have heard very ignorant people on the Internet make snarky comments about how there’d be no way to stop someone from, say, going town to town and stealing or killing people in an “anarchy”, but I’m not really sure why.  Aside from there not being a ruling class or hierarchy, there’s no reason things would have to be different from how they are now, in this type of situation.  There would still be communication between towns and groups dedicated to such things, people that would start tracking down the perpetrator, and so on.  Yes, a “punishment” would be enforced on the criminal without his “consent” — but when you don’t leave other people alone, you proportionally lose the right to be left alone.  So what, exactly, would happen to a murderer?  The most obvious consequence of killing someone intentionally would be that people would no longer be obliged to respect your right to live and continue participating in society; thus self-imposed exile or house arrest would be the only alternative to facing retaliation.  Or maybe confirmed murderers would simply be killed.  Manslaughter as well as aggressive crimes less serious than murder would more likely be met with any combination of these strategies, depending on the situation: fines, house arrest (both backed by the threat of self-sufficiency rather than prison), confiscation, victims simply fighting back, ostracism, and/or exile (brought about by the person’s house being squatted, not by being literally forced out of the community).  One could write endlessly on non-authoritarian methods of upholding social order but hopefully the underlying theme, of proportional withdrawal of obligation, is now clear.

Of course it is not for me to lay the blueprint of exactly how an “anarchy” would work.  Should society be pushed into an anti-authoritarian, anarchistic direction, people will experiment with different ideas for how to deal with all of these situations and more, and it will be for these people to decide on these things.   The really important difference between “anarchy” and authoritarism is the creation of social order through free equals [provisionally] respecting obligations of respect/nonviolence to one another versus some group of people in fancy robes bestowing some of the “rights” that they had no right to take in the first place back on the rest of us.  “Law” is a red herring — the horizontal vs. the vertical organization of society is the real issue.

*Used in a very broad sense.  Personally I define LAW as something which is to be done away with, as it is inseparable from a mystified source of authority above and beyond the desires of members of society, and as such putting “law” above conscience has been the greatest evil in the human experience.  But debating the “real” meaning of a word people use in different ways, of course, is not the point here.

**George Orwell, of all people, wrote that a society in which there are strong social stigmas attached to nonharmful acts is even more oppressive than just having them be illegal.  This does not work as an argument against anarchism, first because all thinkers in the anarchist tradition of at least the last 130 years (sorry, Hoppe) have spoken of the importance of maintaining a free culture, second because making something illegal definitely does not magically prevent there from being a social stigma attached to it.


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