Breaking the Law:
Review by Randall Amster
By now it is obvious to almost everyone that current “criminal justice” practices are at best ineffective and at worst brutal. Critics on many fronts have attacked the prison-industrial complex, with its “three-strikes” laws and for-profit bureaucratic schemes. Even the mainstream media have reported on the United States’ record rates of incarceration, the privatization of the prison industry, corporate use of convict labor, prison overcrowding, and the increasing application of the death penalty. There is now broad outrage at this systematized insanity masking as “law and order” and many have begun to search for alternative methods of understanding concepts such as crime, punishment, and justice. There is cause for hope in this, but also concern, given that so much still needs to be done and that the current crisis continues to worsen dramatically.
In exploring other possibilities, it is instructive at the outset to consider the radical notion that the present law-and-order paradigm ought to be abandoned entirely, as many in anti-racist, anti-authoritarian, and anarchist circles have increasingly argued. Indeed, it is often taken as axiomatic in the anarchist lexicon that “laws” (as they have come to be understood in modern society) must be wholly rejected. While this is a view that I have echoed and endorsed in previous works,(1) it is nonetheless crucial to understand the full implications of such a position. After all, while there is a certain seductive quality to the belief that, once freed from the shackles of law, human communities will spontaneously develop egalitarian and inclusive social practices, it is still often the case that “the aspect of anarchist ideas of social organization which people find hardest to swallow is the anarchist rejection of the law, the legal system, and the agencies of law enforcement.”(2) To merely accept the abolition of law as an anti-authoritarian fait accompli, then, is to oversimplify the issue and risk speaking a language that is counter-intuitive to many that we would hope to reach with our words and visions.
Luckily, we have lights on the horizon such as Dennis Sullivan and Larry Tifft to help us navigate through such conundrums. In a series of collaborations spanning nearly twenty-five years, Sullivan and Tifft have consistently advanced a positive and organic vision of social processes that exist beyond the strictures of law, authority, and the state. Serving quite literally as “bookends” to their body of shared scholarship, The Struggle to be Human (with sections including “Law: An Instrument of Authority” and “The Wish to be Free: Commitment to Eden”) and Restorative Justice (with chapters entitled “The Violence of Power” and “A Radical Perspective on Crime and Social Harm”) evoke the creative powers of human intellect and imagination, and serve as much-needed benchmarks for any anti-authoritarian project that seeks to critically interpret and deconstruct prevailing myths about law, the state, and the criminal justice system. And although their formulations have some shortcomings and moments in need of qualification, we ought to be eminently thankful for these works of sanity in a world that has seemingly gone mad with bureaucratic regulation and punitive predilections.
The starting point for their mutual exegesis is aptly stated in the introduction to The Struggle to be Human, namely that “we can never find meaning or freedom in living if we consider life processes from the floundering orbits of law, the state or corporate economy, but only through lifting ourselves to the warmth of experience and human community.”(3) Amplifying their point and tapping into longstanding anti-authoritarian and anarchist tenets, Sullivan and Tifft continue their missive: “All law, authority and institutions of state are based on force, violence and the fear of punishment.(4) . . . The function of law historically has been to deny some people the right to their personal journey, to detain us, by demanding that we resolve our contradictions within the confines of law and the state. . . . Law prohibits us from freeing ourselves, experiencing ourselves in the struggle to be human.(5) . . . To accept law, therefore is to accept a reality in which there is imposition of person upon person. It is to accept the reality of enslavement, the plantation of the welfare state. It is to accept the division of the world into parts that translate into subject and objects, and the mechanisms to manage this hierarchical division, denying autonomy to everyone.”(6)
The above passage is notable on a number of levels. First, it represents the authors’ attempt to expand the criminological paradigm beyond its preordained walls of “law and order” rhetoric—no small feat at a time when few had the temerity to raise such concerns. Second, these sentiments serve to locate the authors specifically within the anarchist tradition of scholarship and praxis, going back at least to Kropotkin’s famous insight that, “We are so perverted by an education which from infancy seeks to kill in us the spirit of revolt, and to develop that of submission to authority; we are so perverted by this existence under the ferrule of a law, which regulates every event in life—our birth, our education, our development, our love, our friendship—that, if this state of things continues, we shall lose all initiative, all habit of thinking for ourselves.”(7) Finally, the above passage also indicates a tendency of the authors to border on the hyperbolic—a fact that is somewhat understandable when attempting to arouse passions for revolutionary change, but unnecessary for scholars whose powers of persuasion ultimately need not rely upon the vicissitudes of polemic.
Of course, simply pointing out the hierarchical and oppressive nature of “law” is well and good as an initial endeavor, but it does beg the question of how human communities will sustain and regulate themselves in the absence of law. On this point, the early work of Sullivan and Tifft alludes to themes that will be fleshed out in more detail in the later writings, calling for communities grounded in “mutual aid, cooperation, spontaneity and peace,”(8) as well as “self-reciprocity,” “equity,” and “love.”(9) Taken together, these strands serve to trace the boundaries of the authors’ vision of “a moral order in accordance with which people, from their inner convictions, act towards others as they desire that others should act toward them. It is a social order in which each is able to live and act according to his or her own judgment.”(10) Again, such themes comport with the anarchist tradition, from Kropotkin’s Law and Authority (“No more laws! No more judges! Liberty, equality, and practical human sympathy are the only effectual barriers we can oppose to the anti-social instincts of certain among us.”),(11) to Colin Ward’s Anarchy in Action (“We must eliminate all the social causes of crime, we must develop in man brotherly feelings, and mutual respect; we must seek useful alternatives to crime.”).(12)
At this point, however, the thesis begins to fray a bit around the edges, mostly due to difficulties in enunciating precisely what such “alternatives to crime” will look like in actual practice and application. Certainly, such difficulties are not unique to Sullivan and Tifft’s work, but rather have been a central challenge for anarchist writers from Godwin to the present—and while they do cite positive examples of reconciliation in their later work Restorative Justice (such as a shooting victim and his assailant meeting eleven years after the incident and achieving a modicum of understanding and forgiveness), it is still the case that specific details as to how the current crisis can be transformed and how alternative systems would deal with acts such as theft, assault, rape, or murder are sorely lacking here. This is not to say that these issues are not raised at all, but rather that they are mostly addressed in theoretical terms and not by way of concrete examples or working models.
Specifically, the theoretical question essentially becomes: “Can a society exist in which nothing limits the individual, where all regulation is an affair of the individual and not of the collective will?”(13) Answering this question, the Russian anarchist Alexei Borovoi states what some have taken as a sine qua non of anarchist thought (although, as we shall see, one that is not without controversy): “There has not been a single society, even prior to the birth of the State, that has not made certain demands upon its members. While specific regulations may vary from society to society, some form of regulation is always necessary. Aside from legal codes, there exist in all societies what can be called codes of convention. The force of these codes is perhaps greater than the force of laws. The fundamental difference is that these codes are based on a collective accord.”(14) As Giovanni Baldelli likewise notes in Social Anarchism, “No society is ethical in which each member does not naturally absorb its governing principles of right and wrong. Written law represents a generally unsuccessful substitute for a universal understanding of ethical principles.”(15)
Here we begin to get a sense of the ambivalence anarchists have toward concepts such as “regulation” and “social control.” Are we to grant such primacy to the individual that no form of collective intervention is acceptable? If we do allow collective intervention, how do we keep it from becoming authoritarian and destructive of individual liberty? In short, how do we avoid the pitfalls of law and the state while preserving the integrity of our communities? Struggling with such queries, the early work of Sullivan and Tifft reflects such ambivalence and even contradiction, initially asserting that, “Social custom, religious dogma and moral codes are yet more subtle forms of domination which, like education and official propaganda, are harnessed by the state to perform as ancillary functions of law.”(16) Later in the same work, however, the authors endorse a view of communities that are regulated not by laws but by “mutual agreements” and by “a sum of social customs and habits.”(17) Expanding on this ambivalence within anarchism, Colin Ward similarly endorses “values and norms” as substitutes for law, whereas anarcho-anthropologist Harold Barclay cautions against “the confusion of the term law with norm or custom in such a way as to claim that anarchist societies have law.”(18)
Specifically, Barclay is objecting to the work of writers such as Thom Holterman and Henc van Maarseveen, who published an influential anthology titled Law and Anarchism.(19) In their respective chapters, Holterman observes that anarchists often deny that their moral duties to other community members have anything to do with the law, asking “Why not recognize that it is law, but law which comes from society and not law which is imposed by the state?”(20)—whereas van Maarseveen claims that “anarchists merely reject a particular sort of law; law as such is not rejected. . . . The anarchist political order implies the existence of a system of legal rules.”(21) Criticizing this work as mainly an “attempt to reconcile anarchism with legal theory . . . primarily by confusing and obfuscating terms,” Barclay points out that it is imperative to recognize that “there are on the one hand rules which are imposed by the state through its government—in other words, laws—and there are other kinds of rules not imposed by the state. . . . An anarchist society is clearly different from a state society in that in it there would be no penal sanctions—no law.”(22) As Borovoi likewise observes, “anarchism admits social norms. The norms of a free society resemble neither in spirit nor in form the laws of contemporary society. These norms will not seek the detachment of the individual from the collectivity. Anarchist norms will not be a torrent of decrees from a higher authority.”(23)
To their credit, Sullivan and Tifft do not fall into the trap of equating anarchist norms with “laws,” but instead maintain a sharply critical stance toward all state-bound modes of criminality and sanctioning practices. In fact, certain passages in The Struggle to be Human presage the more detailed explications of their later work through references to concepts such as “face-to-face justice,” “the airing of conflicts,” and “the reality of returning to work and living with the other person,”(24) embodying what Jeff Ferrell has built upon as “an anarchist criminology which argued for replacing state/legal ‘justice’ with a fluid, face-to-face form of justice grounded in emerging human needs.”(25) Indeed, Ferrell nicely anticipates the linguistic direction that Sullivan and Tifft will take, since by the time we arrive at the publication of Restorative Justice, much of the overt language of anarchist theory and scholarship has been replaced by concepts such as “apology, forgiveness, and reconciliation,”(26) as well as the frequent invocation of notions of “restorative communities” and “needs-based justice.” While there is nothing especially problematic about this subtle yet noticeable shift from anarchist to restorative terminology, it does signal certain changes in form and substance that mark points of distinction—and at times even tension—between the authors’ earlier and later works.
To be sure, there is a palpable sense of caution and even respectability in the language of Restorative Justice that is largely lacking in The Struggle to be Human. This does not mean, however, that the nature of the collaborative project of these “journeymen provocateurs”(27) is any less radical, but perhaps indicates a more measured perspective on the difficulties of maintaining a lifetime of opposition to state-bound practices and remaining faithful to a vision that is contraindicated in much of the society that we are constrained to inhabit. In other words, where their younger selves had no compunction against resorts to hyperbolic language and straightforward calls for revolutionary praxis, the latter versions appear more concerned with developing the nature of the vision more keenly before issuing such plaintive calls. But again, this is not to imply that the fervor has waned, only perhaps that it has sharpened its focus in terms of what it has stood against and as to what it will stand for. Indeed, it might fairly be said that Sullivan and Tifft comprise—along with “peacemaking criminologists” such as Hal Pepinsky(28)—the “anarchist wing” of an emerging social movement called “restorative justice” that seeks to move beyond punitive models in favor of processes of reintegration and reconciliation. In fact, this might be considered an important evolution of both the anarchist and criminal justice dialogues, in the sense of extending the historical arc of Godwin, Kropotkin, Ward, et al., but also by charting new paths with the introduction of concepts such as reconciliation and restoration as fundaments of anti-authoritarian praxis.
The essence of Restorative Justice is that “we must move to create personal relationships, social arrangements, and communities that promote patterns of interaction that are non-hierarchical, non-power-based.”(29) The central notion is that “justice-done restoratively requires that participants continually remain open to each other’s concerns, ideas, needs, feelings, desires, pain and suffering, so that each can see the other not as a resource to be used or exploited or as an object to be derided or scorned, but as he or she is, similar to oneself, a person engaged in an unending struggle to become human, with dignity. . . . When such collaboration takes place, we experience the beginnings of a restorative community, of a political economy of peace and democracy.”(30) Here, it might well be objected that Sullivan and Tifft appear naïve, calling essentially for a world in which people are simply supposed to be nice to each other. But this critique misses the larger point that for Sullivan and Tifft it has always been the case that “spirituality must precede social change . . . a spiritual awakening is necessary . . . the social revolution must come from within,”(31) indicating a rationale for these earnest appeals to the better instincts and higher ideals of human consciousness.
Moreover, despite linguistic overtures to concepts such as “democracy,” it is clear that this is still essentially an anarchist project premised upon “solidarity, compassion, cooperation, friendliness, unselfishness, and peacefulness,”(32) evidenced by the authors’ express commitment to examine “all forms of violence and power, all ideologies, perspectives, practices, and social arrangements that in any way force others into positions of lesser being, into deficit status, that disallow their needs to be taken into account.”(33) Thus, while the explicit use of the term anarchism has been omitted, implicit references to anarchist theory and practice are rife throughout Restorative Justice. As one might expect, Kropotkin in particular is given due consideration for his penchant for “moral development” and “equal well-being.”(34) Harold Barclay’s work also figures into the argument: “Anthropologists of every ilk have shown us multitudinous examples of societies that have neither laws nor a state but which are every bit concerned about justice, reparation, and human well-being.”(35) Throughout the text, it is made clear that any such undertaking—toward restorative justice and away from state-bound “law and order” motifs—must also include “calling the larger set of social arrangement into question.”(36) In other words, the restorative justice vision is not simply one of opting out and creating model communities of harmony and peace, but rather taking on the fundamental bases of hierarchy and structural violence that permeate modern society. In this sense, the project has not lost any of its radicalism but instead seems to have begun to come to terms with the sheer magnitude of its aim.
So let me be clear that the principles espoused by the later Sullivan and Tifft do not reflect an accommodation or appeasement. In their collaborative and individual writings there is a pervasive sense that one who takes their teachings to heart will be called upon to stand against the state, to be an outsider vis-à-vis mainstream society, to be viewed as a lawbreaker and even a heretic. Here, Sullivan and Tifft are in excellent company, including the legendary Henry David Thoreau, who stated in Civil Disobedience that: “Law never made men a whit more just; and, by means of their respect for it, even the well-disposed are daily made the agents of injustice. . . . [B]ut if it is of such a nature that it requires you to be the agent of injustice to another, then I say, break the law.” As Robert Paul Wolff inquires in his tome In Defense of Anarchism: “But on what grounds can it be claimed that I have an obligation to obey the laws which are made in my name by a man who has no obligation to vote as I would, who indeed has no effective way of discovering what my preferences are on the measure before him? . . . . [T]he citizens have created a legitimate state at the price of their own autonomy! They have bound themselves to obey laws which they do not will, and indeed even laws which they vigorously reject. Insofar as democracy originates in such a promise, it is no more than voluntary slavery.”(37)
Sullivan and Tifft are obviously not unaware of such eventualities, having noted in The Struggle to be Human that “Laws are so numerous that no one could possibly not break them. There are laws that individuals choose to break and laws which individuals are forced to break. . . . If all laws were strictly enforced, everybody would be criminalized.”(38) As things stand today, we may not be far from such a condition, with modern society coming to represent what the authors have referred to in Restorative Justice as a “panopticon gulag.”(39) Indeed, this makes the stated aim of people such as Dennis Sullivan and Larry Tifft all the more urgent, namely “to create a society where it is easier for people to be good, a society in which we can better enjoy each other’s company. To create this kind of society is our daily prayer and the reason for our undertaking.”(40) All who are struggling for justice, compassion, and dignity, will feel a kinship with these visionaries; I for one am thankful for their example, teachings, and legacy as stalwarts in the quest to attain just human relations. Their books ought to be read and embraced by anyone interested in shining a light on the brutalities of today and exploring the possibilities for realizing a brighter tomorrow.