I’m always happy to see anarchism being discussed honestly in public forums. So I was pleased to see E.D. Kain’s article at Forbes, Criminal Justice in a Stateless Society (21 Aug 2011).
Kain describes his reservations about anarchism and wonders “what would replace our criminal justice system in a stateless society?” As an anarchist — one who believes in maximizing individual liberty and wants no person to rule over another — I’d answer hopefully nothing. The criminal justice system is in fact criminal. The outrages committed by the criminal justice system are consequences of the power relations fostered by the state.
Sure, some states act less destructively than others, and some politicians are less tyrannical than others, but state power is ultimately limited by what those in charge think they can get away with. Politicians, economic elites, bureaucrats, and enforcers come to believe in their authority and believe that other people should respect their authority. For those who don’t, there are innovative and profitable ways to subdue them so they can be taken in chains to a cage.
The criminal enterprises of the state should not be replaced, but instead displaced, by cooperative alternatives. This may seem like nitpicking, but to me it emphasizes the differences between authoritarian and anarchic functions. Authoritarian systems command obedience to those on top through force, threats, denial of alternatives, and encouragement of conformity. This is their primary function, and anarchists do not intend to create anything to replicate this function.
Instead, anarchists tend to believe in the ability of people to establish rules as equals, to work out consensus and compromises, and use violence only as a last resort. This is how social relations work on a basis of mutual benefit rather than power politics.
This is not the place to fully theorize about anarchist justice systems or fully describe precedents, but I’ll scratch the surface. A precedent Gary Chartier mentions in his excellent book The Conscience of an Anarchist is the merchant’s law of Medieval Europe. Courts established voluntarily within the merchant community made decisions based on standards that had evolved over time. Another precedent is found in Terry Anderson and P.J. Hill’s work on how American settlers handled disputes in the Western frontier, which was not nearly as violent as Hollywood would have you believe.
Of course, these are precedents, not examples of anarchy, but the fact that they were able to arise from under situations of government-approved violence might make them more remarkable.
In general, people tend to prefer to not have much violence in their daily lives. I’m not talking about movie violence or even fighting sports, but violence that is an active danger to life or impediment to living. Where is there pervasive violence in today’s world? Usually at the bottom end of power imbalances.
In powerful countries, it’s where the least powerful people live that drug wars are fought most vigorously and police most become an occupying army intent on scoring points for the precinct’s statistics. In countries where most people have few options, they are more likely to risk everything for messiahs of violence or see life as a cheap expenditure. Oppression breeds further crime.
Where people have the opportunity, they agree on rules and expectations pretty frequently and set up mechanisms for dealing with rule breakers. If there is a demand for something, people will find a way to fill it. A reasonable level of safety is broadly desired, and who wants child molesters, serial murderers, and the like around anyway?
A free society would encourage better behavior by opening numerous opportunities for self-improvement and social cooperation. Sure there will always be people who appear irredeemable, but how many would there really be? More importantly, how can they be treated and possibly re-integrated into society while they are kept from harming the rest of us? Anarchy offers numerous options for experimentation, in contrast to the state which offers a politically-entrenched machine which profits from suffering. Anarchy allows different arrangements to compete for popular support without the benefit of entrenched power or the political limiting of options. Government compels acquiescence.
Anarchy, where there are no rulers, is both a laudable goal for personal relations and a workable model for a peaceful, prosperous society. I hope E.D. Kain and interested readers further explore the theory and practice of anarchism. It is not a perfect option, but it is certainly a better option than anything that states will give us.
Citations to this article:
- Darian Worden, Justice Without the State, Sagitarius News & Style Magazine, 08/28/11
- Darian Worden, Justice Without the State, Dhaka, Bangladesh New Age, 10/24/11
But what happens when people refuse to accept the courts established by the majority? And if these courts can call upon the majority to enforce their jurisdiction on the minority, then aren't they embryonic states?
I don't think we should reason in terms of majorities and minorities but of contracts, of respects of contracts, of arbitration and of wide circulation of information. If you act badly towards somebody or you do not respect the terms of a contract you risk being ostracized in a society without the state. On the contrary, with the state, the police will never reveal any information they have, even if the result is to let you fall in the hands of a swindler (personal experience in Oxford, U.K.). Try then once to use a court to redress a right (e.g. somebody who hasn't paid you 3 months rent). For a more extensive treatment see: http://www.polyarchy.org/paradigm/english/rightin…
You are right to call them embryonic states. Then again, if a majority tries to rule a minority, that is a state to begin with. So there is no slippery slope argument here. And it's unlikely "the majority" can establish anything. I believe "the majority" is part of a national fiction that politicians resort to every few years, during the elections. The truth is, if people were left alone, they would organize things a lot more locally. And more likely, many communities would establish courts in a consensual way, and there would be no occasion to speak of majority and minority. Nevertheless, there will be statists, powerless as the religious of today, for a lot longer than the state has disappeared or become irrelevant.
Hidden Author, you have bought into the very assumptions of the state, leading you to beg the very question at issue (i.e., to build in your conclusion in advance).
There wouldn’t be “courts established by the majority”. At most there could be (but might not be) mediation offered by whoever, majority or not – in fact, numbers don’t come into it. If someone accepted mediation, the problem would not go away but would be handled more conveniently than by the real sanction: exclusion up to and including expulsion. Anyone who tried to stick around in the face of that would ipso facto be an aggressor and would be dealt with on that basis, just as a posse or a militia would handle brigands. Those don’t form an embryonic state if the posse or militia aren’t formed under a directing cadre.
As other responders have alluded to, I'm not relying on one majority, but a number of arrangements deemed acceptable by custom. The ways in which decisions would be "enforced" would depend on the perceived offense. For example (not for prescription), a person who doesn't help pay for local road maintenance will not be helped by others in the community, and it will be less convenient for him to acquire desired goods as locals will be less eager to deal with him. A person who leaves a pile of garbage on his lawn that creates a health risk to his neighbors would probably find his garbage pile removed and face similar sanctions. A murderer would likely be judged a danger to society (by a reputable existing court or an ad hoc court, in either case with the ability to appeal) and isolated and treated until he is deemed acceptably low-risk and makes some form of restitution.
The method of enforcement would not make these arrangements more of an embryonic state than anything else – states don't grow organically but are imposed against other options. If people are able to form other judicial and enforcement mechanisms then these are not functioning as governments. Many libertarians say, and I agree, that reputation would be a major factor, both for individuals and organizations, in a free society in which it is not considered acceptable to use coercion to restrict options.
In some sense, there is a majoritarian bent to this kind of talk because a significant number of people (not everyone) would need to accept the system for it to work. But this is true of any political system – monarchy, republic, fascist, etc – the difference is in how these systems can use force.