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Title: Anarchism and the Law Author: Alma Melgarito Date: December 2013 Language: en Topics: law Source: https://archive.elephanteditions.net/library/alma-melgarito-anarchism-and-the-law Notes: Introductory talk at the Days of Informal Anarchy, International Symposium, Mexico D.F., 27, 28, 29 December, 2013.
Good afternoon to each and everyone here. Well, here we are finally in
the context of this symposium and because the comrades suggested that I
give a small talk about the relationship or rather, I should say, the
non-relationship between anarchism and law, or the possibilities and
limits of the use of law as a tool of action in insurrectionary
anarchist practice. What I am about to say is a very individual set of
my reflections on this issue, so what I say now should not be regarded
as a position taken by groups or collectives in which I collaborate
occasionally. Good. I also want to say that what I am going to talk
about now are just a few notes that we can use to think about law from
the anarchist point of view.
I’d like to start by quoting the words of Alfredo M. Bonanno, who in A
few notes on Sacco and Vanzetti, reminds us that; “the concept of
innocence and guilt is not an objective fact but is a measure imposed by
the class struggle. The legal techniques and police procedures that
establish whether a person is guilty or innocent are part of the culture
of power.”
Now I’m putting on the table a question that has been included in
contemporary anarchist discussion in Mexico, especially in light of the
recent arrests of comrades and following the media harassment witnessed
in AGAINST THE CONTENTS OF ANARCHIST EXPRESSION in recent times .. and
the question is ... is anarchism a crime?”
Well, with the first blunt question I’m tempted to also respond strongly
and thus I WILL: Question. Is anarchism a crime? Yes, of course BUT of
course it is and not only is it, but it must be ... Now, let me explain.
I could defend this idea from my experience as a lawyer and as an
anarchist with arguments in terms of ethics by saying, for example that
this is simply because if we know that the sum of the conduct that
threatens the reproduction of capitalist society is considered by modern
law as crimes, what follows that there can be nothing more ethical in
this world than to be regarded as a criminal.
But beyond arguments in terms of ethics, I want to dedicate this talk to
making a critique of the strategies and categories in which the
domination of the legal form of capitalist society is expressed, ie, in
which the state expresses itself, in order to destroy it analytically. I
understand this review then, as a reflective moment of praxis itself.
Well, having said that, the first thing that springs to mind when we
begin our analise is that the initial question should be reformulated.
Because it can bring us to try to respond from the darkest places of
instrumental rationality. And excuse me but I’m up to here with that.
Then let’s find another way of thinking. Thinking that destroys, cuts,
breaks the continuum of the concept and the continuum of domination
because only with this break is it possible to produce the combination.
I start from the idea that Thinking is a moment in the antagonistic form
of existence. And from this point of view, the concept, then, is
struggle (it is not that the concept thinks the struggle). The
traditional idea is that knowing means getting closer to the object.
That knowing is to separate subject and object. Critical theory does not
agree with that. This does not imply abandoning rigour, but implies
producing categories and involves recognizing categories that are part
of antagonistic reality. That knowledge is part of struggle.
Ill just put that thought on the table, but maybe it’s better to leave
the epistemological discussion aside, because now I want to focus on the
issue before me at this time, which is the relation between anarchism
and law. For now I just want to make the invitation to think, in a
different way. One that does not vertically separate subject from
object. And how? Well, for example, it could be ... not thinking of
ourselves any more as anarchists, — as anarchists — but thinking of
ourselves, as compa Gustavo says, of being,- being anarchists, and to
this I would add; making -making anarchy here and now — making permanent
conflict here and now.
Well, as I said, I’ll leave the epistemological question for another
time. I also want to give a warning before starting. Whenever I talk
about law I will be referring here to modern law. Modern law is what we
know to be centralised in the figure of the state, which divides the
public from the private. And the state is, for me, the form of
capitalist society. I give this warning because for me, multiple laws
coexist within the same territory. Some of them are not centralized and,
I maintain, not capitalist. Indigenous laws for example. And this way of
seeing the world of laws I call legal pluralism. But that is also the
subject for another talk.
Now let’s have fun destroying our initial question. Is anarchism a
crime? Well, this certainly brings us to play now with the notions of
crime, the state, and of modern law. What is a crime? A compa always
tells me: in Chile, I prefer to steal than be stolen from .... and
personally, me too. We recall that for Proudhon, “the real theft is
property”. But to analyze this sentence and extract all the wealth it
contains, it is enough, comrades, to make a brief historical journey
that reminds us of how much we hate this social technology that was
invented: the state. This is because the notion of crime is linked to
the invention of the state. That’s why what I want to stress here is how
judicial power was formed.
Here we must ask something very simple. Why does law — modern for
example, say what it says and not something else? Why is killing someone
with a bullet considered a crime for the law, but if you kill someone
through starvation it is completely legal, and morally acceptable?
So, we know that the judiciary did not exist in the Middle Ages, because
at that time settlements were matters resolved between individuals. Only
those who held any traditional, magical or religious power were asked to
check the regularity of the proceedings, but it was not asked, — like
today people beg the judges, — that someone, the judge for example, by
exerting hierarchy, do them justice.
So, there was a judiciary that was in the hands of those who wielded
political power or the power of weapons. The accumulation of wealth, the
power of weapons and the establishment of a judicial power in the hands
of a few is a unique process that was strengthened in the late Middle
Ages and reached maturity with the formation of the first medieval
monarchy, in the second half of the twelfth century. It is at this
moment that a number of entirely new phenomena in relation to feudal
society appeared: a justice that doesn’t contemplate litigation between
individuals, and an unquestioning acceptance of certain rules of
settlement. From this time on, individuals no longer have the right to
resolve their disputes themselves, but, are forced to submit to a power
foreign to them, imposed on them as a judicial and political power.
And so was born the figure of the attorney, representing the king, ruler
or lord, who replaces the victim, who is presented as the TRUE plaintif.
And then comes the notion of infringement. Before that, while the legal
drama unfolded between individuals, it was only a question of damage
caused to another individual. And law was the continuation of private
vengeance. But now, the offence is no longer harm done by one individual
to another, but an injury committed against the order of the state. Thus
the state confiscates judicial proceedings and we see how Western
monarchies were founded on the appropriation of justice. Moreover,
because of the religious connotations in the process of inquiry, damages
in the legal context would begin to be treated as quasi-religious moral
damage. Even today we find in criminal law words of clearly religious
origin, we find the penal codes full of words like blame, guilt, shame
... etc. These words are used to negate the ability of individuals to
exercise power freely for themselves. A guy regarded as the great
theorist of modern criminal law, a guy who boasts of being very
“rational” said, NULLA POENA SINE LEGE... and so the word crime is
invented.
Well, in short, we have a two trends in feudal society: on the one hand,
the concentration of weapons in the hands of the most powerful, who tend
to prevent their use by the weak. And guess what? To defeat someone is
to deprive them, deprive them of their weapons. And on the other hand,
simultaneously, we have actions and lawsuits that were and are no more
than a way of making assets circulate.
Thus we come to current criminal law: As we know it, we are prohibited
to solve our own affairs for ourselves. Disputes are decided by the
state, which replaces the victim. And also we do not have weapons.
Weapons are used and regulated by the state. So ... the law, says
Foucault, is a way of continuing war.
Well, to this I say: yes WITH THE RISE OF THE STATE, WHAT HAPPENED WAS
PRECISELY THAT we were expropriated of the ability to resolve our issues
by ourselves. Let’s bring back the ability to resolve our issues by
ourselves. LEGAL PLURALISM. And if they expropriated our weapons and the
ability to use violence, LET’S TAKE THEM BACK AGAIN, let’s regain our
ability to use violence.
The weapon for example … of theoretical-philosophical critique .... is
of course ... good. Here a parenthesis ... resolve our own affairs? Take
up arms? We have an example that doing this is really possible and
concrete here on the mountain of guerrero ... at least it is for me and
we can discuss at another time if you’d like: it is called a system of
security and justice crac-pc.
Returning to our initial question: is Anarchism a crime? Well, if the
word crime is an invention of the state to name any conduct that
undermines capitalist reproduction, and if anarchism as a political
philosophy and as permanent conflictuality is a number of ways of acting
with a common denominator- hatred of the state .... then one would have
to conclude that yes .... I am a criminal, and ... it is a great honour.
Well, as a result of this process of double expropriation that is the
state which begins to take shape around the XII century, we have the
emergence of some EQUALLY diabolical characters: lawyers, who had the
role of managing and reproducing this new order that was taking shape.
And this is also true today. Here, allow me, I have to make a
parenthesis ... I have to say it: I could die of tenderness when people
in social movements, when they are detained in contexts of protest
approach me as a solidarity lawyer and ask me: What can we do? Close the
street? Shout? Do a sit-in?? And I cannot help but think: MM I DO NOT
KNOW ... As an anarchist, I could not tell anyone what to do or not do,
because that would be a contradiction. I just act in accordance with my
way of thinking without ever supposing myself a mediator or negotiator
between the state and protest. But the fact is that lawyers are
characters upon which people confer enormous power to shape their lives.
Whenever people have a problem, or want to do something, what do they
do?? Consult a lawyer!!! Even my friends, knowing that I am a lawyer,
come to me and say: Hey Alma I can’t stand my family, what can I do? I
tell them .... You see ... let’s have some tequilas. The people ask me:
how do you see it... we want to do this DIRECT action what do you
think?? ?????? What do I think?? Fucking great!!! So!!!! ... people are
just too used to law and lawyers shaping their behaviour. But I do not
think I contribute to that. So please, if you want to do something, do
not ask me what I think about it. Better to invite me to do it with you.
But then those those who are lawyers and anarchists at the same time,
are a living a contradiction?? Well, No. For me, the contradiction
exists in human beings who, being lawyers, ie, knowing the law of the
state, and being aware that continuing this political-economic system
means suicide for humanity itself, do not choose to be anarchists. Now
that is a contradiction.
On the contrary, as an anarchist and lawyer at the same time, I can say
that if we have the need for direct action with all available weapons,
being a lawyer I have a weapon that is called Alternative use of law.
The alternative use of law is a theory born in the seventies both in
Latin America and Italy. It is a struggle to interpret existing national
and international legal texts to give us ground to defend our cause,
using the very language of the state. In some cases this can be a big
help. In cases of comrade prisoners, for example. Even sometimes just to
present oneself as a lawyer to a public prosecutor, a lawyer’s
professional card has helped me to get in, talk with comrades,
preventing them from being tortured, or avoiding further torture if they
have already been tortured, and so on.
Well, like all weapons, this weapon has its limits, of course. For
example, there are times that even as a lawyer it is difficult to have
access to court records to know what comrades are accused of. But rest
assured that if it is A WEAPON THAT I have in my hand and I know how to
use it, I will use it as often as necessary. In the same way I use all
the weapons I have at hand whenever necessary. Another example, I’m
obsessed with indigenous matters. In these cases, the mere fact of
citing international conventions such as art.169, the right to free and
informed consultation, has contributed to helping to curb the attempts
of some mining companies stealing nature in some mining concessions in
indigenous territories in Mexico. Good.
The alternative use of the law is a very viable weapon when one uses it
fully aware that these are arguments that although they have a certain
social power, the fact remains that the real struggle is in how we
organize concrete human beings here and now to attack this system of
things.
Because as law and language make us partakers of the reproduction of
hegemony and domination, I think they can also be part of a plot that
challenges this hegemony and domination.
And accepting the above definition it is possible for one to start to
understand that law is a field of confrontation, and not the end result
of the struggle. Then, yes, let’s face it ... modern law is prescriptive
discourse generated by the power bloc, so of course, it is favourable to
their interests, BUT ... it can also be used as a battlefield against
such claims of dominance. But there are many battles and weapons to use
and get to know.
Good. So I applaud the organisation of this symposium. The existence of
an informal anarchist space to share experiences and arguments among
those of us in the struggle. Where we can climb over the many walls that
domination imposes as social divisions such as nations, languages,
races, genders, generations, ages.
I belong to a generation that sometimes gives the impression that it
lost utopia. I say, gives the impression because this appearance was
disseminated by the mass media that strive to make us believe that fall
of the Berlin Wall also meant the end of history. And that now, all you
have and will ever have is the totality of law dominating human beings.
And nothing could be farther from the truth. Because capitalism has not
mastered everything, and history does not have an end. No. So this is
NOW, we are here again. Like the cicada.
In conclusion, I want to put on the table two keys that I find important
to think about in order to escape the trappings of state fiction, and
they are:
this means fleeing abstractions, idealizations, mystifications that only
manage to blind us. For example, to believe in abstract justice prevents
us from exercising just relationships in the practical sense. I
reproduce here what was said by Hinkelammert in the terms of absence.
Then, just as believing in equality in the abstract prevents us from
exercising relations of concrete AND REAL equality, in daily life,
believing in the law in the abstract prevents us from building different
forms of regulations, real, from below.
prevents us from acting, and it is good to be cautious but if in
something we can agree with Hegel it is that if the slave is a slave it
is because … he is afraid to die.
But, by fear I am also referring to the fear that many anarchist
comrades have of the language of law. Do not fear, we’ve seen that to
know the language of the enemy, in full awareness of who the enemy is,
of course, can be very useful
So I end with a quote from the author with whom I began: Alfredo Bonanno
who in Notes on Sacco and Vanzetti tells us that:
[...] Reality is precisely this complex thing that cannot be reduced to
the result of a legal procedure. The latter will always be arbitrary and
founded not on evidence but on strength, not on logic but on power. A
difficult way of reasoning? Perhaps, yes, but if you do it once you
never forget it.[...] A.M.BONANNO
What is the state , Permanent conflict ....WE all make THE STATE...
What is the law. Issue of violence. Permanent conflict .... WE ALL make
THE LAW....
THEORY OF POWER ... OVER OUR OWN LIVES ....
So the concept is struggle. Understanding this is very important
(because it is not that the concept thinks the struggle), but the VERY
concept is the struggle. And so, we have a first distinction between the
critical theory of law and traditional one. Because the traditional
theory of law offers CONCEPTS OF LAW AS IF it were “SOMETHING NEUTRAL,
OBJECTIVE, IMPARTIAL, AND, SOME EVEN DARE TO SAY ... THAT ... the law
seeks JUSTice, that its purpose is to achieve the common good” . In this
regard, a law teacher always makes the same – bad — joke ... he says
that if it were true that the law is looking for a common good, than,
after so many centuries it should have finally found it. No???
In contrast, for a critical look at law right, the law is ....THE
ORGANIZATION OF VIOLENCE. It is not that the law is helped by violence,
but the law itself is the organization of violence. Law administers
social violence. It establishes who is allowed to use violence against
whom.