Anarchism and Obedience to Law: On the Problem of Objectivity

“The liberty of man consists solely in this, that he obeys the laws of nature because he has himself recognized them as such, and not because they have been imposed upon him externally by any foreign will whatsoever, human or divine, collective or individual.” (Mikhail Bakunin – Dieu et L’État)

In the course of this piece I will be discussing with you some of the general principles of anarchist and statist theory, my hope being that, when all is said and done, you will be able to, without any great understanding of deep legal philosophy, come to your own conclusion about the never-ending dispute between individual liberty and state authority. As to why this is such an important topic for discussion in our age is worth some consideration as well. Western politics is now often characterized and punctuated by distrust and the chastisement of our political leaders. In the Middle East, systems of authoritarian tyranny are being questioned for the first time and liberal philosophy is trying to find its roots. We might conceivably see the same happen in the Orient in the near future. The debate of anarchism versus statism has been diffused throughout our world, and it permeates not just politics but also, and perhaps most significantly, the treatment of the economic market. During the last global financial crisis in the 1930s, the doctrines of Friedrich Hayek and John Maynard Keynes were brought to the forefront of the debate on state involvement in economics, the former an advocate of entirely free markets, and the latter a believer in state intervention when circumstances called for it. They were a political anarchist and statist respectively, and their theories are just about ready to be called on again in the current age of economic woe. So where should your preference lie?

Mikhail Bakunin’s political beliefs rejected governing systems of every name and shape, and every form of external authority, whether emanating from the will of a living sovereign or from a deity. The quote given above comes from his seminal work Dieu et lEtat[1], which many consider to be the earliest text to advocate an anarchist position towards the state. Bakunin contends that the anarchist approach to law[2] simply reflects the position of natural law[3], that it should be determined by individual reason, and that therefore it should be universal – the law is revealed ‘internally’[4]. Positivists and statists, who would argue that the law must emanate from positions of authority for the sake of peace in society, logically reject Bakunin’s praise of individual, natural reason as the determining factor of what is law.

These two polarized theories are critically important, as they inform the question and answers to one of jurisprudence and sociology’s fundamental questions – why should we obey the law? Before we go on to consider this relationship, we ought first consider a connected question – why do we obey the law? This in itself is much more simple to answer. The point boils down to two ways of thinking: hypothetical rationality and categorical rationality.

Under ‘hypothetical rationale’, one would say that we obey the law to avoid those sanctions that would be imposed upon us in the event of acting illegally. Under ‘categorical rationale’, individuals are said to obey the law quite simply because you should – the law is the law, therefore it is to be followed[5]. This is an explanation given in broad brushstrokes, and we do not have the time to wade deeper into the subject. But it nevertheless helpfully informs our principal concern of why one should or should not obey the law.

Prima facie, one can see that the principles of categorical rationality can be found in the essence of Bakunin’s theory. While anarchist thinking makes no room for codified statutes or state structures, it does vindicate respect for internally inferred laws and the results of human reason. Natural lawyers after all do not listen to their reason because it spares them risk of sanction; reason is followed because it is righteous. Conversely, statism can see itself reflected in hypothetical rationality and its understanding of law and the penal system as restitutive and probationary instruments. This schism in thought is apparent throughout all jurisprudential arguments about obedience to law. The debate ends in the clash of two great and foundational philosophical sects, internalism and externalism.

The former refers to the belief that an explanation can be given of a subject by pointing to things that are internal to the person that is considering them. Conversely, externalism holds that it is things about the world that motivate us, justify our beliefs, and determine meaning. The law, and our desire to answer to it, can arise either internally as a product of reason and ‘intrinsic motivation’ or externally as an imposition and social installations.

So, returning to our original question, why do we obey, or indeed disobey, the law? An anarchist would say that enacted law should not be obeyed because it limits personal freedom, of which any restriction is wholly unjust[6]. A statist would argue in favour of centralized control over all social affairs as a necessary step for achieving peace between ‘warring’ individuals[7]. This is a simple enough process when the law is morally acceptable, but what happens in the circumstance where you disagree with a law on an ethical level? Anarchists again believe that the law need not be obeyed; they reject any notion of moral obligations to the law. But statists, taking a positivist view of the law, must always obey for as long as the law still protects personal liberties without infringing the rights of others[8] regardless of any moral objections; that is the price of freedom. The debate is never-ending, and always engaged with new perspectives. There is no definitive position. In light of this, let us turn back to Mikhail Bakunin and his breed of liberal anarchism, so that I might give my position.

At its zenith, an anarchist society is a social Utopia, and unfortunately for some political ‘blue-sky thinkers’, it falls at the very first hurdle. ‘Utopia’ in a colloquial sense can be defined as an imagined place in which everything is perfect – ‘good place’. But the word itself finds its roots in the Greek words οὐ and τόπος, which together mean ‘no place.’ Utopia is an unreachable ideal, for those reasons expressed by Thomas Hobbes in his Leviathan; humans are inherently competitive and militaristic in their nature. Conflicts between persons caused by divergences in reason make governing systems and regulated laws necessary elements of amiable society. Man does not obey the law because he has himself recognized them; this is to commit a human fallacy.

The law is a fabrication of both the state and society, though this does not make them external, and this is where the difference between enacted law (lex), and the Law (ius) becomes so important. Of course the law is enforced externally by the penal system, but it can be borne out of internal forces, through representation of individuals’ will and reason in the state. As Robert Paul Wolff wrote, authority resides in persons; they possess it if indeed they do at all by virtue of who they are[9].” I will not deny that authority resides in persons, but where anarchists believe that such authority can only be conveyed in a wholly free and stateless society, I would argue that the authority and freedom of individuals is expressed precisely in the state and in enacted laws. The law seeks to protect individual liberties of all people equally, which must necessarily include some limitations upon potentially damaging actions[10]. Obedience to law, even to those laws that appear immoral to some, arises internally, and is granted extra-personal power on the grounds that while we may be able to use our reason to discern natural laws, external bodies are needed to enforce fundamental rules for the benefit of society.

Julian Frazer

King’s College London 2013

[1] Mikhail Bakunin, Dieu et L’État (1882, published by Carlo Cafiero and Élisée Reclus)

[2] I should stress that during the course of this essay, when I use the term ‘law’, I am referring to enacted law, or state law that is ‘lex’ and not law in a philosophical sense, as in ‘ius’. The former is our primary concern, though we will consider the second at a later stage.

[3] Though this point is contested by modern anarchist theorists, who argue that anarchist law would have additional elements, which would naturally bypass natural law’s historic relationship with God, as in Thomas Aquinas’ writing, (esp. Summa Theologica, 1265-74)

[4] Again, this is a complicated issue, since it points out a fallacy of natural law, and indeed all absolutist moral theories. If natural law were to be universal, then all people would have to come to the same moral conclusions. This is impossible, as all people are subjectively informed of the bases of right and wrong. Natural law sits on the unsteady foundation that we are all the same. The point seems so obvious that it sounds silly that I should have to write it here, but it comes up unceasingly.

[5] Some have argued that an action taken in light of hypothetical rationality can become rational categorically in the event that it done so often that the line between fear of sanctions and ‘reverence’ for the law becomes blurred. This reflects Aristotelian virtue theory, which states that one can become virtuous by doing virtuous things, rather than starting from the position that one only commits virtuous acts because one is virtuous.

[6] We should not confuse anarchists here with legal nihilists. While both may reject enacted law and state supervision, only nihilists will reject all legal and moral principles. Philosophical anarchists still prescribe to a body of norms regarding behavior and decision making, as long as they do not infringe an individual’s liberty, while still protecting the hypothetical anarchist society.

[7] As expressed by Thomas Hobbes in his magnum opus, Leviathan or The Matter, Forme and Power of a Common Wealth Ecclesiasticall and Civil, (published 1651)

[8] It is at this stage that statism may divide between those advocating extensive and those advocating little state intervention, the clash between, at the extremes, fascism and libertarianism, and totalitarianism and individualism.

[9] R. P. Wolff, In Defense of Anarchism, (University of California Press) page 6

[10] This general philosophical-political position is described at its very best in Jean-Jacques Rousseau’s The Social Contract (1762), while a purely metaphysical position is discussed at length in the work of Georg Wilhelm Friedrich Hegel in his assessments of freedom, (The Phenomenology of Spirit, 1807, and The Science of Logic, 1812-1817)

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