I did not say that I do not want rules and regulations. I said to you that I don’t want a Government, and by government I mean a power that makes laws and imposes them on everybody.1
Anarchists have a somewhat … tense relationship with the concept of the rule of law. Depending on how you understand the concept, its applicability in an anarchist society ranges from non-existent to being an absolute prerequisite for any just society. Added to this is a strong shift between classical anarchism and the variety of positions today claiming the title.2 That shift is, broadly speaking, away from liberal conceptions of freedom towards a notion of autonomy that is more hostile to the very notion of law. Even so, I will try and make the case that anarchists not only should but must adopt the rule of law.
The term “rule of law” is contested, and nowhere clearly and unambiguously defined. The only things that virtually all definitions agree on are the first three principles below, but many of the others appear in at least some of them. I believe that all of these principles, however, are things that anarchists can agree on. In fact, I would contend that violations of them are, in many cases, precisely what motivates opposition to the state and to capitalism.
- No person or institution is exempt.
- Everyone is considered equal.
- Everyone can acquaint themselves with the laws.
- All decisions on a point of law are made by parties disinterested in the dispute.
- Both parties must be required to lay out their case in full, and allowed reference to all available evidence, including witnesses; that is, there must be a fair trial.
- The burden of proof lies with the accuser, not the accused; that is, innocence is presumed until otherwise proven.
- A law made later cannot condemn an action; the law may not be retroactive.
It should be immediately noted that these principles can be applied in regimes that are substantially different from present society. They do not require the existence of judges or lawyers; let alone police or prisons. The one and only presumption made is that there exist previously-established rules (laws) to which people should adhere. How these rules come to exist is not relevant. In other words: There is nothing whatever to prevent these principles from being applied to anarchist societies or organisations.
It would be belabouring the point to trace the development and importance of each of those principles. Instead, let’s point out that a number of them are inherent in anarchist thought: Nobody is exempt, everyone is considered equal, everyone can acquaint themselves with the rules of society, and rules cannot apply retroactively because no rules should be considered valid unless they are voluntarily acceded to by everyone concerned. Decisions on a point of law — the specific interpretation of a rule — should be made by disinterested parties, because otherwise you are giving one party power over the other, something that is complete anathema to anarchist thought. This leaves two principles to be defended: That of fair trial, and that of the presumption of innocence.
The principle of fair trial should be fairly self-explanatory. It is difficult to respond to accusations when you don’t know what they are; harder still to dispute the accuracy of evidence you are not allowed access to. Allowing one party to submit evidence that the other is not allowed to see compromises the impartiality of the adjudicator, and thus shifts the balance in their favour; it does, though not as transparently as when one of the parties is themselves the adjudicator, grant greater power to the side submitting secret evidence.
The presumption of innocence shouldn’t be difficult either. Or should it? This is an argument about where the burden of proof should lie; which means we risk getting into a conversation about whether it is better to find against the innocent or for the guilty. Sometimes, proof of misconduct is difficult to establish; and where does that leave us? All in all, I am aware of no argument to conclusively demonstrate that the presumption of innocence is for the better in every case. That it is a better general rule than the presumption of guilt, however, follows from the argument that it is harder to abuse the adjudicating process in such a case. Where guilt is presumed, accusation alone is enough to place the accused in a an extremely difficult position, faced with proving a negative: that something didn’t happen. This is generally speaking so much harder than proving that something did happen that it is worth assuming that the person claiming something happened is able to prove it if the claim is accurate.
As a last point: Although these principles are most important when dealing with accusations of rule-breaking, some of them are also useful when considering any allegation of behaviour, whether virtuous or malign. I think it is appropriate for those of us who aspire to a society better than the one we have now to keep them all in mind; not only in considering a future just society or a conflict resolution mechanism for a collective project, but also when considering allegations of misbehaviour in real life.
There is a reason that I write this; and that reason is this: I have been absolutely astonished by the readiness of some people to give credence to entirely unsubstantiated allegations of misbehaviour or bad faith by individuals or institutions they dislike, while at the same time absolutely refusing to acknowledge any possibility that those they like can have done anything wrong. I find this disturbing. It betrays, at best, a lack of critical thinking that is worrying. At worst, it represents intentional deception. Hero worship contains the seed of far worse power imbalances.
The indisputable fact that the state does not — and almost certainly can not — live up to the principles of rule of law is no licence for its opponents to throw those principles aside. Not even when the accused is the state itself.