Peter Brown, Smallcreep’s Day

Every anarchist propagandist would agree that the aspect of anarchist ideas of social organization which people find hardest to swallow is the anarchist rejection of the law, the legal system and the agencies of law-enforcement. They may ruefully agree with our criticism of the methods of the police, the fallibility of the courts, lawyers and judges, the barbarity of the penal system and the fatuity of the legislature. But they remain skeptical about the idea of a society in which the protection offered by the law is absent, and unconvinced that there are alternatives more desirable than ‘the rule of law’ which, with all its admitted failings, imperfections and abuses, is regarded as a precious achievement of civilized society and the best guarantee of the liberty of the individual citizen.

Maybe we are not worried by the mingled incredulity and bewilderment which meets our bland declaration that society should do away with the police and the law; perhaps we are perfectly satisfied to contemplate our own feeling that we can do without them; or perhaps we just enjoy a sense of revolutionary rectitude and superiority by deriding them. But it is our fellow-citizens that we have to convince if we are really concerned with gaining acceptance for the anarchist point of view.

The characteristic anarchist answer to the question of how an anarchist society would cope with criminal acts runs something like this: (a) most crimes are of theft in one form or another, and in a society in which real property and productive property were communally held and personal property shared out on a more equitable basis, the incentive for theft would disappear; (b) crimes of violence not originating in theft would dwindle away since a genuinely permissive and noncompetitive society would not produce personalities prone to violence; (c) motoring offenses would not present the problems that they do now because people would be more socially conscious and responsible, would tend to use public transport when the private car had lost its status, and in a more leisured society would lose the pathological love of speed and aggressiveness that you see on the roads today; (d) in a decentralized society vast urban conglomerations would cease to exist and people would be more considerate and concerned for their neighbors. But the difficulty about this kind of argument is that it brings the obvious response that it calls for a new kind of human being, a social paragon of a kind we do not often meet in real life. No, replies the anarchist, it calls for a different kind of human environment, the kind that we are seeking to build. But the trouble is, as an American criminologist, Paul Tappan, put it, that as a society we prefer the social problems that surround us “to the consequences of deliberate and heroic efforts so drastically to change the culture that man could live in uncomplicated adjustment to an uncomplicated world”.

Any standard definition of the concepts of law, crime and law-enforcement will indicate that they are incompatible with the idea of anarchy:

Law: The expressed will of the state. A command or a prohibition emanating from the authorized agencies of the state, and backed up by the authority and the capacity to exercise force which is characteristic of the state ...

Crime: A violation of the criminal law, i.e. a breach of the conduct code specifically sanctioned by the state, which through its legislative agencies defines crimes and their penalties, and through its administrative agencies prosecutes offenders and imposes and administers punishments.

Police: Agents of the law charged with the responsibility of maintaining law and order among the citizens.[161]

It is possible, of course, to re-define the concept of law in a non-legalistic sense: in the sense of common law, the embodiment of preexisting social custom, or in a looser sociological sense as the whole body of rules of all sorts that exist in a society; and it is possible to re-define the concept of crimes as anti-social acts — whether or not they are illegal acts. The nineteenth-century criminologist, Garofallo, enlarged the definition of crime to “any action which goes against the prevalent norms of probity and compassion”, and his modern successor E. H. Sutherland, in his study of white-collar crime, insisted that “legal classification should not confine the work of the criminologist and he should be completely free to push across the barriers of definition when he sees non-criminal behavior which resembles criminal behavior”. (Alex Comfort has done this brilliantly from the anarchist standpoint in his castigation of lawmakers and power-seekers in Authority and Deliquency in the Modern State.)

On the other hand it is scarcely possible for us to re-define the police, the agents of law-enforcement, in a way that is shorn of authoritarian connotations. Obviously in our society the police fulfill certain social functions, but everyone will agree that their primary purpose is to fulfill governmental functions. John Coatman’s volume The Police in the Home University Library, for instance, declares that our police system is “the pith and marrow of the English conduct of government” and that the policeman themselves are the “guardians of the established system of government”. With which we would all agree.

No, there is no non-authoritarian equivalent for the policeman, except for the concept which we would now call “social control”, of the means by which individuals and communities may protect themselves from anti-social acts. This concept first appeared in anarchist thought in Godwin’s Political Justice where, adopting the decentralist approach to the question, he declared: “If communities ... were contented with a small district, with a proviso of confederation in cases of necessity, every individual would then live in the public eye; and the disapprobation of his neighbors, a species of coercion, not derived from the caprice of men but from the system of the universe, would inevitably oblige him either to reform or to emigrate.”[162] Many people, I fear, especially those who have experience of living under the censorious eyes of neighbors in a village, would find this a rather unattractive way of inhibiting anti-social behavior, and because it also inhibits many other varieties of non-conforming behavior as well, would prefer the anonymous city life.

This insistence on a more closely-knit community as the means by which society can “contain” anti-social acts recurs time and again in the writings of Kropotkin, who of all the classical anarchist thinkers devoted most consideration to the question of crime, the law and the penal system:

Of course in every society, no matter how well organized, people will be found with easily aroused passions, who may, from time to time, commit anti-social deeds. But what is necessary to prevent this is to give their passions a healthy direction, another outlet.

Today we live too isolated. Private property has led us to an egotistic individualism in all our mutual relations. We know one another only slightly; our points of contact are too rare. But we have seen in history examples of a communal life which is more intimately bound together — the “composite family” in China, the agrarian communes, for example. There people really know one another. By force of circumstances they must aid one another materially and morally.

Family life, based on the original community, has disappeared. A new family, based on community of aspirations, will take its place. In this family people will be obliged to know one another, to aid one another and to lean on one another for moral support on every occasion. And this mutual prop will prevent the great number of anti-social acts which we see today.[163]

The concept was first given the name social control by Edward Allsworth Ross in a book of that name published in 1901, in which he cited instances of “frontier” societies where, through unorganized or informal measures, order is effectively maintained without benefit of legally constituted authority: “Sympathy, sociability, the sense of justice and resentment are competent, under favorable circumstances”, wrote Ross, “to work out by themselves a true, natural order, that is to say, an order without design or art.” Today the term social control has been extended to refer to “the aggregate of values and norms by means of which tensions and conflicts between individuals and groups are resolved or mitigated in order to maintain the solidarity of some more inclusive group, and also to the arrangements through which these values and norms are communicated and instilled ... Social control as the regulation of behavior by values and norms is to be contrasted with regulation by force. These two modes are not, of course, entirely separable in actual social life ... But the distinction is valuable and important.”[164]

George C. Homans in The Human Group puts the distinction thus: “The process by which conformity is achieved we call social control if we are thinking of compliance with norms, or authority if we are thinking of obedience to orders.” It is the size and scale of the community which, in the opinion of the sociologists, diminishes the effectiveness of social control: “It is only as groups grow large, and come to be composed of individuals with conflicting moral standards, that informal controls yield priority to those that are formal, such as laws and codes.”[165]

One of the few observers of modern city life to think about the way social control actually operates in the contemporary urban environment is Jane Jacobs, who discusses the function of streets and their pavements or sidewalks in these terms:

To keep the city safe is a fundamental task of a city’s streets and its sidewalks ... Great cities ... differ from towns and suburbs in basic ways, and one of these is that cities are, by definition, full of strangers ...

The bedrock attitude of a successful city district is that a person must feel personally safe and secure on the street among all those strangers. He must not feel automatically menaced by them ... The first thing to understand is that the public peace — the sidewalk and street peace — of cities is not kept primarily by the police, necessary as the police are. It is kept primarily by an intricate, almost unconscious, network of voluntary controls and standards among the people themselves, and enforced by the people themselves. In some city areas — older public housing projects and streets with a very high population turnover are often conspicuous examples – the keeping of public sidewalk law and order is left almost entirely to the police and special guards. Such places are jungles. No amount of police can enforce civilization where the normal, casual enforcement of it has broken down.[166]

Her point is that the populous street has an unconscious do-it-yourself surveillance system of eyes in the street, the eyes of the residents and the users of shops, cafes, news-stands and so on:

Safety on the streets by surveillance and mutual policing of one another sounds grim, but in real life it is not grim. The safety of the streets works best, most casually, and with least frequent taint of suspicion or hostility precisely where people are using and most enjoying the city streets voluntarily and are least conscious, normally, that they are policing ...

In settlements that are smaller and simpler than big cities, controls on acceptable public behavior, if not on crime, seem to operate with greater or lesser success through a web of reputation, gossip, approval, disapproval and sanctions, all of which are powerful if people know each other and words travel But a city’s streets, which must control not only the behavior of the people of the city but also of visitors from suburbs and towns who want to have a big time away from the gossip and sanctions at home, have to operate by more direct, straightforward methods. It is a wonder cities have solved such an inherently difficult problem at all. And yet in many streets they do it magnificently.[167]

The English reader of Mrs Jacobs’ book will by now no longer be amazed by her assumption of the insecurity of the American citizen in public places from “rape, muggings, beatings, holdups and the like”. Today, she declares, “barbarism has taken over many city streets, or people fear it has, which comes to much the same thing in the end”. In spite of her faith in the effectiveness of informal social control, nothing is going to destroy her belief in the necessity of the police. The terrifying breakdown of social cohesion in the American city, in spite of intense institutionalized police surveillance equipped with every sophisticated aid to public control, illustrates that social behavior depends upon mutual responsibility rather than upon the policeman. The most honest and unequivocal attempt to grasp this particular nettle from the anarchist point of view comes from Errico Malatesta:

This necessary defense against those who violate, not the status quo, but the deepest feelings which distinguish man from the beasts, is one of the pretexts by which governments justify their existence. We must eliminate all the social causes of crime, we must develop in man brotherly feelings, and mutual respect; we must, as Fourier put it, seek useful alternatives to crime. But if, and so long as, there are criminals, either people will find the means, and have the energy, to defend themselves directly against them, or the police and the magistrature will reappear, and with them, government. We do not solve a problem by denying its existence ...

We can, with justification, fear that this necessary defense against crime could be the beginning of, and the pretext for, a new system of oppression and privilege. It is the mission of the anarchists to see that this does not happen. By seeking the causes of each crime and making every effort to eliminate them; by making it impossible for anyone to derive personal advantage out of the detection of crime, and by leaving it to the interested groups themselves to take whatever steps they deem necessary for their defense; by accustoming ourselves to consider criminals as brothers who have strayed, as sick people needing loving treatment, as one would for any victim of hydrophobia or dangerous lunatic — it will be possible to reconcile the complete freedom of all with defense against those who obviously and dangerously threaten it ...

For us the carrying out of social duties must be a voluntary act, and we only have the right to intervene with material force against those who offend against others violently and prevent them from living in peace. Force, physical restraint, must only be used against attacks of violence and for no other reason than that of self-defense. But who will judge? Who will provide the necessary defense? Who will establish what measures of restraint are to be used? We do not see any other way than that of leaving it to the interested parties, to the people, that is the mass of citizens, who will act differently according to the circumstances and according to their different degrees of social development. We must, above all, avoid the creation of bodies specializing in police work; perhaps something will be lost in repressive efficiency but we will avoid the creation of the instrument of every tyranny. In every respect the injustice, and transitory violence of the people is better than the leaden rule, the legalized state violence of the judiciary and police. We are, in any case, only one of the forces acting in society, and history will advance, as always, in the direction of the resultant of all the forces.[168]

Three things stand out from Malatesta’s observations. Firstly, he recognized that any and every do-it-yourself justice system would have a tendency to harden into an institution. The difficulty is that this might very well be for very good reasons: the attempt to give the accused a “fair”’ trial (for I take it that the restraint of offenders would include some procedure to find out whether the accused committed the offense). If the offender is to be more fairly treated than he would be under existing systems of jurisprudence, certain safeguards which exist in the present system must survive in any ad hoc arrangement. There must be recognition of the principle of habeas corpus, the accused must be told what he is accused of, he must be given facilities to defend himself, there must be generally accepted rules of evidence, and so on. The history of revolutionary regimes is littered with committees of public safety, people’s courts and similar “revolutionary” bodies, which have turned out to be just as dubious a proposition, from the point of view of those who are brought before them, as the bourgeois institutions they replaced. The more fortunate of the East European countries have slowly reintroduced “Western” juridical principles and safeguards — to everybody’s relief. The problem in Malatesta’s terms is how to build these principles of “natural justice” into popular bodies which nevertheless retain an impermanent non-institutional character.

The second thing that stands out in the passage from Malatesta is his faith in “the people”; a point which adversaries would gleefully take up, drawing attention to the fact that he is presupposing a different kind of people. We know that our “people” are as vindictive as our judges. Three-quarters of the population of Britain are said to favor the reintroduction of capital punishment, and an even larger proportion the re-introduction of flogging and birching. Here we are at the crux of the difficulty which we anarchists have in getting our ideas on this subject taken seriously. There seems to be an immense anxiety and fear floating around in our society which is out of proportion to actual dangers. People are afraid of defenselessness. (In another field this explains why people cannot accept the idea of disarmament — they believe that they are actually being defended.) Observation of the general intense preoccupation and fascination with crime certainly seems to bear out the psychoanalytical theory that society not only makes its criminals, but that it needs them, and consequently seduces its deviant individuals into the “acting-out” of criminal roles.

“Society”, wrote Paul Reiwald, “opposed the innovators with determined resistance ... Society did not wish to abandon the principle of an eye for an eye; it did not wish to be deprived of its long observed relations to the criminal and it did not wish to have the ‘contrary ones’ taken from it.”[169] Ruth Eissler expresses it even more dramatically: “Society, by using its criminals as scapegoats and by trying to destroy them because it is unable to bear the reflection of its own guilt, actually stabs at its own heart.”[170]

Obviously some people are conspicuously lacking in this pent-up anxiety and guilt, the kind of people who are singularly successful in supportive, rather than punitive, work with delinquents or deviants, people who are sufficiently at ease with themselves to cope with the mental strain, the irritation and time-consuming tedium which our deviants frequently impose on us. If we want to change society it is probably more important for us to find out what produces people like them than to find out what makes delinquents. This is important for the whole idea of the social control of anti-social behavior. What is anti-social? If this question is to be decided by a bunch of censorious busy-bodies we can well imagine people saying “No thanks. I’d rather have The Law.” There must be room for deviance in society, and there must be support for the right to deviate. This, I suppose, is the basis of Durkheim’s celebrated observation that crime itself is a social norm, “a factor in public health, an integral part of all healthy societies” since a crimeless society would be an ossified society with an unimaginable degree of social conformity, and that “crime implies not only that the way remains open to necessary changes but that in certain cases it precipitates these changes”. As anarchists — criminals ourselves in some people’s view — we should be the first to appreciate this.

And this brings us to Malatesta’s final point, his observation that “we are, in any case, only one of the forces acting in society”. It is not a matter of a hypothetical anarchist society, but of any society, now or in the future, where different social philosophies and attitudes coexist and conflict. There will always be anti-social acts, and there will always be people with an urge to punish, to maintain a whole punitive machinery with everything that it entails. If we do not discover and make use of methods of containing such acts within society or of evolving a form of society capable of containing them, we shall certainly continue to be the victims of those authoritarian solutions which others are so ready and eager to apply.