Legal Order

In the anarchist context, it is common to approach the question of legal order by asking whether anarchists truly desire a society in which nothing is prohibited. This is, it seems to me, only half of the question that needs to be asked, as an anarchic society would also be one in which nothing is permitted. And it is probably this second aspect that is most helpful in evaluating the antinomian character of anarchy.

Legal order exists when society is guided by laws, rules or principles that are considered binding and enforceable. Legal order inevitably depends on some assertion of authority and is part of the apparatus of a legal hierarchy. The range of presumed authorities is, of course, great, but whether the basis is divinity, democracy, sanctified might or nature, the basic quality of legal order changes very little. If we understand the anarchist critique as at least in part a rejection of the hierarchical pretense of elevating some elements of society above others (either directly or as proxies for some reigning abstraction) and endowing those elements with a “right” to command, then the specific pretext for that elevation is a matter of only secondary concern.

It is also important to recognize that legal order is pervasive. Where law is in force, it tends to divide all actions into the categories of legal and illegal, licit and illicit, permitted and prohibited. So, while there are lots of obvious differences between Leviticus, the penal code of a given government, papal bulls, the non-aggression principle, “natural law,” etc., the systems that represent presume to pass judgment on essentially the whole of future human activity, with necessarily limited attention to contexts.

In anarchist circles, the defense of some form of law usually depends on the recognition that some small number of acts seem unjustifiable to almost anyone under any circumstances, but this is hardly a compelling argument for imposing a necessarily pervasive legal order, with all the recourse to authority and hierarchy that seems inseparable from it. But, to return to my first point, this insistence on the necessity of law seems to involve a confusion of the lawlessness of anarchy with some form of license, as if anarchy would remove the prohibitions, but not the permissions also imposed by legal order.

About Shawn P. Wilbur 1949 Articles
Independent scholar, translator and archivist.