20102010
People :
Author : Bob Black
Text :
The Director Emeritus is full of — surprises. He takes David Watson to task for “denigrat[ing] the development of writing” — actually, all Watson did was deny the “dogma of the inherent superiority of the written tradition” to the oral tradition.[515] The irony (as always, unnoticed) is that speaking and listening are inherently sociable, whereas “reading — silent reading — is manifestly antisocial activity.”[516] Astonishingly, Bookchin’s defense of literacy takes the form of an affirmation of law:
Before the written word, it should be noted, chiefs, shamans [!], priests, aristocrats, and monarchs possessed a free-wheeling liberty to improvise ways to require the oppressed to serve them. It was the written word, eventually, that subjected them to the restrictions of clearly worded and publicly accessible laws to which their rule, in some sense, was accountable. Writing rendered it possible for humanity to record its culture, and inscribing laws or nomoi where all could see them remains one of the great advances of civilization. That the call for written laws[517] as against arbitrary actions by rulers was an age-old demand of the oppressed is easily forgotten today, when they are so readily taken for granted. When Watson argues that the earliest uses of writing were for authoritarian or instrumental purposes, he confuses the ability to write with what was actually written — and betrays an appalling lack of historical knowledge.[518]
(Presumably, then, these phenomena are entirely unrelated?) “I believe in law,” the Sage remarked recently. More than merely “one of the great advances of civilization,” the rise of law “marks one of humanity’s greatest ascents out of animality.”[519] Having just denounced custom for preventing people from doing anything differently, Bookchin blithely denounces custom for allowing kings and priests to innovate! Let’s just see who betrays an appalling lack of historical knowledge.
If there remained any doubt that Bookchin is not an anarchist, this passage dispels it. To affirm law — and written law — while disparaging custom is unequivocally statist. Custom, he contends, is inherently enslaving, whereas law is at least potentially liberatory. Here’s an eerie parallel with the ex-Director’s dismissal of the actual anarchism of primitive societies and his affirmation of the, at best, potential anarchism of cities. Whether a rule or norm is enslaving or liberatory depends — not solely on whether it is custom or law, and not solely on whether it is oral or written — it also depends on its content and its source. If we consider the general tendencies and affinities of custom and law, the order of custom is characteristic of primitive societies, usually anarchist, and the rule of law is characteristic of civilized societies, always statist.[520] Everyone knows this who knows anything about the differences between primitive society and civilization. It’s a difference which ought to be of special interest to an anarchist such as Bookchin formerly mistook himself for. Bookchin’s law-and-order anarchism is nothing short of bizarre.
Unfortunately for the assertion, in almost all pre-modern legal codes including the Athenian, crimes are usually undefined. That is left to custom. If written law is sought to reduce the manipulation of custom, it must be because custom has grown too large or complex to be entrusted to memory. But most early codes are neither long nor complex. The most complete Mesopotamian code to survive (but not, as Bookchin claims, the first) is the Code of Hammurabi from about 1750 B.C. It consists of “close to three hundred laws sandwiched in between a boastful prologue and a curse-laden epilogue.”[521] That amount of material is easily within an oral culture’s capacity for memory. The conqueror claims to be executing the will of the gods, not the will of the people:
Then did Anu and Enlil call me to afford well-being to the people,
me, Hammurabi, the obedient, godfearing prince, to cause righteousness to appear in the land
to destroy the evil and the wicked, that the strong harm not the weak
and that I rise like the sun over the black-headed people, lighting up the land.[522]
(With small changes this might be the brag of a more recent conqueror of Mesopotamia, George W. Bush.) Only trained scribes could read the code; Hammurabi himself couldn’t read it. There is no evidence it was ever applied in judicial proceedings, or intended to be. In fact, that was impossible, as the judges were also illiterate. Rather it was propaganda for the inhabitants of recently conquered cities.[523] The first stages of literacy occurred within the state. It was a technology of domination:
Writing was an important part of the growth of the first imperial states, that is of the Akkadian and subsequent empires of the third and second millennia BC. Literacy was restricted to the bureaucracy, stabilized its systems of justice and communications, and so provided infrastructural support to a state despotism, though apparently in some kind of an alliance with a property-owning economic class.[524]
In early Egypt, also, literacy was extremely restricted, limited to the pharaoh, his entourage and a not very large number of scribes. The ruling group of higher officials in Old Kingdom Egypt was about 500 people.[525]
Most of the codes of early English kings and kinglets are brief: the laws of Hlothhere and Eadric, kings of Kent (2 pages); the laws of Wihtred, another king of Kent (barely 2 pages); the laws of Ine (8½ pages); the laws of Alfred (7½ pages); the laws of Athelstan (4 ½ pages); and King Ethelred’s code of 1108 A.D (3½ pages).[526] The earliest English (and Germanic) code, the laws of Ethelbert, is 6½ pages.[527] The Frankish Lex Salica, which at 63 pages is copious by comparison,[528] was promulgated by the king and for the king: “Lex Salica is new law; and it is royal law ... The mere fact of legislation makes him more of a king.” The codification of custom by this and other barbarian codes was highly selective. The Germanic codes “record just that fraction of custom that seemed enough to satisfy royal pride in legislation. The fact of their existence as books was what mattered most ... The Kentish laws ... reveal a little of contemporary practice ... By causing them to be written down, the king makes them his own.” Most law remained customary and unwritten.[529] Written law could not have been for the benefit of the illiterate masses.
A 12th century source provides another example of a self-serving codification: “When the famous William, ‘the Conqueror,’ had brought under his sway the farthest limits of the island, and had tamed the minds of rebels by awful examples to prevent error from having free course in the future, he decided to bring the conquered peoples under the rule of written law.”[530] Actually, many Anglo-Saxon laws had already been written down, as we have seen, but William after crushing all resistance started afresh. The conquered would live under his laws. The Anglo-Saxons were down, and the laws would help see to it that they stayed down.
Kropotkin also assumed that law originated as codified custom, but he was more realistic than Bookchin about its genesis and function:
If law, however, presented nothing but a collection of prescriptions serviceable to rulers, it would find some difficulty in insuring acceptance and obedience. Well, the legislators confounded in one code the two currents of custom of which we have just been speaking, the maxims which represent principles of morality and social union wrought out as a result of life in common, and the mandates which are meant to ensure external existence to inequality. Customs, absolutely essential to the very being of society, are, in the code, cleverly commingled with usages imposed by the ruling caste, and both claim equal respect from the crowd. “Do not kill,” says the code, and hastens to add, “And pay tithes to the priest.” “Do not steal,” says the code, and immediately after, “He who refuses to pay taxes, shall have his hand struck off.”
Such was law; and it has maintained its two-fold character to this day. Its origin is the desire of the ruling class to give permanence to customs imposed by themselves for their own advantage. Its character is the skillful commingling of customs useful to society, customs which have no need of law to insure respect, with other customs useful only to rulers, injurious to the mass of the people, and maintained only by the fear of punishment.[531]
We do not have to take this conspiracy theory literally to take Kropotkin’s point about the twofold nature of law, any more than we have to believe Bookchin’s tale of the common people clamoring for laws. But we may well agree with self-styled anarchist Howard Zinn that law’s twofold nature is still manifest today.[532] It is common knowledge. Empirical research confirms it.[533] The Director Emeritus alludes to the legend that in 621 B.C., Draco wrote down the laws of Athens by popular demand. Actually, nobody knows if the codification was to placate popular unrest or to anticipate and preempt it.[534] And who wrought the miracle? According to Bookchin: “The agents for the new juridical disposition [sic]in [sic] the rights of city dwellers were the strangers”! And nobody knows if the hoi polloi lived to regret it. Historian John Thorkey concludes that “whatever the full details of Draco’s code of laws, it seems it was a clear expression of the power of the aristocracy over everybody else.”[535] If the Draco tale is true, it may stand almost alone as an example of popular philonomic folly. The only verified example I know of is the demands of the freemen of Massachusetts Bay for written law.[536] But they were already accustomed to living under written law; their colonial charter already had the force of law; and enough of them were literate that the content of written law could not be successfully misrepresented. Normally, as Kropotkin implies, the initiative to codify the law is taken by the state.
What little is known about the codification of the law in ancient Greece refutes any supposition that it was liberatory. “Crete,” for instance, “was far advanced in its publication of laws on stone”: the 5th century BC Code of Gortyn was the culmination of a long legal tradition. Yet Aristotle singled out Cretan officials for their arbitrary judgments. Evidence for Cretan literacy is minimal; written law, exhibited monumentally, was intended to impress the illiterate citizenry. The chief function of writing was to legitimate the new form of political organization, the polis.[537] The Athenian lawgivers likewise gave written law to the illiterate. Thirty years after Draco, Solon promulgated his new laws in poems for recitation by heralds at public meetings. That assumes a nonliterate public. In truth, “Athens remained a largely oral culture, where only very few people could read and write.”[538]
Nor does the weirdness end there. According to the Director Emeritus, the magic of “the written word” “eventually” rendered the rulers accountable “to some extent” — by implication, for the first time. He provides no places, dates or details because there are none to provide. According to Bookchin, not popular resistance, but rather the law itself, self-propelled to realize its potential, places limits on power independent of human agency. The Director Emeritus does not explain why custom could not have constrained power, as it does in primitive societies.[539] In fact it played such a role in medieval Europe. The Magna Carta, for instance, was mostly about subordinating the king to the customs of the realm.[540]
Nor does the ex-Director notice that he has made yet another category mistake, confusing the custom/law distinction with the oral/written distinction. All four pairings have actually existed. There is nothing about a custom that precludes its being written down, if there’s anybody around who is able to write. Thus Blackstone spoke of “the first ground and chief corner stone of the laws of England, which is, general immemorial custom, or common law, from time to time declared in the decisions of the courts of justice; which decisions are preserved among our public records, explained in our reports, and digested for general use in the authoritative writings of the venerable sages of the law.” Before Blackstone, Sir Matthew Hale identified the common law as “Usage or Custom.” In 1790, future U.S. Supreme Court justice James Wilson wrote: “The common law is founded on long and general custom. On what can long and general custom be founded. Unquestionably, on nothing else but free and voluntary consent.”[541] If I should write down that “people are expected to throw rice at the newlyweds at weddings,” my writing that down doesn’t destroy the practice as a custom any more than it turns it into a law. And law is not necessarily written. The most minimal common sense suggests that there had to be an unwritten law before there could have been a demand to write it down.
It is almost obvious why literacy is so useful to power. Everyone has a memory, but for thousands of years, few could read. Literacy does not just supplement orality, it tends to supplant it. As Plato wrote: “Those who acquire [literacy] will cease to exercise their memory and become forgetful; they will rely on writing to bring things to their remembrance by external signs instead of on their own internal resources.”[542] Even the literate lose something by their literacy, though not as much as the new underclass, the illiterate. The state, above all the modern centralized state, strives to confront the citizen as an isolated individual. Hence its long campaign to eliminate mediating groups between state and citizen.[543] This is the same trend which Bookchin so witlessly hails as liberation from kin ties when he is not inconsistently denouncing everything modern as privatistic and individualistic. The state levels the playing field — levels it down — but towers over that level itself. Regardless what people are reading, be it Director Emeritus Bookchin or Father Cardenal, their reading is a private experience: “Literacy brings about a break in togetherness, permits and promotes individual and isolated initiative in identifying and solving problems.” Oral culture is purely social culture, but writing encourages private thought. Furthermore, writing tends to reify and make permanent the existing social and ideological culture.[544] Oral culture is not static, partly because it is not held as a whole in everyone’s or anyone’s memory store.[545] It cannot be monopolized.
If it be argued that, in a world dominated by literate elites, mass literacy is liberatory, it need only be said that the inequality of knowledge and capacity for expression between literates and illiterates is simply recreated as the same kind of inequality between the highly-educated elite and the nominally literate masses. To put it another way, it is the inequality between the producers and consumers of ideology and specialized knowledge. Today, the ever worsening disadvantages of the computer-illiterate recapitulate the disadvantages of the illiterate in traditional and modern societies. After computers it’ll be something else.
That literacy is still a tool for domination is evident from the Nicaraguan literacy campaign in 1979. Over half the population was illiterate. Almost the first thing the bourgeois intellectuals of the Sandinista junta did was to orchestrate, in metaphors and terminology purposefully military, a “Crusade” for literacy with the assistance of Cuban advisers. As one of the Sandinistas stated, they appreciated that “no matter in what nation, education serves the interests of those with power, those who dominate and control society.” Now, that was them. According to Valerie Miller, the doting “sandalista” author of a book on the Campaign, its primary purpose was political socialization, and “during the campaign, increased emphasis was given to the sociopolitical dimensions of the campaign.” The first word of the primer was “la revolucion,” and its contents were crude propaganda. Literacy would strengthen the state and its satellite organizations:
As individuals were strengthened by this learning, so, too, would the organizations and institutions to which they belonged be strengthened because of the increase in group skills. Moreover, an effective campaign would earn legitimacy and credibility for the new government and instill a sense of national consensus and pride in its citizens. The experience of helping to implement the campaign would give institutions — government agencies, citizens’ associations, and labor federations [but strikes were illegal] — practice in planning, organization, and evaluation.[546]
This is what comes of privileging the ideal over the real. Literacy serves power, although it did so in very different ways in ancient Sumer and modern Nicaragua. In American history, compulsory education was instituted, not to widen anyone’s intellectual horizons, but to Americanize immigrants. Bismarck instituted it in Germany to inoculate the workers against socialism. The ignorance of history in the younger generation which the Director Emeritus deplores is not the result of an oversight but rather of protracted miseducation.[547] Never has so much education at every level been extended to so many people. Students may not learn history (they never learned honest history), but they learn time-discipline, obedience to impersonal authority, a facility for carrying out meaningless tasks, and they learn to accept as normal the daily alienation of most of their waking hours. They learn how to work.[548] I think the powers that be who control education have a more realistic conception of its functions than does Bookchin, befogged by abstractions.
Law versus Custom, like the ex-Director’s other antitheses, fails to bring out what the contradiction is really about: which is, disputing processes and their relations to forms of social organization. Thus Laura Nader and Harry Todd, in the introduction to their anthology on disputing processes, write:
We shall not deal here with the question of whether these procedures are law or social control or “merely” custom. We will take a more neutral position and say that whatever we label these procedures, there are a limited number of them... The crucial variables are the presence or absence of a third party and the basis of the third party’s intervention, and the type of outcome (if any). The same basic procedural modes are used worldwide in attempts to deal with grievances, conflict, or disputes: adjudication, arbitration, mediation, negotiation, coercion (or conquest, in Kenneth Boulding’s terms), avoidance, and “lumping it.”[549]
Even this briefest of introductions to the anthropology of law begins to expose the fallacy of the eternal blood feud. The duration of a feud is likely to depend heavily on whether or not there is third party intervention and, if so, of what kind. Thus the first case study in the anthology, obviously intended as a cautionary example, is the Jale of New Guinea, among whom “any conflict can escalate into a war.” The author does not consider the significance of the fact that such an escalation almost never happens, or else the Jale would always be at war, which is not the case. Disputes within a patrilineage where the parties live in the same men’s house may be resolved through the intervention of other residents, but if the lineage has split to live in several locations, they may not be. If disputants are nonkin neighbors, a peaceful outcome is likely, but not if they reside at a distance. But in other combinations, there may not be enough cross-linkages to prevent retaliation and then feud drawing in larger groups: in the absence of a role for third party intervention, disputes “snowball.”[550] The Jale are atypical; usually there are cross-linkages and third party agencies to resolve or localize disputes. But even this tendentious account implies that ties of kinship and neighborhood usually avert war, which is never the war of each against all, but the war of certain individuals with socially specific identities against others also socially identifiable. As a brief for the law of the state this is ludicrous at a time when the United States is on a worldwide military rampage.
Elizabeth Colson introduced the concept of cross-linkages in a famous article intended to explain the Plateau Tonga, an anarchist society “where there are no obvious political institutions concerned in the maintenance of order.” The crucial fact is that the Tonga live in small villages most of whose people are unrelated to one another. The Tonga recognize matrilineal descent but neolocal residence, so their clans, the units implicated if a feud breaks out, have no corporate character and their members are scattered. The father’s clan provides important material and ritual support for the son although he is not a member, so it, too, takes an interest in his disputes. In marriage, then, four groups are linked, and their concern will extend to offspring. Finally, there is much lending of cattle to friends and kinsmen who live elsewhere. If a dispute flares up, there are always many people obligated but reluctant to take sides in a conflict, often because they are aligned, at least remotely, with both parties. Although each disputant is in theory free to settle the dispute as he pleases, “in societies of this type, it is impossible to have the development of the feud and the institutionalization of repeated acts of vengeance, for each act of vengeance, like each original incident, mobilizes different groups whose interests are concerned in the particular case and that alone.” Hostilities are impossible within a village or between villages if kinsmen of both parties reside in the village or villages, as is usually the case.[551] Peace prevails without law enforcement. The notion of cross-linkages is related to Max Gluckman’s notion of “multiplex” (multi-functional) relationships whose prevalence determines the form of the disputing process (negotiation or mediation).[552]
What disputing processes are appropriate to an anarchist society? All the voluntary ones: negotiation, mediation/conciliation, and (nonbinding) arbitration — also avoidance, but not in the form of resignation to one’s powerlessness as it is among us. In negotiation the parties work things out by themselves: “They seek not to reach a solution in terms of rules, but to create the rules by which they can organize their relationship with one another” (P.H. Gulliver).[553]
In mediation, a third party facilitates a resolution, but not the way a judge does. The mediator may just engage in shuttle diplomacy (as a go-between or “crosser”); in effect this is negotiation without face to face confrontation between the parties. More often, though, the mediator helps shape a settlement to which the parties consent. That’s how it works among the Plateau Tonga, whose social structure harmonizes with mediation. In mediation, both parties agree on the mediator (who usually has a certain position of authority or prestige), and for mediation to succeed, both parties must accept the settlement. Any resort to rules is subordinate to the goal of a mutually acceptable resolution which typically accomplishes, and is accomplished by the restoration of a relationship not confined to the matter at hand, i.e., a multiplex relationship. For the mediator it is more important to know the people than to know the facts of the case: “Since successful mediation requires an outcome acceptable to the parties, the mediator cannot rely primarily on rules but must construct an outcome in the light of the social and cultural context of the dispute, the full scope of the relations between the disputants and the perspectives from which they view the dispute.”[554]
Mediation is ill-suited to hierarchic or culturally heterogeneous societies, which explains why attempts to attach mediation to the American legal system failed: “While mediation appears to be tremendously valuable in disputes between equals, in the available prototypes it appears that in disputes between nonequals, it simply replicates existing power relationships.” Its proponents touted it as getting to the root causes of disputes. Unfortunately, the root causes of many disputes include capitalism, poverty, patriarchy, racism, and other problems which are difficult to understand and impossible to resolve at the individual level. To the extent social inequalities cause disputes, “community mediators seem merely to induce disputants to accept these structural inequalities.”[555]
In arbitration, the parties select the arbitrator and agree beforehand to abide by his decision; otherwise it resembles adjudication in that the parties present evidence and the arbitrator finds the facts and applies rules. My impression is that arbitration is rare in primitive societies (the Jale sometimes used it), although the famous Kpelle moot, usually assumed to be mediation, looks more like arbitration to me, and the Kpelle moot is integrated into the judicial system of the Liberian state.[556] In the contemporary United States, most arbitrations take place pursuant to collective bargaining agreements or contracts between businesses, and their awards are enforced by courts, in some cases in order to employ a decision-maker with more expertize in a specialized field than the average judge. Arbitration was also important, however, in the relatively simple preindustrial society of colonial America. As that society grew more complex and commercialized, the courts usurped the function of arbitration and all but banned it.[557] Now if any aspect of colonial history is worth looking into from an anarchist perspective, it’s arbitration, which was correctly seen by the state’s judges as a voluntaristic alternative to the state, and dealt with accordingly. But Murray Bookchin has never looked because of his myopic preoccupation with town meetings.
Adjudication is the disputing procedure unique to the state. In adjudication, third party intervention is coercive, and the decision-maker resolves the dispute by the application of impersonal rules of law, without regard to the relationship, if any, between the parties or anything else deemed “irrelevant” to just the one dispute itself. Where a mediator ideally knows the disputants, or at least is intimately familiar with their culture (which is his own), personal knowledge of a party now disqualifies a judge from resolving a dispute. Because of the heterogeneity of modern society, with its divisions by race, gender, class and creed, the judge is likely to be separated from some parties by these criteria, and he is further removed from their social reality by his professional training. The applicable rules are abstract and impersonal. The proceeding is indeed, as it is called, “adversarial,” it is itself a conflict about a conflict, which does not make for conciliation. Ideally, and usually, the result is a dichotomous decision, with a winner and a loser: every gray area in the evidence has been resolved into black or white. Psychological effects of either the process or the outcome, especially for the loser, are disregarded. But what has to be grasped as the essence of adjudication is that it is the imposition of law by coercion. Not surprisingly, a cross-cultural survey found specialized institutions of coercion in 23 of 27 societies which had adjudication.[558]
Adjudication is where law and coercion intersect and complete each other. It is inimical to anarchy,[559] which is why law singles out anarchists for oppression (only anarchists among all radicals cannot enter the United States), and why courts have so often vented their special fury on Parsons, Lingg, Berkman, the Abrams defendants, Sacco and Vanzetti, Kaczynski, and many more. Because an anarchist society is a human-scale society, its people will know one another well enough so that any dispute is understood to involve relationships which will often be more important than the subject in dispute. Those relationships will usually be multiplex, because there will be no sharply differentiated roles like those which constitute a complex modern state society. Thus negotiation, mediation and occasionally avoidance would be how disputes are resolved — and not, for instance, by voting, as the Director Emeritus would have it. Conceivably arbitration might be used where the disputants are relatively unfamiliar with each other, such as a dispute between communities, or perhaps if it’s a technical matter. But — no courts, no judges, no jurors, no police, no jails, no gallows — no legal system whatsoever, and no institutionalized coercion. Bookchin may not know it, or he may just maintain a prudent silence for a change, but by espousing law, he espouses adjudication and disclaims anarchism.
The ex-Director’s nomophilia caught me by surprise. This revolutionary anarchist shares Sergeant Joe Friday’s faith in the law. The policeman is your friend — potentially, which for Bookchin is always better than the real thing. Granted, in real life the cops kick your ass, but that is merely adventitious, contingent, fortuitous and secondary. I don’t know in what capacity I was more incredulous: as an anarchist or as a lawyer. It does not occur to Bookchin that a written law is necessarily more accessible to a ruling elite, which is literate or employs the literate in its service, than it is to the illiterate masses. More accessible, and more manipulable. You can forge a document, like the Donation of Constantine, but you can’t forge a custom. As Stanley Diamond writes, “law is not definite and certain while custom is vague and uncertain. Rather, the converse holds. Customary rules must be clearly known; they are not sanctioned by organized political force; hence serious disputes about the nature of custom would destroy the integrity of society. But law may always be invented ...”[560]
Law may always be invented. And it may always be repealed. What’s more, it may always be interpreted, which comes to much the same thing. In the words of John Chipman Gray: “It is not as speedy or as simple a process to interpret a statute out of existence as to repeal it, but with time and patient skill it can often be done.”[561] After a generation, Draco’s code was superseded by Solon’s, and Plutarch has this to say about that: “Besides, it is said that he was obscure and ambiguous in the wording of his laws, on purpose to increase the honor of his courts; for since their differences could not be adjusted by the letter, they would have to bring all their causes to the judges, who thus were in a manner masters of the laws.”[562] For a thousand years, the Twelve Tables were nominally the basis of Roman law, but long before then, they’d been interpreted almost out of existence.[563] And look at how the Torah was swamped by the Talmud.
In U.S. constitutional law, the Equal Protection Clause of the Fourteenth Amendment was for many decades interpreted almost out of existence, then interpreted back into efficacy as a restraint — a judicial restraint, not a popular restraint — on legislative power.[564] Written law is more an opportunity for expert mystification than a guide or protection for the citizenry. The Fourth Amendment to the Constitution, for instance — dealing with warrants and with search and seizure — is a single sentence of 54 words. A treatise on the law of search and seizure is four volumes long.[565] If you want to know your Fourth Amendment rights, you are better off ignoring the words of the Fourth Amendment and navigating the treatise, if you can. But unless you’re a lawyer, you probably can’t.
The published availability of the vast mass of American statutory, regulatory and case law makes a mockery of the Director’s childish faith in the liberatory power of the Logo, the Word revealed. There are just too damned many words. Every San forager knows all the rules of his society. No North American or European, not even the most learned lawyer, knows one-tenth of one percent of the rules of his society. Caligula, one of the more over-the-top degenerate Roman emperors, was criticized for enforcing new tax laws without previously publicizing them: “At last he acceded to the urgent popular demand, by posting the regulations up, but in an awkwardly cramped spot and written so small that no one could take a copy.”[566] For all practical purposes, this is the situation of the ordinary modern citizen with respect to the law. The lawyer is not much better off. In the words of an unusually candid Federal judge: “Any competent lawyer, during any rainy Sunday afternoon, could prepare a list of hundreds of comparatively simple legal questions to which any other equally competent lawyer would scarcely venture to give unequivocal answers.”[567] Speaking professionally, I agree.
So what is there to the ex-Director’s supposition that written tradition is more reliable, more tamper-proof, than oral tradition — as to law or anything else? Bookchin inconsistently denounces oral tradition as rigid and frozen and at the same time as manipulable by self-serving elites. Those who have compared oral and written traditions haven’t identified any major difference in their reliability as historical sources. Both forms of transmission are subject to the influences of “selectivity” (what is interesting enough to preserve) and “interpretation” (the meaning of what was preserved). Sometimes the written record can be refuted by the oral, and sometimes the other way around; often they agree.[568]
If anything, it may be better for the cause of liberty that written law fails to fix forever the meaning of the law as it was understood at the time by those who promulgated it. In the Anglo-American legal tradition, for instance, Magna Carta, the Great Charter of 1215, is revered as the fountainhead of liberty under law. If so, it is not because of its specific provisions. Nearly all of them address the private grievances of certain barons against the reigning king or else deal with obsolete aspects of feudalism. Only three of its 64 chapters remain in some version on the English statute books.[569] The Charter is historically important as myth — the “mythopoesis” the ex-Director despises — because of the ways jurists later misinterpreted it and ordinary people misunderstood it.[570]
Bookchin calls for a return to left anarchist orthodoxy, but his tribute to legalism contradicts a basic tenet of classical anarchism, the outright rejection of written law. No doubt anarchists like Alexander Berkman,[571] for whom law is merely a support for capitalism, are simplistic, but at least they are not utterly wrong. Kropotkin wrote that “the first duty of the revolution will be to make a bonfire of all existing laws as it will of all titles to property.”[572] Proudhon agreed with Bookchin that law is a limit on government, but he still insisted on doing away with “the reign of law.”[573] Bakunin wrote: “We reject all legislation, all authority, and all privileged, licensed, official, and legal influence, even though arising from universal suffrage, convinced that it can turn only to the advantage of a dominant minority of exploiters against the interests of the immense majority in subjection to them.”[574] Even the orthodox anarchist Luigi Galleani, himself a lawyer, was of this opinion.[575] Similar statements could easily be multiplied.
Bookchin is not taking the position, as did Bakunin, that law, like the state, was once a civilizing influence, but one we have outgrown. Law is a permanent part of the ex-anarchist ex-Director’s utopia: “In a libertarian municipalist society it would be necessary to fully explicate, on a rational basis, the rights and duties of people, the laws or nomoi of the society, and their modes of self-management. And these nomoi would derive from a rational constitution that the people who live under it would draw up.”[576] If there is as yet not much in the way of a distinctive anarchist critique of law, it is probably because most anarchists take it for granted that the abolition of the state involves the abolition of law. State and law imply each other.[577] William Godwin is one anarchist who said so: “law is merely relative to the exercise of political force, and must perish when the necessity for that force ceases, if the influence of truth do[es] not still sooner extirpate it from the practice of mankind.”[578] (And yet Godwin ventures some shrewd criticisms of law that go beyond its function of defending property.[579])
Unanimity about the goal of abolishing law does not make it obvious how anarchists are to pursue that goal, or even how to conduct their lives, in a law-ridden world. It is a topic on which their abstract armchair edicts, as several of them demonstrated during the Jim Hogshire affair, tend to be more than usually foolish.[580] “If I am weak, I have only weak means,” says Stirner, “which yet are good enough for a considerable part of the world... I get around the laws of a people, until I have gathered strength to overthrow them.”[581] To the thinking anarchist, this much, in the words of Thoreau, is clear: “I quietly declare war with the state, after my fashion, though I still make what use and get what advantage of her I can, as is usual in such cases.”[582] Regardless, the antinomian goal is clear, except to the Director Emeritus. His goal is the city-state, not anarchy, which will express its sovereignty through law. But its law will not, as he claims, limit power, because the self-governing polis acknowledges no limits on its self-realization through the practice of politics.
From : TheAnarchistLibrary.org.
Chronology :
November 30, 2009 : Chapter 10 -- Publication.
April 18, 2020 : Chapter 10 -- Added.
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