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(en) The New Formulation Vol.2, #2 - Breaking the Law: Anti-authoritarian Visions of Crime and Justice - book Review by Randall Amster

From Worker <a-infos-en@ainfos.ca>
Date Mon, 13 Sep 2004 09:00:02 +0200 (CEST)


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By now it is obvious to almost everyone that current “criminal justice”
practices are at best ineffective and at worst brutal. Critics on many fronts have
attacked the prison-industrial complex, with its “three-strikes” laws and
for-profit bureaucratic schemes. Even the mainstream media have reported on
the United States’ record rates of incarceration, the privatization of the
prison industry, corporate use of convict labor, prison overcrowding, and the
increasing application of the death penalty. There is now broad outrage at this
systematized insanity masking as “law and order” and many have begun
to search for alternative methods of understanding concepts such as crime,
punishment, and justice. There is cause for hope in this, but also concern, given
that so much still needs to be done and that the current crisis continues to
worsen dramatically.

In exploring other possibilities, it is instructive at the outset to consider the
radical notion that the present law-and-order paradigm ought to be abandoned
entirely, as many in anti-racist, anti-authoritarian, and anarchist circles have
increasingly argued. Indeed, it is often taken as axiomatic in the anarchist
lexicon that “laws” (as they have come to be understood in modern
society) must be wholly rejected. While this is a view that I have echoed and
endorsed in previous works,(1) it is nonetheless crucial to understand the full
implications of such a position. After all, while there is a certain seductive
quality to the belief that, once freed from the shackles of law, human
communities will spontaneously develop egalitarian and inclusive social
practices, it is still often the case 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.”(2) To
merely accept the abolition of law as an anti-authoritarian fait accompli, then, is
to oversimplify the issue and risk speaking a language that is counter-intuitive to
many that we would hope to reach with our words and visions.

Luckily, we have lights on the horizon such as Dennis Sullivan and Larry Tifft to
help us navigate through such conundrums. In a series of collaborations
spanning nearly twenty-five years, Sullivan and Tifft have consistently advanced
a positive and organic vision of social processes that exist beyond the strictures
of law, authority, and the state. Serving quite literally as “bookends” to
their body of shared scholarship, The Struggle to be Human (with sections
including “Law: An Instrument of Authority” and “The Wish to be
Free: Commitment to Eden”) and Restorative Justice (with chapters entitled
“The Violence of Power” and “A Radical Perspective on Crime and
Social Harm”) evoke the creative powers of human intellect and
imagination, and serve as much-needed benchmarks for any anti-authoritarian
project that seeks to critically interpret and deconstruct prevailing myths about
law, the state, and the criminal justice system. And although their formulations
have some shortcomings and moments in need of qualification, we ought to be
eminently thankful for these works of sanity in a world that has seemingly gone
mad with bureaucratic regulation and punitive predilections.

The starting point for their mutual exegesis is aptly stated in the introduction to
The Struggle to be Human, namely that “we can never find meaning or
freedom in living if we consider life processes from the floundering orbits of law,
the state or corporate economy, but only through lifting ourselves to the warmth
of experience and human community.”(3) Amplifying their point and
tapping into longstanding anti-authoritarian and anarchist tenets, Sullivan and
Tifft continue their missive: “All law, authority and institutions of state are
based on force, violence and the fear of punishment.(4) . . . The function of law
historically has been to deny some people the right to their personal journey, to
detain us, by demanding that we resolve our contradictions within the confines
of law and the state. . . . Law prohibits us from freeing ourselves, experiencing
ourselves in the struggle to be human.(5) . . . To accept law, therefore is to
accept a reality in which there is imposition of person upon person. It is to
accept the reality of enslavement, the plantation of the welfare state. It is to
accept the division of the world into parts that translate into subject and objects,
and the mechanisms to manage this hierarchical division, denying autonomy to
everyone.”(6)

The above passage is notable on a number of levels. First, it represents the
authors’ attempt to expand the criminological paradigm beyond its
preordained walls of “law and order” rhetoric—no small feat at a time
when few had the temerity to raise such concerns. Second, these sentiments
serve to locate the authors specifically within the anarchist tradition of
scholarship and praxis, going back at least to Kropotkin’s famous insight
that, “We are so perverted by an education which from infancy seeks to kill
in us the spirit of revolt, and to develop that of submission to authority; we are so
perverted by this existence under the ferrule of a law, which regulates every
event in life—our birth, our education, our development, our love, our
friendship—that, if this state of things continues, we shall lose all initiative, all
habit of thinking for ourselves.”(7) Finally, the above passage also indicates
a tendency of the authors to border on the hyperbolic—a fact that is
somewhat understandable when attempting to arouse passions for revolutionary
change, but unnecessary for scholars whose powers of persuasion ultimately
need not rely upon the vicissitudes of polemic.

Of course, simply pointing out the hierarchical and oppressive nature of
“law” is well and good as an initial endeavor, but it does beg the question
of how human communities will sustain and regulate themselves in the absence
of law. On this point, the early work of Sullivan and Tifft alludes to themes that
will be fleshed out in more detail in the later writings, calling for communities
grounded in “mutual aid, cooperation, spontaneity and peace,”(8) as
well as “self-reciprocity,” “equity,” and “love.”(9) Taken
together, these strands serve to trace the boundaries of the authors’ vision of
“a moral order in accordance with which people, from their inner
convictions, act towards others as they desire that others should act toward
them. It is a social order in which each is able to live and act according to his or
her own judgment.”(10) Again, such themes comport with the anarchist
tradition, from Kropotkin’s Law and Authority (“No more laws! No
more judges! Liberty, equality, and practical human sympathy are the only
effectual barriers we can oppose to the anti-social instincts of certain among
us.”),(11) to Colin Ward’s Anarchy in Action (“We must eliminate
all the social causes of crime, we must develop in man brotherly feelings, and
mutual respect; we must seek useful alternatives to crime.”).(12)

At this point, however, the thesis begins to fray a bit around the edges, mostly
due to difficulties in enunciating precisely what such “alternatives to
crime” will look like in actual practice and application. Certainly, such
difficulties are not unique to Sullivan and Tifft’s work, but rather have been
a central challenge for anarchist writers from Godwin to the present—and
while they do cite positive examples of reconciliation in their later work
Restorative Justice (such as a shooting victim and his assailant meeting eleven
years after the incident and achieving a modicum of understanding and
forgiveness), it is still the case that specific details as to how the current crisis
can be transformed and how alternative systems would deal with acts such as
theft, assault, rape, or murder are sorely lacking here. This is not to say that
these issues are not raised at all, but rather that they are mostly addressed in
theoretical terms and not by way of concrete examples or working models.

Specifically, the theoretical question essentially becomes: “Can a society
exist in which nothing limits the individual, where all regulation is an affair of
the individual and not of the collective will?”(13) Answering this question,
the Russian anarchist Alexei Borovoi states what some have taken as a sine qua
non of anarchist thought (although, as we shall see, one that is not without
controversy): “There has not been a single society, even prior to the birth of
the State, that has not made certain demands upon its members. While specific
regulations may vary from society to society, some form of regulation is always
necessary. Aside from legal codes, there exist in all societies what can be called
codes of convention. The force of these codes is perhaps greater than the force
of laws. The fundamental difference is that these codes are based on a collective
accord.”(14) As Giovanni Baldelli likewise notes in Social Anarchism,
“No society is ethical in which each member does not naturally absorb its
governing principles of right and wrong. Written law represents a generally
unsuccessful substitute for a universal understanding of ethical
principles.”(15)

Here we begin to get a sense of the ambivalence anarchists have toward
concepts such as “regulation” and “social control.” Are we to
grant such primacy to the individual that no form of collective intervention is
acceptable? If we do allow collective intervention, how do we keep it from
becoming authoritarian and destructive of individual liberty? In short, how do we
avoid the pitfalls of law and the state while preserving the integrity of our
communities? Struggling with such queries, the early work of Sullivan and Tifft
reflects such ambivalence and even contradiction, initially asserting that,
“Social custom, religious dogma and moral codes are yet more subtle forms
of domination which, like education and official propaganda, are harnessed by
the state to perform as ancillary functions of law.”(16) Later in the same
work, however, the authors endorse a view of communities that are regulated
not by laws but by “mutual agreements” and by “a sum of social
customs and habits.”(17) Expanding on this ambivalence within anarchism,
Colin Ward similarly endorses “values and norms” as substitutes for law,
whereas anarcho-anthropologist Harold Barclay cautions against “the
confusion of the term law with norm or custom in such a way as to claim that
anarchist societies have law.”(18)

Specifically, Barclay is objecting to the work of writers such as Thom Holterman
and Henc van Maarseveen, who published an influential anthology titled Law
and Anarchism.(19) In their respective chapters, Holterman observes that
anarchists often deny that their moral duties to other community members have
anything to do with the law, asking “Why not recognize that it is law, but
law which comes from society and not law which is imposed by the
state?”(20)—whereas van Maarseveen claims that “anarchists merely
reject a particular sort of law; law as such is not rejected. . . . The anarchist
political order implies the existence of a system of legal rules.”(21)
Criticizing this work as mainly an “attempt to reconcile anarchism with legal
theory . . . primarily by confusing and obfuscating terms,” Barclay points out
that it is imperative to recognize that “there are on the one hand rules which
are imposed by the state through its government—in other words,
laws—and there are other kinds of rules not imposed by the state. . . . An
anarchist society is clearly different from a state society in that in it there would
be no penal sanctions—no law.”(22) As Borovoi likewise observes,
“anarchism admits social norms. The norms of a free society resemble
neither in spirit nor in form the laws of contemporary society. These norms will
not seek the detachment of the individual from the collectivity. Anarchist norms
will not be a torrent of decrees from a higher authority.”(23)

To their credit, Sullivan and Tifft do not fall into the trap of equating anarchist
norms with “laws,” but instead maintain a sharply critical stance toward
all state-bound modes of criminality and sanctioning practices. In fact, certain
passages in The Struggle to be Human presage the more detailed explications of
their later work through references to concepts such as “face-to-face
justice,” “the airing of conflicts,” and “the reality of returning to
work and living with the other person,”(24) embodying what Jeff Ferrell has
built upon as “an anarchist criminology which argued for replacing
state/legal ‘justice’ with a fluid, face-to-face form of justice grounded in
emerging human needs.”(25) Indeed, Ferrell nicely anticipates the linguistic
direction that Sullivan and Tifft will take, since by the time we arrive at the
publication of Restorative Justice, much of the overt language of anarchist
theory and scholarship has been replaced by concepts such as “apology,
forgiveness, and reconciliation,”(26) as well as the frequent invocation of
notions of “restorative communities” and “needs-based justice.”
While there is nothing especially problematic about this subtle yet noticeable
shift from anarchist to restorative terminology, it does signal certain changes in
form and substance that mark points of distinction—and at times even
tension—between the authors’ earlier and later works.

To be sure, there is a palpable sense of caution and even respectability in the
language of Restorative Justice that is largely lacking in The Struggle to be
Human. This does not mean, however, that the nature of the collaborative
project of these “journeymen provocateurs”(27) is any less radical, but
perhaps indicates a more measured perspective on the difficulties of maintaining
a lifetime of opposition to state-bound practices and remaining faithful to a
vision that is contraindicated in much of the society that we are constrained to
inhabit. In other words, where their younger selves had no compunction against
resorts to hyperbolic language and straightforward calls for revolutionary praxis,
the latter versions appear more concerned with developing the nature of the
vision more keenly before issuing such plaintive calls. But again, this is not to
imply that the fervor has waned, only perhaps that it has sharpened its focus in
terms of what it has stood against and as to what it will stand for. Indeed, it
might fairly be said that Sullivan and Tifft comprise—along with
“peacemaking criminologists” such as Hal Pepinsky(28)—the
“anarchist wing” of an emerging social movement called “restorative
justice” that seeks to move beyond punitive models in favor of processes of
reintegration and reconciliation. In fact, this might be considered an important
evolution of both the anarchist and criminal justice dialogues, in the sense of
extending the historical arc of Godwin, Kropotkin, Ward, et al., but also by
charting new paths with the introduction of concepts such as reconciliation and
restoration as fundaments of anti-authoritarian praxis.

The essence of Restorative Justice is that “we must move to create personal
relationships, social arrangements, and communities that promote patterns of
interaction that are non-hierarchical, non-power-based.”(29) The central
notion is that “justice-done restoratively requires that participants
continually remain open to each other’s concerns, ideas, needs, feelings,
desires, pain and suffering, so that each can see the other not as a resource to be
used or exploited or as an object to be derided or scorned, but as he or she is,
similar to oneself, a person engaged in an unending struggle to become human,
with dignity. . . . When such collaboration takes place, we experience the
beginnings of a restorative community, of a political economy of peace and
democracy.”(30) Here, it might well be objected that Sullivan and Tifft
appear naïve, calling essentially for a world in which people are simply
supposed to be nice to each other. But this critique misses the larger point that
for Sullivan and Tifft it has always been the case that “spirituality must
precede social change . . . a spiritual awakening is necessary . . . the social
revolution must come from within,”(31) indicating a rationale for these
earnest appeals to the better instincts and higher ideals of human consciousness.

Moreover, despite linguistic overtures to concepts such as “democracy,”
it is clear that this is still essentially an anarchist project premised upon
“solidarity, compassion, cooperation, friendliness, unselfishness, and
peacefulness,”(32) evidenced by the authors’ express commitment to
examine “all forms of violence and power, all ideologies, perspectives,
practices, and social arrangements that in any way force others into positions of
lesser being, into deficit status, that disallow their needs to be taken into
account.”(33) Thus, while the explicit use of the term anarchism has been
omitted, implicit references to anarchist theory and practice are rife throughout
Restorative Justice. As one might expect, Kropotkin in particular is given due
consideration for his penchant for “moral development” and “equal
well-being.”(34) Harold Barclay’s work also figures into the argument:
“Anthropologists of every ilk have shown us multitudinous examples of
societies that have neither laws nor a state but which are every bit concerned
about justice, reparation, and human well-being.”(35) Throughout the text,
it is made clear that any such undertaking—toward restorative justice and
away from state-bound “law and order” motifs—must also include
“calling the larger set of social arrangement into question.”(36) In other
words, the restorative justice vision is not simply one of opting out and creating
model communities of harmony and peace, but rather taking on the
fundamental bases of hierarchy and structural violence that permeate modern
society. In this sense, the project has not lost any of its radicalism but instead
seems to have begun to come to terms with the sheer magnitude of its aim.

So let me be clear that the principles espoused by the later Sullivan and Tifft do
not reflect an accommodation or appeasement. In their collaborative and
individual writings there is a pervasive sense that one who takes their teachings
to heart will be called upon to stand against the state, to be an outsider vis-vis
mainstream society, to be viewed as a lawbreaker and even a heretic. Here,
Sullivan and Tifft are in excellent company, including the legendary Henry
David Thoreau, who stated in Civil Disobedience that: “Law never made
men a whit more just; and, by means of their respect for it, even the
well-disposed are daily made the agents of injustice. . . . [B]ut if it is of such a
nature that it requires you to be the agent of injustice to another, then I say,
break the law.” As Robert Paul Wolff inquires in his tome In Defense of
Anarchism: “But on what grounds can it be claimed that I have an obligation
to obey the laws which are made in my name by a man who has no obligation to
vote as I would, who indeed has no effective way of discovering what my
preferences are on the measure before him? . . . . [T]he citizens have created a
legitimate state at the price of their own autonomy! They have bound
themselves to obey laws which they do not will, and indeed even laws which
they vigorously reject. Insofar as democracy originates in such a promise, it is no
more than voluntary slavery.”(37)

Sullivan and Tifft are obviously not unaware of such eventualities, having noted
in The Struggle to be Human that “Laws are so numerous that no one could
possibly not break them. There are laws that individuals choose to break and
laws which individuals are forced to break. . . . If all laws were strictly enforced,
everybody would be criminalized.”(38) As things stand today, we may not be
far from such a condition, with modern society coming to represent what the
authors have referred to in Restorative Justice as a “panopticon
gulag.”(39) Indeed, this makes the stated aim of people such as Dennis
Sullivan and Larry Tifft all the more urgent, namely “to create a society
where it is easier for people to be good, a society in which we can better enjoy
each other’s company. To create this kind of society is our daily prayer and
the reason for our undertaking.”(40) All who are struggling for justice,
compassion, and dignity, will feel a kinship with these visionaries; I for one am
thankful for their example, teachings, and legacy as stalwarts in the quest to
attain just human relations. Their books ought to be read and embraced by
anyone interested in shining a light on the brutalities of today and exploring the
possibilities for realizing a brighter tomorrow.

Endnotes
1. See Randall Amster, “Restoring (Dis)order: Sanctions, Resolutions, and
‘Social Control’ in Anarchist Communities,” Contemporary Justice
Review 6, March 2003; “Chasing Rainbows? Utopian Pragmatics and the
Search for Anarchist Communities,” Anarchist Studies 9, March 2001.

2. Colin Ward, Anarchy in Action (New York: Harper & Row, 1974), 126.

3. Larry Tifft and Dennis Sullivan, The Struggle to be Human: Crime,
Criminology, and Anarchism (Orkney, UK: Cienfuegos Press, 1980), 3.

4. Ibid., 7.

5. Ibid., 39.

6. Ibid., 40.

7. Peter Kropotkin, “Law and Authority,” in Kropotkin’s
Revolutionary Pamphlets (New York: Vanguard Press, 1927).

8. Tifft and Sullivan, The Struggle to be Human, 47.

9. Ibid., 178.

10. Ibid., 146.

11. See note 7.

12. Colin Ward, Anarchy in Action, 131.

13. Alexei Borovoi, “Anarchism and Law,” Friends of Malatesta
(Buffalo, NY, undated pamphlet), 2.

14. Ibid., 4.

15. Giovanni Baldelli, Social Anarchism (New York: Aldine-Atherton, 1971),
150-1.

16. Tifft and Sullivan, The Struggle to be Human, 44.

17. Ibid., 72.

18. Harold Barclay, “Law and Anarchism,” in Culture and Anarchism
(London: Freedom Press, 1997), 154.

19. Thom Holterman and Henc van Maarseveen (eds.), Law and Anarchism
(Montreal: Black Rose Books, 1984).

20. Ibid., 27.

21. Ibid., 66.

22. Harold Barclay, “Law and Anarchism,” 153-5.

23. Borovoi, “Anarchism and Law,” 8.

24. Tifft and Sullivan, The Struggle to be Human, 74.

25. Jeff Ferrell, “Against the Law: Anarchist Criminology,” Social
Anarchism 25, 1998.

26. Dennis Sullivan and Larry Tifft, Restorative Justice: Healing the
Foundations of Our Everyday Lives (Monsey, NY: Willow Tree Press, 2001),
viii.

27. Ibid., xxvi.

28. See, e.g., Harold E. Pepinsky, “Communist Anarchism as an
Alternative to the Rule of Criminal Law,” Contemporary Crises 2, 1978;
Harold E. Pepinsky & Richard Quinney (eds.), Criminology as Peacemaking
(Bloomington, IN: Indiana University Press, 1991).

29. Sullivan & Tifft, Restorative Justice, 160.

30. Ibid., 119.

31. Tifft and Sullivan, The Struggle to be Human, 147-51.

32. Sullivan and Tifft, Restorative Justice, 54.

33. Ibid., 129.

34. Ibid., 113, 119.

35. Ibid., 143 (quoting Harold Barclay, People Without Government: An
Anthropology of Anarchism (London: Kahn & Averill, 1982)).

36. Ibid., 71.

37. Robert Paul Wolff, In Defense of Anarchism (New York: Harper & Row,
1970), 29, 42.

38. Tifft and Sullivan, The Struggle to be Human, 58.

39. Sullivan and Tifft, Restorative Justice, 10.

40. Ibid., 194.
================================
* [Ed. Note: an antiauthoritarian initiative of the Anarchist studies
Institute.]


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