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Title: Anarchist Justice Author: David Wieck Date: 1978 Language: en Topics: capitalism, justice, law, right libertarianism, the State Source: Retrieved on 15 August 2011 from http://www.ditext.com/wieck/justice.html Notes: In J. Roland Pennock, & John W. Chapman, eds., Anarchism: Nomos XIX. New York: New York University Press, 1978.
No matter how valuable law may be to protect your property, even to keep
soul and body together, if it do not keep you and humanity together.
— Henry Thoreau
Such terms as “socialism,” “democracy,” and “anarchism” have been
appropriated for diverse and conflicting uses. Professor Rothbard’s
association of anarchism with capitalism — a conjunction usually called
anarcho-capitalism — results in a conception that is entirely outside
the mainstream of anarchist theoretical writings or social movements. To
some of us who regard ourselves as anarchists, this conjunction is a
self-contradiction. Rothbard’s definition of “anarchist society” as a
society in which there is “no legal possibility for coercive aggression
against the person or property of any individual” may by its minimalism
avoid formal contradiction. After a preliminary discussion of this
point, brief and inconclusive as it must be, I shall proceed to analysis
of his theory of “defense systems” in a society without a state.
Finally, since this is a symposium on anarchism and not on a single
variant of it, I shall feel free to discuss certain views of justice
that derive from the main traditions of anarchism.
I admit to not being sure what “no legal possibility” for coercive
aggression means. We are not to suppose, if I understand the latter part
of Rothbard’s paper, that there will be no laws and hence (vacuously) no
legal possibility, for Rothbard proposes a “law code” that would
prohibit coercive aggression and that would no doubt specify, among
other things, what would count as acts of aggression and as appropriate
punishments. He does not seek to eliminate law and judicial procedures
but to eliminate aggressions that he believes are built into existing
law codes and political constitutions, namely taxation and the
arrogation of “defense services” by a monopolistic political authority.
I think I am on safe ground in saying that he seeks to save law from the
state.
The nature of a law code that is not integrated with a coercive
political authority is not, however, easy to conceive. I take it that it
must be more than a moral code; I doubt that Rothbard would accept the
translation of “legally impossible” as “morally impossible” or
“ethically impossible,” both because it would be hard to make sense of
the latter terms and because he consistently avoids moral terminology.
Given that he allows every individual to act, at his or her own risk, as
policeman, judge, and executioner, and perhaps jailer too, I think he
means that everyone is a legal authority but that all “would have to”
(p. 205) conform to the same legal code. The most favorable meaning I
can give to “would have to” is as stipulating a necessary condition that
would be guaranteed by the forceful action of adherents to the code
against those who flout it. In that sense I shall construe him as
attempting to articulate the principles of a “libertarian law code.” But
the basic question remains doubtful: Can there be the rule of law and
yet no state, even on Professor Rothbard’s minimal definition of the
latter?
We are not given nearly enough material to allow pursuit of this
question to the end; I have already had to supply propositions to which
Professor Rothbard might not assent. It does seem, however, that in his
system there would stand over against every individual the legal
authority of all the others. An individual who did not recognize private
property as legitimate would surely perceive this as a tyranny of law, a
tyranny of the majority or of the most powerful — in short, a
hydra-headed state. If the law code is itself unitary, then this
multiple state might be said to have properly a single head — the law.
The system would differ from the existing American system in that it
would lack taxation, the economy would be unregulated by government
(although property rights would be enforced), the present partial
decentralization of legal authority under a rule of law would be
maximized, and the enforcement of personal morality would be outlawed as
aggression. But it looks as though one might still call this “a state,”
under Rothbard’s definition, by its satisfying de facto one of his pair
of sufficient conditions: “It asserts and usually obtains a coerced
monopoly of the provision of defense service (police and courts) over a
given territorial area” (p. 191, definition of “the state”). Hobbes’s
individual sovereign would seem to have become many sovereigns — with
but one law, however, and in truth, therefore, a single sovereign in
Hobbes’s more important sense of the latter term. One might better, and
less confusingly, call this a libertarian state than an anarchy.
Against such criticism Rothbard’s “anarchism” might be defended on the
ground that the “defensive” enforcement of a principle of individual
liberty cannot fairly be classified as an infringement on individual
liberty, and that such enforcement, dispersed as it would be and
directed merely at preserving the integrity of the society, would not
constitute a state in any serious sense. A further difficulty, however,
results from the attachment of a principle of private property, and of
unrestricted accumulation of wealth, to the principle of individual
liberty. This increases sharply the possibility that many reasonable
people who respect their fellow men and women will find themselves
outside the law because of dissent from a property interpretation of
liberty. There is, furthermore, broad ground for reasonable
disagreement, even among those who would regard some form of property as
a basic right, as to what should count as legitimate property and what
modes of acquisition of property should be recognized. An obvious
example is the right to bestow inheritance, to which Rothbard holds but
which might be contested as an unreasonable extension of legitimate
property rights; other examples of disputed conceptions of property
rights abound in the lawbooks of our society. One can imagine, in
addition, that those who lose out badly in the free competition of
Rothbard’s economic system, perhaps a considerable number, might regard
the legal authority as an alien power, a state for them, based on
violence, and might be quite unmoved by the fact that, just as under
nineteenth-century capitalism, a principle of liberty was the
justification for it all.
Most conceptions of anarchism that are not outright communist in
economics minimize the possibility of great accumulations of private
wealth, or of great disparities in economic well-being, by a concept of
social property and social wealth that sets limits to private
accumulation. It is of course just the absence of this category of the
social that is crucial to Rothbard’s system. Further consequences of
this absence will appear in the more specific discussion below. At this
point it seems fair to assert that Rothbard’s inclusion of property in
his definition of the individual and of liberty is likely to introduce
heavy stresses into his system of justice, and that the compatibility of
his system with anarchy, in other than a sheerly formal sense of the
latter, is far from clear.
Whether Professor Rothbard’s system is an anarchism is of course
pertinent to the present symposium. But it is not the only pertinent
question, because the society envisaged, however it should be called,
would still have just those merits and failings that it has. The burden
of my comment, as I develop it in this section and the two following,
will be negative, because I believe that the shortcomings are truly
serious.
Consistent with his antagonism to the social, Professor Rothbard adheres
to a model for analysis and resolution of disputes and of more serious
aggressions that I shall refer to as “the two-party model.” “All
disputes,” he says, “involve two parties: the plaintiff, the alleged
victim of the crime or tort, and the defendant, the alleged aggressor”
(p. 196). If I understand Rothbard correctly, he could conceive of
plaintiff or defendant, alleged victim or alleged aggressor, as (either
or both) plural in number, and he could conceive also of cases where
each alleges that the other is the offender. (If I am mistaken, it will
not affect my discussion.) But it is clear that Rothbard recognizes no
third-party, or what more extendedly might be called social, interests
as legally and judicially relevant to an allegation of aggression. His
severe individualism requires a two-party model, and the consequences
are considerable.
The two-party model turns up first with respect to disputes, mainly
economic, where negotiation and voluntary binding arbitration have
failed to achieve a mutually acceptable settlement. With respect to
disputes that are for practical purposes bilateral, Rothbard’s emphasis
upon arbitration is useful. It is not a specifically anarchist device,
but I know of no reason why an anarchist would object to its utilization
at many junctures in an anarchist society. But disputes are not, even
for practical purposes, always bilateral.
Assuming the present family structure for context, a dispute over
“custody” of a child, between the parents, affects very much a third
party, namely the child, whose interests do not necessarily coincide
with the interests of either parent — not necessarily, at any rate, with
what they perceive their interests to be. (Even if the child is drawn
into an arbitration process as an active party — contrary to the basic
model — it is not very likely that a young child will be in a position
to give informed consent to the procedures and proceedings.) A dispute
between a landlord and a plumber may affect the tenants considerably.
Far more importantly, it is not clear how, in a society that is defined
as consisting of individuals and private enterprises, a matter such as
the pollution of air and waterways by a papermill can be dealt with
adequately. (Those affected by such disputes may not be nameable even in
principle, because persons not yet born, whose parents may not even have
been born, may be among them.) The interests of such affected
individuals are not necessarily represented either by the disputants or
by arbitrators they select. Such interests are commonly referred to as
social interests, that is, interests that cannot be specified adequately
as a set of individual interests. Conceivably, every person in the
world, and every “possible” descendant, might be affected by a property
owner’s decision to construct a nuclear-energy installation of a certain
design. Such “disputes” may not be the source of major overt social
conflict (i.e., violence) in our society, but they have come to be
recognized, although slowly, as affecting us in large numbers and
vitally.
What Professor Rothbard has done, it seems to me, is to propose that
complex human problems be dealt with by a model suited to disputes
between two neighbors over a property line. This is just the kind of
anarchism that Marxists have succeeded in discrediting because it seems
to show so little awareness of the last hundred and fifty years of
technological evolution. There are anarchists who meet the problem of
technological socialization of the economy, and of life, by proposing
return to preindustrial technology, even to an agricultural economy; but
I am sure that Rothbard would reject this.
The consequences of the two-party model become more dramatic, if no more
problematic, when Professor Rothbard discusses violent aggression
against persons. Once more there is only “alleged victim” and “alleged
criminal,” and all proceedings are defined as those of the first against
the second. The victim is held to be free to exact his or her own
justice or vengeance, subject to legitimate reprisal only if found to
have misidentified the criminal: “The courts would not be able to
proceed against McCoy if in fact he killed the right Hatfield” (p. 204).
A very strange saying indeed.
By now we have learned, I would have thought, that violence and other
antisocial behavior arises out of some context of human relations within
which responsibility is not only difficult to pinpoint but often so
vague that the concept is useless if not noxious. The very
Hatfield/McCoy example illustrates this. Does anyone know who is
responsible for initiating a series of acts of vengeance? Does anyone
know who committed acts of initial provocation, and is there any way of
saying that some individual or either family can be held uniquely
responsible? How can we differentiate between the “surviving McCoy” who
finds “what he believes to be the guilty Hatfield” and the Hatfield who
probably believed that he was fully justified in killing a McCoy?
Aggression is not a simple observable fact; the aggressor is,
notoriously, always someone other than oneself. We know in fact that a
very high percentage of homicides and assaults occur within families and
among friends, and the violent climax has usually arisen out of a long
history of strife; the problem is not merely that it is hard to say
which person is responsible but that it often makes no sense to say that
one individual or the other must be, for it is as though their mutual
hostility has made them into Siamese twins. If Professor Rothbard were
to offer, in verdicts of responsibility and of punishment, to make
allowance for such complexities, as does the present judicial system in
fact, this would not meet my point; he would be taking a bad model as
fundamental and doing patchwork upon it. A contemporary view of justice,
I would expect, would seek out a model that took our psychological
understanding, and the social psychology of aggression, into better
account.
Professor Rothbard does not trouble himself either about the fact that
acts of violence of the more anonymous sort, the “crime in the streets”
that is a recent preoccupation, often if not almost invariably say more
about the pathologies of a human community than about the pathologies of
the individuals who commit them. There is of course a sense of
“responsibility” by which one wants persons to accept responsibility for
all their actions, and this is a powerful if not indispensable ethical
principle. But the imputation of responsibility to others as
justification for reprisal is a different matter entirely. Individuals
do not create the social patterns and the community beliefs in terms of
which they learn to make their choices. On the more personal level the
social context intervenes in evident ways, as (for example) in a
community where the concept of honor, or the disgrace of cuckoldry,
attains a certain influence and force. On the more public level, we have
had abundant experience of the influence of racial and religious
bigotry, and of racial and religious and economic degradation. These are
pathologies of society. A simplistic notion of responsibility, conjoined
with legitimation of private acts of retaliation, would seem, among its
consequences, to be invitational to blindly irrational acts of vengeance
that worsen the injustice that exists.
An equally important limitation of Professor Rothbard’s two-party model
is that it excludes me (for example) as a “party” when an act of
violence in my community does not involve me quite directly. But I do
not know how I can fail to be affected and concerned by an act of
violence in the community in which I live. In part, doubtless, I feel
this because I think of people as living in communities, a concept
rather alien to Professor Rothbard’s way of thinking, and one reason I
am an anarchist is that I would like to live in a world where there
would be more genuine communities than exist now. But quite apart from
that, I cannot but think that something is gravely amiss, that concerns
me in numerous ways, when assault or rape or the like occurs in my
community. Not only is my sense of human solidarity, and of concern for
an injured person, evoked, not only do I feel a responsibility to the
injured person, but I am also and especially concerned that what is done
to rectify the injury, and to avert its repetition, be done well. I do
not want to intervene in any and every case, but I want my concern to
find effective expression, in the mode of rectification above all.
In certain cases one’s concern as neighbor has special justification. If
a parent abuses or kills his or her infant child, the burden is surely
not upon the victim or its “heirs” to seek redress. But any act of
violence is a rent in the texture of a human community, and this, it
seems to me, is something to which the community must respond. The fact
that it is not practical that all of us intervene individually is
perhaps the major justification for socialization of the justice
process. One need not approve, as I do not, of the existing court system
with its bail system, patronage judges, adversary court proceedings, and
the rest. I am saying merely that the impulse to socialize justice, to
transpose it from the purely private to the social realm, corresponds to
the sense of most of us, shared by our ancestors for thousands of years
at least, that justice is a social concern that must be dealt with
socially. If we recognize the social character of justice, our problem
will be to find a socialization of it that is different than our
existing system and other than the institutionalization of private
vengeance, as Rothbard’s system threatens to be. We will not abandon the
socialization of justice merely because its present socialization is
rotten with injustices.
I have been stressing, in addition to “third party” and social
responsibilities to those who suffer harm, a responsibility to seek the
welfare of our community, of our social existence. It is perhaps
implicit in the latter that we should think of ourselves as having a
responsibility also toward those who have committed acts of aggression —
but I should like to develop the point explicitly.
If we see violence as expressing a rent in the texture of community, we
will be careful to avoid making neat and self-satisfying dichotomies of
criminals and noncriminals, guilty and innocent, law-abiding and
law-violating, aggressive and nonaggressive, and we will not be content
with a justice of “Who did it?” Certainly we will not suppose that “the
one who did it” (suppose it was Lee Oswald) has lost all claims of
respect for life and person and is fair game for private vengeance, by
one’s own hand or by the hand of a hired assassin. We will not scapegoat
so-called aggressors and thereby reassure ourselves of our utter
blamelessness, and we may feel impelled to meditate upon the saying that
“We are all murderers.”
Thus, when I learn that someone who has committed a long series of major
and minor acts of violence against persons was himself the victim,
throughout childhood and adolescence, of abuse and contempt and denial
of love, I cannot but feel that we have a responsibility toward that
person. Nothing follows simply and logically about how that
responsibility is to be fulfilled — but the difficulty of meeting a
responsibility does not relieve one of it. What will be wrong will be to
abstract from the fact that that person is a human being and to regard
that person only as “the killer,” “the rapist,” “the aggressor,” etc.,
an abstraction that runs systematically through Professor Rothbard’s
paper.
This misleading abstraction, and the other shortcomings that I have
tried to indicate in this section, stem directly, I believe, from
Rothbard’s two-party model. The two-party model in turn stems directly
from his severely individualistic conception of human being — a
conception that is not characteristic of the anarchist traditions
generally, even though, in one sense, all anarchisms are a kind of
individualism. Underlying his two-party model of disputes is a unit
model of man, and a unit of the thinnest sort, whose only predicates
seem to be “has property,” “is an aggressor,” “defends himself,” “kills
so and so,” and the like. I admit that this world with its curious
population makes me uncomfortable.
An equally misleading abstraction, still more damaging to Professor
Rothbard’s “society without a State,” concerns the relation of his
juridical system to the society of which it would be a part.
Each person is entitled to act as judge and policeman, and so on, but
just as most of us do not make our own shoes Professor Rothbard imagines
that there will be police agencies, primary courts, and courts to which
such courts may appeal, all organized on a free-enterprise basis and
available for hire. He wants to show that there can be machinery of
adjudication and enforcement that obviates all need for a tax-based
government.
If we are worried about the possible corruption and venality of
“private” courts and police forces, we are assured that free-market
competition among them will “place severe checks on such possibilities”
(p. 204–05). But we should, I think, be worried about another problem
than that of private courts “that may turn venal and dishonest” or a
private police force that “turns criminal and extorts money by
coercion.” There ‘s something more serious than the “Mafia danger,” and
this other problem concerns the role of such “defense” institutions in a
given social and economic context.
Rothbard’s context, we remember, is one of a free-market economy with no
restraints upon accumulation of property. Now, we had an American
experience, roughly from the end of the Civil War to the 1930s, in what
were in effect private courts, private police, indeed private
governments. We had the experience of the (private) Pinkerton police
which, by its spies, by its agents provocateurs, and by methods that
included violence and kidnapping, was one of the most powerful tools of
large corporations and an instrument of the oppression of working
people. We had the experience as well of the police forces established
to the same end, within the corporations, by numerous companies,
including the Colorado Fuel and Iron police of Vice President
Rockefeller’s ancestors and the private police of the Ford Motor
Company. (The automobile companies drew upon additional covert
instruments of a private nature, usually termed vigilante, such as the
Black Legion.) These were in effect, and as such they were sometimes
described, private armies. The territories owned by coal companies,
which frequently included entire towns and their environs, the stores
the miners were obliged by economic coercion to patronize, the houses
they lived in, were commonly policed by the private police of the United
States Steel Corporation or whatever company owned the properties. The
chief practical function of these police was, of course, to prevent
labor organization and preserve a certain balance of “bargaining.”
On Rothbard’s definition of “the state,” such economic, judicial, and
police complexes might not qualify for the designation “state” or
“mini-state.” They did not collect taxes — although this would have been
absurd in many cases, since the miners were often paid in “scrip” rather
than United States currency and their normal condition was indebtedness.
These complexes were economically rather than territorially based and
did not deny the territorial authority or tax-collecting authority of
the government. But these complexes were a law unto themselves, powerful
enough to ignore, when they did not purchase, the governments of various
jurisdictions of the American federal system. This industrial system
was, at the time, often characterized as feudalism. One may be a critic
of the system of strong federal government that has emerged in America,
and still recognize that one reason for its development was the demand
of working people that the federal government protect them against, and
put an end to, a system of industrial feudalism.
When private wealth is uncontrolled, then a police-judicial complex
enjoying a clientele of wealthy corporations whose motto is
self-interest is hardly an innocuous social force controllable by the
possibility of forming or affiliating with competing “companies.”
My point is not a merely empirical one, resulting from an effort to
imagine how Professor Rothbard’s system might work out. My conceptual
point is that any judicial system is going to exist in the context of
economic institutions. If there are gross inequalities of power in the
economic and social domains, one has to imagine society as strangely
compartmentalized in order to believe that those inequalities will fail
to reflect themselves in the judicial and legal domain, and that the
economically powerful will be unable to manipulate the legal and
judicial system to their advantage. To abstract from such influences of
context, and then to consider the merits of an abstract judicial system,
as I believe Professor Rothbard does, is to follow a method that is not
likely to take us far. This, by the way, is a criticism that applies not
only to Professor Rothbard’s but to any theory that relies on a rule of
law to override the tendencies inherent in a given social and economic
system.
When one is talking about violence of person against person, about the
destruction of human life even, one is, I do not wish to stop feeling,
talking about human tragedies, human suffering, in short, pain. My sense
of what anarchism is, is that it does not repudiate the great moral
concerns — that, if anything, it seeks to enlarge them. But Professor
Rothbard finds it possible to write, quite coolly, “This is fine,” when
in his example the surviving McCoy kills the “guilty” Hatfield. This
wants some attention.
Hatfields and McCoys are of course by now legendary figures rather than
real persons. To talk about them is in a way like talking about
cartoon-comedy figures — these are one-dimensional beings, and one does
not think of them as flesh-and-blood mortal fellow beings. I am pretty
sure that Professor Rothbard would not talk so coolly if he were talking
about some Wieck or some Rothbard. Yet I have before me the fact that he
conducts his discourse about human justice in a way that abstracts not
only from socioeconomic context, not only from the life and community
context of social problems, but also from human feeling about life and
death.
For Professor Rothbard, as I read his essay, there are no moral issues
to be considered; merely self-defense and whatever it seems to justify.
I cannot think of a harder problem, a harder moral problem, facing an
anarchist society, or any society that would claim an ethical basis,
than that of what to do when one human being has killed another, above
all when that act has no reasonable claim of immediate self-defense. (It
is not alleged that the McCoy who kills the Hatfield is himself in
danger, nor is it in any way implied that he must justify his act by
such claim.) I do not understand how it can be written about in
Rothbard’s manner, without a word that betrays a shadow of anguish. Of
course, Rothbard may not be interested in morality or ethics; but in
that case it is not clear what interest his society, as an object of
intellectual contemplation, is going to have for me.
If I set aside such feelings, and pursue the meaning of Professor
Rothbard’s example and the discussion surrounding it, I find a
philosophical move that on its own account is very serious. The right of
self-defense has been offered as axiomatic. If we must have a Hobbesian
axiom, I would prefer one that directs us to seek peace, perhaps while
making some allowance for the occasional necessity of militant
self-defense. But I will allow Rothbard his axiom. What I cannot allow
is his move, without any argument, from self-defense to what he calls
“retaliation” as a right legitimated by the defense axiom. As far as I
can make out, Rothbard’s “retaliation” would be equivalent to
“retribution,” “reprisal,” “revenge.”
I do not wish to argue here the merits of a retributivist theory of
justice. (In my view, an “anarchist theory of punishment” would work out
to a self-contradiction.) Important at the moment is the fact that
Professor Rothbard introduces retribution under color of self-defense
and does not seem to be aware that the matter requires discussion.
(Again, “The courts would not be able to proceed against McCoy if in
fact he killed the right Hatfield.”) Since he is not overtly presenting
a theory of punishment, it is difficult to pursue the relation between
defense and retribution. But defense is always present and
future-oriented, retaliation and retribution are predominantly
past-oriented. Although I can imagine lines of argument that [227] seek
to bring them together, I have no idea what brings them together for
Professor Rothbard. I think therefore that I have every reason to worry
about what I would be assenting to if I assented to his defense axiom.
Philosophically the problem could be expressed in this way: taken very
strictly and literally, self-defense does not give us much in the way of
a system of justice, and an attempt to enlarge it so as to produce a
full-bodied theory of justice must, it seems, appeal to other axiomatic
propositions. One would want to know if for Professor Rothbard the right
of revenge is such a suppressed premise.
What I have taxed Professor Rothbard (or his theory) with in my review
is this. In attempting to say what a society without a state would be
like he has offered principles and procedures by which “defense
services” could be provided. The very term “defense” should have set us
on guard, for already here the aggressor-victim model can be
anticipated. Wrongs and injuries are defined as “crimes,” a term which
itself presupposes law that defines what is criminal. Rothbard’s
criminology is unfortunately rather like the commonsense criminology of
the good citizen who thinks of criminals as others, as alien menaces,
not conceivably himself. Not surprisingly, Rothbard provides us with a
model for wrongs and injuries that seems to be useless either for
understanding the events or for considering means of rectification, that
is, for bringing the given story to the most desirable end. He reasons
in terms of unit entities whose relations with each other are legal and
economic but not in any specific way human. He not only disregards but
rules out the socialization of justice. Most generally, he writes of
society as though some part of it (government) can be extracted and
replaced by another arrangement while other things go on as before, and
he constructs a system of police and judicial power without any
consideration of the influence of historical and economic context. Out
of the history of anarchist thought and action Rothbard has pulled forth
a single thread, the thread of individualism, and defines that
individualism in a way alien even to the spirit of a Max Stirner or a
Benjamin Tucker, whose heritage I presume he would claim — to say
nothing of how alien is his way to the spirit of Godwin, Proudhon,
Bakunin, Kropotkin, Malatesta, and the historically anonymous persons
who through their thought and action have tried to give anarchism a
living meaning. Out of this thread Rothbard manufactures one more
bourgeois ideology.
In characterizing Professor Rothbard’s theory as ideological, I am using
the term in the sense of a system of ideas justificatory, by means of a
priori principles, of a certain way of life, and of the privileges of
certain classes or social strata. I do not think that we fully
understand the meaning and limitations of various social theories unless
we understand their perspective. The problems of human being and society
will have a certain shape in the perspective of the middle classes,
another shape in the perspective of a bureaucracy, another shape in the
perspective of a feudal aristocracy, another shape in the perspective of
a military caste; and it will not be just the problems of human being
that have a particular shape, it will be, also, society and human being
themselves that will have a particular shape, a particular definition,
that pertains to the given perspective.
If we want to transcend such limited truths and partial conceptions, it
will be important to reveal the bias inherent in them in order to attain
a truth more adequate to humankind (perhaps even to more than
humankind). It seems clear to me that Professor Rothbard articulates the
values and concerns of members of a middle class, specifically their
concern with property and taxation, their resentment at being taxed to
relieve the economic distress of the poorer classes, their sense that
government is protective of the monopoly position of large corporations
against any efforts of middle-class persons to increase their wealth and
become significant proprietors, their feeling of vulnerability to
depredations against their limited and not easily replaceable property,
and their awareness of the possibility, realized in communist nations,
that the state may become the sole proprietor and therewith eliminate
their social role. These concerns reflect social reality in considerable
degree; they do not relate to phantoms. They are exactly the foci of
Professor Rothbard’s discussion. What are not the foci, what one will
look for in vain, are the specific concerns of the poor, of wage
workers, of socially and economically subordinated ethnic or racial
groups, of the impoverished peoples of that American empire which,
rather than the legally defined nation, should be understood as
constituting our economic society. Nor of course does one find any
reflection in Rothbard’s paper of the concerns of those who find myriad
shortcomings in middle-class values and ideas. The very definition of
human being as an individual who possesses property is closely linked,
it hardly needs saying, with those values and ideals.
The points made above have special relevance because the main traditions
of anarchism are different entirely. These traditions, and the
theoretical writings associated with them, express the perspective and
the aspirations, and also, sometimes, the rage, of the oppressed people
in human society: not only those economically oppressed, although the
major anarchist movements have been mainly movements of workers and
peasants, but also of those oppressed by power in all those social
dimensions that have become (recently) themes of “liberation” movements,
and in many other dimensions as well, including of course that of
political power expressed in the state.
The strength of anarchism as a source of social idealism, and as
expression of such idealism, lies partly in the fact that, unlike
Marxian socialism, it is not wedded to a perspective of economic
oppression solely. (At the same time it has not been affected, as has
Marxian socialism, by the development of ideological political parties
engaged in conquest of power; nor has it like recent Marxism been
immixed with nationalism. Anarchist critique of such new forces of
oppression or potential oppression, self-justified by their ideal aims,
has been directed not only at Marxist movements but also, traditionally,
as self-criticism, at similar potentialities within anarchist
movements.) The “freedom” and “antiauthoritarianism” of anarchism did
derive in large measure from the pluralistic socialism of the First
International but the historical development of anarchism has been one
in which these and related concepts have been generalized and
universalized and so interpreted as to transcend any particular
perspective of social oppression.
Thus, although one finds the concept of a working class in many
anarchist writings, one finds that, generally, appeal is made to people,
or to the people, in behalf of what are thought to be the true interests
of all persons. In the enlarging and universalizing of such ideas as
freedom, anarchism may have sacrificed “practicality”; rightly put, that
question becomes complex and I cannot discuss it here. But however that
may be, anarchism represents, as I understand it, a kind of intransigent
effort to conceive of and to seek means to realize a human liberation
from every power structure, every form of domination and hierarchy.
Correlative with this negation is the positive faith that through the
breakdown of mutually supportive institutions of power, possibilities
can arise for noncoercive social cooperation, social unity, specifically
a social unity in which individuality is fully realizable and in which
freedom is defined not by rights and liberties but by the functioning of
society as a network of voluntary cooperation. It is in this sense that
anarchisms are a kind of individualism, contrasting sharply to the
collectivism and centralism of Marxian theory but also con-traasting
sharply to the individualism associated with capitalist traditions.
Elsewhere I have tried to show that what is said above is, indeed, what
anarchism “is about.”[1] Here I will sketch, a little too hastily, some
of the broad features of a general view of justice that I believe are
implicit in this interpretation of anarchism.
The presumption underlying the negation of the various forms of power
and of all those relations that can be characterized by the metaphor
“slavery” is that social structures ordered by power prevent, and render
people functionally incapable of, the exercise of capacities for free
agreement and voluntary cooperation. Cor-relatively, they provide
opportunity and temptation for the exertion of tendencies to which human
being has demonstrated its prone-ness: tendencies to magnify oneself to
a point that others are only means to one’s ends, tendencies to magnify
oneself by enslaving others, tendencies to self-deception and
other-deception, tendencies to cower before the power of others,
tendencies to herd against the anomalous individual, tendencies to avoid
responsibility for decisions, and so on: for anarchism is as much a
distrust as a faith. Anarchists insist upon a careful distinction
between society and state in order to indicate that in seeking the
abolition of the latter, which stands at the center of a network of
power structures to which it provides legitimation and defense, they do
not seek the breakup of human society but rather an order constituted
freely through manifold agreements, contracts, negotiations that can
avert the actualization of those personally and socially destructive
tendencies that situations of power (generically: political relations)
trigger. A different order entirely, and nonanarchist, will be an order
attained through or rationalized as a single societal contract or
through imposition of a central authority by any procedure whatever.
A society will be just, then, insofar as it is free, in the sense of the
metaphor, of “enslaving” social or political institutions (military,
familial, governmental, educational, sexual, ethnic-hierarchical,
caste-stratificational, ecclesiastical, etc.); but it will not be a
society at all unless patterns of cooperation capable of sustaining
human communities and vital personal existence are achieved. (To be
anarchist and just, a society need not be perfectly or even
approximatively egalitarian in an economic sense, unless such a
principle arises from mutual agreement; unjust would be such systematic
discrepancies of wealth as would constitute de facto economic classes,
where the inferior class or classes would be chronically blocked off
from full participation in the life of the society.) It is generally
assumed by anarchist writers that in an anarchic society the incidence
of “antisocial,” “delinquent” behavior would be negligible because its
source in poverty, social degradations, and humiliations, and the
alienation of person from person and person from community would have
been eliminated. The existence of societies, and regions within some
other societies, where homicide and lesser violence against persons is
rare and where Theft and vandalism are not ways of life gives reason to
believe that such minimalization is not an absurd goal. But of course
the causes of alienation and violence may be more complex than we
understand them to be — we do not understand very well the ways in which
the newborn becomes a human being. Conceivably, the freedom envisaged in
an anarchist society might create serious tensions, although it would
not be a freedom of constant opting among infinite alternatives but a
freedom of social continuity in which persons make commitments and
agreements and are involved in numerous patterns of ongoing cooperation.
Recognition of the presence of injustice would not, I think, be a
problem of the magnitude it attains in our society. One assumes a
generally shared will to realize and preserve the principles of
voluntary agreement, of nonabuse of others, of noninvasive mutual aid,
not as abstract ideas but as expressions of the life lived. Living in
societies in which these are so very far from being the norm, we wonder
how it is possible to decide what is just. If one grants that such norms
have become realized, as the life that is lived, we have what I would
call a “spirit of justice,” and I do not see how recognition that the
basic norms have been violated or disrupted would involve a tortuous
decision. Rape, assault, homicide, “rip-off,” fraud, and the like are in
clear contradiction to the principle of voluntary cooperation and peace.
More generally, the abuse of persons, and anything that tends toward
creation of patterns of “enslavement” or that hinders the realization
and continuity of free cooperation, is a wrong in such a society.
But if it would seem not so hard to define “injury,” either personal or
social, the labeling of an action as unjust, or the determination that
some person or persons are responsible for an injury, raises deeper
questions. I have suggested earlier that these are terms more
appropriate in the context of moral education than in the context of
dealing with injustice and injuries. For the latter purpose, they are
appropriate perhaps for a society that believes that it must take
reprisal upon wrongdoers, for their own good as well as for its own sake
and also in order to deter others. Our long historical experience with
many types of reprisals seems to indicate, almost beyond doubt, that
they surely do not benefit the “criminal;” that reprisal may, in a
society based in good part on fear, deter certain kinds of antisocial
behavior, but that the price is enormous when the price is reckoned to
include all the “disutilities” associated with (for example)
imprisonment; and as to reprisal for its own sake (“vengeance”), this is
hard to make sense of at all outside certain religious contexts. But on
the other hand an ethical society cannot ignore, cannot let pass, the
occurrence of injuries, abuses, and the like, or the threat of conflicts
that promise to eventuate in serious harm.
We are premising a society in which people have stopped living in fear
of one another, in which gross violence, hatred, and contempt for life
have become uncommon, in which alienation of person from person seldom
reaches the malignant extremes to which we are accustomed. We are
premising a society in which the absence of economic monopolies, and of
many other familiar incentives for seeking advantage at the expense of
others, should allow social decisions to be made more easily on a
rational basis, that is, through discovery of a resolution in which
there are no losers. This is an essentially humanized society, not
without friction, not without suffering, not without anguish and pain;
but it is not pervaded with the radical evil of power, of systematized
manipulation, deceit, indifference. (If this were not the case, then I
do not see how “the abolition of the state” could be other than a
fiction that masked the reintroduction, or even the continuance, of
political institutions called [now] by euphonious libertarian names.)
One could not know, from where we stand, what specific procedures would
be followed in dealing with real conflict, obdurate people, madness,
violence, unwillingness to keep the peace. Nor could one know the
“philosophy” in terms of which these problems would be resolved. My way
of thinking of it is this:
We can imagine that in this society people would try, together, to
confront and deal with failures of their community, and breakdowns of
human peace and normal cooperation, with all the sympathy, love, and
wisdom that they possessed. I imagine that they would take one problem
at a time — if the “docket” were crowded, that would have to be taken as
a sign that the society was in danger. They would try to find out how,
in terms of what they value most deeply, they could restore the
wholeness of social existence, a project that bears no relation to the
project of “dealing with the criminal.” I have no definite idea, and do
not know how one could have, of what would be done, case by case; for a
“case” is some distinct individual person, and some other individual
person, and the next and the next, involved in some mess, some plight,
some folly, some self-destruction, some misunderstanding. I imagine
people having to face up, not often but sometimes, to hard and even
terrible alternatives. To take the hardest possible case, and the
hardest possible solution, I can even imagine that, in extremis, the
persons in such a society might decide that someone had to die, a
solution that at the very best is a lesser evil: done not as
“punishment” but from despair that no way could be found of living at
peace with this person. But if they did not somehow atone for that act
and that choice, if they did not suffer for it and suffer terribly, I
would fear for them.
If one asks whether there could be, in an anarchist society, either
prison or other detention, or punitive deprivations, or denial of social
and economic privileges, or banishment, the answer would be in these
terms: insofar as the society were unable to respond to wrongs in a mode
of nonretaliation, of nonviolence on a Gandhian or similar model, with
willingness to make sacrifices in order to restore a healthy peace, with
unqualified respect for the humanity of offenders, that society would
fall short of the moral ideal of anarchism, and if the people of the
society were not concerned with moving as near as practical to that
ideal, the society would be lacking in commitment to an anarchist
morality. On this view, anarchism represents, finally, not a specific
social design but a moral commitment. (Rothbard’s anarchism I take to be
diametrically opposite.) Stated as an abstract ideal, anarchism would
exclude all forms of coercion; societies which could be properly
described as anarchist would not necessarily actualize that ideal but
they would seek to actualize it. In such societies it is hard to imagine
the existence of prisons, for these, as we know them, are instances of
what I have called slavery. One would imagine an emphasis upon
reparation, where reparation would not always be exclusively a demand
made upon a “guilty” person but a task for the community concurrently.
One would imagine that the withholding of social privileges from persons
who obstruct and are uncooperative or irresponsible need not be
dehumanizing. One would imagine that something like older common law or
tribal custom might have a role. But in saying “one would imagine” I
mean to say that one could state only very tentatively what might be
useful and within the anarchist moral spectrum.
In lieu of further discussion of the character that anarchist justice
might in practice assume, I will try to suggest what might be its core.
In writing above that “they would take one problem at a time” and “try
to find out how ... they could restore the wholeness of social
existence,” I was consciously adopting the problem-solving conception
that was central in John Dewey’s ethics. In societies of power, of
castes and classes, of collectivities that are noncom-munitarian,
Dewey’s method degenerates into a technocracy of social-scientific
experts. There is no common “we,” for example, in terms of which to
solve the problems of an American city, and no common “we” in terms of
which to consider the problems of a youth lost in the slums of a city.
But if an anarchist society is one in which people have, by and large, a
sense of living and working in circumstances of mutual aid and voluntary
agreement, then it does not make sense (it seems to me) to ask what is
abstractly right or what is to the interest of the greatest number, or
to proceed individualistically to solve a problem affecting many. It
makes sense to ask “What can we do about this problem we have here?”
Acts of imagination are called for, then, to rectify injustice, to
resolve conflict, just as acts of imagination are called for in the
“normal” creation of ongoing life.
It may seem ironical to take Dewey, the conscious theorist of democracy,
so negative toward “utopian” thinking, as a kind of prophet of the
ethics of an anarchist society. The truth, I believe, is that Dewey was,
until late in life, exceedingly unrealistic and idealizing, in the
manner of nineteenth-century evolutionary optimism, about the immediate
potentialities of American society and about the ongoing force of older
New England traditions; even in his later pessimism he did not take
cognizance nearly adequately of the realities of economic and racial
oppression — that is, of the fractured character of American society. As
a liberal he expected conciliation of conflicts, as if there could be
common ground for conciliation so long as the various relations of
caste, class, and power remained in place. The values that Dewey hoped
to be realized in a democracy, I suggest, are realizable only in
something approaching anarchy, and the method he proposed for dealing
with social problems would have its proper context only in such a
society.
I can imagine that my remarks in this section might be taken as nothing
other than the liberties of thought when one asks oneself fancifully;
What might the best of societies, most pleasing to imagination, be like?
Particularly might one expect this response because I make various
assumptions about achieved social habits of cooperation, about
recognition of the personhood of others, and so on, that represent a
condition far removed from the existing. Professor Rothbard, by
comparison, can appeal to self-interest of the sort with which we are
familiar, and he is no more “utopian” than to suggest extending to the
political realm the principles of the economic realm. Unfortunately, I
do not see much justice in this latter society. As concerns the more
usual anarchist vision of a free society, this is redeemed from the
realm of fanciful speculation to the extent that there is strength in
the thesis that what stands between us and some approximation of a free
society is the prevalence of relations and institutions of power,
dominance, hierarchy, “slavery,” many of which — for example, the
patterns of male-female relations, of parent-child relations, of
teacher-student relations — have only recently and partially come to
recognition as crucially supportive aspects of the networks of power to
which every generation, in each of its members, is obliged to adapt. The
anarchists’ radical analysis of the state has hardly been given serious
consideration by many even of those who count themselves as radical. If
the anarchist analysis of power is fundamentally sound, it will tell, at
the least, what would have to be resolved before a free society, in the
strong anarchist sense of the term, could be achieved; and it might also
tell something about the way.
[1] “The Negativity of Anarchism,” in Interrogations: Revue
Internationale de Recherche Anarchiste, Paris, France, No. 5 (December
1975). But this is not yet a complete formulation of my view of
anarchism as a historical idea embodied in social movements.