Date: Sat, 28 Sep 2002 19:19:10 +0000 From: "Justin Schwartz" <jkschw at hotmail.com> Subject: Re: The nature of anarchism (Lefty Despair etc.)
Although it is hard to bring nuance into list discussions, and I'm sure that no-one wants excessively long messages, I do believe that we can do better than we have so far on this question of the state and law. So this arrogant and illiterate individual is going to give it a shot on this matter. See below. Tahir
Almost everone here, including Doug and me, agree that class conflict is eliminable.
Tahir: Well and good; let's start from that premise then.
and horrid acts of interpersonal violence like
>murder, rape, domestic violence, etc.)
No doubr these can be drastically minimized; I do not think they can be eliminated.
Tahir: Me neither; so we at least have a basis for discussion here.
that demands the presence of
>the state (an institution that monopolizes legitimate use of force),
>regardless of what sort of social relations we may have.
Tahir: I don't think that this necessarily follows from the earlier points. But it is useless to debate this unless we can clarify what we mean by state and law, not to mention social relations. I think that there is a deep ambiguity in the use of such related terms as state and law. If we mean positive law, i.e as we know it, then I don't think the arguments for law are very convincing when applied to a society free of class conflict ( which can only in my view mean a classless world). The notion of law which is at stake then is radically disjoined from that of ethics. In bourgeois society the ethical is privatised (as subjective morality) so that people come to see the law more as external force than as expression of their own social being. On the other hand, 'law' has sometimes referred to custom. If it is understood in this way then it becomes indistinguishable from ethics. We need to go back a bit to the ancient world, to the earliest states, to recover that sense of un! di! fferentiated ethical life I think.
But such states were doomed, precisely because the notion of state, which involves class rule, is at odds with this ethical notion of law. This becomes apparent eventually as a diremption of ethical life into law on the one hand and ethics, specifically subjective morality, on the other. Any discussion of future classless society must surely involve a recovery of this 'broken middle', but of course on some level that has not existed before. Some of us when we oppose ourselves to the state and law, are arguing on this basis. The discussion of this cannot be based on some jejune notion of people being 'naturally good' or suchlike (which incidentally I do find among many anarchists). If law simply means the ethical life of society, its consciousness of right, and any transgressions of what society as a totality regards as good are punished by means of ostracisation or whatever, then of course I am all for that.
However, law as we know it, is nothing like that. In bourgeois society there is no common notion of what is good. It is what Hegel called the 'spiritual animal kingdom', where the split between ethics and law opens up a space for all kinds of cunning, shrewdness and bad faith. As any lawyer knows, that profession is mainly about winning cases, not about establishing or restoring some notion of the good. Similarly with the state: if the state is simply the organisation of society along rational lines, with full participation and as pure expression of the ethical life of the people as a whole, then who could object? But such a state has never existed - instead actually existing states have posited themselves as being just that while instead being something quite different: i.e. class rule.
Those are not the only things that demand the presence of the state. Please note: it is only one function of the state to monopolize the legitimate use of force, although that is a good function. I should not want every Tom, Dick, and Harriet to have the right to blow me away with no fear of legal consequences. In addition to its coercive aspect, the state also,a nd indeed primarily, has a number of other functions" it establishesa nd maintains a regimes of laws that enable people to do things they want to do with some predictive regularity, such as make contracts, have marriages, transfer property, and the like.
Tahir: I note the use here of the present tense in verbs such as "establishes", "enable", etc. This confirms the suspicion that we are indeed talking about law as we know it. Contracts, marriages and property are purely categories of class society and there is no rational basis for projecting them into some future society which is said to be free of class conflict.
This is a point made with eloquent force in HLA Hart's great book The Concept of Law, criticizing the old Austin-Bentham view that the law is commands backed by threats of force--a view basically held by mnay Marxists who have no absorbeds Gramsci's lessons about hegemony.
Tahir: I don't think Gramsci's notion goes deep enough. Hegemony can simply be a way of fooling people, which is not incorrect, just historically and philosophically shallow. Law as we know it requires its corollary, subjective morality, to complete itself within a society not based on pure coercion. This is specifically bourgeois society, and the great philosophical contribution of the bourgeoise to history. It is surpising that such a recent development of consciousness has naturalised itself so quickly, even in the thinking of scholars of philosophy and legal history.
In addition the state provides public goods like roads and schools that people will not provide on their own.
Tahir: Ah people on their own. The state as agent and people as agents. A revealing dichotomy.
So, even if the last murderer and rapist could be rehabilitated and the last capitalist reformed by labor, we would still the the state and law. Lenin admitted as much in in quasi-anarchist tract, The State and Revolution. His example--a ghood one too--was the Post Office. jks
Tahir: I'm quite sure Lenin did "admit" as much. Now there was a gentleman who knew the difference between the state and the people.
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