An Enquiry Into Anarchist Jurisprudence

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An Enquiry into Anarchist Jurisprudence

An Enquiry into Anarchist Jurisprudence

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An Enquiry into Anarchist Jurisprudence

For Gen and J. Bauer

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Table of Contents CHAPTER 1.............................................................................................................................................5 Introduction......................................................................................................................................6 Kropotkin’s use of rules/norms.........................................................................................................7 Substantively similar constructs ....................................................................................................10 Theories of Human Nature in Law and Authority and Concept of Law.........................................14 Internal Aspect of Kropotkin’s Primitive society............................................................................16 CHAPTER 2...........................................................................................................................................22 Are Kropotkin’s Rules Law?...........................................................................................................22 Secondary Rules in Law and Authority..........................................................................................22 The Question of Coercion..............................................................................................................26 CHAPTER 3...........................................................................................................................................29 Kropotkin’s Use of Law in Other Work..........................................................................................29 The Origins of Kropotkin’s legal theory.........................................................................................29 Human Nature – A continuing problem.........................................................................................31 CHAPTER 4...........................................................................................................................................33 Legal-chauvinism...........................................................................................................................33 Equity: Flexible Law......................................................................................................................36 The State and Evolution: A Problem..............................................................................................37 Evidence from Anthropology .........................................................................................................38 From People to Officials ...............................................................................................................42 CHAPTER 5...........................................................................................................................................44 Tension between Essentialism and Conventionalism.....................................................................44 Politics in Concept.........................................................................................................................46 CHAPTER 6...........................................................................................................................................50 Locating the Union of Rules...........................................................................................................50 Positivism and the Autonomy of Law.............................................................................................51 CHAPTER 7...........................................................................................................................................53 Conclusion......................................................................................................................................53

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Introduction The purpose of this dissertation is to broadly ask the question does an anarchist society have law? The reason for asking the question is not just to get a binary yes or no answer it is also a means to enquire into conceptions of law. The problem with such a question is that there are different definitions for what constitutes both law and an anarchic society. In this dissertation I will focus on anarchocommunism and the positivist conception of law so have chosen to compare and contrast the Herbert Hart and Pyotr Kropotkin’s legal theory, two prominent authors for their respective schools. I will present the argument that Kropotkin and Hart share many similarities although have core differences. In comparing them an interesting light is shed to many traditional problems of jurisprudence. Questions such as what defines a legal system? What is human nature? Do rules and/or law need coercion? How do rules form in the first place? It will be shown that Hart’s Concept of Law is not a politically neutral account of law but charged in its core axioms on human nature and what constitutes a legal system. I will also attempt to refine Hart’s theory to garner a more accurate understanding of when a legal system exists by supplementing it with empirical evidence from anthropology and sociology so that I may accurately inquire into the core question: does an anarcho-Communist society have law?

Chapter 1 will show how we must appreciate the political purpose of Kropotkin’s work before we can make any comparisons and explain the reluctance for Kropotkin to use the word ‘law’. Despite this I will argue that Kropotkin does actually have what Hart termed primary rules.

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Chapter 2 will ask if Kropotkin has law according to Hart’s concept of law. It will be shown that while they may share the primary rules the all important secondary rules and their accompanying traits such as officials, a state and coercion are missing. Chapter 3 argues that despite Kropotkin’s society not fitting Hart’s concept of law, he still has law in his society. It will do so by looking at Kropotkin’s other work where he favourably looks upon the common law in anarchic societies. Leading on from Chapter 3, Chapter 4 will show that the difficulty in accepting that anarchist societies have law is due to a problem in positivist jurisprudence I have termed legal-chauvinism. There is little cultural relativity and positivist conceptions of law are fixed on state law as their paradigm example. To support my argument an investigation will be undertaken into anthropological studies to show Hart’s conception lacks a solid evidential base. Chapter 5 will show that there is a tension in Concept where Hart attempts to apply his theory to all legal systems at all times but he also has to construct an accurate description of state law. It will be argued that Hart initially in Concept put ordinary people at the heart of law but later law was confined to officials and the state only. In Chapter 6 I will attempt to save the theory that some sort of union took place by locating the union of rules using empirical evidence. The reasons why positivists protect the autonomy of law from social scientific analysis will be explored and in doing so a significant problem emerges that may result in general jurisprudence always being stuck in an analytical frame.

Chapter 1

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Introduction In this chapter I will delve behind Kropotkin’s language into the deeper more truthful meaning of his text. The task is necessary because we have to appreciate the political agenda of his pamphlet, Law and Authority1. If we took it at face value there would indeed be no comparisons to be made with. One could conclude very simply and quickly that Kropotkin and Hart are talking about very different things and any further analysis would not be possible. In order to make these comparisons Kropotkin’s reluctance to use the word ‘law’ will be explored. It will be shown all anarchists are inherently anti-state and against private property. Law enables and fundamentally defines the state via constitutionalism and draws property boundaries in title deeds and the like. That is why anarchists do not like using the term in their historical analysis or future projections. Once the political agenda has been exposed I will compare the substance of Kropotkin’s jurisprudence, specifically the use of ‘social feelings and usage’ to Hart’s ‘rules’. It will be argued that despite the differing language Kropotkin is actually describing Hartian primary rules. In combining the two it will be shown that Kropotkin’s primitive society has all three Hartian secondary rule functions and therefore Hart has unnecessarily attached what I shall call a ‘complexity condition’ to his secondary rules emerging. This reveals a difference in evolution of the law between the two. I will show how Kropotkin sees the law as evolving horizontally, from within society and so does Hart in his primary rules. It will be shown the difference in evolution is that Hart’s law is vertically imposed by a state and requires official coercion, while Kropotkin’s law arises from the same method as primary rules. An analysis of Kropotkin’s use of law in his other work will also be undertaken to prove beyond doubt that he is talking about law. Finally it will be concluded the 6

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complexity condition is very helpful in determining the political stance of The Concept of Law leading to the next chapter where I will argue Hart focuses too narrowly on municipal law, state law and officials. Going onto argue that Hart’s theory cannot be an accurate analysis for general-descriptive jurisprudence.

Kropotkin’s use of rules/norms If we are to make comparisons between Hart’s and Kropotkin’s legal theory we must look behind Kropotkin’s language and into the heart of his ideas. We should glean a more holistic interpretation of the key terms he uses by, for example analysing his other works and using them to aid interpretation and taking into account how his political agenda affects what words he uses. This is fundamental to the analysis presented in this dissertation because prima facie Kropotkin and Hart seem to be discussing different constructs – Hart the law and Kropotkin ‘social feelings and usage’. This chapter will argue while prima facie different, ‘social feelings and usage’ are very similar to primary rules. Firstly a reason will be given to the difference in language. Being an anarchist Kropotkin is naturally anti-authoritarian and anti-state. While it is very difficult to make generalisations about anarchists due to their own wide political spectrum2 at their most fundamental all anarchists are inherently antistate. As Proudhon writes the aim of anarchism is to create anarchy, which is “the absence of a master, of a sovereign.3” There is reason behind this goal, as anarchists see a common thread in history: Unlike many observers of history, anarchists see a common thread behind most of mankind's problems: the state. In the 20th-century alone, states have murdered well over 100,000,000 human beings, whether in war, concentration camps, or man-made famine.4 7

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The state is seen as ‘evil’ and the law as merely a servant of the state and capitalism. Kropotkin puts it well in one of his essays: Furthermore, the State (State-Justice, State-Church, State-Army) and Capitalism are, in our opinion, inseparable concepts. In history these institutions developed side by side, mutually supporting and reenforcing each other. They are bound together, not by a mere coincidence of contemporaneous development, but by the bond of cause and effect, effect and cause.5 Anarchists argue that ‘legal fetishes’ enable capitalists to expand their power and gobble ever more property leading to greater inequality. Private property is one of the cores of the anarchist attack on present society, as Pierre-Joseph Proudhon famously exclaimed ‘property is theft!’ The law defines, enforces and enables private property to exist it also defines the government and gives them their power and legitimacy. With the state as dispenser and enforcer of the law it is apparent why anarchists are unwilling to use the term in both their analysis of history and their future predictions of an ideal society. Their analysis of history has a point – to empirically prove private property and state is a relatively modern phenomenon and is not needed in an anarchist society. The interpretation of history is to counter modern ‘legal fetishism’ as leftists call it where people cannot see society functioning without state apparatus by proving it once did. To admit law existed in primitive societies would rest uneasily with their critiques of the legal form since much of that critique is contingent on the claim private property did not exist in pre-feudal societies. All anarchists are socialists;6 another term for anarchism is libertarian socialism7. Perhaps the essence of exactly why they oppose law whatever its form is best quantified by Evgeny Pashukanis the Marxist jurist (who of course is a socialist), who saw law as:

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… directed, naturally, at the defence of the basic conditions of the capitalist mode of production, at the protection and strengthening of bourgeois private property, and the guaranteeing of the rights of “man and citizen”, i.e. the right of the owner and the exploiter to suppress the revolutionary actions of the exploited classes.8 Law is ultimately just a class tool to ensure the right of contract and property – expropriation of surplus value from the masses9 and the enslavement of the masses to their masters, or so the anarchist argument goes. A digression into E.P Thompson’s experience perhaps best illustrates exactly why defence of the law is vehemently ostracised by Marxists and anarchists. Edward Thompson, the self-described Marxist historian wrote a defence of the rule of law in a famous chapter in Whigs and Hunters10. The book concerned seventeenth and eighteenth century English history in particular the ‘Bloody Code’ where men and women were subject to capital punishment for minor offences such as poaching, wood-taking and gleaning. Daniel Cole writes “the first 258 pages of Whigs and Hunters could have led Thompson to a conventional Marxist conclusion: law is an instrument of brute force which the ruling class consolidates and reinforces its hegemony”11. Yet Thompson mounted a strong defence for the rule of law, despite his own research and Marxist predilection. He argued the rule of law is rather an ‘unqualified human good’12 because it curtails sovereign discretion. The merits of his defence are beyond the scope of this dissertation but some have argued it was neigh on perfect13. Yet most of his colleagues14 from the left heavily criticised him. Martin Horwitz is most typical when he failed to understand “how a [m]an of the [l]eft can describe the rule of law as ‘an unqualified human good’”15 the rationale for doing so he concluded, might be middle-aged conservatism creeping up on Thompson. Thompson’s experience vividly depicts the consequences of straying away from the fundamental principles of the socialist tradition.

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It is no wonder then Kropotkin refuses to use the term law but rather ‘social feelings and usage’ which form customs. His politics prevents him from doing so and more fundamentally so does his aim. His pamphlet has a purpose to usher in a revolution and actively create anarchy. It is what a historian would term a propagandist source. Its purpose is to oppose law, authority, God and the state, not provide balanced analysis of general-jurisprudence. While he is analysing law his purpose is to prove it is not needed. He cannot very well end the pamphlet by exclaiming “No more laws! No more judges!”16 When his prior analysis of early society shows they needed law. That is why he consistently uses the term ‘social feelings and usage’. It enables him to ‘prove’ law is not needed in a utopian society because it did not exist prior to the rise of the capitalists.

Substantively similar constructs Despite the above analysis, Kropotkin’s ‘social feelings and usage’ are similar to Hart’s primary rules. As Kropotkin writes: As man does not live in a solitary state, habits and feeling develop within him which are useful for the preservation of society and the propagation of the race. Without social feelings and usage' life in common would have been absolutely impossible17 It is my contention that these ‘habits and feelings’ and ‘social feelings and usage’ transform into something very similar to Hart’s rules, more specifically his primary rules. Both facilitate the same end goals and are needed for the furtherance of society, to preserve and propagate it. That is what Kropotkin means by ‘absolutely impossible’ in the above quotation. Life is indeed impossible without such social

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feelings and usage because humanity would simply have no order. Without these primary rules which form from ‘habits and feelings’ or social life, life would be impossible. This is so because for the furtherance of society, society needs to abstain from certain activities and partake in others. As Hart writes:“If a society is to live by such primary rules alone, there are certain conditions which, granted a few of the most obvious truisms about human nature and the world we live in, must be clearly satisfied” 18 [such as the restrictions on the free use of violence] As is evident from these extracts both Hart and Kropotkin agree that something has to emerge to satisfy the conditions, otherwise society cannot function. Hart uses primary rules and Kropotkin the customs that emerge from ‘habits and feelings’. But these two concepts are similar. Abstention from the free use of violence is something which (for Kropotkin) ‘habits and feelings’ produce much like Hart’s primary rules. As Kropotkin writes: Many travellers [sic] have depicted the manners of absolutely independent tribes, where laws and chiefs are unknown, but where the members of the tribe have given up stabbing one another in every dispute, because the habit of living in society has ended by developing certain feelings of fraternity and oneness of interest 19 The only difference is language, Hart calls them rules and Kropotkin calls them ‘social feelings and usage’. Yet in the end they both have the same goal – an ordered society. Still the question remains does Kropotkin think these ‘habits and feelings’ eventually formulate into rules and even if he does, are they rules in the Hartian sense? On the other hand, are they just conditions that anything may satisfy and not necessarily rules? While they exhibit the same traits, as mentioned above the abstention of the free use of violence, are they actually rules or more specifically

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primary rules? It could be argued that morality, rather than rules also contain similar conditions. It is my argument that Kropotkin thinks that the customs that result from social feelings and usage are something similar to Hart’s rules and separate from morality. He argues that the ruling elites fused the customs which the ‘habits and feelings’ eventually formed, into their own code, creating a new code. the legislators confounded in one code the two currents of custom of which we have just been speaking, the maxims which represent principles of morality and social union wrought out as a result of life in common, and the mandates which are meant to ensure external existence to inequality. Customs, absolutely essential to the very being of society, are, in the code, cleverly intermingled with usages imposed by the ruling caste, and both claim equal respect from the crowd. "Do not kill," says the code, and hastens to add, "And pay tithes to the priest." "Do not steal," says the code, and immediately after, "He who refuses to pay taxes, shall have his hand struck off."20 Here Kropotkin shows us how ‘social feelings and usage’ form primary rules or customs as he calls them. Customs/primary rules, Kropotkin contends, result from both morality and social union as a result of life in common. Indeed the examples he uses are testimony to the primary rule nature of customs forming out of ‘habits and feelings’. Kropotkin uses ‘do not kill’ and ‘do not steal’ as an example of a ‘custom’ “absolutely essential to the very being of a society”. Even so, this argument seems artificial as Kropotkin is not using the term rule anywhere in Law and Authority. Other anarchists have argued that custom is a more appropriate word.21 For the purposes of comparing Hart and Kropotkin, however the equating of customs to primary rules is justified, more so it is required. As Hart writes, a social structure lacking a legislature, courts or officials “is often referred to as one of ‘custom’”22 but Hart does not use that term in Concept, “we shall refer to such a social structure as one of primary rules of obligation” 23. Hart is unambiguously stating that customs are primary rules for the purposes of his inquiry in Concept. He

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only changes the term because custom “often implies that the customary rules are very old and supported with less social pressure than other rules”24. So then it is surely beyond doubt that the ‘habits and feelings’ or ‘social usage and feelings’ eventually form primary rules in the Hartian sense; because primary rules are just customs. It would be a stretch to see Kropotkin himself disagreeing with this argument. Primary rules are customs for Hart. They existed prior to the legislation (which Kropotkin views as a corruption of his customs) and were established by the people themselves rather than a state. These are key features for Kropotkin’s customs. Hart’s primary rules and Kroptokin’s customs are one and the same.

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Theories of Human Nature in Law and Authority and Concept of Law The problem with trying to unify Kroptokin’s and Hart’s primary rules is both have polar opposite theories of human nature. Kropotkin believes that human nature means we inherently evolve structures which govern our behaviour - it almost seems biological; the quotations above are strong testimony to that fact. Anarchists may have problems25 in believing socio-biology or genetic-determinism is a tenet of any anarchists work, but research by Noam Chomsky has established26 a clear link to socio-biology and genetic-determinism in anarchist thought, especially Kropotkin’s. Chomsky argues that Kropotkin saw humans as altruistic and lacking aggression (at least in Mutual Aid). This theory and premise of human nature facilitated feasible anarchist societies due to an inbuilt genetic code to do ‘good’. Hart is the opposite and very similar to classic thinkers like Hobbes and Locke. As is well known Hobbes saw the state of nature as a chaotic frenzied competition for scarce resources which resulted in war of all against all where life was “solitary, poor, nasty, brutish, and short.”27 Men in the state of nature were thus ‘bad’ and the Leviathan (sovereign) would have to impose a rule of law to bring order. Similarly Locke in Essays on Government posits that men subdued to the authority of law because in the state of nature no body is secure, “the enjoyment of the property [man] has in this state is very unsafe, very insecure.”28 By property Locke means “lives, liberties and estates.29” Even more similarly to Hart than Hobbes, Locke requires law to be imposed on society and even mentions a sort of rule of recognition30 and adjudication31 arising to halt the chaos in nature. Hart assumes similar conditions of a state of nature without primary rules, in less dramatic terms:

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rules must contain in some form restrictions on the free use of violence, theft, deception to which human beings are tempted but which they must, in general, repress, if they are to coexist in close proximity to each other.32 A critic could argue that in Kropotkin’s society the purported ‘rules’ people follow are just things they inherently do especially in light of the Chomsky argument. As such they are not rules properly so called to borrow Austinian terminology. People just abide by them like they abide by their appetites or follow their hearts. Indeed Kropotkin seems to be himself from this camp at least in Law and Authority, he contends: all these qualities are developed in man anterior to all law, independently of all religion, as in the case of the social animals. Such feelings and practices are the inevitable results of social life.33 He is refuting the notion that law established them rather they just ‘sprung’ into existence. This is where the departure between the two seems to be at its greatest – on the question of how the rules arose. Indeed Kropotkin’s analysis is in line with Hart who argues rules are rather “restrictions on the free use of violence to which human beings are tempted but which they must, in general, repress.”34 Hart is saying human nature means we are all temped to violent behaviour and rules restrict this. Restrictions is key to the quotation. In Hart’s society people are restricted by normative rules of behaviour on actions they would otherwise normally perform, in Kropotkin’s, or so the critic would contend, there is are no such normative order it just is the state of nature. A reversal of Hobbes’ state of nature - order comes ingeniously not exogenously form the rule of law.

Indeed rules are seen as

prescribing behaviour. If we are to attach rules to Kropotkin society the critic would say such rules are mere descriptions of conduct not prescriptions, they cannot be rules or law. Using Hart’s internal/external aspect of rules we make things even clearer.

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Externally in an anarchist/primitive society people would not assault others not because there was a rule in place stopping such assaults; rather they would just inherently abstain from violence due to ‘life in common’. It is just something that they do. Such an analysis overstates the differences between Kropotkin and Hart and in particular does not appreciate Hart’s ‘internal aspect of rules’. The problem is with the lack of information for the emergence of primary rules in Kropotkin’s theory. As stated earlier there is no doubt they are the same, because even if we understand Kropotkin’s rules to be customs they are still Hartian primary rules. The difficultly with Kropotkin is him failing to address how exactly his social feelings and usage exert influence on society. Are they absolute genetic traits like eye colour? Something we just do? Or are they re-enforced and propagated in combination with our environment/society? It seems to be the old nature/nurture argument. If we construct a logical argument as to how the primary rules arose we can see Hart and Kroptokin are not so dissimilar. It is during the secondary rules which give a legal system its title of ‘law’ (for Hart) where the concepts of human nature differ and perhaps we can no longer fuse the two. We would be wise to borrow Hart’s internal/external divide. Much like Hart’s rules it is from the internal point of view the ‘social feelings and usage’ acquire their normative character and as such constrain behaviour from the very fact they are in existence.

Internal Aspect of Kropotkin’s Primitive society Briefly stated from an internal point of view we would observe that there are in fact primary rules. The key difference between them is they come from within society itself creates them via social life. The critique presented above ignores this

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fact which is understandable because of the tendency to think Kropotkin’s purported primary rules are just absolute biological traits. Although in many respects he is arguing biological evolution ordained them: They are spontaneously developed by the very nature of things, like those habits in animals which men call instinct. They spring from a process of evolution, which is useful, and, indeed, necessary, to keep society together in the struggle it is forced to maintain for existence.35 Thus the ‘process of evolution’ established rules. This process is “anterior to all law, independent[] of all religion”36 However, it is not just biology that established the primary rules it is ‘social feelings and usage’ and ‘life in common’; social feelings require both genetic and environmental factors. To use an analogy we ordinarily evolve the ability to talk, we have mouths, tongues, voice boxes, intricate areas of the brain responsible for language and the like. Yet without external environmental stimulus this ability we all genetically have is not realised; without social life we would not gain the ability to talk. This is exactly how rules are established for Kropotkin – a combination of a genetic inbuilt code and the environment. While Kropotkin’s axiom of human nature as ‘kind’ might lead humans to have a higher propensity to establish primary rules via genetics, social life is still key in order to firmly establish the rules since there are still rule breakers. The examples he uses are proof enough: members of the tribe have given up stabbing one another in every dispute, because the habit of living in society has ended by developing certain feelings of fraternity and oneness of interest37 The habit of living in society gives rise to these ‘feelings of fraternity and interest’ which are primary rules. Habits like living together, farming, hunting and the like. These ‘feelings of fraternity and interest’ are not purely genetic. Fraternity requires a

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society – it is a learned trait and something which society itself creates. Both Kropotkin’s primary rules and Hart’s primary rules evolve from the very same thing: what is customary in social life. The primary rules regulate customary behaviour in society. It is sufficient to say at this juncture that from the text we can glean: evolution itself created primary rules in Kroptokin’s society and they do exist. It has to also be the same in Hart’s society. Primary rules had to be created by evolution because the other source of rules in his theory is the rule of change. At the primary rule stage there is no rule of change thus it is evolution by default – society itself. But how would the primary rules gain authority and compliance with no law? For this we need to speculate again. Although Hart does give us glimpses into how primary rules gain authority but Kropotkin does not addresses these issues despite referring to the primary rules so I shall construct my own theory and use a theory from sociology to elucidate how social feelings and usage acquire their normative pull. By normative pull I mean to ensure compliance. This is important to understand for both Kropotkin and Hart because even with Hart initially there was no law, no rule of change. The primary rules had to evolve some way.

When society creates rules or customs they assume an inter-subjective meaning. By this I mean the primary rule enters into the mind of a societal actor, they then pass it onto others and thus the primary rule acquires an inter-subjective strength. The external observer would see this as an objective primary rule. But in fact the rule exists in actors minds only, at least if it stays unwritten. Members of a society would then be influenced by the inter-subjective meaning and it would influence their behaviour thus the primary rules acquire their normative character.

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While the original ‘framers’ of the rule, who constituted the rule due to social life (viz everyday activities) would obey it there would be others who would want to break it, perhaps a rogue or another generation divorced from the creation of the rule. However, they see an inter-subjective rule in place, they know they cannot break it or there would be a resultant punishment. Typically in an anarchist society that would be exile or diffuse societal action which Hart also acknowledges38 is a valid form of punishment for primary rule infringement. Children would also presumably told of such rules and be taught to obey them cementing their inter-subjective strength. Thus when society forms the habit of doing something, it sometimes takes on a normative character due to its inter-subjective strength. The reason it has inter-subjective strength is that others in society will expect compliance and criticise or even coerce if the rule is not complied with. Similarly Hart reasoned that social rules are differentiated from mere habits because they have normative pull and demand compliance due to the criticism when they are breached: Where there are such rules, not only is such criticism in fact made but deviation from the standard is generally accepted as a good reason for making it. Criticism for deviation is regarded as legitimate or justified in this sense, as are demands for compliance with the standard when deviation is threatened.39 Depending on the degree of normative pull the ‘habit’ forms it may be a rule properly so called. This is the key feature of when a rule is born. Hart too had a similar argument to mine and imagined difficulty in quantifying when a habit becomes a rule properly so called: How many of the group must in these various ways treat the regular mode of behaviour as a standard of criticism, and how often and for how long they must do so to warrant the statement that a group has a rule, are not definite matters40

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So then before Hart took the ‘jump’41 away from linguistic analysis in ‘Elements of Law’, in the internal aspect of society he gave people, not officials or the state, the sole role in formulation of primary rules. Here it was not the secondary rules that imposed primary rules onto society, it was the people. Such analysis is not just confined to Hart’s linguistic philosophy and my conjecture. Sociologists have theorised how something unique becomes something common and influences behaviour. My argument is indicative of the angle of repose or tipping point theory of Morton Grodzins and later Thomas Schelling. The theory posits how behaviour that was once uncommon becomes common. An example42 is a neighbourhood of predominantly white painted houses. One day someone decides to paint their house blue. A neighbour contemplating repainting sees that and also decides to paint his house blue, effectively the ‘craze’ spreads like a virus. While some of the newly blue painted houses might be painted white again the general trend means the total quantity of blue houses increases in the street at an exponential rate. The applicability to the origins of primary rules is clear. Using Kropotkin’s43 rule of adjudication for example, once a person appeals to a third person in order to settle a dispute, other parties having disputes would also do the same. This behaviour then spreads at an exponential rate. It does not matter if individual parties stop appealing to third persons any longer. The angle of repose or ‘tipping point’ has passed its critical value and the trend spreads. The individuals who do not conform to the rule are in the minority while the majority are conformists. The majority appeal to a third person. Thus the ‘craze’ acquires a somewhat normative pull because people demand conformity to it and is thus now a rule properly so called due to its inter-subjective strength. It is effectively enshrined into a social custom or primary rule as Hart calls

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it. Something once rare, perhaps initially done by a single person, becomes something common44. While Kropotkin is arguing in Law and Authority that law does not establish primary rules, they are established by the necessities of social life (‘life in common’) the key is such rules do exist and take on the (Hartian) authority of more advanced law because the primary rules are used and enforced by society even in the absence of a state. Again it must be stressed that primary rules in Hart’s society are not established by law either. The only requirement for a primary rule to be valid for Hart is effectiveness – those who accept the rule must out number those who reject it: though such a society may exhibit [] tension… between those who accept the rules and those who reject the rules…. it is plain that the latter cannot be more than a minority45 At the primary rule level Hart and Kropotkin share many similarities. To summarise: their conceptions of rules are established both prior to law, exhibit the same goals (to facilitate social life), the same substantive rules (restrictions on violence, murder, theft46) and owing to the fact they are established in the absence of a state or the law are created by society itself and enforced by society. It is unfortunate for our purposes that Hart jettisoned the use of ‘custom’ and replaced it with primary rules. In an effort to stop negative associations with custom Hart just created unwarranted associations with primary rules, mainly that they are coercion from a state or official rather than something we create. Nonetheless, the only logical origin of primary rules in Hart’s society is from within society and as shown above he in his internal aspect also agrees with this. It is only the secondary rules that can be any different. The question of secondary rules will be investigated in the next chapter, where I will investigate if Kropotkin’s rules are law, in a Hartian sense.

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Chapter 2 Are Kropotkin’s Rules Law? There are fundamental differences between the two in their emergence of secondary rules which deny the title of Law to Kropotkin’s society according to Hart’s concept of law. Broadly speaking this is because of Hart’s requirement for state based coercion and the lack of secondary rules of change, recognition and adjudication. Despite Kropotkin having what ostensibly seems like a legal system and he explicitly himself even calls a system of ‘common law’47 the differences between Hart and Kropotkin are too great. The differences are useful in showing bias and what seem like errors in Hart’s theory. I will argue that many disparities are essentially due to Hart attaching a ‘complexity condition’ to his secondary rules arising which Kropotkin has no use for. For Kropotkin the functions of Hart’s secondary rules occur in a primitive/anarchist society anyway. I will then go on to argue that this complexity condition elucidates the political stance of Concept.

Secondary Rules in Law and Authority Kropotkin’s theory emanates Hartian secondary rules especially the rule of adjudication. Hart contends that secondary rules emerged to remedy uncertainty, inefficacy and stagnancy when a primitive society advances’

“It is plain that only a small community closely knit by ties of kinship, common sentiment, and belief, and placed in a stable environment, could live successfully by such a regime of unofficial rules. In any other 22

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conditions such a simple form of social control must prove defective and will require supplementation in different ways.” 48 While Hart does not explicitly write the advancement of society creates the problems with primary rules it is apparent from the extract such an advance is presupposed. Firstly he emphasises only a small community could work under such a form of social control. As society advances populations increase for a range of reasons: better healthcare, advanced farming methods and the like, leading to higher mortality rates. The quantity of territory inhabited of an advanced society also increases. Both population and land increase from ‘small’ primitive societies therefore. Secondly ties of kinship are emphasised in primitive society. Many have agreed that as society advances people lose social ties and understanding49. They are no longer commonly joined by activities such as hunting and simple trading (barter). More complex less fraternal activities not linked to the land or the village take over, mostly relating to economics and technology. Society increases its demands and consumption, a modern economy forms to allocate scarce resources to these infinite wants50. This needs a panoply of legal institutions to be formed in order to regulate such activity. This is what Hart means by “in any other condition” - the condition of a relatively modern state. So then Hart adds a ‘complexity condition’ to the secondary rules arising, conditions such as the advancement of society, the economy and the increase population and land. Kropotkin does not presuppose such problems with his equivalent of primary rules, he argues that at least something like a rule of adjudication developed in a primitive society. Many travellers [sic] have depicted the manners of absolutely independent tribes, where laws and chiefs are unknown, but where the members of the tribe have given up stabbing one another in every dispute,

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because the habit of living in society has ended by developing certain feelings of fraternity and oneness of interest, and they prefer appealing to a third person to settle their differences51 Dispute resolution is a manifestation of a rule of adjudication, although not Hart’s own. First it will shown why it is a rule. One could argue that it might be adjudication but it is no rule. The example I used to expound upon the angle of repose theory describes exactly why it is a rule, in the primary sense52. It will be recalled that the important feature of primary rules is that they have some normative pull, they make demands on society for conformity. If a number of ones peers are performing a task, that of appealing to a third person to settle their dispute, then the ‘craze’ exerts influence on societal actors. If one did not appeal to a third person to settle a dispute there would be social pressure to do so ranging from society frowning upon such behaviour to all out exclusion53. Kropotkin’s rule of adjudication is not the same as Hart’s though - Hart’s is a secondary rule. Hart makes explicit that his secondary rules are very different from the primary rules. Secondary rules are: On a different level from the primary rules, for they are all about such rules; in the sense that while primary rules are concerned with the actions that individuals must or must not do, these secondary rules are all concerned with the primary rules themselves.54 Essentially they are power conferring rules and not rules of obligation as with the primary rules. Kropotkin’s rule of adjudication seems to be a primary rule of obligation, arising for exactly the same reasons as the other rules such as ‘do not steal’ and ‘do not kill’

It could also be argued that because Kropotkin’s primitive society has a rule of adjudication it also necessarily has the all important rule of recognition:

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A system which has rules of adjudication is necessarily also committed to a rule of recognition of an elementary and imperfect sort … because, if courts are empowered to make authoritative determinations of the fact that a rule has been broken, these cannot avoid being taken as authoritative determinations of what rules are. So the rule which confers jurisdiction will also be a rule of recognition55 Although in the above extract Hart is referring to Courts, in an earlier passage he does refer to individuals. To solve the problem of primary rules being inefficient, secondary rules empower: “individuals to make authoritative determination of the question whether, on a particular occasion, a primary rule has been broken” further more “Besides identifying the individuals who are to adjudicate, such rules will also define the procedure to be followed”.56 Such an argument is only superficially attractive though. Again the key is a rule of recognition is a secondary rule which is expressly not just a type of primary rule but an all together different species of rule. Even more so Kropotkin himself has no requirement of an explicit rule of recognition. Something that performs the functions of a rule of recognition is implied since there are primary rules in Kropotkin’s society and one would need a method of ascertaining which rules are valid, as Hart argues. This method is most likely as simple asking when a habit forms into a rule. It will be recalled this point is when the habit exerts sufficient normative pull on society to be called a rule. However, there is no express Hartian rule of recognition. The third type of secondary rule, the rule of change, is not in Kropotkin’s society either. The rule of change alters, adds and removes rules from the stock of primary rules. Kropotkin makes no explicit mention of a rule of change in his society. Although one could argue it is inferred because Kropotkin’s legal theory constantly

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shows how his primary rules change to fit any societal problem.57 The change in Kropotkin’s primary rules is because they are created out of society for the purpose of society via social life. In many ways an extreme level of direct democracy as anarchists call it where the whole society effects decisions and the rules and norms they live by.58 This change is not derived from any formal rule at least not in a secondary sense. Kropotkin’s anarchist society acts ad hoc to circumstances so there is no need for a formal rule-changing process. The primary rules spontaneously change because cases are decided on justice and society’s mores rather than fixed rigid rules which are the epitome of western legal systems. There would be no requirement of a specific rule of change when the change occurs anyway. I will argue later this combined with other factors is perhaps evidence of Hart’s bias towards fixed and rigid rules as a requirement for law which may not be an essential requirement of law. To summarise this section, while Kropotkin has something similar to a rule of adjudication and perhaps recognition, he specifically does not have a rule of change. If we are to use Hart’s definition of law as a union of primary and secondary rules then one of the essential secondary rules is missing so Kropotkin cannot have law under Hart’s definition. The more important question is the lack of coercion with Kropotkin rules, Hart needs rules to be coercive.

The Question of Coercion As already detailed Hart’s conception of human nature means man is ‘bad’. Rules are necessarily coercive because man ordinarily seeks to break them. Kropotkin views things very different as Chomsky has shown Kropotkin has a premise of

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human nature that is peaceful. At the primary rule level the difference between Hart and Kropotkin can be resolved because Hart’s coercion has to come from societal pressure59 (since there is no state) and so does Kropotkin’s60. Even here though there is the question of the level of coercion. Kropotkin’s society would not have the level of disobedience against the rules as Hart’s.. While the varying levels of coercion are important differences between Kropotkin’s version of primary rules and Hart’s it does not mean they are different species of rule. The most important element is the rules are coercive in nature and without a state this coercion is only social pressure. Social pressure can be as little as society frowning upon a breach of a rule or using physical forest to arrest or expel the rule breaker from the community. The minor discrepancy at the primary rule level is exacerbated at the secondary rule stage when law becomes the domain of state and official coercion61. No longer can we fuse the two because they are truly are talking about very different things. Now Hart’s rules are coercive in nature. More importantly they are in the domain of official state coercion and seem to be wholly divorced from the people. So then, while Kropotkin may have a tenant of coercion to his primary rules this is to a different level to Hart’s coercion at the secondary level. More importantly it is a very different bread - official rather than societal coercion. This argument combined with the lack of Hartian secondary rules shows beyond doubt that Kropotkin cannot have law under Hart’s concept of law. What is interesting to note for Hart is the jump from a pre-legal society to a legal one is a jump from primary to secondary rules. Parasitic to the jump is the requirement of officials, a state and coercion. According to Hart then one of the fundamental identifying characteristics of law is official state coercion. This is diametrically opposed to any anarchist philosophy. I will argue, in the next chapter, that Kropotkin

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does have law and Hart has attached unnecessary conditions in his theory which is too specifically based on state law. In comparing and contrasting the two authors I will show that Concept is a politically charged theory of law and not a neutral general theory. First we need to understand that Kropotkin does have law in his society.

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Chapter 3 Kropotkin’s Use of Law in Other Work In this chapter I will demonstrate how Kropotkin’s other works show that he himself saw law as present in an anarchist society. In attempting to do so though there is the nagging element that Kropotkin insists that the rules arose ‘anterior to all law’. However, one has to appreciate Kropotkin’s other work before a full understanding of rules arising anterior to law can be appreciated. In fact such rules are established by law, again language and history are key. In looking into other works apart from Law and Authority we can also show Kropotkin was not wary of using the term ‘law’ favourably and as existing in an anarchist society.

The Origins of Kropotkin’s legal theory62 In Modern Science and Anarchism63 Kropotkin argued that throughout history there were two trends at odds with each other “on the one hand, the masses were developing, in the form of customs, a number of institutions which were necessary to make social life at all possible – to ensure peace amongst men, to settle disputes” 64. On the other hand, “there appeared sorcerers, prophets, priests and heads of military organisations, who endeavoured to strengthen their authority over the people.”65 He linked anarchism positively with the former and went as far as to say the first tendency is “aimed at developing institutions of the common law in order to protect them from the power-seeking minority”66 In Law and Authority Kroptokin argues that these institutions are established prior to law, yet here he is arguing anarchists were

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active in the formulation of the common law. His argument in Law and Authority is that the second type of law did not establish rules but the first type did – the common law. Eventually though popular/common law had a historical tendency to transform into governmental law.67 Elites, or so the argument goes, took the common law and shaped it to their will. This law, divorced from its common law roots is not the type of law that established rules. It was the grass roots common law that established them. Earlier in Mutual Aid he also made reference to the common law. “Their whole behaviour is regulated by an infinite series of unwritten rules of propriety which are the fruit of their common experience as to what is good or bad … the savage obeys the prescriptions of the common law… [h]e obeys them even more blindly than the civilized man obeys the prescriptions of written law… [h]is common law is his religion”68 It is important to understand that to Kropotkin the corruption of the common law by the elite minority garnered their power, “customary law did much more to create … authority … than did the power of the sword.”69 Law not conquest gave birth to authority. It was mans desire for punishment ‘according to the law’ that ushered in governmental authority. The elites could entangle their norms, their goals, their philosophies into the law and the masses were willing to accept it; law was the proverbial Trojan horse. It is no wonder then Kropotkin is insistent rules are not established by law in its modern setting. He sees that a blind servitude to the law and an almost cult like obsession to it has created governmental authority and thus the very origin of the state. Yet he is not saying rules are not established by law per se. The rules are not established by governmental law but the people (the common law). Nonetheless this is still law and it is correct to speak of law in an anarchist society.

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The actual substance of law in Kropotkin’s primitive society is quite advanced too, “respect for human life”70 implies human rights and “the sense of reciprocal obligation”71 implies the law of obligations and contract. Indeed in another work The Conquest of Bread72 for his future projections Kropotkin formulated a quasi contract73 that may be agreed between members of a communalist society to remove idlers (those who do not work out of choice, not incapacitation). It is much like a contract because it stipulates individual’s requisite hours of work in exchange for the free enjoyment of benefits of a society. Even under English law this constitutes offer, acceptance and consideration.

Human Nature – A continuing problem In this dissertation I have argued that Kroptokin’s primary rules are Hart’s primary rules and vice versa with one core difference being differing conceptions of human nature which lead to a range of problems some of which already detailed most of which will be discussed in the next chapter. They share many similarities, yet when one tries to tie to two frustratingly it seems like putting a circular peg into a square hole. Hart talks of rules as if they are autonomous concepts divorced from society, at least his secondary rules. Kropotkin is at the other extreme; he argues that they are created from the very collective genetic fabric of society. Both seem to identify the salient features of law: (restriction of violence, theft, deception, resolution of disputes etc.) yet the rules differ because Hart after the union of rules requires officials to impose coercive power to enforce rules and Kropotkin is satisfied with diffuse societal pressure to act as a coercive influence to ensure rule compliance and enforcement. As will be seen in Chapter 4 initially Hart gave much weight to the role of people in creating and enforcing the rules, it is their internal aspect that is so key to

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Hart’s jurisprudence and their critical reflective attitude; yet after the union of rules law becomes official coercion. So then what can we glean from this unification? It seems that any concept of law requires a parallel concept of human nature. The sum is equal to its parts. Law is a human endeavour so we then need theories on humanity to explain it. The problem is neither author adduces evidence to prove their concept of humanity. This results in politics colouring descriptive accounts. The next chapter will show how Hart’s account is especially tainted by something I have termed legalchauvinism. Future accounts of general jurisprudence need to be aware of this danger.

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Chapter 4 Legal-chauvinism The problem with not accepting an anarchist society has law is an example of what I have termed legal-chauvinism. By that I mean projecting the modern concept of law onto an anarchic society and refuse to accept they have law because it does not conform to how law operates presently. Recently I had a debate with a friend on morality having absolute values, he took the traditional enlightenment stance that morals are relative to the society you live in - they cannot be absolute without an absolute entity in the universe. I argued that while that is true in all societies murder is ‘wrong’ and therefore murder is an absolute moral wrong. Since I view morality as a societal construct and if all societies criminalize murder, then surely it is an absolute wrong. The merits of this argument aside he countered “wrong, murder is acceptable in some societies. In many middle eastern societies, blood revenge is an acceptable act”. This is what I mean by chauvinism, he is projecting the western concept of murder which applies to all acts of unlawful killing to another society. When in fact in that society revenge killing is no murder but justifiable, it is not an unlawful killing. This idea is hard to grasp, precisely because of legal-chauvinism and lack of cultural relativity. Most positivists like Hart are removed from the genesis of rules and law so their theories cannot accept law exists in Kropotkin’s society. Positivists are used to discussing sovereigns, statutes, the judiciary, modern litigation and the like and so cannot fully analyse how law initially started. Although Hart himself is confusing on this point as I will discuss later, he gives people a very high status in his

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theory up until the secondary rules emerge when law because the sole domain of the official. This is not a unilateral accusation against positivists; anarchists themselves exhibit signs of legal-chauvinism. This is surprising because their philosophy is full of relativism elsewhere and they are fully aware that the present world is very different to how we used to live and may well live in the future. Harold Barclay serves as a good example of this type of anarchist. In a chapter in Culture and Anarchism74 he accuses those who argue anarchist societies have law confuse “the term law with norm or custom in which a way to claim that anarchist societies have law”.75 Barclay defines law as “rules which are imposed by the state through its government.”76 He goes onto cite his previous work People Without Government where he pointed out that A.R Radcliffe-Brown suggested that “[d]iffuse and religions sanctions are universal to all human societies, whereas penal sanctions are found only where there is a state and a government. This is because in penal sanctions there exist specialised ‘enforcers’ who lay some claim to monopolising the uses of violence so as to enforce rules. Penal sanctions are therefore law” 77 Such statements are chauvinistic. They attribute our modern concept of law which requires a state and police force to enforce it as the only form of law. ‘Custom’ or customary law is alienated from law because it lacks a state and specialised enforcers. His idea that laws are only those rules which are penally enforced is very similar to Austin’s idea of an order backed by threat. This breaks down under Hart’s analysis which does not need to be transcribed here but notably we cannot say the law of contract, wills, marriage and the like are such penally enforced laws. Barclay and other anarchists who adopt his stance have a very narrow view of the law, very much an Austinian one. Even Hart keeps one strand of Austinian thought in his theory as

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has been stressed throughout this dissertation he requires officials and state coercion to ensure rule compliance. Other anarchists also refuse to take custom as true law. For example: What anarchists propose instead of the current legal system… is custom namely the development of living "rules of thumb" which express what a society considers as right at any given moment.78 This differs from law because: The difference is that the "order of custom" would prevail rather than the "rule of law". Custom is a body of living institutions that enjoys the support of the body politic, whereas law is a codified (read dead) body of institutions that separates social control from moral force79 Such statements are legally-chauvinistic. The law is currently codified and rigid because our society sees legal certainty as of paramount importance, but these are not essential traits of law. It is merely a trait of what law currently is. Anarchists like those above cannot seem to see past this. It is only a modern trait of the law, it does not define it. We do not need to make arguments that appellate litigation in common law systems shows that the law is not fixed and rigid and that our common law is flexible. The majority of cases do not reach the higher dimensions of litigation and even when they do, it is only in narrow areas such as the tort of negligence where legal certainty is at a minimum and flexibility is maximal. Rather we can look back into legal history.

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Equity: Flexible Law Equity in England developed to remedy the rigidity and procedural hurdles of the Law Courts which begun freezing the claims they would hear in the 13th century. As a result the Court of Chancery developed which had an emphasis on fairness and flexibility, it was a ‘Court of conscience’. It was only at the end of the 17 th century that lawyers were the sole people to be appointed to office of Chancellor, prior to that judges not versed in the law decided cases. The eminent 17th century jurist John Selden’s dictum “Equity varies with the length of the Chancellor's foot” typifies the state of affairs80. It meant that cases were decided by each Chancellor’s reading of the equitable maxims. Rigidity and certainty were foreign to the Courts of Chancery prior to the late 17th century. Yet there is no doubt this was the law of England. The Courts of Chancery are empirical proof that law can be flexible and lack specialised judges well versed in the law, yet still be law. While the flexibility in England was down to the Chancellor, his position in an anarchist society could be replaced by someone who represents the norms of society who decides cases on ‘anarchist maxims’ or ‘societal maxims’ rather than maxims of Equity. These could even flux in time so they would not be a ‘dead body’. Kropotkin actually refers to maxims himself to describe the common law of primitive and anarchist societies.81 It must be remembered the rigidity that statutes bring are relatively modern and are not a necessary part of law. The anarchist critiques are better targeted at statutes which are inherently fixed, rigid and governmental in nature. They should not critique the law in toto because the common law, even in a modern state, is ever changing.

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Benjamin Tucker and Peter Kropotkin seem to be the only anarchists who see past the chauvinism and combines all of what I have argued. Tucker puts it best and most explicitly: "under anarchism all rules and laws will be little more than suggestions for the guidance of juries which will judge not only the facts but the law, the justice of the law, its applicability to the given circumstances, and the penalty or damage to be inflicted because if its infraction . . . under Anarchism the law will be so flexible that it will shape itself to every emergency and need no alteration. And it will be regarded as just in proportion to its flexibility, instead of as now in proportion to its rigidity.82 Law can be flexible and lack a statutory base. It can wholly embrace the common law tradition without statutory interference or concerns of legal certainty. Indeed it is correct to say an anarchist society will have law, just a different type.

The State and Evolution: A Problem The strength of Hart’s theory is its ability to be applied to all legal systems at all times. Rather than picking out modern legal systems traits it identifies the union of rules as constituting a legal system. Hart too exhibited chauvinism because he could not accept that a primitive society had law and thought them only to have primary rules. Primary rules which could not be changed, were inefficient and uncertain due to a lack of state and coercion. It is the insistence that the state or someone in power administers rules that causes such problems. Even in Kropotkin’s work (Law and Authority) he cannot see past the state or a hierarchal institution administering rules, even though it is his own work (Mutual Aid) that precisely shows such rules are administered and created from within. Most assume that rules are oppressive in nature, they stop people from performing activities they would normally perform, Hart thinks so too. They are usually handed down in a hierarchical fashion from top 37

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down, they impose themselves upon society. Yet is it true to say that most of society does not end up killing each other because of a rule in place that is enforced by the state? Or steal because of fear of punishment? That is a very nihilistic concept of human nature which Hart has. In a society if the law significantly overlapped with society’s core morals it would command respect without the threat of organised punishment. One has to look at the origins of rules; they do not exist in some state above society, but in society itself. In an anarchist society where there is no state to perform secondary rule functions, the people do. Society itself collectively ‘legislates’ for itself, it enforces its rules via social pressure and changes them dynamically. The union of Krotpotkin’s and Hart’s jurisprudence shows Hart’s more politicised background. The complexity condition shows us Hart jurisprudence exhibits signs of Weberian, Hobbesian and even Austinian theories on why exactly the rule of law arose and was needed. It will be recalled the complexity condition is Hart’s assumption that law arises when society advances. This will be investigated in Chapter 5. First I will see whose theory is correct, Kropotkin or Hart? For this an investigation into empirical anthropology will be undertaken. This is important because we must see if Hart has attached unnecessary conditions for his secondary rules arising. If the secondary rules, or whatever performs the function of secondary rules, can be shown to exist without officials, the state and state coercion then we will have proof that Hart’s theory is too specific to be a general theory of law. It will also help us in answering the core question of this dissertation: does an anarchoCommunist society have law?

Evidence from Anthropology

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It has been a long settled that Hart’s speculative anthropology of the union of primary and secondary rules is, “if taken as a historic claim… inaccurate”83 as Nicola Lacey puts it. However, despite over forty years of consensus on the inaccuracy of Hart’s claim I will advance the argument that perhaps the anthropologists and historians are not looking far back enough through human history to find evidence of when man existed in a state of Hartian primary rules alone. Where the primary rules could not be changed quickly, were inefficient and uncertain. My argument is that such a union did take place. It was not where Hart located it, but precisely where Kropotkin located it, at the start of human social relations though biological evolution. Although in Kropotkin’s work he makes no such claim that a union had taken place, as the last chapter shows he speculates that law and primary rules emerged as soon as social life sprung up. So then it is my contention that Hart’s core thesis is correct: a union takes place, however I submit Hart’s placement in time of such a union seems to be clouded by his legal-chauvinism and western perspective. The union took place prior to the ‘complexity condition’ arising and before courts and a legislature. It took place soon as advanced social life emerged from animalistic habitual norms - far earlier than Hart supposed. Removing the complexity condition (and thus the legalchauvinism) from Hart’s union of rules, the union theory can be saved from the critiques imposed on it. Although in doing so it ceases to be Hart’s theory rather a significant modification of it. In doing so a latent motive in all of positivist jurisprudence will also emerge - positivists (at least those like Hart) want to preserve the autonomy of law and divorce it from sociological analysis, despite Hart’s claim his theory can be seen as descriptive sociology.

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Jonathan Cohen as early as 1962 argued certain secondary rules “appear in almost every pre-legal system”84. He noted that Hart cited Malinowski’s Crime and Custom in a Savage Society85 and Diamond’s Primitive Law86 as examples of a society where there are no courts, officials or a legislature.87 Using such studies, Cohen points out that even primitive societies had rules on marriage. Hart insists that such rules only come about from the addition of secondary rules. Malinowski mentions a culture he studied in which : “marriage establishes not merely a bond between husband and wife, but it also imposes standing relation of mutuality between the man and the wife’s family, especially her [the wife’s] brother”88 Diamond too89 observed a society where there were rules of marriage in a society that did not possess courts. Thus Cohen reasons “the moral institution of promise is thus far from being the only form of ‘power-conferring’ rules that are to be found in a prelegal society, as Hart implies”90 Although Cohen does not explicitly say it in the terms we have adopted here he can be seen as accusing Hart of legal-chauvinism91, “Hart’s claim that his distinction between primary and secondary rules is the key to the science of jurisprudence and has great explanatory power must be reduced here to the somewhat less exciting proposition that the addition of a constitution, setting up legislature, judiciary and executive, is the most important element in the transition from a [pre]-legal to a []legal system.”92 It is imposing a western viewpoint if we presume the union to occur in a modern society which Hart does, as demonstrated in the last chapter with the ‘complexity condition’ and Cohen’s argument here of setting up a constitution and modern government.

Furthermore, in the very opening of the ‘Elements of Law’ Hart

imagines that, only a “society without a legislature, courts, or officials of any kind”93 lacks secondary rules. As Cohen goes onto argue the only escape from the dilemma is to assume as Hart does

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“not only that the law of wills, contracts, marriages, property, etc. consist of power-conferring rules, but also that wills, contracts, marriages, property, etc. are intuitions which exist only in a fully developed legal system, just like legislature and law-courts94”. However “this assumption is not in accordance with the findings of modern anthropology.95”

Study after study96 has proven this conclusion correct. All the

studies show that a legislature, courts and officials are not required for secondary rule functions to be present. The theory can be saved however if we take a relativist approach and remove the western concepts from the union of rules. An anarchocapitalist97 has strictly applied Hart’s union of rules, without the complexity condition nor with government/constitution requirements to prior anthropological studies.98 In an effort to empirically prove private property rights and law can exist in the absence of the state.

The author is tweaking Hart’s union theory and removing the

requirement of official state coercion. If a theory is inconsistent we do not change the facts – we change the theory; thereby constructing a better theory. After all, a theory’s utility is in its ability to conceptualize reality. Hart seems to have taken Einstein’s oft cited quote to heart, “if the facts don't fit the theory, change the facts.” In changing the facts and indulging in speculative anthropology Hart coloured his theory with legal-chauvinism. The best example of the chauvinism is Hart’s transition from the first section to the second section of Concept. Initially he relied on linguistic philosophy, he emphasises the ordinary people, it is their internal viewpoint, and their customs/primary rules that help elucidate problems of jurisprudence and eventually give rise to law. But in the second half after union of rules law is confined to officials only. For the purposes of an account of anarchist jurisprudence this leap from people to officials is key -

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anarchists cannot have state officials in their society. It is also useful in showing latent Weberian ideas in Concept

From People to Officials Hart’s internal/external aspect divide is arguably the biggest advancement in 20th century Jurisprudence. Indeed MacCormick’s assessment is typical, it is “the most distinctive and valuable element in Hart’s work as a jurist.”99 Drawing on linguistic philosophy Hart analysis the context in which people use rules. Unless we understand the internal aspect of rules: [W]e cannot properly understand the whole distinctive style of human thought, speech, and action which is involved in the existence of rules and which constitutes the normative structure of society100 The most important aspect of the internal aspect is it has a social dimension. Some phrases Hart uses in describing them are indicative: “demands for conformity made upon others”101, or “a standard to be followed by the group as a whole”102 or a social “group which accepts and uses them as guides to conduct.”103 The internal aspect is from within society, from the people. However, later Hart introduces other requirements for the existence of legal rules104 that have nothing to do with the internal aspect. The rules have to be concerned with officials. A division of labour takes place where “law-making, law-identifying and law-applying operations” are matters for “the officials or experts of the system” and not “the mass of the population” or “the ordinary citizen.”105 Hart now sees the citizen as “ignorant and inadequate”106 as Fitzpatrick strongly puts it. However, if we understand why Hart confines the internal aspect to officials things are much clearer and Hart’s modified theory can still be applied to anarchic and simple societies because we remove its 42

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inaccuracies. The process of removing the inaccuracies also shows the political character of Concept. As Hart notes: In referring to our simple society we spoke as if most ordinary people not only obeyed the law but understood and accepted the rule… [i]n a simple society this might be the case; but in a modern state it would be absurd to think of the mass of the population, however law-abiding, as having any clear realization of the rules”107 Hart’s argument is sound. It makes no sense that, in a complex constitutional system, every element of society has a clear realization of all the rules. It would put “into the heads of ordinary citizens an understanding of constitutional matters which they might not have.”108 It is at this juncture that Hart’s politicised jurisprudence shows its head. But first the conflict between Hart’s more general theory and more specific state theory needs to be explored so we can better understand the politics.

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Chapter 5 Tension between Essentialism and Conventionalism There seems to be a tension throughout the whole of Concept where it grapples with essentialism and conventionalism. By essentialism I mean to borrow Brian Tamanaha’s phrase109 where it means the very essence of law, that all of law wherever it may be is a system of rules (secondary) about rules (primary). Jules Coleman describes it best: it begins by asking whether there are features of law that are essential, or, in appropriate sense, necessary to law or to our concept of it: essential to our concept in the sense that a social practice that fails to have them could not qualify as law110 Essentialism

is

imperative

in

an

account

in

general-jurisprudence.

By

conventionalism I mean Hart’s stipulation that municipal law is to be what he means by ‘law’111. State law is to be Hart’s central paradigm case. Essentialism and conventionalism conflict (this been pointed out before112) but what has not been shown is how Concept seems to conflict on itself. Hart makes clear: “We shall not indeed claim that wherever the word ‘law’ is ‘properly’ used this combination of primary and secondary rules is to be found; for it is clear that the diverse range of case of which the word ‘law’ is used are not linked by any such simple uniformity”113 Yet wherever the union is to be found there is law (see Chapter 2). There is tension here where Hart perhaps foresaw that his essentialism may not apply to all legal systems. Yet the union of rules is the “key to the science of jurisprudence”114. As seen

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in the last chapter Hart sometimes mentions courts and sometimes mentions individuals in elaborating the rule of adjudication.115 Hart somehow has to make the theory essential and conventional. He has to be wary not to indulge in legalchauvinism for the essentialist tenant of his theory so he mentions individuals. He also has to bear in mind his conventionalist goal (make his theory apply to state law) and therefore mentions courts more often. The result is an awkward grappling in the theory which satisfies neither camp. The theory has been described as too general - we can even apply it to little league soccer116. In this dissertation I have criticised it for being too specific and attaching unnecessary conditions for the secondary rules arising. In the introduction to Concept Hart made explicit he was not going to define law because such questions were fundamentally misconceived117 yet his union of rules provided such a definition for his theory. He stated his work could be seen as a work in ‘descriptive sociology’, yet indulged in speculation without empirical evidence for his union of rules theory. Hart was silent on these inaccuracies118. His postscript never addressed the issue nor did any of his later work. Nicola Lacey as Hart’s biographer is perhaps the only person we can glean any useful information from as to why. She was a close friend and has access to all his notes and annotations: “Hart’s defence against these objections was clear, if unlikely to satisfy his critics. It was simply that these sociological and historical questions were not ones which he set himself to answer. Rather, his was essentially a philosophical project, its allusion to ‘descriptive sociology’ an unfortunately misleading attempt to signal his move away from more rigid conceptual theories of John Austin and Hans Kelsen.” 119 Such an answer is unsatisfactory. A 1961 Hart positively acknowledged that for Jurisprudence to leave behind theories of old it should embrace sociology. Yet when the sociological aspect of his theory is challenged he retreated to a weak defence of

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arguing his project was a work of analytical jurisprudence. A division of labour was stressed – the sociologists have their job and analytical jurists have theirs. But his entire book is a fusion of analytical jurisprudence and descriptive sociology. He cannot continue his theory without the fusion. A 1961 Hart realised for a strong theory of law you need both. Early on Concept relies on linguistic philosophy; the differences between the internal and external aspect, the difference between having an obligation and being obligated etc. It then progresses to speculative anthropology and sociology with Hart being witness to the union of rules. Peter Fitzpatrick has bluntly described the early section of Concept, “whatever else this antique story may be, it is not linguistic philosophy.”120 Indeed it is speculative sociology. Hart’s retreat later on in life away from sociology was not entirely unprincipled. Lacey has an interesting interpretation of the famous Hart/Devlin debate where Lord Devlin forwarded an argument that required testing empirically (sociologically): This essay is of particular interest in that it represents an attack not merely on Devlin’s argument but on sociological method in general: Hart suggested that sociology can never match the test of empirical rigour which it sets for itself. His view boiled down to the idea that because the social sciences can never produce evidence as compelling as the natural sciences, they are not worth pursuing. This is a convenient rationalisation for staying firmly within an analytic philosophical method.121 The merits of this argument will be explored later but if Hart wants to stay in the analytical method he cannot also speculate on empirical evidence and expect a strong theory. Yet a 1961 Hart knew that jurisprudence needed sociology and anthropology for a complete general theory of law. That fact has not changed to this day.

Politics in Concept

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The jump from the linguistic analysis in the internal aspect to a more sociological method in ‘primary and secondary rules’ is a political one. Hart’s linguistic analysis of law in its context is essentialist since it’s primarily concerned with ordinary people and does not mention officials or the state. His sociological analysis - his theory on why the secondary rules emerged - is a firm thrust to conventionalist state theory. It is concerned solely with officials, the state and coercion. It focuses on modern legal phenomena, he repeatedly mentions ‘the queen in parliament’ and statutes. Even here, though, as seen earlier there is tension where Hart attempts to make his theory essentialist (for example sometimes mentioning people, sometimes courts). But as Fitzpatrick puts it “with that step the creativity of the mass of society is exhausted and the legal dynamic is thereafter confined to the ranks of officials”122 The internal aspect is only necessary for officials and as such mark the triumph of official determinations. The division of labour between officials and the rest of society is similar to Weber’s rational bureaucracy. The features to make bureaucracy rational are (1) functional specialisation (2) clear lines of hierarchical authority, (3) expert training of managers, and (4) decision-making depending on rational rules aimed at effective pursuit of organizational goals123. As Hart noted above124 in a complex society the constitution and the laws are so complex so specialisation takes place – the officials are experts in the law. Clear lines of authority are also established in Hart’s theory especially with the rule of recognition. The one way projection of power and lack of societal discourse up the chain of command is indicative of Weber’s bureaucracy theories too (point 2). Lon Fuller also saw this (although did not mention Weber) the legal positivist, “does not see the lawgiver and the citizen in interaction with one another, and by virtue of that failure he fails to see that the creation of an effective

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interaction between them is an essential ingredient of the law itself125” Although Fuller had in mind modern systems, in an anarchist or simple society the discourse between society and those who administer the law will be at its greatest. In Kroptokin’s society the people will themselves administer the law. Hart’s theory simply disagrees with this after the union of rules, when before the emphasis on people was great. In the jump from linguistic philosophy to sociological theory and the secondary rules Hart’s essentialism is lost – western concepts of law show and ruin the general-descriptive arm of what was an essentialist theory to this point. Law becomes a one way projection of power, indeed a Weberian hierarchy; it is divorced from society, it holds a status above society enduring changing sovereigns and even political systems. Some commentators126 have claimed that the union of rules marks Hart’s deference to the maxim ‘a government of laws not men’. Prior to the radical departure from the linguistic and internal analysis Hart gave people, in the internal aspect, a critical reflective attitude to the rules, he gave people the ability to act and assess standards of behaviour. An anarchist reading this area of Hart might well be surprised that a legal scholar indeed a (ex) practicing lawyer saw law as a dynamic of the people. Law was created from the very fabric of society. It seems Hart had foreshadowed the economist Fridrich Hayek’s future suggestion: legal history proper begins at too late a state of evolution to bring out clearly the origins. If we wish to free ourselves [of this] pervasive influence … we should begin with a look at the primitive … beginnings of social life’127 Kropotkin’s contention is similar to Hayek’s. We are not looking far back into history to see where law developed from. A union did take place between primary and secondary rules. Kropotkin was aware of this - he identified law as coming into being

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soon as social life emerged. It seems to me that Hart in a very small way somehow agreed. That is why there is so much tension in his theory and that is why the union of rules was ‘the key to the science of jurisprudence.’ But the tension in his own mind between the conventional and essential elements of his theory clouded this fact. He constructed conditions on law emerging that did not need to be there (officials, state, coercion). If we just isolate the rules and construct a deductive argument on when they could logically exist we can see a union theory agrees with Kropotkin and Hayek.

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Chapter 6 Locating the Union of Rules One of the key characteristics of primary rules is that they were static in nature. They could be changed but only by “the slow process of growth, whereby courses of conduct once thought optional became first habitual or usual, and then obligatory, and the converse process of decay, when deviations, once severely dealt with, are first tolerated and then pass unnoticed”128 As shown in Chapter 4 this is not in line with the empirical evidence. Primitive societies change their rules within short time spans. Hart himself accepted that there may be no human societies that live in a state of primary rules alone.129 But for nonadvanced social creatures this is the only way they can change norms of conduct – it seems to me that it is a process of biological evolution. Man living in social life never needs to rely on these slow changes. He or she can implement their own rapid changes. But animals without the advantage of complex social relations have no choice but to change their customs and habits over a longer time span. When man (homo sapien) was in his devolved state as Homo neanderthalensis (‘cave man’; Neanderthal) perhaps here he lived in a state of primary rules alone. His hunting, mating, feeding and social relations must have been primitive and would be worthy of being regulated by Hartian primary rules alone which were static in nature. Homo neanderthalensis being half way between a true primate and modern man means they might have had some sort of primary rules which were above animalistic norms, but far below law. Yet as soon as man evolved and developed more complex social relations, he had to have law and something that has the functions of secondary rules. It is important to stress the difference between Hartian secondary rules and the

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functions they perform. To be true Hartian secondary rules they would need officals, the state and coercion and be a differenet species from primary rules. To be functionally like secondary rules they would only need to enable changes, settle disputes over when a rule has been broken and a method of recognising a rule as authoratitative. My interpretation of the science show us that as soon as man evolved and developed complex social relations, he had to have law because he had the functions of secondary rules. That is why Hart explicitly accepts that perhaps no society lived in a state of primary rules alone. Hart also knew it was unlikely that any human lived without secondary rules (and therefore law). We can change that to no homo sapien society lived in a state of Hartian primary rules alone. It must be remembered the theory I have posited here is purely theoretical and needs testing empirically. Unfortunately it is far beyond the scope of this dissertation to attempt to do so.

Positivism and the Autonomy of Law The ulterior motivation for the desire to confine the law to officials is the positivist inclination for the autonomy of law. Positivists do not wish the ‘muddy’ the waters by treating law as a social scientific concept. As has already been argued views on the autonomy of law are unhelpful. Although in saying that we must come back to Lacey’s interpretation of the Hart/Devlin debate. I submit her interpretation has some worrying conclusions for the future of jurisprudence if my argument that general jurisprudence needs empiricism is correct. It will be recalled that Lord Devlin forwarded an argument that required empirical testing. Hart suggested that sociology can never match the test of empirical

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rigour which it sets for itself. Unfortunately Hart is on the whole correct. The events we are discussing have long since passed us. Even taking an orthodox interpretation of the union of rules we may be talking anywhere between 6-10,000 years ago. In the interpretation I presented above in the section marked ‘locating the union of rules’ it is anywhere in the period of about 230,000 to 29,000 years ago.130 If my argument is correct in that we need empirical evidence in order to formulate a logical argument in any general theory of jurisprudence it is perhaps an early death in the empirical analysis of the origins of law before it has even begun properly. We simply do not have the information available to help us obtain evidence. The same can be said of theories of human nature131 as well as origins of law. That does not mean to say all hope is lost. Archaeologists, anthropologists, sociologists and biologists can help us but they will never provide definitive answers. Much will be down to conjecture from shaky empirical data. Unfortunately there is no effective way for jurists to look back through time like a cosmologist does when he observes the far edges of the universe through his telescope. In effect there is a lack of evidence and information which may never be resolved. So theories of general jurisprudence which invariably inquire into the very origins of law may, unfortunately, be forever stuck in a predominantly analytical method. All we can effectively do is posit theories using sound arguments from the available evidence like I have (very briefly) attempted to do in ‘locating the union of rules’ and test if they are correct using the available evidence.

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Chapter 7 Conclusion Anarchism while arguably an unrealistic political goal in the current political climate contributes immeasurable analytical stock to social science research. Anarchism’s potential reach is much restricted though by its insistence that it does not require law. This leaves it open to wild accusations that anyone arguing for an anarchist society is ‘crazy’ or ‘mad’.132 From this dissertation then anarchists can take away two conclusions especially for those from the anarcho-communist school. Law exists in Kropotkin’s society there can be no doubt of that. In all his work apart from Law and Authority he specifically refers to the common law and looks upon it favourably. His primary rules even have an element of coercion and my arguments above should be proof enough that it is simply inaccurate to argue that the rules arise purely from an inbuilt genetic code. The major factor denying his society the status of law is the lack of state, coercion and officials. As my investigation into anthropology has found, these are not required for secondary rule functions. Secondary rule functions can exist in a stateless society and without a monopolising coercive force. It is only if you define law as being a state phenomena that you can deny the title of law to Kropotkin’s society. Simply put: all the functions that the secondary rules perform are present in Kropotkin’s society just without a state and state coercion. The more sensible conclusion is state law or perhaps even ‘the positivist conception of law’ does not exist in an anarchist society. Perhaps the fact that an anarchist of the stature of Kropotkin favourably saw the common law evolve as a societal construct to help social relations will force a

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great deal of anarchist academics to turn their minds to the old questions of jurisprudence. Future research would especially be useful in the area of exactly how rules arose. Anarchists by their natural predication would most likely find this a fruitful research avenue. This can only be a positive influence in legal theory and perhaps even go far as opening a school of ‘anarchic jurisprudence’. So to answer the question this dissertation set out to answer: anarcho-Communist societies will have law. More significantly to jurists the arguments in my dissertation need to be taken into account in future work. Jurists must be wary of legal-chauvinism because of the negative effects it has on a general theory of law. This can most effectively be stemmed early on by deciding if a theory is going to be essentialist or conventionalist. Mixing the two causes significant problems as is evident in Concept. Positivism also needs to relax its insistence on states and officials, such requirements taints any essentialist character positivism has. Most importantly positivism needs to stop insisting on its autonomy. Work by Lacey and Tamatha is currently trying to bridge the gap that has divided sociology and analytical jurisprudence for over half a century and the work in this dissertation fits into that school. Unfortunately this is not a new problem ever since Oliver Wendell Holmes Jnr. suggested that in 1897 The Path of Law133 lawyers should turn to an external discipline (that of economics) to better understand their profession, the tension between an ‘external legal theory’ as Dworkin134 puts it and analytical jurisprudence has been manifest. Oliver Wendell Holmes Jnr, Eugen Ehrlich, Ronald Dworkin, Herbert Hart (at least in 1961), the entire CLS school, Nicola Lacey, Brian Tamanaha, Freidrich Hayek, Richard Posner and most Law and Economics scholars and countless more have argued for more sociology and anthropology in law. It is unlikely that an undergraduate dissertation

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will do much to aid the effort that has with stood devastating analytical barrages though history. Nonetheless for a logically valid account of general-jurisprudence I have identified there to be core axioms: human nature and temporal location of when law/rules exactly arose. If these two variables are to be quantified accurately we need evidence. However, as my dissertation also shows the there is a problem with obtaining evidence. While the two schools are currently being merged a division of labour will always remain. Unfortunately it looks like we will never have a complete accurate general theory of sociological law; more so, it looks as if theories of general jurisprudence which aim to be essentialist and apply to all legal systems at all times will forever be stuck in an analytical school and thus will always be theories of philosophy not sociology.

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References

56

1

Kropotkin, Kropotkin's Revolutionary Pamphlets (Kessinger Publishing: 2005)

2

For example, there is a wealth of difference between the anarcho-capitalists, anarcho-individualists, anarcho-minimlists, anarcho-communists (which Kropotkin is), and anarcho-minimlists. See generally: Anarchist FAQ: Section A.3 ‘What Types of Anarchism Are There’ 3

Proudhon, P-J, What is Property: An Inquiry Into The Principle Of Right And Of Government, William Reeves Bookseller Ltd., London, 1969, p264 4

Bryan Caplan, Anarchist Theory, online: http://www.wjaz.net/n/html/article.php?sid=24 [emphasis added] 5

Kropotkin, Anarchism: A Collection of Revolutionary Writings, (Courier Dover Publications, 2002), p181 “Modern Science and Anarchism” 6

Not all socialists are anarchists of course, see generally: An anarchist FAQ Section H - “What are the key differences between anarchists and Marxists” p26. Anarcho-capitalists are not socialists but it is debateable whether they are ‘true’ anarchists see generally An anarchist FAQ– section “Section F - Is "Anarcho"-Capitalism A Type Of Anarchism?”. **Note: The anarchist FAQ is an outstanding source work on anarchist political philosophy and economics it is over a thousand pages long, has been constantly redrafted over 10 years and is excellently referenced. It compares all the major classical anarchists and new ‘eco’ anarchists etc. While it is an online eBook it is an accurate analysis of the subject matter not found in any text book. The reluctance to publish the works is obviously due to copyright concerns of the original texts cited in it and the authors political stance (anti profit). So it is freely available on the internet. 7

The term encompasses a wide range of beliefs all linked with a common goal – opposition to hierarchal domination Ideologies include: anarchism especially anarcho-communism and anarcho-syndicalism, council communism, autonomist Marxism, and social ecology. 8

Pashukanis, Selected Writings on Marxism and Law (eds. P. Beirne & R. Sharlet), London & New York 1980, p314 [emphasis added] 9

While the labour theory of value is a Marxist theory Kropotkin fully endorses it – “like every anarchist, Kropotkin attacked the "appropriation of the produce of human labour by the owners of capital," seeing its roots in the fact that "millions of men have literally nothing to live upon, unless they sell their labour force and their intelligence at a price that will make the net profit of the capitalist and 'surplus value' possible."” – from anarchist FAQ Section C p17 (http://www.infoshop.org/faq/sectionC.pdf) and see generally Law and Authority IV. 10

E.P Thompson, Whigs and Hunters: The Origins of the Black Act (1975) 11

Cole, An Unqualified Human Good': E.P. Thompson and the Rule of Law, Journal of Law and Society, Vol. 28, No. 2,p181 12

Thompson Op. Cit , p266 13

See generally Daniel Cole’s analysis (note 8) 14

Morton Horwitiz, Adrian Merritt, Robert Fine and others. See Cole Article at n8 15

M.J. Horwitz, 'The Rule of Law: An Unqualified Human Good?' (1977) 86 Yale Law Journal. 561 16

Peter Kropotkin Op. Cit. p218 17

ibid p202 18

Hart, H.L.A., The Concept of Law (Oxford, 1994). Second Edition, p91 19

Peter Kropotkin Op Cit n5 p202 [emphasis added]

20

ibid p205 21

Harold Barclay, Culture and Anarchism, (Freedom Press: 1997). In his chapter ‘Law and Anarchism’ strongly reinforces this point. Although his grievance was relating to the equating of ‘custom’ to ‘law’ rather than ‘rule’. 22

Concept p91 23

ibid 24

ibid 25

For example “we are not fatalists or genetic determinists, but believe in free will.” [anarchist FAQ Section A p 26] and Which Way for the Ecology Movement in anarchist FAQ p26 26

Chomsky, Rollback, Z Magazine, Jan 1995, Available online: http://www.chomsky.info/articles/199505--.htm [no page numbers but see around footnote 25 for the discussion of Kroptokin’s socio-biology] 27

Hobbes, Leviathan¸ Chapter 13 (Penguin Classics:1982) p186 28

Locke, Two Treatises of Government (Cambridge University Press: 1988), p350 (para 123) 29

ibid 30

ibid para 124, p351 31

ibid para 125 32

Concept p91, emphasis added 33

Kropotkin Op Cit n5. p203, emphasis added 34

Concept, p91, emphasis added 35

Kropotkin Op Cit. n5 p202 36

ibid p203 37

ibid p202 38

Concept p93, Hart attacks this form of enforcement as causing “inefficiency” problems, however. 39

ibid p55-56 emphasis in original 40

ibid p56 41

See p48 infra , ‘Politics in Concept’ for a more detailed explanation of the jump from linguistic analysis to sociological. 42

Shelling in, 'Dynamic Models of Segregation' Journal of Mathematical Sociology 1 (1971) p143-186. Uses the example of a multi-racial street and how it slowly changes so that eventually it is dominated by one ethnicity. The example I have adapted is far simpler so is methodologically advantageous. 43

See p23-24 supra onwards. 44

Interestingly the tipping point theory also tells us that there are optimum conditions for propagation of a rule. Hence ‘tipping point’; some event or chain of events occurs which means the social, economic, environmental etc. factors are prime for propagation for the ‘craze’ viz rule. 45

Concept p91-92 46

Theft is shaky ground for an anarchist to object to since they do not have traditional property ideas. However, I have in mind Kropotkin’s requirement that those who can work but who choose not to be driven out of the community. Since there is no monetary wage in his envisioned society a type of theft would be to not work while enjoying the fruits of others labour. See below p25. Kropotkin also uses ‘do not steal’ as a type of custom ‘wrought out a result of life in common’. See Kropotkin Op Cit p202 47

See Chapter 3 infra 48

Concept Op Cit., p92 49

See Émile Durkheim, Suicide: A Study in Sociology (New York: Free Press, 1951). Durkehim successfully argues that a reduction in social ties increases suicide rates. Finding the reduction in social ties to be greatest in big cities where there is a high rate of population turnover. Big cities are the epitome of advancement as in population turnover due to labour market mobility, a specifically modern neo-classical economic concept. He also argued rapidly industrialising societies are prone to individualism reducing social ties. Also see generally the theories of ‘mass culture’ and ‘mass society’ which a short definition is “a society in which industry and bureaucracy have eroded traditional social ties” from: Macionis, J. (1996). Society: The Basics Chapter 16. (New Jersey: Prentice Hall) 50

Interestingly both Hobbes and Locke use a sort of economic rationale for the rule of law being imposed too. In a state of nature everyone has a free for all, law needs to arise to bring order. What is order? Allocating goods effectively which would halt violence. 51

Kropotkin Op. Cit n5. p202 52

See p18-19 supra 53

See p27 for my argument that ‘social pressure’ as Hart termed it could be anything from societal frowning to exclusion. 54

Concpet p94 55

ibid p97 56

ibid p96-97 57

See p32 infra 58

See generally Anarchist FAQ: A.2.11 ‘Why are most anarchists in favour of direct democracy?’ p45 onwards. 59

Hart explicitly argues that primary rules only method of enforcement is ‘diffuse social pressure” Concept p93. Although of course he criticises this method for being inefficient. 60

Kropotkin’s coercive method of excluding idlers who refuse to work is though societal pressure. See Conquest of Bread p168-170 61

See below the section entitled ‘From people to Officials’ 62

Much of the work cited in this section is based on Cahm’s extracts. C. Cahm, ‘Kropotkin and Law’ in Holterman & Henc Van Maarseveen, Law and Anarchism (Black Rose Books, Montreal: 1984) p106-121. Cahm cited an early translation of Anarchism and Science (Baldwin 1912) and my references are to the text as it appears in Anarchism: A Collection of Revolutionary Writings Op Cit. n5. 63

Op Cit n5 64

ibid, p146 65

ibid, p147

66

ibid [emphasis added] 67

ibid 68

Kropotkin, Mutual Aid, (Kessinger Publishing: 2004) p77 [emphasis added] 69

ibid p150 70

Kropotkin Op. Cit., n5 p203 71

ibid 72

Kropotkin, The Conquest of Bread, (Penguin Press: 1972) 73

ibid p168-70 74

Harold Barclay, Op Cit n21, Chapter 12 “Law and Anarchism” 75

ibid, p154 76

ibid 77

ibid 78

An anarchist FAQ Op. Cit. Section I p217, emphasis in original 79

ibid 80

Although this of course was a criticism for more legal certainty 81

“the maxims which represent principles of morality and social union wrought out as a result of life in common.” Op Cit n25 82

Brook, The Individualist anarchists: An Anthology of Liberty, (Transaction Publishers: 1994) p160-1 83

Lacey, ‘Analytical Jurisprudence versus Descriptive Sociology Revisited’ (forthcoming, 2006) but available online: http://www.utexas.edu/law/news/colloquium/papers/NicolaLaceypaper2.doc 84

Cohen ‘The Concept of Law’, Mind, New Series, Vol. 71, No. 283 (Jul., 1962), 395 at 409 85

Malinowski, Crime and Custom in Savage Society, (Routledge: 2001) 86

Diamond, Primitive Law, Past and Present, (Routledge: 2004) 87

Cohen Op Cit p409 88

Malinowski p35 89

Diamond p192 90

Cohen Op Cit n84 p410 91

Note: the thesis of his argument was that the union of rules cannot be given such a high elucidating power as Hart accords it. His criticism in this quote is rather than being novel, it is mere constitutional law to which he has to be referring. 92

Cohen Op Cit n84 410-411. Note the original text reads: “from a legal to a pre-legal system”. I assume that this is a typo and have corrected the error in the main body of my text

93

Concept p91 94

Cohen Op Cit n84 p411 95

ibid 96

Geertz, Local Knowledge: Further Essays in Interpretive Anthropology (Basic Books, Inc: New York, 1983) See Chapter 8 ‘ Local Knowledge: Fact and Law in Comparative Perspective’ other examples from Fitzpatrick, The Mythology of Modern Law (Routledge: 1992); Goldsmidt, “Ethics and the Structure of Society: An Ethnological Coontribution to the Sociology of Knowledge” American Anthropologist 53 1951 – 5-6-524 analysed in Benson, ‘Enforcement of Private Property Rights in Primitive Societies: Law without Government’, Journal of Libertarian Studies Vol IX No1 (Winter 1989) 97

Benson ibid. Although strictly speaking a ‘libertarian economist’ but an advocate of no state 98

ibid p7 ‘Primary and Secondary Rules Among the Yurok Indians and Their Northern California Neighbours’ 99

MacCormick, H.L.A Hart (Edward Arnold :1981) p29 100

Concept p88 101

ibid p57 102

ibid p56 103

ibid p89 104

Idea taken from Fitzpatrick 105

Concept p61-62 106

Fitzpatrick Op Cit n96 p191 107

Concept p60 108

ibid 109

Tamanaha, 'Socio-Legal Positivism and a General Jurisprudence' Oxford Journal of Legal Studies, Vol 21, No 1 1-32 p3 110

Coleman, 'Incorporation, Conventionality, and the Practical Difference Thesis' (1998) 4 Legal Theory 381 p189-90 cited in Tamanaha p4 111

Concept p17 see also Moore, “Hart’s Concluding Scientific Postcript’ 4 Legal Theory 301-313 p313 112

See generally Tamanaha Op Cit 113

Concept p81 114

ibid 115

p20 supra 116

many legal pluralists have strangely assert society has a multitude of legal institutions with rule making and enforcing powers, “from corporations to universities, to community associations, and even including little league soccer” ‘Socio-Legal Positivism and a General Jurisprudence’ Op Cit p6 117

Concept p13-17 118

I assume considering the volume of responses and Lacey’s argument Hart had an idea that his union theory was being challenged. 119

Lacey Op Cit n83, p7 120

Fitzpatrick Op Cit n96 p194 121

Lacey Op Cit, p10 122

Fitzpatrick Op Cit p195 123

Stark , Sociology With Infotrac (Wadsworth: 2003) p589 124

p44 supra 125

Fuller, The Morality of Law 2nd ed (New Haven and London, Yale University Press: 1969) p193 126

Ketchen, ‘Revising Fuller's Critique of Hart - Mangerial Control and the Pathology of Legal Systems: The Hart-Weber Nexus’, University of Toronto Law Journal Vol LIII, No1, 2003. Available online: http://www.utpjournals.com/product/utlj/531/531_ketchen.html 127

Hayek, Law, Legislation and Liberty, Vol. 1 Rules and Order (University of Chicago Press :1973) p73 128

Concept p92 129

living by primary rules alone is “never perhaps fully realized in any actual community” Concept p93 130

S Alters, Biology: Understanding Life (Jones and Bartlett Publishers: 2000) p559 131

Of course we can posit a current theory of human nature but if we are enquring into the origins of law we have to have a theory of human nature when law begun. 132

For example on a Political internet message the author frequents this is often the case. Typical examples of counter arguments include: “1) If you're in an anarchic country there's no Government and therefore no constitution, and THEREFORE no rights to uphold. 2) If everyone's doing whatever the [expletive] they like it's going to impinge on your rights anyway.” “You take away the Government and the police force and no amount of threat of "mutual un-aid" will stop people from looking, burning, and killing each other.” From http://www.offspring.com/forums/showthread.php?p=630149 133

I look forward to a time when the part played by history in the explanation of [legal] dogma shall be very small, and instead of ingenious research we shall spend our energy on a study of the ends sought to be attained and the reasons for desiring them. As a step toward that ideal it seems to me that every lawyer ought to seek an understanding of economics. Holmes, The Path of Law, (Kessinger Publishing: 2004), p17 134

Ronald Dworkin, Law’s Empire (Hart Publishing: 1998) p75

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