Q: I tend to define 'law' as a rule that's enforced. I don't see much difference between the terms. As such, every group is going to have laws. Would an anarchist society, by definition, have laws?
A: Great question—this is one of my favorite topics! I think it really depends on what you mean by law, but for the standard definition, absolutely not!
First, a little etymology. The word “law” comes from the Proto-Indo-European legh, which is also the source of lay and lie, and in its oldest sense meant a specific order in which things are arranged or presented. It then meant a natural principle capturing that order, and subsequently a binding imperative commanding people to follow a certain order. It is worth noting, that, unlike the Latin lex (from a verb for an active arranging of things) or the Greek thesmos (from a verb for placing or fixing), the English word has an etymology that’s about right relationships relative to an observer. Law, for Early Modern English speakers, is a dictation of how elements in a society are ordered with respect to one another. The very concept of codifying such a thing, beyond the moist and intertwining reach of every person in every moving moment, seems more obviously harmful than other definitions, and I’m glad I’m writing in English, as I think starting with the Anglo-Saxon etymological law notion specifically can help illustrate the problems with legal norms in general.
So what is law, really, and how does it proceed from this etymology? Law is a set of expectations for how people will remain ordered relative to one another in the sense that it imposes punitive consequences on ways of relating between people that deviate from accepted ways of relating, and attempts to specify exhaustive lists of wrong behaviors.
The problem here is that behaviors that are and aren’t harmful cannot be fitted to any universal standard, due to the immense variance in human experience. No fixed set of orders, layouts, legh-outs, laws, can ever be humanizing for all people. People can deeply violate one another in totally legal ways, and some ways of existing—like certain kinds of public stim, border crossings, DIY transhumanism and gender affirming care, abortion—continue to be criminalized in many places. This is not merely a matter of having the wrong laws in place—for every behavior, there is someone who craves it in a harm-reducible, loving, meaningful way, and criminalizing behaviors will always lead to immense violation, even exempting things like economic pressures leading people to act illegally, etc., which plague our current system.
But perhaps I have not been truly fair—most of this comes from punitive justice and its loveless proclamation that we should deny joy and love to people in recompense for pain, or from capitalism, or cis male domination, or colonization, right? Well, historically and causally yes, but the intellectual issues are deeper and stem from the concept of law and its inherent power imbalances, not just real power imbalances. Thus, I’ll spend the rest of the little corner of virtual newspaper charitably allocated to me critiquing an idealized form of law and explaining how it’s unliveable for so many communities.
In the effort to paint the best possible portrait of the opposing view, I’m going to posit a legal code that lacks punitive removal of joy and imposition of pain in response to harms, because these things are deeply sad to me. I’ll presume the legal code is theoretically drafted by representatives from most lived experiences, that capitalism and armed policing and extractive practices no longer wield power. For my legal code, I’ll borrow from the one advocated by a friend and radical-liberal philosophical adversary of mine to whose pen I owe my penname, simply provides material compensation to victims, strips perpetrators of various forms of institutional power, possibly forcibly separates victims and perpetrators, without disturbing the access to love, joy, or material resources of either party.
I shall endeavor to show that even such a system, so removed from our own and so carefully constructed to minimize violation, of laws and consequences is inherently both violatory and inadequate for true transformative healing.
First, consider the case where someone has caused harm in a way that’s completely invisible, and they have no frame of reference for—like inadvertently drawing water from a reservoir sacred to an autochthonous community, or causing someone sensory overwhelm, or doing damage to a prototype technology that was not clearly marked through routine handling.
Legal codes inherently require things of people in situations that are new to them, and therefore construct “reasonable” and “unreasonable” ways to handle uncertainty. Glossing over the history of the various queer panic defenses, ugly laws, and all the like, there’s simply no way for this to not be bigoted towards someone in a social outgroup. If the purpose of the proposed law system is to prevent harm, it will fail here. Is biting oneself in public in response to conflict unreasonable? It may be unavoidable for many people, or, at any rate, if it is causing harm it needs to be addressed situationally, not as a violation of a norm. For victims of violation in social outgroups this system likewise worsens things, by requiring people to prove that their violator acted “unreasonably” or that they didn’t “unreasonably” provoke something (what was she wearing is the worst example of this line of reasoning), a deeply traumatic process that relitigates harms to the victim, doesn’t help the perpetrator learn, and casts an ill-fitting objectivist framework onto a dynamic that resulted from self-repression or a lack of information.
By requiring people to hold fixed approaches to new situations, or to evade culpability, the incentives created are isolating, emotionally punitive, and sterile, and fundamentally miss the point of growth, respect for harm and vulnerability, and universal love (and mutual aid, and lesbianism, and all good things). Has anyone ever felt utterly abandoned or deceived or condescended to by efforts to avoid a lawsuit? (This has sadly become a big deal with gender affirming care backdoor bans using civil proceedings…) The legal system as a whole is just a vast instantiation of that. Explicitly “requiring” caution around a certain set of needs as a way to protect people just leads to one set of needs being prioritized over others, the process of consent becoming stilted and formalized, and those with whom someone relates being seen as adversaries to be limited in their grounds for complaint, rather than partners in preventing violation. When people become afraid of doing the “wrong thing” for fear of losing access to a social role or dynamic, they become afraid to feel and do at all. What if we let the fact that harm exists break us, and release into one anothers’ vulnerability, and CHECK IN to see if we have caused harm? And when folks harm us, defend one another and hold them accountable and ragingly care for them just because, not because any law requires it or permits it? No conflict can ever truly be remunerated as through legal “restorative justice,” and even if it could, wouldn’t that just feel like a punitive redistribution of self-sufficient individualism between people? It would to me at least.
About the losing access to a social role becoming punitive, this is another bone I have to pick with the position laid out earlier, but the difference between passively receiving care sterilely and mutually being engaged in it, and how the former can become punitive shaming, deserves its own whole essay. A critique of the Zapatista justice system and its capacity to unintentionally shatter people’s truths despite attempting to safely and lovingly care for them building on this topic is also in order.
The last issue I want to discuss is that of law—these types of required and prohibited behaviors—and how it inherently creates a violent enforcement role in society that must, necessarily, violate someone’s truth and needs, in a way which will be experienced as punitive and restraining and orderly and dysphoric or synaesthetically painful. If something is prohibited in a fixed, regimented way, that prohibition entails the enforcement of that in a fixed, regimented way—not by community defense built around existing personal relationships with loving play-fighting, but by an institution loyal to a text (civil law) or precedential tradition (common law) over human beings with needs and desires and infodumps and urges. The efforts to “prevent” and “stop” a finite act inherently deemphasize human beings and treat people as enemies for their disobedience, rather than threats for harm. It’s no secret that US police are under no obligation to protect someone who is under violent threat, only to cause pain with forced torment positions and gasses designed to make people squirm to whoever is perceived as the threat. Even removing these punitive practices that make my heart tumble black-shell-wet and my throat ache, we’d still have a problem. It’s still about restraint, which is not the same as preventing a harm, decenters victims, dehumanizes perpetrators, and, perhaps worst of all, locks people into one way of relating to get out of the situation.
What do I mean by that? Well, even some idealized non-painful restraint or whatever is still deeply violatory and unacceptable as an imposed state outside self-defense, and a law enforcer charged with a specific program of conflict resolution or accountability will restrain you just for being after doing harm. If you start reciting poetry, or tend the wounds of the person you hurt, or draw a visual proof that the determinant of AT is the determinant of A on the sidewalk, or pick a flower and give it to the law enforcer, you will still be restrained. This is dehumanizing. We dance and riot and in that unpredictable endless entropy of fire love and rage and heal.
If someone is physically defending themself by force because they are under threat, that is necessary. But a system that uses physical force on people who are “out of control” after a harm has been committed, imposes one necessary order as the only path to healing, places the interplay of hearts in the hands of mortal people in a sterile, masculinized relationship, cannot be liberatory. Anarchy is freedom from restraint and imposed order in all of its forms. An external force dictating how harm is to be resolved is restraint and imposed order. There are so many gayer options.