I build no system. I ask an end to privilege, the abolition of slavery, equality of rights, and the reign of law. Justice, nothing else; that is the alpha and omega of my argument: to others I leave the business of governing the world.
Pierre-Joseph Proudhon, What is Property?
Under the title, “Postscript on Legalism”, the CrimethInc. collective reminds us (18/06/2025), should there be a need for it, of the limits of legal activism in the face of quickening and expanding authoritarianism by the Trump administration (The Guardian, 19/06/2025).
Donald Trump and his administration employ the laws and courts wherever it suits them. Wherever laws and courts pose an obstacle to their program, they disregard those right up to the limit imposed by the current balance of power within the state. It is clear for all to see that for them, the law is simply one of many weapons—it has no power to bind them. Yet many of Trump’s opponents continue hamstring resistance by focusing on questions of legality and other niceties, failing to grasp the reality of the situation.
A cheerful anti-fascist organizer from Prague used to tell a joke that went something like this:
After the Second World War, a Czech anti-fascist and a Yugoslavian partisan met at a beach on the Adriatic.
Eventually, the inevitable question came up. “What did you do in the war?” the Czech anti-fascist asked the partisan.
“Oh, the usual stuff,” answered the partisan. “We formed underground networks, ran background checks on potential recruits, set up safe houses and clandestine print shops. Then we started sabotaging railways and telephone lines. Eventually, we worked our way up to carrying out raids to seize weapons. With those, we started retaking villages and then whole regions until finally, we ran the Nazis right out of the country.”
“All of that sounds like a great time,” answered the Czech anti-fascist. “Unfortunately, where we were, all of those things were illegal!”
Anarchist voices from the past warrant the Collective’s critical scepticism.
Laws! We know what they are, and what they are worth! Spider webs for the rich and powerful, steel chains for the weak and poor, fishing nets in the hands of the Government.
Pierre-Joseph Proudhon, The General Idea of the Revolution in the 19th Century
I believe neither in constitutions, nor in laws. Even the best of constitutions would not satisfy me. it is something else that we need: effervescence and life, a new world without laws and therefore free.
Mikhail Bakunin, I believe neither in constitutions, nor in laws: Letter to George Herwegh
Our society seems no longer able to understand that it is possible to exist otherwise than under the reign of Law, elaborated by a representative government and administered by a handful of rulers; and even when it has gone so far as to emancipate itself from the thraldom, its first care had been to reconstitute it immediately. “The Year I. of Liberty” has never lasted more than a day, for after proclaiming it men put themselves the very next morning under the yoke of Law and Authority.
Peter Kropotkin, Law and Authority
Whoever says law, says limitation; whoever says limitation, says lack of freedom. This is axiomatic.
Those who believe in the reform of the laws to improve life and who seek an increase of freedom by that means, lack logic or speak lies that they do not believe.
For a new law destroys another old law. It destroys old boundaries, but creates new boundaries. And so, laws are always a barrier to the free development of human activities, ideas and feelings.
It is, therefore, an error, widespread perhaps, but a mistake in the end, to believe that the law is the guarantee of freedom. No, it is and will always be its limitation, which is to say its negation.
Ricardo Mella, The Uselessness of the Laws
And yet the rejection of the law – in principle and/or as sphere of political practice or contestation – has historically and politically always been more nuanced, with anarchist theory often distinguishing between different types of rules (state or government laws being but an alienated and therefore oppressive expression of ethical patterns and moral-social rules) and anarchist practice understanding the law as a field of political conflict.
If we are the state, that is, if we constitute the state and all of the many social relations through which state centered capitalist societies are produced and reproduced, a simple refusal of the law in the name of rebellion cannot be set down as fundamental, but only as tactical.
In the words of Gustav Landauer:
A table can be overturned and a window can be smashed. However, those who believe that the state is also a thing or a fetish that can be overturned or smashed are sophists and believers in the Word. The state is a social relationship; a certain way of people relating to one another. It can be destroyed by creating new social relationships; i.e., by people relating to one another differently.
Weak Statesmen, Weaker People!
On this issue, we share below two short pieces of what could be called “anarchist phronesis/practical wisdom”; the first, by Errico Malatesta and the second, by Alma Melgarito.
The Duty of Resistance: Anarchists and the Law (1897)
Errico Malatesta
There are huge disparities in economic circumstances, political liberties and civic status between the proletariats of the various countries around the world. And our Italy occupies one of the lowest rungs. Few countries are as afflicted with poverty, few have a government so given to brazen prevarication or so ferociously thuggish—and none dispatches out into the world so many offspring who, being used, in their homeland, to a way of life that looks brutish to workers elsewhere, then compete with the native workforce, bringing hatred and contempt down on their own heads.
What did we do to earn such a dismal primacy?
Elsewhere, as in Italy, society is founded upon the individualistic principle of man versus man and class versus class, so there is a constant tendency in the direction of growing tyranny by the few and slavishness for the many. The institutions are essentially the same everywhere; private property and government are everywhere. So how come the consequences in Italy are even more disastrous than elsewhere?
Because in Italy people do not resist—and resistance from the people is the only boundary set upon the bullying of the bosses and rulers.
In Italy there is no resistance—and there is no resistance because the spirit of cooperation, of association is missing. The Italian reacts violently, overly so, to personal insults received from one of his peers; yet he supinely endures the boss’s arbitrariness and the constable’s bullying, because, left to his own personal devices, he feels powerless to resist the very person who can starve or imprison him and he winds up taking his punishment and becoming inured to mistreatment.
If current conditions are to be improved upon, if they are to be prevented from becoming even worse, if we are to pave the way to the future, then, first and foremost, every Italian must learn how to join forces and act collectively and look to mutual aid and solidarity for the opportunity to resist effectively, and for an appreciation of that opportunity.
And if we anarchists want to live up to the mission imposed upon us by our program, and unless we mean to remain impotent dreamers day-dreaming about an ideal without a care for bringing about the conditions that make its implementation feasible, we must strive actively and methodically to prepare, organize and inspire popular resistance in every aspect of life in which the people suffer injustice or violence; economic resistance to the bosses’ exploitation, political resistance to trespasses against liberty, moral resistance to anything that tends to ensure that the worker is looked upon and treated as some lesser breed.
That is our duty; that is our concern.
Led astray by a narrow, one-sided doctrinaire approach, anarchists have often lost interest in practical struggle and have thereby contributed to that moral collapse whereby the police today can thrash and murder citizens without provoking a backlash likely to stop them in their tracks.
Or else, they have reacted individually and paid back the boss and the constabulary in their own coin, the upshot being that, to their credit but to the detriment of the cause, they have been hauled off to prison and rendered hors de combat without having done a thing to encourage the people to resist and to fight.
Against the backdrop of a cowed people such as the people of Italy are today, any act of revolt in which the law still has might on its side, helps not so much to invite imitators, but rather to confirm the people’s superstition that authority is invincible and to the upkeep of the vague terror that is authority’s only strength.
Enough of rebellions for art’s sake. Our thoughts today need to be of winning: we need to seek out means conducive to victory. True, we must come into conflict with the law some day; but let it be whenever the likelihood is that might is no longer on the side of the law or at least that it does not easily prevail and remain unscathed.
Meanwhile, let us do today whatever we usefully can do. And since we have not yet managed to amass the strength to resist the law, let us at least resist and let us urge the people to resist within the limits of the law. Even so we already have a fair way to go.
We are opposed to legalism which consists of seeking to resolve the social question and secure emancipation by means of law; but this is not to say that we refuse to avail of whatever means we feel useful when the law has not, perchance, outlawed them and only because it has not outlawed them.
We produce a newspaper, which is a perfectly lawful thing: we are in association with one another—that too is lawful; and we seek to hold popular rallies, speak in public, demonstrate, etc., etc., all of these being lawful activities, albeit that the police, cashing in on the people’s docility and our weakness, now frequently dare to ban them.
Besides, it has never occurred to any revolutionary to stop breathing, eating or walking, etc., merely because the law was kind enough not to have banned them!
But we would do well to explain this point a little more.
The law is essentially the weapon of the privileged; it is made by them for the purpose of enshrining their power and the people need to dismantle it entirely if they means to be genuinely free.
But there are some laws that signal a people’s victory in that they rescinded earlier and more oppressive laws or set a limit on the bosses’ whims. When the people insist upon a right and do so vigorously, those in power, finding themselves with no option but to grant the people some relief, pass a law, which, whilst giving away as little as possible, and striving to make that concession as hollow as it can, is an attempt to ward off a greater danger and, unfortunately, is often successful in this.
It is a bad thing that the people should let themselves be taken in and demand a law and be appeased by that, instead of seizing for themselves the entirety of the right they demand. And it falls to us and to our party to demolish this cult of law, and encourage the people on to de facto gains that are absorbed into custom and practice and that are the only serious definitive gains. But it is even worse that the people, having extracted some concession from throwing a scare into its masters, should then blithely allow it to be snatched back, only for the same old struggles to begin all over again. And it falls to us also to see to it that the people, even as they fight on for greater gains, do not let gains already made be snatched away from them.
This is the point we are at in Italy today: all the political freedoms bought at the cost of so much bloodshed by our forefathers—freedom of the press, the right of association, the right of assembly, the inviolability of the home, the secrecy of the mail, freedom of the person—are done for, or are about to be done for, unless a strong resurgence of public opinion applies the brakes to the police’s arrogance.
It is in our interest more than anyone else’s that public opinion be roused and resistance organized, both because we are more under threat and targeted than others and chiefly because the loss of acquired freedoms would do very great damage by shifting the struggle back on to political terrain and overshadowing the economic issue that is the most important one.
(Source: The Anarchist Library)
Anarchism and the Law (2013)
Alma Melgarito
Good afternoon to each and everyone here. Well, here we are finally in the context of this symposium and because the comrades suggested that I give a small talk about the relationship or rather, I should say, the non-relationship between anarchism and law, or the possibilities and limits of the use of law as a tool of action in insurrectionary anarchist practice. What I am about to say is a very individual set of my reflections on this issue, so what I say now should not be regarded as a position taken by groups or collectives in which I collaborate occasionally. Good. I also want to say that what I am going to talk about now are just a few notes that we can use to think about law from the anarchist point of view.
I’d like to start by quoting the words of Alfredo M. Bonanno, who in A few notes on Sacco and Vanzetti, reminds us that; “the concept of innocence and guilt is not an objective fact but is a measure imposed by the class struggle. The legal techniques and police procedures that establish whether a person is guilty or innocent are part of the culture of power.”
Now I’m putting on the table a question that has been included in contemporary anarchist discussion in Mexico, especially in light of the recent arrests of comrades and following the media harassment witnessed in AGAINST THE CONTENTS OF ANARCHIST EXPRESSION in recent times .. and the question is … is anarchism a crime?”
Well, with the first blunt question I’m tempted to also respond strongly and thus I WILL: Question. Is anarchism a crime? Yes, of course BUT of course it is and not only is it, but it must be … Now, let me explain. I could defend this idea from my experience as a lawyer and as an anarchist with arguments in terms of ethics by saying, for example that this is simply because if we know that the sum of the conduct that threatens the reproduction of capitalist society is considered by modern law as crimes, what follows that there can be nothing more ethical in this world than to be regarded as a criminal.
But beyond arguments in terms of ethics, I want to dedicate this talk to making a critique of the strategies and categories in which the domination of the legal form of capitalist society is expressed, ie, in which the state expresses itself, in order to destroy it analytically. I understand this review then, as a reflective moment of praxis itself.
Well, having said that, the first thing that springs to mind when we begin our analise is that the initial question should be reformulated. Because it can bring us to try to respond from the darkest places of instrumental rationality. And excuse me but I’m up to here with that. Then let’s find another way of thinking. Thinking that destroys, cuts, breaks the continuum of the concept and the continuum of domination because only with this break is it possible to produce the combination.
I start from the idea that Thinking is a moment in the antagonistic form of existence. And from this point of view, the concept, then, is struggle (it is not that the concept thinks the struggle). The traditional idea is that knowing means getting closer to the object. That knowing is to separate subject and object. Critical theory does not agree with that. This does not imply abandoning rigour, but implies producing categories and involves recognizing categories that are part of antagonistic reality. That knowledge is part of struggle.
Ill just put that thought on the table, but maybe it’s better to leave the epistemological discussion aside, because now I want to focus on the issue before me at this time, which is the relation between anarchism and law. For now I just want to make the invitation to think, in a different way. One that does not vertically separate subject from object. And how? Well, for example, it could be … not thinking of ourselves any more as anarchists, — as anarchists — but thinking of ourselves, as compa Gustavo says, of being,- being anarchists, and to this I would add; making -making anarchy here and now — making permanent conflict here and now.
Well, as I said, I’ll leave the epistemological question for another time. I also want to give a warning before starting. Whenever I talk about law I will be referring here to modern law. Modern law is what we know to be centralised in the figure of the state, which divides the public from the private. And the state is, for me, the form of capitalist society. I give this warning because for me, multiple laws coexist within the same territory. Some of them are not centralized and, I maintain, not capitalist. Indigenous laws for example. And this way of seeing the world of laws I call legal pluralism. But that is also the subject for another talk.
Now let’s have fun destroying our initial question. Is anarchism a crime? Well, this certainly brings us to play now with the notions of crime, the state, and of modern law. What is a crime? A compa always tells me: in Chile, I prefer to steal than be stolen from …. and personally, me too. We recall that for Proudhon, “the real theft is property”. But to analyze this sentence and extract all the wealth it contains, it is enough, comrades, to make a brief historical journey that reminds us of how much we hate this social technology that was invented: the state. This is because the notion of crime is linked to the invention of the state. That’s why what I want to stress here is how judicial power was formed.
Here we must ask something very simple. Why does law — modern for example, say what it says and not something else? Why is killing someone with a bullet considered a crime for the law, but if you kill someone through starvation it is completely legal, and morally acceptable?
So, we know that the judiciary did not exist in the Middle Ages, because at that time settlements were matters resolved between individuals. Only those who held any traditional, magical or religious power were asked to check the regularity of the proceedings, but it was not asked, — like today people beg the judges, — that someone, the judge for example, by exerting hierarchy, do them justice.
So, there was a judiciary that was in the hands of those who wielded political power or the power of weapons. The accumulation of wealth, the power of weapons and the establishment of a judicial power in the hands of a few is a unique process that was strengthened in the late Middle Ages and reached maturity with the formation of the first medieval monarchy, in the second half of the twelfth century. It is at this moment that a number of entirely new phenomena in relation to feudal society appeared: a justice that doesn’t contemplate litigation between individuals, and an unquestioning acceptance of certain rules of settlement. From this time on, individuals no longer have the right to resolve their disputes themselves, but, are forced to submit to a power foreign to them, imposed on them as a judicial and political power.
And so was born the figure of the attorney, representing the king, ruler or lord, who replaces the victim, who is presented as the TRUE plaintif. And then comes the notion of infringement. Before that, while the legal drama unfolded between individuals, it was only a question of damage caused to another individual. And law was the continuation of private vengeance. But now, the offence is no longer harm done by one individual to another, but an injury committed against the order of the state. Thus the state confiscates judicial proceedings and we see how Western monarchies were founded on the appropriation of justice. Moreover, because of the religious connotations in the process of inquiry, damages in the legal context would begin to be treated as quasi-religious moral damage. Even today we find in criminal law words of clearly religious origin, we find the penal codes full of words like blame, guilt, shame … etc. These words are used to negate the ability of individuals to exercise power freely for themselves. A guy regarded as the great theorist of modern criminal law, a guy who boasts of being very “rational” said, NULLA POENA SINE LEGE… and so the word crime is invented.
Well, in short, we have a two trends in feudal society: on the one hand, the concentration of weapons in the hands of the most powerful, who tend to prevent their use by the weak. And guess what? To defeat someone is to deprive them, deprive them of their weapons. And on the other hand, simultaneously, we have actions and lawsuits that were and are no more than a way of making assets circulate.
Thus we come to current criminal law: As we know it, we are prohibited to solve our own affairs for ourselves. Disputes are decided by the state, which replaces the victim. And also we do not have weapons. Weapons are used and regulated by the state. So … the law, says Foucault, is a way of continuing war.
Well, to this I say: yes WITH THE RISE OF THE STATE, WHAT HAPPENED WAS PRECISELY THAT we were expropriated of the ability to resolve our issues by ourselves. Let’s bring back the ability to resolve our issues by ourselves. LEGAL PLURALISM. And if they expropriated our weapons and the ability to use violence, LET’S TAKE THEM BACK AGAIN, let’s regain our ability to use violence.
The weapon for example … of theoretical-philosophical critique …. is of course … good. Here a parenthesis … resolve our own affairs? Take up arms? We have an example that doing this is really possible and concrete here on the mountain of guerrero … at least it is for me and we can discuss at another time if you’d like: it is called a system of security and justice crac-pc.
Returning to our initial question: is Anarchism a crime? Well, if the word crime is an invention of the state to name any conduct that undermines capitalist reproduction, and if anarchism as a political philosophy and as permanent conflictuality is a number of ways of acting with a common denominator- hatred of the state …. then one would have to conclude that yes …. I am a criminal, and … it is a great honour.
Well, as a result of this process of double expropriation that is the state which begins to take shape around the XII century, we have the emergence of some EQUALLY diabolical characters: lawyers, who had the role of managing and reproducing this new order that was taking shape. And this is also true today. Here, allow me, I have to make a parenthesis … I have to say it: I could die of tenderness when people in social movements, when they are detained in contexts of protest approach me as a solidarity lawyer and ask me: What can we do? Close the street? Shout? Do a sit-in?? And I cannot help but think: MM, I DO NOT KNOW … As an anarchist, I could not tell anyone what to do or not do, because that would be a contradiction. I just act in accordance with my way of thinking without ever supposing myself a mediator or negotiator between the state and protest. But the fact is that lawyers are characters upon which people confer enormous power to shape their lives. Whenever people have a problem, or want to do something, what do they do?? Consult a lawyer!!! Even my friends, knowing that I am a lawyer, come to me and say: Hey Alma I can’t stand my family, what can I do? I tell them …. You see … let’s have some tequilas. The people ask me: how do you see it… we want to do this DIRECT action what do you think?? ?????? What do I think?? Fucking great!!! So!!!! … people are just too used to law and lawyers shaping their behaviour. But I do not think I contribute to that. So please, if you want to do something, do not ask me what I think about it. Better to invite me to do it with you.
But then those those who are lawyers and anarchists at the same time, are a living a contradiction?? Well, No. For me, the contradiction exists in human beings who, being lawyers, ie, knowing the law of the state, and being aware that continuing this political-economic system means suicide for humanity itself, do not choose to be anarchists. Now that is a contradiction.
On the contrary, as an anarchist and lawyer at the same time, I can say that if we have the need for direct action with all available weapons, being a lawyer I have a weapon that is called Alternative use of law. The alternative use of law is a theory born in the seventies both in Latin America and Italy. It is a struggle to interpret existing national and international legal texts to give us ground to defend our cause, using the very language of the state. In some cases this can be a big help. In cases of comrade prisoners, for example. Even sometimes just to present oneself as a lawyer to a public prosecutor, a lawyer’s professional card has helped me to get in, talk with comrades, preventing them from being tortured, or avoiding further torture if they have already been tortured, and so on.
Well, like all weapons, this weapon has its limits, of course. For example, there are times that even as a lawyer it is difficult to have access to court records to know what comrades are accused of. But rest assured that if it is A WEAPON THAT I have in my hand and I know how to use it, I will use it as often as necessary. In the same way I use all the weapons I have at hand whenever necessary. Another example, I’m obsessed with indigenous matters. In these cases, the mere fact of citing international conventions such as art.169, the right to free and informed consultation, has contributed to helping to curb the attempts of some mining companies stealing nature in some mining concessions in indigenous territories in Mexico. Good.
The alternative use of the law is a very viable weapon when one uses it fully aware that these are arguments that although they have a certain social power, the fact remains that the real struggle is in how we organize concrete human beings here and now to attack this system of things.
Because as law and language make us partakers of the reproduction of hegemony and domination, I think they can also be part of a plot that challenges this hegemony and domination.
And accepting the above definition it is possible for one to start to understand that law is a field of confrontation, and not the end result of the struggle. Then, yes, let’s face it … modern law is prescriptive discourse generated by the power bloc, so of course, it is favourable to their interests, BUT … it can also be used as a battlefield against such claims of dominance. But there are many battles and weapons to use and get to know.
Good. So I applaud the organisation of this symposium. The existence of an informal anarchist space to share experiences and arguments among those of us in the struggle. Where we can climb over the many walls that domination imposes as social divisions such as nations, languages, races, genders, generations, ages.
I belong to a generation that sometimes gives the impression that it lost utopia. I say, gives the impression because this appearance was disseminated by the mass media that strive to make us believe that fall of the Berlin Wall also meant the end of history. And that now, all you have and will ever have is the totality of law dominating human beings. And nothing could be farther from the truth. Because capitalism has not mastered everything, and history does not have an end. No. So this is NOW, we are here again. Like the cicada.
In conclusion, I want to put on the table two keys that I find important to think about in order to escape the trappings of state fiction, and they are:
- First ourselves as bodies, finite, concrete, living here and now. And this means fleeing abstractions, idealizations, mystifications that only manage to blind us. For example, to believe in abstract justice prevents us from exercising just relationships in the practical sense. I reproduce here what was said by Hinkelammert in the terms of absence. Then, just as believing in equality in the abstract prevents us from exercising relations of concrete AND REAL equality, in daily life, believing in the law in the abstract prevents us from building different forms of regulations, real, from below.
- And the second is NOT TO FLEE. NOT TO BE AFRAID. Fear paralyses, prevents us from acting, and it is good to be cautious but if in something we can agree with Hegel it is that if the slave is a slave it is because … he is afraid to die.
But, by fear I am also referring to the fear that many anarchist comrades have of the language of law. Do not fear, we’ve seen that to know the language of the enemy, in full awareness of who the enemy is, of course, can be very useful
So I end with a quote from the author with whom I began: Alfredo Bonanno who in Notes on Sacco and Vanzetti tells us that:
[…] Reality is precisely this complex thing that cannot be reduced to the result of a legal procedure. The latter will always be arbitrary and founded not on evidence but on strength, not on logic but on power. A difficult way of reasoning? Perhaps, yes, but if you do it once you never forget it.[…] A.M.BONANNO
What is the state , Permanent conflict ….WE all make THE STATE…
What is the law. Issue of violence. Permanent conflict …. WE ALL make THE LAW….
THEORY OF POWER … OVER OUR OWN LIVES ….
So the concept is struggle. Understanding this is very important (because it is not that the concept thinks the struggle), but the VERY concept is the struggle. And so, we have a first distinction between the critical theory of law and traditional one. Because the traditional theory of law offers CONCEPTS OF LAW AS IF it were “SOMETHING NEUTRAL, OBJECTIVE, IMPARTIAL, AND, SOME EVEN DARE TO SAY … THAT … the law seeks JUSTice, that its purpose is to achieve the common good” . In this regard, a law teacher always makes the same – bad — joke … he says that if it were true that the law is looking for a common good, than, after so many centuries it should have finally found it. No???
In contrast, for a critical look at law right, the law is ….THE ORGANIZATION OF VIOLENCE. It is not that the law is helped by violence, but the law itself is the organization of violence. Law administers social violence. It establishes who is allowed to use violence against whom.
(Source: Introductory talk at the Days of Informal Anarchy, International Symposium, Mexico D.F., 27, 28, 29 December, 2013. The Anarchist Library)
The law and its political limits
I build no system. I ask an end to privilege, the abolition of slavery, equality of rights, and the reign of law. Justice, nothing else; that is the alpha and omega of my argument: to others I leave the business of governing the world.
Pierre-Joseph Proudhon, What is Property?
Under the title, “Postscript on Legalism”, the CrimethInc. collective reminds us (18/06/2025), should there be a need for it, of the limits of legal activism in the face of quickening and expanding authoritarianism by the Trump administration (The Guardian, 19/06/2025).
Donald Trump and his administration employ the laws and courts wherever it suits them. Wherever laws and courts pose an obstacle to their program, they disregard those right up to the limit imposed by the current balance of power within the state. It is clear for all to see that for them, the law is simply one of many weapons—it has no power to bind them. Yet many of Trump’s opponents continue hamstring resistance by focusing on questions of legality and other niceties, failing to grasp the reality of the situation.
A cheerful anti-fascist organizer from Prague used to tell a joke that went something like this:
After the Second World War, a Czech anti-fascist and a Yugoslavian partisan met at a beach on the Adriatic.
Eventually, the inevitable question came up. “What did you do in the war?” the Czech anti-fascist asked the partisan.
“Oh, the usual stuff,” answered the partisan. “We formed underground networks, ran background checks on potential recruits, set up safe houses and clandestine print shops. Then we started sabotaging railways and telephone lines. Eventually, we worked our way up to carrying out raids to seize weapons. With those, we started retaking villages and then whole regions until finally, we ran the Nazis right out of the country.”
“All of that sounds like a great time,” answered the Czech anti-fascist. “Unfortunately, where we were, all of those things were illegal!”
Anarchist voices from the past warrant the Collective’s critical scepticism.
And yet the rejection of the law – in principle and/or as sphere of political practice or contestation – has historically and politically always been more nuanced, with anarchist theory often distinguishing between different types of rules (state or government laws being but an alienated and therefore oppressive expression of ethical patterns and moral-social rules) and anarchist practice understanding the law as a field of political conflict.
If we are the state, that is, if we constitute the state and all of the many social relations through which state centered capitalist societies are produced and reproduced, a simple refusal of the law in the name of rebellion cannot be set down as fundamental, but only as tactical.
In the words of Gustav Landauer:
On this issue, we share below two short pieces of what could be called “anarchist phronesis/practical wisdom”; the first, by Errico Malatesta and the second, by Alma Melgarito.
The Duty of Resistance: Anarchists and the Law (1897)
Errico Malatesta
There are huge disparities in economic circumstances, political liberties and civic status between the proletariats of the various countries around the world. And our Italy occupies one of the lowest rungs. Few countries are as afflicted with poverty, few have a government so given to brazen prevarication or so ferociously thuggish—and none dispatches out into the world so many offspring who, being used, in their homeland, to a way of life that looks brutish to workers elsewhere, then compete with the native workforce, bringing hatred and contempt down on their own heads.
What did we do to earn such a dismal primacy?
Elsewhere, as in Italy, society is founded upon the individualistic principle of man versus man and class versus class, so there is a constant tendency in the direction of growing tyranny by the few and slavishness for the many. The institutions are essentially the same everywhere; private property and government are everywhere. So how come the consequences in Italy are even more disastrous than elsewhere?
Because in Italy people do not resist—and resistance from the people is the only boundary set upon the bullying of the bosses and rulers.
In Italy there is no resistance—and there is no resistance because the spirit of cooperation, of association is missing. The Italian reacts violently, overly so, to personal insults received from one of his peers; yet he supinely endures the boss’s arbitrariness and the constable’s bullying, because, left to his own personal devices, he feels powerless to resist the very person who can starve or imprison him and he winds up taking his punishment and becoming inured to mistreatment.
If current conditions are to be improved upon, if they are to be prevented from becoming even worse, if we are to pave the way to the future, then, first and foremost, every Italian must learn how to join forces and act collectively and look to mutual aid and solidarity for the opportunity to resist effectively, and for an appreciation of that opportunity.
And if we anarchists want to live up to the mission imposed upon us by our program, and unless we mean to remain impotent dreamers day-dreaming about an ideal without a care for bringing about the conditions that make its implementation feasible, we must strive actively and methodically to prepare, organize and inspire popular resistance in every aspect of life in which the people suffer injustice or violence; economic resistance to the bosses’ exploitation, political resistance to trespasses against liberty, moral resistance to anything that tends to ensure that the worker is looked upon and treated as some lesser breed.
That is our duty; that is our concern.
Led astray by a narrow, one-sided doctrinaire approach, anarchists have often lost interest in practical struggle and have thereby contributed to that moral collapse whereby the police today can thrash and murder citizens without provoking a backlash likely to stop them in their tracks.
Or else, they have reacted individually and paid back the boss and the constabulary in their own coin, the upshot being that, to their credit but to the detriment of the cause, they have been hauled off to prison and rendered hors de combat without having done a thing to encourage the people to resist and to fight.
Against the backdrop of a cowed people such as the people of Italy are today, any act of revolt in which the law still has might on its side, helps not so much to invite imitators, but rather to confirm the people’s superstition that authority is invincible and to the upkeep of the vague terror that is authority’s only strength.
Enough of rebellions for art’s sake. Our thoughts today need to be of winning: we need to seek out means conducive to victory. True, we must come into conflict with the law some day; but let it be whenever the likelihood is that might is no longer on the side of the law or at least that it does not easily prevail and remain unscathed.
Meanwhile, let us do today whatever we usefully can do. And since we have not yet managed to amass the strength to resist the law, let us at least resist and let us urge the people to resist within the limits of the law. Even so we already have a fair way to go.
We are opposed to legalism which consists of seeking to resolve the social question and secure emancipation by means of law; but this is not to say that we refuse to avail of whatever means we feel useful when the law has not, perchance, outlawed them and only because it has not outlawed them.
We produce a newspaper, which is a perfectly lawful thing: we are in association with one another—that too is lawful; and we seek to hold popular rallies, speak in public, demonstrate, etc., etc., all of these being lawful activities, albeit that the police, cashing in on the people’s docility and our weakness, now frequently dare to ban them.
Besides, it has never occurred to any revolutionary to stop breathing, eating or walking, etc., merely because the law was kind enough not to have banned them!
But we would do well to explain this point a little more.
The law is essentially the weapon of the privileged; it is made by them for the purpose of enshrining their power and the people need to dismantle it entirely if they means to be genuinely free.
But there are some laws that signal a people’s victory in that they rescinded earlier and more oppressive laws or set a limit on the bosses’ whims. When the people insist upon a right and do so vigorously, those in power, finding themselves with no option but to grant the people some relief, pass a law, which, whilst giving away as little as possible, and striving to make that concession as hollow as it can, is an attempt to ward off a greater danger and, unfortunately, is often successful in this.
It is a bad thing that the people should let themselves be taken in and demand a law and be appeased by that, instead of seizing for themselves the entirety of the right they demand. And it falls to us and to our party to demolish this cult of law, and encourage the people on to de facto gains that are absorbed into custom and practice and that are the only serious definitive gains. But it is even worse that the people, having extracted some concession from throwing a scare into its masters, should then blithely allow it to be snatched back, only for the same old struggles to begin all over again. And it falls to us also to see to it that the people, even as they fight on for greater gains, do not let gains already made be snatched away from them.
This is the point we are at in Italy today: all the political freedoms bought at the cost of so much bloodshed by our forefathers—freedom of the press, the right of association, the right of assembly, the inviolability of the home, the secrecy of the mail, freedom of the person—are done for, or are about to be done for, unless a strong resurgence of public opinion applies the brakes to the police’s arrogance.
It is in our interest more than anyone else’s that public opinion be roused and resistance organized, both because we are more under threat and targeted than others and chiefly because the loss of acquired freedoms would do very great damage by shifting the struggle back on to political terrain and overshadowing the economic issue that is the most important one.
(Source: The Anarchist Library)
Anarchism and the Law (2013)
Alma Melgarito
Good afternoon to each and everyone here. Well, here we are finally in the context of this symposium and because the comrades suggested that I give a small talk about the relationship or rather, I should say, the non-relationship between anarchism and law, or the possibilities and limits of the use of law as a tool of action in insurrectionary anarchist practice. What I am about to say is a very individual set of my reflections on this issue, so what I say now should not be regarded as a position taken by groups or collectives in which I collaborate occasionally. Good. I also want to say that what I am going to talk about now are just a few notes that we can use to think about law from the anarchist point of view.
I’d like to start by quoting the words of Alfredo M. Bonanno, who in A few notes on Sacco and Vanzetti, reminds us that; “the concept of innocence and guilt is not an objective fact but is a measure imposed by the class struggle. The legal techniques and police procedures that establish whether a person is guilty or innocent are part of the culture of power.”
Now I’m putting on the table a question that has been included in contemporary anarchist discussion in Mexico, especially in light of the recent arrests of comrades and following the media harassment witnessed in AGAINST THE CONTENTS OF ANARCHIST EXPRESSION in recent times .. and the question is … is anarchism a crime?”
Well, with the first blunt question I’m tempted to also respond strongly and thus I WILL: Question. Is anarchism a crime? Yes, of course BUT of course it is and not only is it, but it must be … Now, let me explain. I could defend this idea from my experience as a lawyer and as an anarchist with arguments in terms of ethics by saying, for example that this is simply because if we know that the sum of the conduct that threatens the reproduction of capitalist society is considered by modern law as crimes, what follows that there can be nothing more ethical in this world than to be regarded as a criminal.
But beyond arguments in terms of ethics, I want to dedicate this talk to making a critique of the strategies and categories in which the domination of the legal form of capitalist society is expressed, ie, in which the state expresses itself, in order to destroy it analytically. I understand this review then, as a reflective moment of praxis itself.
Well, having said that, the first thing that springs to mind when we begin our analise is that the initial question should be reformulated. Because it can bring us to try to respond from the darkest places of instrumental rationality. And excuse me but I’m up to here with that. Then let’s find another way of thinking. Thinking that destroys, cuts, breaks the continuum of the concept and the continuum of domination because only with this break is it possible to produce the combination.
I start from the idea that Thinking is a moment in the antagonistic form of existence. And from this point of view, the concept, then, is struggle (it is not that the concept thinks the struggle). The traditional idea is that knowing means getting closer to the object. That knowing is to separate subject and object. Critical theory does not agree with that. This does not imply abandoning rigour, but implies producing categories and involves recognizing categories that are part of antagonistic reality. That knowledge is part of struggle.
Ill just put that thought on the table, but maybe it’s better to leave the epistemological discussion aside, because now I want to focus on the issue before me at this time, which is the relation between anarchism and law. For now I just want to make the invitation to think, in a different way. One that does not vertically separate subject from object. And how? Well, for example, it could be … not thinking of ourselves any more as anarchists, — as anarchists — but thinking of ourselves, as compa Gustavo says, of being,- being anarchists, and to this I would add; making -making anarchy here and now — making permanent conflict here and now.
Well, as I said, I’ll leave the epistemological question for another time. I also want to give a warning before starting. Whenever I talk about law I will be referring here to modern law. Modern law is what we know to be centralised in the figure of the state, which divides the public from the private. And the state is, for me, the form of capitalist society. I give this warning because for me, multiple laws coexist within the same territory. Some of them are not centralized and, I maintain, not capitalist. Indigenous laws for example. And this way of seeing the world of laws I call legal pluralism. But that is also the subject for another talk.
Now let’s have fun destroying our initial question. Is anarchism a crime? Well, this certainly brings us to play now with the notions of crime, the state, and of modern law. What is a crime? A compa always tells me: in Chile, I prefer to steal than be stolen from …. and personally, me too. We recall that for Proudhon, “the real theft is property”. But to analyze this sentence and extract all the wealth it contains, it is enough, comrades, to make a brief historical journey that reminds us of how much we hate this social technology that was invented: the state. This is because the notion of crime is linked to the invention of the state. That’s why what I want to stress here is how judicial power was formed.
Here we must ask something very simple. Why does law — modern for example, say what it says and not something else? Why is killing someone with a bullet considered a crime for the law, but if you kill someone through starvation it is completely legal, and morally acceptable?
So, we know that the judiciary did not exist in the Middle Ages, because at that time settlements were matters resolved between individuals. Only those who held any traditional, magical or religious power were asked to check the regularity of the proceedings, but it was not asked, — like today people beg the judges, — that someone, the judge for example, by exerting hierarchy, do them justice.
So, there was a judiciary that was in the hands of those who wielded political power or the power of weapons. The accumulation of wealth, the power of weapons and the establishment of a judicial power in the hands of a few is a unique process that was strengthened in the late Middle Ages and reached maturity with the formation of the first medieval monarchy, in the second half of the twelfth century. It is at this moment that a number of entirely new phenomena in relation to feudal society appeared: a justice that doesn’t contemplate litigation between individuals, and an unquestioning acceptance of certain rules of settlement. From this time on, individuals no longer have the right to resolve their disputes themselves, but, are forced to submit to a power foreign to them, imposed on them as a judicial and political power.
And so was born the figure of the attorney, representing the king, ruler or lord, who replaces the victim, who is presented as the TRUE plaintif. And then comes the notion of infringement. Before that, while the legal drama unfolded between individuals, it was only a question of damage caused to another individual. And law was the continuation of private vengeance. But now, the offence is no longer harm done by one individual to another, but an injury committed against the order of the state. Thus the state confiscates judicial proceedings and we see how Western monarchies were founded on the appropriation of justice. Moreover, because of the religious connotations in the process of inquiry, damages in the legal context would begin to be treated as quasi-religious moral damage. Even today we find in criminal law words of clearly religious origin, we find the penal codes full of words like blame, guilt, shame … etc. These words are used to negate the ability of individuals to exercise power freely for themselves. A guy regarded as the great theorist of modern criminal law, a guy who boasts of being very “rational” said, NULLA POENA SINE LEGE… and so the word crime is invented.
Well, in short, we have a two trends in feudal society: on the one hand, the concentration of weapons in the hands of the most powerful, who tend to prevent their use by the weak. And guess what? To defeat someone is to deprive them, deprive them of their weapons. And on the other hand, simultaneously, we have actions and lawsuits that were and are no more than a way of making assets circulate.
Thus we come to current criminal law: As we know it, we are prohibited to solve our own affairs for ourselves. Disputes are decided by the state, which replaces the victim. And also we do not have weapons. Weapons are used and regulated by the state. So … the law, says Foucault, is a way of continuing war.
Well, to this I say: yes WITH THE RISE OF THE STATE, WHAT HAPPENED WAS PRECISELY THAT we were expropriated of the ability to resolve our issues by ourselves. Let’s bring back the ability to resolve our issues by ourselves. LEGAL PLURALISM. And if they expropriated our weapons and the ability to use violence, LET’S TAKE THEM BACK AGAIN, let’s regain our ability to use violence.
The weapon for example … of theoretical-philosophical critique …. is of course … good. Here a parenthesis … resolve our own affairs? Take up arms? We have an example that doing this is really possible and concrete here on the mountain of guerrero … at least it is for me and we can discuss at another time if you’d like: it is called a system of security and justice crac-pc.
Returning to our initial question: is Anarchism a crime? Well, if the word crime is an invention of the state to name any conduct that undermines capitalist reproduction, and if anarchism as a political philosophy and as permanent conflictuality is a number of ways of acting with a common denominator- hatred of the state …. then one would have to conclude that yes …. I am a criminal, and … it is a great honour.
Well, as a result of this process of double expropriation that is the state which begins to take shape around the XII century, we have the emergence of some EQUALLY diabolical characters: lawyers, who had the role of managing and reproducing this new order that was taking shape. And this is also true today. Here, allow me, I have to make a parenthesis … I have to say it: I could die of tenderness when people in social movements, when they are detained in contexts of protest approach me as a solidarity lawyer and ask me: What can we do? Close the street? Shout? Do a sit-in?? And I cannot help but think: MM, I DO NOT KNOW … As an anarchist, I could not tell anyone what to do or not do, because that would be a contradiction. I just act in accordance with my way of thinking without ever supposing myself a mediator or negotiator between the state and protest. But the fact is that lawyers are characters upon which people confer enormous power to shape their lives. Whenever people have a problem, or want to do something, what do they do?? Consult a lawyer!!! Even my friends, knowing that I am a lawyer, come to me and say: Hey Alma I can’t stand my family, what can I do? I tell them …. You see … let’s have some tequilas. The people ask me: how do you see it… we want to do this DIRECT action what do you think?? ?????? What do I think?? Fucking great!!! So!!!! … people are just too used to law and lawyers shaping their behaviour. But I do not think I contribute to that. So please, if you want to do something, do not ask me what I think about it. Better to invite me to do it with you.
But then those those who are lawyers and anarchists at the same time, are a living a contradiction?? Well, No. For me, the contradiction exists in human beings who, being lawyers, ie, knowing the law of the state, and being aware that continuing this political-economic system means suicide for humanity itself, do not choose to be anarchists. Now that is a contradiction.
On the contrary, as an anarchist and lawyer at the same time, I can say that if we have the need for direct action with all available weapons, being a lawyer I have a weapon that is called Alternative use of law. The alternative use of law is a theory born in the seventies both in Latin America and Italy. It is a struggle to interpret existing national and international legal texts to give us ground to defend our cause, using the very language of the state. In some cases this can be a big help. In cases of comrade prisoners, for example. Even sometimes just to present oneself as a lawyer to a public prosecutor, a lawyer’s professional card has helped me to get in, talk with comrades, preventing them from being tortured, or avoiding further torture if they have already been tortured, and so on.
Well, like all weapons, this weapon has its limits, of course. For example, there are times that even as a lawyer it is difficult to have access to court records to know what comrades are accused of. But rest assured that if it is A WEAPON THAT I have in my hand and I know how to use it, I will use it as often as necessary. In the same way I use all the weapons I have at hand whenever necessary. Another example, I’m obsessed with indigenous matters. In these cases, the mere fact of citing international conventions such as art.169, the right to free and informed consultation, has contributed to helping to curb the attempts of some mining companies stealing nature in some mining concessions in indigenous territories in Mexico. Good.
The alternative use of the law is a very viable weapon when one uses it fully aware that these are arguments that although they have a certain social power, the fact remains that the real struggle is in how we organize concrete human beings here and now to attack this system of things.
Because as law and language make us partakers of the reproduction of hegemony and domination, I think they can also be part of a plot that challenges this hegemony and domination.
And accepting the above definition it is possible for one to start to understand that law is a field of confrontation, and not the end result of the struggle. Then, yes, let’s face it … modern law is prescriptive discourse generated by the power bloc, so of course, it is favourable to their interests, BUT … it can also be used as a battlefield against such claims of dominance. But there are many battles and weapons to use and get to know.
Good. So I applaud the organisation of this symposium. The existence of an informal anarchist space to share experiences and arguments among those of us in the struggle. Where we can climb over the many walls that domination imposes as social divisions such as nations, languages, races, genders, generations, ages.
I belong to a generation that sometimes gives the impression that it lost utopia. I say, gives the impression because this appearance was disseminated by the mass media that strive to make us believe that fall of the Berlin Wall also meant the end of history. And that now, all you have and will ever have is the totality of law dominating human beings. And nothing could be farther from the truth. Because capitalism has not mastered everything, and history does not have an end. No. So this is NOW, we are here again. Like the cicada.
In conclusion, I want to put on the table two keys that I find important to think about in order to escape the trappings of state fiction, and they are:
But, by fear I am also referring to the fear that many anarchist comrades have of the language of law. Do not fear, we’ve seen that to know the language of the enemy, in full awareness of who the enemy is, of course, can be very useful
So I end with a quote from the author with whom I began: Alfredo Bonanno who in Notes on Sacco and Vanzetti tells us that:
What is the state , Permanent conflict ….WE all make THE STATE…
What is the law. Issue of violence. Permanent conflict …. WE ALL make THE LAW….
THEORY OF POWER … OVER OUR OWN LIVES ….
So the concept is struggle. Understanding this is very important (because it is not that the concept thinks the struggle), but the VERY concept is the struggle. And so, we have a first distinction between the critical theory of law and traditional one. Because the traditional theory of law offers CONCEPTS OF LAW AS IF it were “SOMETHING NEUTRAL, OBJECTIVE, IMPARTIAL, AND, SOME EVEN DARE TO SAY … THAT … the law seeks JUSTice, that its purpose is to achieve the common good” . In this regard, a law teacher always makes the same – bad — joke … he says that if it were true that the law is looking for a common good, than, after so many centuries it should have finally found it. No???
In contrast, for a critical look at law right, the law is ….THE ORGANIZATION OF VIOLENCE. It is not that the law is helped by violence, but the law itself is the organization of violence. Law administers social violence. It establishes who is allowed to use violence against whom.
(Source: Introductory talk at the Days of Informal Anarchy, International Symposium, Mexico D.F., 27, 28, 29 December, 2013. The Anarchist Library)