Escheat and Anarchy


One of the difficulties in explaining the anarchist critique—and of distinguishing anarchist tendencies from those that propose only partial breaks with authority—has been the fact that the two fundamental critiques associated with anarchist thought—anti-capitalism and anti-governmentalism—have been difficult to unite, despite indications that they emerged together as part of a single critique in the work of Proudhon. We are arguably more in touch with those particular origins than we have been for most of anarchism’s history and in many ways our understanding of Proudhon’s thought steadily improves. In social media discussions, when it is a question of critiquing capitalist exploitation, vague references to “usury” or recourse to Marxian ideas are increasingly replaced by appeals the theory of collective force and reference to the droit d’aubaine that seems to justify the appropriation of the fruits of association by the capitalist class. On the anti-governmental front, we have begun, at least, to explore the problem of “the external constitution of society,” which Proudhon attributed to the governmentalist state. But the connection between the two critiques has remained a bit elusive.

Part of the problem has been that we are still in the process of making Proudhon’s thought our own. In the meantime, we have been guided by those who went before us and particularly by the translators of the few works by Proudhon that have been available in English. The fact that these translations have been, for the most part, quite good has perhaps lulled us into some complacency. But we have learned over time that sometimes otherwise excellent translations have been badly wrong at crucial moments. The translations of anarchie in The General Idea of the Revolution are among the most cautionary examples we have discovered to date, but there have been others. And perhaps it is time to ask if Tucker’s translation of droit d’aubaine as “right of increase” has led us astray.

A focus on “increase,” and particularly on the “right” to accumulation at the heart of capitalist relations, has seemed obviously useful. At our present stage of understanding, it has been extremely important that we understand the mechanisms by which the wealth produced by associated labor is consistently alienated and turned against the producers. It has been equally important for us to focus to some extent on the alternatives to a system that consistently concentrates capital and to explore alternatives that instead emphasize the circulation of resources. But that has, in some ways, left us engaging with Proudhon’s critique of 1839 (from The Celebration of Sunday), where “property is theft” because it is the result of “putting aside.” We have, it seems to me, only really made half of the 1940 analysis our own. We have seen clearly enough that the individual “right” to “dispose at will of social property” is a source of injustice and material inequality, but we have not always been able to clearly articulate just how our critique is specifically anarchist—and opponents (anti-state capitalists and the like) have seldom hesitated in their attempts to paint our anti-capitalism as simply tacked on to our anti-governmentalism.

At the same time, our anti-governmentalism has arguably lacked a bit of theoretical clarity. We may disagree about the details regarding capitalist exploitation, but there doesn’t seem to be much disagreement among anarchists that it exists and that its primary mechanism involves the appropriation of the fruits of labor by capitalists. And there is probably no form of consistent anarchism with economic ideas that could not be described or derived by the use of the theory of collective force. The same almost certainly cannot be said about the critique of “external constitution.” When we turn to the anti-governmental side of the anarchist critique, however, the diversity of approaches is really striking. While an-archy would seem to indicate a complete break with government, it is extremely common to see anarchists focus simply on abolition of the state, while promoting some form of “radical” or “true democracy.” Rather than taking our main cues from the strong, consistent anti-authoritarian critiques in the tradition, we are prone to emphasizing the possibility of exceptions—whether practical, as in the case of “democratic decision-making,” or largely rhetorical, when we invoke “the authority of the bootmaker” (all too often without much apparent recollection of the contexts in which the phrase was originally used.) Some anarchists make the case for “anarchist law,” while others assure us that “anarchism is against rulers, but not rules.” Some defend “natural rights” and many defend “natural” (or naturalized) systems of desert (“from each…; to each…,” etc.) We seldom manage to advance a consistent critique of the necessity of government, authority or even hierarchy—and as a result fall back on the project of seeking “justification” or “legitimacy” for particular forms of these institutions. And, all too often, we find self-proclaimed anarchists responding with bits right out of our opponents’ playbooks when we try to draw the focus back to anarchy.

When we want to emphasize the really radical quality of Proudhon’s anti-governmental critique, we refer to his anti-absolutism. Whatever his failures in applying the standard, his an-archy was informed by critique that reached beyond specific institutions to the philosophical theories and habits of thought on which they were erected. According to Stephen Pearl Andrews, anti-absolutism was already implied—however “curiously”—in the notion of anarchy or an-arche:

Arche is a Greek word (occurring in mon-archy, olig-archy, hier-archy, etc.), which curiously combines, in a subtle unity of meaning, the idea of origin or beginning, and hence of elementary principle, with that of government or rule. (“The Pantarchy Defined,” 1873)

And the provocative passages in The General Idea of the Revolution certainly suggest that Proudhon’s understanding of the notion of anarchy was more complex than we often assume. (See “Anarchy, Understood in All its Senses.”) But, ultimately, while this broad understanding of anarchy gives us a philosophical critique capable of working in various contexts and at various scales, its connection to the sociological theory of collective force and the economic critique of exploitation seems to require something that is at least not yet explicit in our analysis.

The logical point of contact is that notion of “external constitution,” which Proudhon employed to describe the relationship between society and the governmentalist State. I’ve discussed Proudhon’s critique of Louis Blanc in “Self-Government and the Citizen-State,” but the basic idea is that authoritarians see society as a social body that must have a “head,” with that head above and apart from the rest of the body, directing it and “realizing” it. Proudhon agreed that social collectivities existed, but disagreed that this authoritarian conception of their organization was necessary or correct. Without the authoritarian lens, social bodies could be seen as engaging in a decentralized self-regulation.

The question is whether this particular notion, which saw only very limited use by Proudhon, applies to more than just the governmentalist State. If, for example, it seemed to apply more broadly to politics (to constructions like “the people” and perhaps to certain abstract constructions of “society” itself), to economics (to the construction of “the economy,” but also of “the firm”), etc., then we might suspect that we were closing in on our “general theory of archy.” And it turns out that the evidence of that generality may have been “hiding in plain sight” right along, veiled by Tucker’s choice when it came to translating aubaine.

It turns out that the droit d’aubaine is arguably not best understood as the right of increase, but as the principle of escheat. Wikipedia informs us that:

Escheat is a common law doctrine that transfers the real property of a person who died without heirs to the Crown or state. It serves to ensure that property is not left in “limbo” without recognized ownership.

Some definitions naturalize the relationships involved by describing this transfer as “reversion” to the state.

Now, when we go back to Proudhon’s account of the droit d’aubaine, things perhaps look a bit different. We have a principle designed to assure that property is not “left in limbo,” which appears to mean either a specific proprietor, their specified heirs or the state (meaning, in practice, those who can claim to be the “head” of the social body.) What Proudhon seems to do is to insist that some version of this principle already contributes ito the very constitution of property. Individual workers can only make individual claims, with the fruits of collective force doomed to “limbo” (which here means essentially anything resembling “social property”) and eventually passing to to a capitalist class by virtue of their position as apparent “head” of some economic body (firm, economy, etc.) The main difference between the status of the citizen in a governmental state and that of the worker in a capitalist firm is that while the contribution of the worker to the constitution of the firm (or of the real associations that produce wealth for the firm) is perhaps even more obvious than that of the citizen in the constitution of the political state, the firm aspires to the recognition granted to the state by virtue of its relation to society, while essentially denying that any such society exists among laborers and capitalists. From the point of view of the real associations, the firm is a sort of external constitution, but from the point of view of the firm (and, of course, of its “representatives” and proprietors), it is the workers themselves who are individually considered inessential and essentially external.

What Proudhon’s analysis suggests, of course, is that “limbo” is the proper home of most of what is called property. And this is arguably as true of common property as it is of the exclusive, individual variety. This is perhaps one of the key reasons that mutualist economics have almost always emphasized circulation, even when they were fairly far removed from these theoretical roots. In the early days of the current mutualist renaissance, it was common for us to talk about property as a “problem” with no definitive solution. But I suppose it should come as no surprise to anyone that the thought of “limbo” does not hold particular terrors for those who have constructed their political projects—to one extent or another—around the concept of anarchy.

And perhaps it is in the opposition of escheat and anarchy that we will find the connections we have been looking for.

Escheat guards against the limbo that is perhaps proper to those resources ultimately claimed as property. It does so with the aid of an abstract collectivity, which is always assumed to have a prior claim to, well, just about anything that individuals cannot convincingly claim is solely the product of their own exertions. This abstract collectivity possesses a plausibility derived in part from the existence of real associations and in part from the dominant belief that every social body must have a head.

Without the imposition of a “head,” the social body is a kind of anarchy. Authority simple asserts that such things cannot be and proposes to provide the “missing” ruling elements, which are external either in the sense that they wholly appropriate the real associations through force or fraud, or in the sense that they involve the creation of new functions in no way intrinsic to the organization of the anarchic social organism. And, really, this is perhaps all that authority ever does. But every time that it does its work—replacing anarchic association with relations of command and control—it produces hierarchy and it produces the conditions for exploitation.

It seems to me that this principle of escheat at least provides us with a kind of basic model, in which we can see elements common to both capitalism and governmentalism. And that seems like a useful clarification. It remains to be seen how far towards a “general theory of archy” this step takes us, but it appears to be a step down the right path.

About Shawn P. Wilbur 2703 Articles
Independent scholar, translator and archivist.


  1. Kia ora Shawn. First, thanks for the work you do–stimulsting and important. 1. Escheat as an example of external authority linking anarchist rejection of capitalism and the state? But deeper than this as a bridging concept? 2. Droit d’aubaine as confiscation by the state of a deceased foreigners property in that state’s territory. Perhaps Proudhon used it to speak to capricious will of external authority of employers to confiscate fruits of workers’ labour–links to right of increase and casts workers as foreigners in their own country deprived of rights and justice –and potetentially, today, draws a parrallel between the state and capitalist firm as external authorities which deny individuals and associations the right to be self-determining? 3. Are anarchist divergences on anarchist polities more to do with practicalities of decentralized decision making where external authority, not just state and hierarchy, abolished?

    • We know that *aubaine* was used in a broad sense by Proudhon and others in his tradition. Someone like Tufferd could distinguish between two fundamental means of livelihood: “If all wealth comes from labor, there can only be two means of living: either at the expense of one’s own labor, by wages; or at the expense of the labor of others, by aubaine.” In that essay he goes on to break down the varieties of economic *aubaines* and there isn’t much that isn’t consistent with a translation like “(unearned) increase” or “windfall.” But we know from comments in the *Économie* manuscripts that Proudhon considered his critiques of capitalism and governmentalism to be connected, so one way of making the connection clear is to understand *aubaine* in a way that provides us with a model of the mechanism in both cases. And that’s what *escheat* seems to do, not because it is literally a case of the State appropriating inheritance in every case, but because we have all the elements present to generalize various instances where the products of collective force, created by real associations, might end up in some sort of “limbo” if they are not claimed by some abstract collectivity. Sometimes it’s the *firm*, rather than the State. Sometimes it might be “the People” or “society.” But we have a basic structure that seems widespread, which allows us to take the critique associated with the claim that “property is theft” and apply it more generally. Because we have seldom posed our critiques in these terms, I suspect that our internal disagreements still rise in part from the fact that we have rejected “external constitution” by the State, but perhaps not by other abstract, “external” collectivities.

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