TheAnarchistLibrary Anti-Copyright Anarchist Justice David Wieck DavidWieck AnarchistJustice 1978 Retrievedon15August2011fromwww.ditext.com InJ.RolandPennock,&JohnW.Chapman,eds.,Anarchism: NomosXIX.NewYork:NewYorkUniversityPress,1978. theanarchistlibrary.org 1978 is fundamentally sound, it will tell, at the least, what would have to be resolved before a free society, in the strong anar- chist sense of the term, could be achieved; and it might also tellsomethingabouttheway. Contents   I.TheTwoPartyModel . . . . . . . . . . . . . . . . 8 II.JusticebyPrivateEnterprise . . . . . . . . . . . . 14 III.TheMeaningofDefense . . . . . . . . . . . . . . 17 IV.Anarchism . . . . . . . . . . . . . . . . . . . . . 19 30 3 Englandtraditions;eveninhislaterpessimismhedidnottake cognizancenearlyadequatelyoftherealitiesofeconomicand racialoppression—thatis,ofthefracturedcharacterofAmer- ican society. As a liberal he expected conciliation of conflicts, as if there could be common ground for conciliation so long asthevariousrelationsofcaste,class,andpowerremainedin place.ThevaluesthatDeweyhopedtoberealizedinademoc- racy, I suggest, are realizable only in something approaching anarchy, and the method he proposed for dealing with social problemswouldhaveitspropercontextonlyinsuchasociety. Icanimaginethatmyremarksinthissectionmightbetaken as nothing other than the liberties of thought when one asks oneselffancifully;Whatmightthebestofsocieties,mostpleas- ingtoimagination,belike?Particularlymightoneexpectthis response because I make various assumptions about achieved social habits of cooperation, about recognition of the person- hood of others, and so on, that represent a condition far re- moved from the existing. Professor Rothbard, by comparison, canappealtoself-interestofthesortwithwhichwearefamil- iar, and he is no more “utopian” than to suggest extending to thepoliticalrealmtheprinciplesoftheeconomicrealm.Unfor- tunately,Idonotseemuchjusticeinthislattersociety.Ascon- cerns the more usual anarchist vision of a free society, this is redeemedfromtherealmoffancifulspeculationtotheextent that there is strength in the thesis that what stands between usandsomeapproximationofafreesocietyistheprevalence 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 recogni- tion as crucially supportive aspects of the networks of power to which every generation, in each of its members, is obliged toadapt.Theanarchists’radicalanalysisofthestatehashardly been given serious consideration by many even of those who countthemselvesasradical.Iftheanarchistanalysisofpower 29 obstruct and are uncooperative or irresponsible need not be No matter how valuable law may be to protect dehumanizing. One would imagine that something like older your property, even to keep soul and body commonlawortribalcustommighthavearole.Butinsaying together, if it do not keep you and humanity “one would imagine” I mean to say that one could state only together. verytentativelywhatmightbeusefulandwithintheanarchist —HenryThoreau moralspectrum. In lieu of further discussion of the character that anarchist Such terms as “socialism,” “democracy,” and “anarchism” justice might in practice assume, I will try to suggest what have been appropriated for diverse and conflicting uses. might be its core. In writing above that “they would take one ProfessorRothbard’sassociationofanarchismwithcapitalism problematatime”and“trytofindouthow…theycouldrestore — a conjunction usually called anarcho-capitalism — results the wholeness of social existence,” I was consciously adopt- in a conception that is entirely outside the mainstream of ing the problem-solving conception that was central in John anarchist theoretical writings or social movements. To some Dewey’s ethics. In societies of power, of castes and classes, of ofuswhoregardourselvesasanarchists,thisconjunctionisa collectivitiesthatarenoncom-munitarian,Dewey’smethodde- self-contradiction. Rothbard’sdefinition of “anarchistsociety” generatesintoatechnocracyofsocial-scientificexperts.There asasocietyinwhichthereis“nolegalpossibilityforcoercive isnocommon“we,”forexample,intermsofwhichtosolvethe aggression against the person or property of any individual” problems of an American city, and no common “we” in terms may by its minimalism avoid formal contradiction. After a ofwhichtoconsidertheproblemsofayouthlostintheslums preliminarydiscussionofthispoint,briefandinconclusiveas ofacity.Butifananarchistsocietyisoneinwhichpeoplehave, itmustbe,Ishallproceedtoanalysisofhistheoryof“defense by and large, a sense of living and working in circumstances systems” in a society without a state. Finally, since this is a ofmutualaidandvoluntaryagreement,thenitdoesnotmake symposium on anarchism and not on a single variant of it, I sense(itseemstome)toaskwhatisabstractlyrightorwhatis shall feel free to discuss certain views of justice that derive to the interest of the greatest number, or to proceed individu- fromthemaintraditionsofanarchism. alisticallytosolveaproblemaffectingmany.Itmakessenseto Iadmittonotbeingsurewhat“nolegalpossibility”forcoer- ask“Whatcanwedoaboutthisproblemwehavehere?”Acts civeaggressionmeans.Wearenottosuppose,ifIunderstand of imagination are called for, then, to rectify injustice, to re- the latter part of Rothbard’s paper, that there will be no laws solve conflict, just as acts of imagination are called for in the and hence (vacuously) no legal possibility, for Rothbard pro- “normal”creationofongoinglife. posesa“lawcode”thatwouldprohibitcoerciveaggressionand It may seem ironical to take Dewey, the conscious theorist thatwouldnodoubtspecify,amongotherthings,whatwould ofdemocracy,sonegativetoward“utopian”thinking,asakind count as acts of aggression and as appropriate punishments. of prophet of the ethics of an anarchist society. The truth, I Hedoesnotseektoeliminatelawandjudicialproceduresbut believe, is that Dewey was, until late in life, exceedingly un- toeliminateaggressionsthathebelievesarebuiltintoexisting realistic and idealizing, in the manner of nineteenth-century lawcodesandpoliticalconstitutions,namelytaxationandthe evolutionary optimism, about the immediate potentialities of arrogationof“defenseservices”byamonopolisticpoliticalau- American society and about the ongoing force of older New 28 5 thority.IthinkIamonsafegroundinsayingthatheseeksto in some mess, some plight, some folly, some self-destruction, savelawfromthestate. some misunderstanding. I imagine people having to face up, The nature of a law code that is not integrated with a coer- notoftenbutsometimes,tohardandeventerriblealternatives. civepoliticalauthorityisnot,however,easytoconceive.Itake Totakethehardestpossiblecase,andthehardestpossiblesolu- itthatitmustbemorethanamoralcode;IdoubtthatRothbard tion,Icanevenimaginethat,inextremis,thepersonsinsucha wouldacceptthetranslationof“legallyimpossible”as“morally societymightdecidethatsomeonehadtodie,asolutionthatat impossible”or“ethicallyimpossible,”bothbecauseitwouldbe theverybestisalesserevil:donenotas“punishment”butfrom hard to make sense of the latter terms and because he consis- despairthatnowaycouldbefoundoflivingatpeacewiththis tently avoids moral terminology. Given that he allows every person.Butiftheydidnotsomehowatoneforthatactandthat individual to act, at his or her own risk, as policeman, judge, choice, if they did not suffer for it and suffer terribly, I would andexecutioner,andperhapsjailertoo,Ithinkhemeansthat fearforthem. everyone is a legal authority but that all “would have to” (p. If one asks whether there could be, in an anarchist society, 205)conformtothesamelegalcode.Themostfavorablemean- either prison or other detention, or punitive deprivations, or ing I can give to “would have to” is as stipulating a necessary denial of social and economic privileges, or banishment, the condition that would be guaranteed by the forceful action of answer would be in these terms: insofar as the society were adherentstothecodeagainstthosewhofloutit.InthatsenseI unable to respond to wrongs in a mode of nonretaliation, of shallconstruehimasattemptingtoarticulatetheprinciplesof nonviolenceonaGandhianorsimilarmodel,withwillingness a“libertarianlawcode.”Butthebasicquestionremainsdoubt- tomakesacrificesinordertorestoreahealthypeace,withun- ful:Cantherebetheruleoflawandyetnostate,evenonPro- qualified respect for the humanity of offenders, that society fessorRothbard’sminimaldefinitionofthelatter? wouldfallshortofthemoralidealofanarchism,andifthepeo- We are not given nearly enough material to allow pursuit pleofthesocietywerenotconcernedwithmovingasnearas of this question to the end; I have already had to supply practicaltothatideal,thesocietywouldbelackingincommit- propositions to which Professor Rothbard might not assent. ment to an anarchist morality. On this view, anarchism repre- It does seem, however, that in his system there would stand sents, finally, not a specific social design but a moral commit- over against every individual the legal authority of all the ment. (Rothbard’s anarchism I take to be diametrically oppo- others. An individual who did not recognize private property site.) Stated as an abstract ideal, anarchism would exclude all as legitimate would surely perceive this as a tyranny of law, formsofcoercion;societieswhichcouldbeproperlydescribed a tyranny of the majority or of the most powerful — in short, asanarchistwouldnotnecessarilyactualizethatidealbutthey a hydra-headed state. If the law code is itself unitary, then would seek to actualize it. In such societies it is hard to imag- this multiple state might be said to have properly a single ine the existence of prisons, for these, as we know them, are head — the law. The system would differ from the existing instances of what I have called slavery. One would imagine American system in that it would lack taxation, the economy an emphasis upon reparation, where reparation would not al- would be unregulated by government (although property ways be exclusively a demand made upon a “guilty” person rightswouldbeenforced),thepresentpartialdecentralization but a task for the community concurrently. One would imag- of legal authority under a rule of law would be maximized, inethatthewithholdingofsocialprivilegesfrompersonswho 6 27 We are premising a society in which people have stopped and the enforcement of personal morality would be outlawed living in fear of one another, in which gross violence, hatred, as aggression. But it looks as though one might still call this andcontemptforlifehavebecomeuncommon,inwhichalien- “astate,”underRothbard’sdefinition,byitssatisfyingdefacto ationofpersonfrompersonseldomreachesthemalignantex- one of his pair of sufficient conditions: “It asserts and usually tremes to which we are accustomed. We are premising a soci- obtains a coerced monopoly of the provision of defense etyinwhichtheabsenceofeconomicmonopolies,andofmany service (police and courts) over a given territorial area” (p. otherfamiliarincentivesforseekingadvantageattheexpense 191, definition of “the state”). Hobbes’s individual sovereign ofothers,shouldallowsocialdecisionstobemademoreeasily wouldseemtohavebecomemanysovereigns—withbutone onarationalbasis,thatis,throughdiscoveryofaresolutionin law, however, and in truth, therefore, a single sovereign in whichtherearenolosers.Thisisanessentiallyhumanizedso- Hobbes’s more important sense of the latter term. One might ciety, not without friction, not without suffering, not without better, and less confusingly, call this a libertarian state than anguishandpain;butitisnotpervadedwiththeradicalevilof ananarchy. power, of systematized manipulation, deceit, indifference. (If AgainstsuchcriticismRothbard’s“anarchism”mightbede- thiswerenotthecase,thenIdonotseehow“theabolitionof fended on the ground that the “defensive” enforcement of a thestate”couldbeotherthanafictionthatmaskedthereintro- principle of individual liberty cannot fairly be classified as an duction,oreventhecontinuance,ofpoliticalinstitutionscalled infringementonindividualliberty,andthatsuchenforcement, [now]byeuphoniouslibertariannames.)Onecouldnotknow, dispersedasitwouldbeanddirectedmerelyatpreservingthe from where we stand, what specific procedures would be fol- integrityofthesociety,wouldnotconstituteastateinanyseri- lowedindealingwithrealconflict,obduratepeople,madness, oussense.Afurtherdifficulty,however,resultsfromtheattach- violence,unwillingnesstokeepthepeace.Norcouldoneknow mentofaprincipleofprivateproperty,andofunrestrictedac- the “philosophy” in terms of which these problems would be cumulationofwealth,totheprincipleofindividualliberty.This resolved.Mywayofthinkingofitisthis: increases sharply the possibility that many reasonable people We can imagine that in this society people would try, to- whorespecttheirfellowmenandwomenwillfindthemselves gether, to confront and deal with failures of their community, outsidethelawbecauseofdissentfromapropertyinterpreta- andbreakdownsofhumanpeaceandnormalcooperation,with tionofliberty.Thereis,furthermore,broadgroundforreason- allthesympathy,love,andwisdomthattheypossessed.Iimag- abledisagreement,evenamongthosewhowouldregardsome inethattheywouldtakeoneproblematatime—ifthe“docket” form of property as a basic right, as to what should count as werecrowded,thatwouldhavetobetakenasasignthattheso- legitimatepropertyandwhatmodesofacquisitionofproperty cietywasindanger.Theywouldtrytofindouthow,intermsof should be recognized. An obvious example is the right to be- whattheyvaluemostdeeply,theycouldrestorethewholeness stow inheritance, to which Rothbard holds but which might ofsocialexistence,aprojectthatbearsnorelationtotheproject be contested as an unreasonable extension of legitimate prop- of “dealing with the criminal.” I have no definite idea, and do ertyrights;otherexamplesofdisputedconceptionsofproperty notknowhowonecouldhave,ofwhatwouldbedone,caseby rightsaboundinthelawbooksofoursociety.Onecanimagine, case;fora“case”issomedistinctindividualperson,andsome inaddition,thatthosewholoseoutbadlyinthefreecompeti- other individual person, and the next and the next, involved tion of Rothbard’s economic system, perhaps a considerable 26 7 number, might regard the legal authority as an alien power, a sivemutualaid,notasabstractideasbutasexpressionsofthe stateforthem,basedonviolence,andmightbequiteunmoved lifelived.Livinginsocietiesinwhichthesearesoveryfarfrom bythefactthat,justasundernineteenth-centurycapitalism,a being the norm, we wonder how it is possible to decide what principleoflibertywasthejustificationforitall. isjust.Ifonegrantsthatsuchnormshavebecomerealized,as Mostconceptionsofanarchismthatarenotoutrightcommu- thelifethatislived,wehavewhatIwouldcalla“spiritofjus- nist in economics minimize the possibility of great accumula- tice,” and I do not see how recognition that the basic norms tionsofprivatewealth,orofgreatdisparitiesineconomicwell- havebeenviolatedordisruptedwouldinvolveatortuousdeci- being, by a concept of social property and social wealth that sion. Rape, assault, homicide, “rip-off,” fraud, and the like are sets limits to private accumulation. It is of course just the ab- inclearcontradictiontotheprincipleofvoluntarycooperation senceofthiscategoryofthesocialthatiscrucialtoRothbard’s andpeace.Moregenerally,theabuseofpersons,andanything system. Further consequences of this absence will appear in thattendstowardcreationofpatternsof“enslavement”orthat the more specific discussion below. At this point it seems fair hinderstherealizationandcontinuityoffreecooperation,isa to assert that Rothbard’s inclusion of property in his defini- wronginsuchasociety. tionoftheindividualandoflibertyislikelytointroduceheavy But if it would seem not so hard to define “injury,” either stressesintohissystemofjustice,andthatthecompatibilityof personal or social, the labeling of an action as unjust, or the hissystemwithanarchy,inotherthanasheerlyformalsense determinationthatsomepersonorpersonsareresponsiblefor ofthelatter,isfarfromclear. aninjury,raisesdeeperquestions.Ihavesuggestedearlierthat thesearetermsmoreappropriateinthecontextofmoraledu- cationthaninthecontextofdealingwithinjusticeandinjuries. I. The Two Party Model Forthelatterpurpose,theyareappropriateperhapsforasoci- ety that believes that it must take reprisal upon wrongdoers, Whether ProfessorRothbard’ssystem is an anarchismis of for their own good as well as for its own sake and also in or- course pertinent to the present symposium. But it is not the dertodeter others.Our longhistorical experiencewith many only pertinent question, because the society envisaged, how- typesofreprisalsseemstoindicate,almostbeyonddoubt,that everitshouldbecalled,wouldstillhavejustthosemeritsand theysurelydonotbenefitthe“criminal;”thatreprisalmay,in failingsthatithas.Theburdenofmycomment,asIdevelopit a society based in good part on fear, deter certain kinds of inthissectionandthetwofollowing,willbenegative,because antisocial behavior, but that the price is enormous when the Ibelievethattheshortcomingsaretrulyserious. priceisreckonedtoincludeallthe“disutilities”associatedwith Consistentwithhisantagonismtothesocial,ProfessorRoth- (forexample)imprisonment;andastoreprisalforitsownsake bardadherestoamodelforanalysisandresolutionofdisputes (“vengeance”), this is hard to make sense of at all outside cer- andofmoreseriousaggressionsthatIshallrefertoas“thetwo- tain religious contexts. But on the other hand an ethical soci- party model.” “All disputes,” he says, “involve two parties: the ety cannot ignore, cannot let pass, the occurrence of injuries, plaintiff,theallegedvictimofthecrimeortort,andthedefen- abuses, and the like, or the threat of conflicts that promise to dant, the alleged aggressor” (p. 196). If I understand Rothbard eventuateinseriousharm. correctly, he could conceive of plaintiff or defendant, alleged 8 25 Asociety willbejust,then,insofarasitisfree,inthesense victim or alleged aggressor, as (either or both) plural in num- of the metaphor, of “enslaving” social or political institutions ber,andhecouldconceivealsoofcaseswhereeachallegesthat (military, familial, governmental, educational, sexual, ethnic- theotheristheoffender.(IfIammistaken,itwillnotaffectmy hierarchical, caste-stratificational, ecclesiastical, etc.); but it discussion.) But it is clear that Rothbard recognizes no third- will not be a society at all unless patterns of cooperation party,orwhatmoreextendedlymightbecalledsocial,interests capable of sustaining human communities and vital personal aslegallyandjudiciallyrelevanttoanallegationofaggression. existence are achieved. (To be anarchist and just, a society His severe individualism requires a two-party model, and the need not be perfectly or even approximatively egalitarian in consequencesareconsiderable. aneconomicsense,unlesssuchaprinciplearisesfrommutual Thetwo-partymodelturnsupfirstwithrespecttodisputes, agreement; unjust would be such systematic discrepancies of mainlyeconomic,wherenegotiationandvoluntarybindingar- wealth as would constitute de facto economic classes, where bitration have failed to achieve a mutually acceptable settle- the inferior class or classes would be chronically blocked off ment. With respect to disputes that are for practical purposes fromfullparticipationinthelifeofthesociety.)Itisgenerally bilateral, Rothbard’s emphasis upon arbitration is useful. It is assumed by anarchist writers that in an anarchic society notaspecificallyanarchistdevice,butIknowofnoreasonwhy the incidence of “antisocial,” “delinquent” behavior would be an anarchist would object to its utilization at many junctures negligible because its source in poverty, social degradations, inananarchistsociety.Butdisputesarenot,evenforpractical and humiliations, and the alienation of person from person purposes,alwaysbilateral. andpersonfromcommunitywouldhavebeeneliminated.The Assumingthepresentfamilystructureforcontext,adispute existenceofsocieties,andregionswithinsomeothersocieties, over “custody” of a child, between the parents, affects very where homicide and lesser violence against persons is rare much a third party, namely the child, whose interests do not and where Theft and vandalism are not ways of life gives necessarily coincide with the interests of either parent — not reason to believe that such minimalization is not an absurd necessarily,atanyrate,withwhattheyperceivetheirinterests goal. But of course the causes of alienation and violence may tobe.(Evenifthechildisdrawnintoanarbitrationprocessas be more complex than we understand them to be — we do an active party — contrary to the basic model — it is not very not understand very well the ways in which the newborn likelythatayoungchildwillbeinapositiontogiveinformed becomes a human being. Conceivably, the freedom envisaged consenttotheproceduresandproceedings.)Adisputebetween inananarchistsocietymightcreateserioustensions,although a landlord and a plumber may affect the tenants considerably. it would not be a freedom of constant opting among infinite Far more importantly, it is not clear how, in a society that is alternatives but a freedom of social continuity in which defined as consisting of individuals and private enterprises, a personsmakecommitmentsandagreementsandareinvolved mattersuchasthepollutionofairandwaterwaysbyapaper- innumerouspatternsofongoingcooperation. millcanbedealtwithadequately.(Thoseaffectedbysuchdis- Recognition of the presence of injustice would not, I think, putesmaynotbenameableeveninprinciple,becausepersons beaproblemofthemagnitudeitattainsinoursociety.Oneas- notyetborn,whoseparentsmaynotevenhavebeenborn,may sumesagenerallysharedwilltorealizeandpreservetheprinci- beamongthem.)Theinterestsofsuchaffectedindividualsare plesofvoluntaryagreement,ofnonabuseofothers,ofnoninva- notnecessarilyrepresentedeitherbythedisputantsorbyarbi- 24 9 tratorstheyselect.Suchinterestsarecommonlyreferredtoas ElsewhereIhavetriedtoshowthatwhatissaidaboveis,in- social interests, that is, interests that cannot be specified ade- deed,whatanarchism“isabout.”1HereIwillsketch,alittletoo quatelyasasetofindividualinterests.Conceivably,everyper- hastily,someofthebroadfeaturesofageneralviewofjustice son in the world, and every “possible” descendant, might be thatIbelieveareimplicitinthisinterpretationofanarchism. affectedbyapropertyowner’sdecisiontoconstructanuclear- The presumption underlying the negation of the various energyinstallationofacertaindesign.Such“disputes”maynot formsofpowerandofallthoserelationsthatcanbecharacter- bethesourceofmajorovertsocialconflict(i.e.,violence)inour izedbythemetaphor“slavery”isthatsocialstructuresordered society,buttheyhavecometoberecognized,althoughslowly, by power prevent, and render people functionally incapable asaffectingusinlargenumbersandvitally. of,theexerciseofcapacitiesforfreeagreementandvoluntary WhatProfessorRothbardhasdone,itseemstome,istopro- cooperation. Cor-relatively, they provide opportunity and pose that complex human problems be dealt with by a model temptation for the exertion of tendencies to which human suitedtodisputesbetweentwoneighborsoverapropertyline. beinghasdemonstrateditsprone-ness:tendenciestomagnify ThisisjustthekindofanarchismthatMarxistshavesucceeded oneself to a point that others are only means to one’s ends, in discrediting because it seems to show so little awareness tendenciestomagnifyoneselfbyenslavingothers,tendencies of the last hundred and fifty years of technological evolution. to self-deception and other-deception, tendencies to cower There are anarchists who meet the problem of technological before the power of others, tendencies to herd against the socialization of the economy, and of life, by proposing return anomalous individual, tendencies to avoid responsibility for to preindustrial technology, even to an agricultural economy; decisions, and so on: for anarchism is as much a distrust as butIamsurethatRothbardwouldrejectthis. a faith. Anarchists insist upon a careful distinction between Theconsequencesofthetwo-partymodelbecomemoredra- society and state in order to indicate that in seeking the matic, if no more problematic, when Professor Rothbard dis- abolitionofthelatter,whichstandsatthecenterofanetwork cussesviolentaggressionagainstpersons.Oncemorethereis of power structures to which it provides legitimation and only “alleged victim” and “alleged criminal,” and all proceed- defense, they do not seek the breakup of human society but ings are defined as those of the first against the second. The rather an order constituted freely through manifold agree- victim is held to be free to exact his or her own justice or ments,contracts,negotiationsthatcanaverttheactualization vengeance,subjecttolegitimatereprisalonlyiffoundtohave of those personally and socially destructive tendencies that misidentified the criminal: “The courts would not be able to situations of power (generically: political relations) trigger. A proceed against McCoy if in fact he killed the right Hatfield” different order entirely, and nonanarchist, will be an order (p.204).Averystrangesayingindeed. attained through or rationalized as a single societal contract By now we have learned, I would have thought, that vio- orthroughimpositionofacentralauthoritybyanyprocedure lenceandotherantisocialbehaviorarisesoutofsomecontext whatever. ofhumanrelationswithinwhichresponsibilityisnotonlydif- 1“TheNegativityofAnarchism,”inInterrogations:RevueInternationale ficulttopinpointbutoftensovaguethattheconceptisuseless de Recherche Anarchiste, Paris, France, No. 5 (December 1975). But this is if not noxious. The very Hatfield/McCoy example illustrates notyetacompleteformulationofmyviewofanarchismasahistoricalidea this.Doesanyoneknowwhoisresponsibleforinitiatingase- embodiedinsocialmovements. 10 23