Law in Anarchy

[Post-Something]

Hi, just a few questions I've been thinking abut recently.

1. How would a legal system be organized according to anarchist principles?

2. I'm guessing since there won't be a "government" per se, there would be more of a common law system where judges make decisions based on precedent? Will these judges have to be democratically elected?

3. What would happen if one locality has a different legal stance than another? Isn't this a problem in criminal law?

4. In any of the Anarchist or socialist attempts in the past, has lagal procedure ever been seriously changed?

5. Will new laws have to be completely agreed upon by everyone, or just a majority? Wouldn't that set up different courts and legal systems for people who want different things, each backed up by their own form of coercion?

[l'Enfermé]

Laws in a state of lawlessness and disorder(=anarchy)?

[roy]

Hi, just a few questions I've been thinking abut recently.

1. How would a legal system be organized according to anarchist principles?

i don't think it would, per se. anarchists and other communists wouldn't be the only ones organising a post-revolutionary society.


2. I'm guessing since there won't be a "government" per se, there would be more of a common law system where judges make decisions based on precedent? Will these judges have to be democratically elected?

if revolution ever prevails, it will be up to the people then and there to decide how it should be organised. neither anarchists nor any other communists advocate a government like the ones that exist now. anyone who does isn't a communist. if capitalism and the governments subject to it are ever overthrown and communism becomes a reality, the judiciary will not exist.


3. What would happen if one locality has a different legal stance than another? Isn't this a problem in criminal law?

4. In any of the Anarchist or socialist attempts in the past, has lagal procedure ever been seriously changed?

5. Will new laws have to be completely agreed upon by everyone, or just a majority? Wouldn't that set up different courts and legal systems for people who want different things, each backed up by their own form of coercion?

i can't honestly answer questions about hypothetical future situations with much specificity. i think anarchists and communists are largely on the same page as far as goals are concerned: we want a global, classless, stateless, moneyless society operated through a bottom-up hierarchy in which the MoP is commonly owned. but since we can't really speculate about that a great deal, the main debate is how to get there. this is where most of the conflict occurs.

[Pravda]

Non-existent.

[Post-Something]

Right, it seems to me the answers here are:

1. There won't be a legal system
2. If there is the people will decide on it after

The idea that there won't be a legal system just sounds ridiculous tbh. I mean, there needs to be a common and visible code that explains how actions should be conducted. Things like trade, crime, family issues, contracts etc, need a form of coercion to back them up don't they? Because otherwise groups who do things which clearly violate others rights would go unchecked, and justice wouldn't be served.

As for the post-revolutionary society will figure it out, I don't think they will. They will most likely fall back on older forms of organization as it takes time to conceive of these alternative systems, and legality is one of the most pressing issues in times of disorder. Most of the former "communist regimes" just fell back on civil law as far as I know (I'd like to hear more about yugoslavia, spain etc).

[TheRedAnarchist23]

Funny how everyone who answered before me isn't anarchist.


Hi, just a few questions I've been thinking abut recently.

1. How would a legal system be organized according to anarchist principles?


The anarchist system does not work with laws, it works with self-discipline and morality.


2. I'm guessing since there won't be a "government" per se, there would be more of a common law system where judges make decisions based on precedent? Will these judges have to be democratically elected?
Idealy there will be no judges, a person who commits an action the rest of the community considers wrong, the community will decide the person's fate.


3. What would happen if one locality has a different legal stance than another? Isn't this a problem in criminal law?
The only law in anarchism is common sence.


4. In any of the Anarchist or socialist attempts in the past, has lagal procedure ever been seriously changed?
I have no idea.


5. Will new laws have to be completely agreed upon by everyone, or just a majority? Wouldn't that set up different courts and legal systems for people who want different things, each backed up by their own form of coercion?One would think that when a person who commits one crime in a certain community, since his fate will be decided through direct democracy, he would suffer diferent penalties dependant on where he commits the crime. Communities are not isolated systems, they communicate with each other (globalization), and one can send warning to others saying there is a murderer on the loose.

Now a good question would be how police would function in anarchist system!

[Tim Cornelis]

Funny how everyone who answered before me isn't anarchist.

The anarchist system does not work with laws, it works with self-discipline and morality.

Idealy there will be no judges, a person who commits an action the rest of the community considers wrong, the community will decide the person's fate.

The only law in anarchism is common sence.

I have no idea.

One would think that when a person who commits one crime in a certain community, since his fate will be decided through direct democracy, he would suffer diferent penalties dependant on where he commits the crime. Communities are not isolated systems, they communicate with each other (globalization), and one can send warning to others saying there is a murderer on the loose.

Now a good question would be how police would function in anarchist system!

Common sense is quite uncommon. Seems an unreliable source of order. Direct democracy over judicial decisions may lead to mob rule. Customary law, at the very least, would develop out of social organisation of a communist (or anarchist) society.

http://www.revleft.com/vb/prisons-and-justice-t175812/index.html?p=2524762#post2524762

[Post-Something]

Ok, so you've already established that there would be some kind of court system, ie direct democracy, people coming together to give a collective judgement. This can work for big cases in a small area, but I'm not convinced that it would work for highly technical issues. Not everyone wants to attend a court hearing about a mother who after being in a car crash loses her baby and wants to sue the makers of the car for damages. Does this mean that there will be "specialists" appointed? ie, judges, advocates etc? Would these be elected? What if one party doesn't wish to be coerced into paying damages?

[Marxaveli]

I think those who think there wont be laws in a communist society are living in a dream world. Of course there will be laws. No matter how free and equal society is, some laws are required to protect the well being of society. But the laws we have now are bullshit, because we live in a class society where the rules are made by those at the top.

In communist society, the rules will be democratically made by the society itself, and will be in a much more fair context, because there is no longer a ruling class to skew them. But make no mistake about it, there will still have to be rules - if someone hurt or killed a member of your family, you would want justice, would you not? What those rules are of course, are up to that society. But I think its absurd to think that once we reach communism that everything is just going to be honky dory and there will be no need for laws - that is utopian and idealist thinking. Communism will be much better than capitalism, but it wont be perfect.

[bad ideas actualised by alcohol]

Morality is a horrible standard to judge anyone by.
Morality is different with each person, community, time.
What was bad now wasn't bad a hundred years ago.
Morality is judging on whether something is good or bad, as if there is something like that, instead of giving a scientific analysis.

Common sense is better than idiocy, but by no means a good fundament to judge someoneone. It is an argument used to refrain from scientific analysis, because people say: “Everyone knows that, it is common sense”, instead of analysing the facts.

[Tjis]

Right, it seems to me the answers here are:

1. There won't be a legal system
2. If there is the people will decide on it after

The idea that there won't be a legal system just sounds ridiculous tbh. I mean, there needs to be a common and visible code that explains how actions should be conducted. Things like trade, crime, family issues, contracts etc, need a form of coercion to back them up don't they? Because otherwise groups who do things which clearly violate others rights would go unchecked, and justice wouldn't be served.

As for the post-revolutionary society will figure it out, I don't think they will. They will most likely fall back on older forms of organization as it takes time to conceive of these alternative systems, and legality is one of the most pressing issues in times of disorder. Most of the former "communist regimes" just fell back on civil law as far as I know (I'd like to hear more about yugoslavia, spain etc).

Let me provide you with an alternative answer then. If the proletariat wishes a legal system, they'll decide upon its shape before the revolution, not after. If we assume that the proletariat is organized to such a degree that it can take over society from a hostile bourgeoisie, then we should also assume that it is capable of deciding on a legal system. The fact that many anarchists are reluctant of designing a legal system now, in a non-revolutionary situation, outside of a mass organization, should not be taken as an indication that no anarchist organization will make such plans ever.

[Tim Cornelis]

Ok, so you've already established that there would be some kind of court system, ie direct democracy, people coming together to give a collective judgement. This can work for big cases in a small area, but I'm not convinced that it would work for highly technical issues. Not everyone wants to attend a court hearing about a mother who after being in a car crash loses her baby and wants to sue the makers of the car for damages. Does this mean that there will be "specialists" appointed? ie, judges, advocates etc? Would these be elected? What if one party doesn't wish to be coerced into paying damages?

What about this, we will have a council court: 12-headed, randomly selected, impartial (no relation to victim of suspect) voluntary jury with one chairperson ('judge'). One or two persons representing the victim, one or two persons representing the suspect, and one democratically elected delegate (who has no say, but merely a voice) representing the community. Then the mediating begins. As a guiding principle, customary law will be utilised, which develops out of the social organisation, and therefore--hopefully--will be reflective of that social organisation (libertarian, free, and equal in nature).

(the scenario above will of course find no practical fruition, but perhaps something similar will).

[Post-Something]

Let me provide you with an alternative answer then. If the proletariat wishes a legal system, they'll decide upon its shape before the revolution, not after. If we assume that the proletariat is organized to such a degree that it can take over society from a hostile bourgeoisie, then we should also assume that it is capable of deciding on a legal system. The fact that many anarchists are reluctant of designing a legal system now, in a non-revolutionary situation, outside of a mass organization, should not be taken as an indication that no anarchist organization will make such plans ever.

Yeah, but that probably will never happen. Let's be honest here. We have to show that these organs in society can be reorganized now, because it can be a total mess otherwise. My friend from China often tells me the worst thing about the cultural revolution was that there was no rule of law, it was entirely up to the whim of the party, who saw themselves as the expression of the working class and peasantry. That's a nightmare we don't want to see again. There needs to be an organized rule of law, it's one of the most serious issues for a post revolutionary society.

[Post-Something]

What about this, we will have a council court: 12-headed, randomly selected, impartial (no relation to victim of suspect) voluntary jury with one chairperson ('judge'). One or two persons representing the victim, one or two persons representing the suspect, and one democratically elected delegate (who has no say, but merely a voice) representing the community. Then the mediating begins. As a guiding principle, customary law will be utilised, which develops out of the social organisation, and therefore--hopefully--will be reflective of that social organisation (libertarian, free, and equal in nature).

(the scenario above will of course find no practical fruition, but perhaps something similar will).

Nice, now we're getting somewhere. Is the judge a professional or a lay person? This is an important point, because, you can either have a well educated judge who is able to work off of precedent, or you can have a normal guy, like the Romans did, who merely interprets laws (which somehow will have to be elected by everyone).
Also, who will enforce all of this? Some kind of anarchist elected police force?
As for the representatives, I'm guessing they'll be trained too? Professionals?
Also, if somebody wants to appeal, will there be a higher authority court?

[Tjis]

Yeah, but that probably will never happen.
What does 'that' refer to in this sentence? Proletarian organization? Decision making about a legal system? Either way, I don't see why these could never happen.


Let's be honest here. We have to show that these organs in society can be reorganized now, because it can be a total mess otherwise.
But they can't be reorganized now. Without an actual revolution abolishing bourgeois rule, bourgeois law will remain in place, no matter how beautiful and just our proposals for a better system would be.


My friend from China often tells me the worst thing about the cultural revolution was that there was no rule of law, it was entirely up to the whim of the party, who saw themselves as the expression of the working class and peasantry. That's a nightmare we don't want to see again. There needs to be an organized rule of law, it's one of the most serious issues for a post revolutionary society.
The problem in China was not a lack of laws. The problem in China was that power was concentrated within the party. Would the situation have been better if the CCP had 'legalized' the cultural revolution?

[Post-Something]

What does 'that' refer to in this sentence? Proletarian organization? Decision making about a legal system? Either way, I don't see why these could never happen.

What I meant was that it was unlikely that a movement would organize to such a degree that it would have it's own unique legal system within it. I know about prefigurative politics and how Anarchist have their own decision making structures within their parties, but these are different from an actual legal system in a post-revolutionary society. Unless of course, you're suggesting that the kind of decision making in Anarchist groups is exactly the kind of organisation those legal systems will look like and that they are sufficient to run an entire society on (which is more than what some people seem to propose).


But they can't be reorganized now. Without an actual revolution abolishing bourgeois rule, bourgeois law will remain in place, no matter how beautiful and just our proposals for a better system would be.

I know, I'm just trying to imagine how it would work, that's all. Law is based pretty heavily on hierarchy and authority, so it's only rational that Anarchists would have a lot to say about it and propose a bottom up system.


The problem in China was not a lack of laws. The problem in China was that power was concentrated within the party. Would the situation have been better if the CCP had 'legalized' the cultural revolution?

Well, yeah, exactly, there should have been a division between the executive branch and the judiciary. They had too much power, and there was nobody to keep them in check, so there was no "Rule of law". That's what the rule of law means, that there's nobody above the law, no politician, rich guy, army commander, whatever, everyone's the same in front of the law. Mao and his ilk weren't only above the law, they were the law.

[Pravda]

The idea of withering the law is inseparable from withering the state, it is the logical conclusion from Marx and Engels study of state, society etc.
Both are product of class society and instrument of class repression, so it would be logical that in classless society (communism/anarchy) there will be no legal system (and i dont know why everyone here confuse communism with the revolutionary dictatorship of proletariat but it is very frustrating). The same position (about withering the law) held probably the most important soviet legal scholar Evgeny Pashukanis (who was executed as "trotskyite saboteur").
Also, things like so called "rule of law" (which is nothing but liberal idealism), contracts, trade, family law (in communism!) are just ridiculous.

Of course, that society without legal system is hard to imagine, but not more than stateless society, if anyone communists/anarchists that shouldnt have problem with accepting the idea.
But, i must say, being a law student theories about law in revolutionary proletarian state and future in further advancing (or withering) the law in communism is pretty interesting stuff to think about. Which is logical, since college class Theory of state and the law is the only interesting subject in law studies (at least for me), in fact the reason why i bumped into Marx.

[Post-Something]

The idea of withering the law is inseparable from withering the state, it is the logical conclusion from Marx and Engels study of state, society etc.
Both are product of class society and instrument of class repression, so it would be logical that in classless society (communism/anarchy) there will be no legal system (and i dont know why everyone here confuse communism with the revolutionary dictatorship of proletariat but it is very frustrating). The same position (about withering the law) held probably the most important soviet legal scholar Evgeny Pashukanis (who was executed as "trotskyite saboteur").
Also, things like so called "rule of law" (which is nothing but liberal idealism), contracts, trade, family law (in communism!) are just ridiculous.

Of course, that society without legal system is hard to imagine, but not more than stateless society, if anyone communists/anarchists that shouldnt have problem with accepting the idea.
But, i must say, being a law student theories about law in revolutionary proletarian state and future in further advancing (or withering) the law in communism is pretty interesting stuff to think about. Which is logical, since college class Theory of state and the law is the only interesting subject in law studies (at least for me), in fact the reason why i bumped into Marx.

Look, I'm very well aware that most law (here in UK for example it's 90%) is property law. But that doesn't take away from the fact that there will always be legitimate legal issues. For example, the rights of the unborn child. Like I said, these issues are often highly technical and need dedicated professionals looking at them. I don't know what your position is on the rule of law, but for me I'm for it in most circumstances, the claim that some vanguard party who is the expression of working class interests can only be hindered by it is just asking for trouble. So yeah, you can call it bourgeois liberalism, but that's not really a critique in my opinion, it's almost just a way of avoiding the issue altogether. The real question is how do anarchists/communists propose to have a legal system (ie, one that is enforced) without it constituting a state, without it being top down.

Btw, you're from Croatia? Do you know what changes were made to the legal system in Yugoslavia? Was it just civil law again?

[Pravda]

Look, I'm very well aware that most law (here in UK for example it's 90%) is property law.
Yeah. The point law of is the confirmation of class rule.


But that doesn't take away from the fact that there will always be legitimate legal issues. For example, the rights of the unborn child.
Why? I think that most important reason for abortion have roots in economic reasons. We intend to change economic relations.


Like I said, these issues are often highly technical and need dedicated professionals looking at them.
Not really. Maybe they are philosophically (or morally) complicated, legally not really.


I don't know what your position is on the rule of law...
It is bourgeois ideology and the cheapest liberalism. There is so much fetishism about it (especially at law college), but with all that talk about it there is nothing about it different than mere legalism (doing what law says), and by that standard oppression of Jews in Nazi Germany was perfectly legal, just like most of others most horrible crimes in history. Not to mention that nothing we communists want to do is legal so accepting rule of law would be ridiculous.
Same thing is separation of power which you mentioned, it is also bourgeois concept, we communists want concentrate the whole power in the hands of proletariat.
(But it would be wrong to confuse rejecting these concept with "mob rule".)


The real question is how do anarchists/communists propose to have a legal system (ie, one that is enforced) without it constituting a state, without it being top down.
Yeah, but that is question about dictatorship of proletariat, not communism.


Btw, you're from Croatia? Do you know what changes were made to the legal system in Yugoslavia? Was it just civil law again?
Yes, i am. But i dont understand the question? Please explain what you mean.

[Post-Something]

Yeah. The point law of is the confirmation of class rule.

That's just an oversimplification, There are tonnes of other areas of law which deal with equal individuals, like contract law, law about airplanes, internet law, drug law, energy law, criminal law, etc.


Why? I think that most important reason for abortion have roots in economic reasons. We intend to change economic relations.

I wasn't talking about abortion though. Whether an unborn child is a person or not legally has many other ramifications as well, for example if the child is able to claim damages because the mother abused drugs during pregnancy. It's about what the mother owes to the child, or the other way round. Not everything is economic: contracts, murder etc.


Not really. Maybe they are philosophically (or morally) complicated, legally not really.

What? No, there are legitimate legal issues in interpretation for example, when need both sides of the interest groups argued out. This will always exist by the nature of language being ambiguous. And moral issues are legal issues.


It is bourgeois ideology and the cheapest liberalism. There is so much fetishism about it (especially at law college), but with all that talk about it there is nothing about it different than mere legalism (doing what law says), and by that standard oppression of Jews in Nazi Germany was perfectly legal, just like most of others most horrible crimes in history. Not to mention that nothing we communists want to do is legal so accepting rule of law would be ridiculous.
Same thing is separation of power which you mentioned, it is also bourgeois concept, we communists want concentrate the whole power in the hands of proletariat.
(But it would be wrong to confuse rejecting these concept with "mob rule".)

How is that any different from mob rule? Ok, you can override the rule of law during the initial re-appropriation of wealth, but you'd be crazy not to have a separation of powers based on the new climate, you'd end up with a dictatorship, we've seen this over and over again in history. Do you really want to make the same mistakes? Ok, here are principles of the rule of Law, and I want you to show me where you disagree:

1. The law has to be accessible – intelligible, clear and predictable
2. Legal rights and liabilities should ordinarily be resolved by law and not discretion
3. The law should apply equally to all except to the extent that objective differences justify otherwise
4. The law must afford adequate protection of fundamental human rights
5. There must be means to resolve, without prohibitive cost or inordinate delay, bona fide civil disputes which the parties are unable to resolve
6. Ministers and public officers at all levels must exercise their powers reasonably, in good faith, for the purpose for which the powers were conferred and without exceeding the limits of such powers
7. Adjudicative procedures should be fair

If you really want to defend some of the darker parts of the communist movements history, go on, agree that trials shouldn't be fair, that some should be excused from the law, that human rights don't need to be respected etc. As for the Nazi's they had the same problem, they consolidated power too closely, no separation, look at the People's Court for example.


Yeah, but that is question about dictatorship of proletariat, not communism.

Yeah, well this question was actually directed at anarchists, I find the idea of the DoP absolutely ridiculous, outdated and un-salvageable. Please just don't respond to this point, it's a waste of both of our time.


Yes, i am. But i dont understand the question? Please explain what you mean.

Basically, what was law like in Yugoslavia?

[Tim Cornelis]

The idea of withering the law is inseparable from withering the state, it is the logical conclusion from Marx and Engels study of state, society etc.
Both are product of class society and instrument of class repression, so it would be logical that in classless society (communism/anarchy) there will be no legal system (and i dont know why everyone here confuse communism with the revolutionary dictatorship of proletariat but it is very frustrating). The same position (about withering the law) held probably the most important soviet legal scholar Evgeny Pashukanis (who was executed as "trotskyite saboteur").
Also, things like so called "rule of law" (which is nothing but liberal idealism), contracts, trade, family law (in communism!) are just ridiculous.

Of course, that society without legal system is hard to imagine, but not more than stateless society, if anyone communists/anarchists that shouldnt have problem with accepting the idea.
But, i must say, being a law student theories about law in revolutionary proletarian state and future in further advancing (or withering) the law in communism is pretty interesting stuff to think about. Which is logical, since college class Theory of state and the law is the only interesting subject in law studies (at least for me), in fact the reason why i bumped into Marx.

There is this annoying tendency amongst Marxists to ascribe things to class societies (such as law and marriage), while in reality these predate them. I wish people would research their claims a bit better.
Law precedes the existence of state and class society--or written language for that matter. Even the hunter-gatherer khoisan (so-called "bushmen") have laws. So much for your argument.

http://en.wikipedia.org/wiki/Customary_law_in_Australia
http://en.wikipedia.org/wiki/Xeer

[Pravda]

That's just an oversimplification, There are tonnes of other areas of law which deal with equal individuals, like contract law, law about airplanes, internet law, drug law, energy law, criminal law, etc.

I dont understand what you want to say.Do you think that these areas of law are somehow "un-ideological", that individuals are in some way "equal"? That just idealism, as Marx put it "the illusion that law is based on the will, and indeed on the will divorced from its real basis — on free will". In bourgeois law, individuals are equal on paper, which is something really different than equality in reality.
The name contract law, hereditary law means only that legal norms are regulating certain social relations, but how they regulate is the question. And the legal system is nothing but sets of rules that solves social disputes in a way that suits the interests of ruling class. For example, almost every area of law based on private property, or its purpose is to defend it.
So, there is no equality in bourgeois law, and there cannot be because law is just reflection of real social relations, and in bourgeois society relations are very unequal.


Not everything is economic: contracts, murder etc.
Maybe not everything is economic, but this is. The whole point of contract law is to regulate relations based around the private property! Private property is pretty economic stuff, do you disagree? And most of crimes also have roots in economic factors, directly or indirectly.


And moral issues are legal issues.
Yes, and moral is ideology. And the ideas of the ruling class are in every epoch the ruling ideas, so every moral evaluation that is made is made based on bourgeois ideology i.e reflection of bourgeois interests.
How is that any different from mob rule? Why that would be mob rule?Man you sound like liberal (I dont want to be insulting).

And there you go again with the separation of powers. Do you disagree that its a bourgeois ideology? Even worse, initial intend is to divide power between parliament, courts and...the king! I mean, it wasnt even revolutionary bourgeois idea, not to mention that he get the idea from England where there was very loose separation of executive and legislature (the same system has evolved to non existed separation of powers between the two), not to mention that separation of powers there never really existed in reality, and where it is most consistently implemented there is more concentration of power than where it isnt (USA president, and Latin America systems).
And then Marxist take this wish-washy liberal concept in fear of what? Dictatorship?! I mean, as Marxist you ought to know that we live in dictatorship of the bourgeoisie.
The failure of socialist project in Soviet Union didnt have anything with failure to implement glorious liberal concepts, but material condition (but lets not go off topic).

As for "rule of law" (again), the main disagreement is that it is just an ideology without any chance to guarantee "justice" (as if there is universal, objective justice).
But lets go- 1. law is not more accessible, on the contrary it is getting more and more complex as different relations in modern society are more complex.
2. Liabilities will be resolved by law, but that doesnt mean that they will be resolved "justly"
3.Human rights (or rights of man), are bourgeois ideology, they are not any universal god given rights but reflections of bourgeois ideology (as Marx said).
etc etc. In reality all those principles are just a call for obeying bourgeois law.
I mean, i have never seen so passionate lover of rule of love like you, only maybe Hayek :p

About Yugoslav law, i dont know much but i suppose they didnt go far from capitalist law, since it was capitalist society.

[Regicollis]

The law is a tool that can be used for many purposes. Today most law defend the bourgeois order. However I can't see why a post-revolutionary society should not use the law to defend proletarian rules - for instance by passing laws against speculation.

A post-revolutionary society would still have crimes of passion, people who want more than their fair share of stuff and people who are simply drunk and do stupid stuff. In my view it is idealistic naïvety to think that it is capitalism alone that makes people commit offensive acts.

Naturally it would be up to a post-revolutionary society to decide what kind of legal system they want. However one is free to speculate and make modest proposals.

I understand the limitations of the rule of law and I know it can't stand alone. The rule of law is necessary for justice but not sufficient. It has to be backed up by laws that are just.

Substituting direct democracy for real courts is a dangerous path to go down. A prominent example is the Michael Jackson case where public opinion was in favour of convicting him possibly because he was "creepy".

As for the legal system I think it would make good sense to have a court system that is more geared towards reconciling the parties than current systems are. Current judgements in civil cases often leaves two loosers who during the legal process have become bitter enemies. Using the legal system to negotiate rather than to pick which side is right would be preferable.

As for criminal justice it would need to be different than now. I think there were a lot of good ideas in Soviet and East German criminal justice (at least the postcard versions of it). The idea was to make people around the defendant like colleagues, family and friends part of the trial sothe court reached a decision that would best help the convicted to reform and become a part of society again. Again the system should move away from picking sides and towards helping those involved in a case move on.

It goes without saying that today's prisons - or universities of crime - will have to go. Instead resources should go towards education and therapy.

The courts will need a professional element to make sure decisions are within the law. They also need a lay element as a kind of check and balance to the legal profession developing its own norms.

[Post-Something]

I dont understand what you want to say.Do you think that these areas of law are somehow "un-ideological", that individuals are in some way "equal"? That just idealism, as Marx put it "the illusion that law is based on the will, and indeed on the will divorced from its real basis — on free will". In bourgeois law, individuals are equal on paper, which is something really different than equality in reality.
The name contract law, hereditary law means only that legal norms are regulating certain social relations, but how they regulate is the question. And the legal system is nothing but sets of rules that solves social disputes in a way that suits the interests of ruling class. For example, almost every area of law based on private property, or its purpose is to defend it.
So, there is no equality in bourgeois law, and there cannot be because law is just reflection of real social relations, and in bourgeois society relations are very unequal.

Like I said, plenty of other areas of law, of course ideology pervades everything, and I would go so far as to say it is impossible to have an un-ideological stance on anything really. But you're not really answering my question, you're saying here that that this legal system is nothing but a set of rules to solve disputes in a way that suits the interests of the ruling class. Well, how would you imagine social disputes would be reconciled in a post-revolutionary society?


Maybe not everything is economic, but this is. The whole point of contract law is to regulate relations based around the private property! Private property is pretty economic stuff, do you disagree? And most of crimes also have roots in economic factors, directly or indirectly.

No it's not, contract law is just about any agreement in general, any legally binding agreement that somebody enters into, not just commercial stuff. Plus, don't you think that in a communistic society where goods are passed around from one locality to the next that there will be some rules regulating these exchanges?


Yes, and moral is ideology. And the ideas of the ruling class are in every epoch the ruling ideas, so every moral evaluation that is made is made based on bourgeois ideology i.e reflection of bourgeois interests.Why that would be mob rule?Man you sound like liberal (I dont want to be insulting).

It's mob rule because you're saying there shouldn't be legal institutions which help solve disputes, that it should be left to people to do it themselves. So there won't be trained professionals, won't be learned judges, won't be advocates who know the ins and outs of various previous cases etc. It will be left to the whims of people to do what they deem is best.


And there you go again with the separation of powers. Do you disagree that its a bourgeois ideology? Even worse, initial intend is to divide power between parliament, courts and...the king! I mean, it wasnt even revolutionary bourgeois idea, not to mention that he get the idea from England where there was very loose separation of executive and legislature (the same system has evolved to non existed separation of powers between the two), not to mention that separation of powers there never really existed in reality, and where it is most consistently implemented there is more concentration of power than where it isnt (USA president, and Latin America systems).
And then Marxist take this wish-washy liberal concept in fear of what? Dictatorship?! I mean, as Marxist you ought to know that we live in dictatorship of the bourgeoisie.
The failure of socialist project in Soviet Union didnt have anything with failure to implement glorious liberal concepts, but material condition (but lets not go off topic).

This is nonsense. You need separation of powers, they have to be independent otherwise you consolidate too much power in one body. I think you're losing track of why I even asked this question in the first place.


As for "rule of law" (again), the main disagreement is that it is just an ideology without any chance to guarantee "justice" (as if there is universal, objective justice).
But lets go- 1. law is not more accessible, on the contrary it is getting more and more complex as different relations in modern society are more complex.
2. Liabilities will be resolved by law, but that doesnt mean that they will be resolved "justly"
3.Human rights (or rights of man), are bourgeois ideology, they are not any universal god given rights but reflections of bourgeois ideology (as Marx said).
etc etc. In reality all those principles are just a call for obeying bourgeois law.
I mean, i have never seen so passionate lover of rule of love like you, only maybe Hayek :p

I didn't bring in the rule of law for you to tell me if it was being applied. I brought it in to say that it would need to be incorporated into a future anarchist legal system.

Don't you think we'll have some form of legal institutions in a communist society?

[Pravda]

There is this annoying tendency amongst Marxists to ascribe things to class societies (such as law and marriage), while in reality these predate them. I wish people would research their claims a bit better.
Law precedes the existence of state and class society--or written language for that matter. Even the hunter-gatherer khoisan (so-called "bushmen") have laws. So much for your argument.

http://en.wikipedia.org/wiki/Customary_law_in_Australia
http://en.wikipedia.org/wiki/Xeer
I dont recall that i ever said there was no marriage before class society. But economic and social factors did made impact on development of marriage (if Engels was right).
As for your claim, it is not enough to paste two links to prove a point. I have read the first and there is no evidence that there exists a legal system. Second one, i am too tired to read it (im struggling writing in English, it takes me a lot of energy and effort).
So, i hope you will back your claim. And remember law=/=rules.

[Domela Nieuwenhuis]

What about this, we will have a council court: 12-headed, randomly selected, impartial (no relation to victim of suspect) voluntary jury with one chairperson ('judge'). One or two persons representing the victim, one or two persons representing the suspect, and one democratically elected delegate (who has no say, but merely a voice) representing the community. Then the mediating begins. As a guiding principle, customary law will be utilised, which develops out of the social organisation, and therefore--hopefully--will be reflective of that social organisation (libertarian, free, and equal in nature).

(the scenario above will of course find no practical fruition, but perhaps something similar will).

I would argue the representation of the suspect, that would advocate advocates (oh damn!) And that advocaten will eventually find a loophole for a potentially guilty suspect to go free.
Way not let him represent himself?

[Pravda]

Like I said, plenty of other areas of law, of course ideology pervades everything, and I would go so far as to say it is impossible to have an un-ideological stance on anything really. But you're not really answering my question, you're saying here that that this legal system is nothing but a set of rules to solve disputes in a way that suits the interests of the ruling class. Well, how would you imagine social disputes would be reconciled in a post-revolutionary society?
It is impossible (to have un-ideological stance).
In post-revolutionary society legal norms will solve disputes, like always, in the interest of the ruling class, this time- proletariat. I doesnt have to be reconciliation, it may be brute by force.


No it's not, contract law is just about any agreement in general, any legally binding agreement that somebody enters into, not just commercial stuff. Plus, don't you think that in a communistic society where goods are passed around from one locality to the next that there will be some rules regulating these exchanges?
Then i dont know what do you mean by contract. Because, there always must be something that is the object of contract (like you sell me house- you have to give me the house i have to give you the money, or you want me give me a house as a gift etc.) I dont understand what do you mean.
As for communist society, i think it is very far away, and it would be utopian to guess how will everyday life will go.


It's mob rule because you're saying there shouldn't be legal institutions which help solve disputes, that it should be left to people to do it themselves. So there won't be trained professionals, won't be learned judges, won't be advocates who know the ins and outs of various previous cases etc. It will be left to the whims of people to do what they deem is best.
Well, you obviously imagine proletariat as some kind of angry mob that will get drunk and go around killing and burning everything. Why?
There is absolutely no reason to think that (lets not forget revolutionary) proletariat will act that way.
And do you think that the (most of) judges, advocates care for some equality, justice. No, they are greedy servants of bourgeoisie, fuck them.


This is nonsense. You need separation of powers, they have to be independent otherwise you consolidate too much power in one body. I think you're losing track of why I even asked this question in the first place.
Claims are not arguments.


I didn't bring in the rule of law for you to tell me if it was being applied. I brought it in to say that it would need to be incorporated into a future anarchist legal system.
Which wont exist:p



Don't you think we'll have some form of legal institutions in a communist society?
Well, as i said, it is very interesting question. But, if we accept that state will cease to exist, it is hard to imagine existence of legal system without repressive apparatus to reinforce it.

That doesnt mean, that they wont be rules but it character will change, and a lot of things will become unregulated. But, again it is talk about that is just wild guessing.

@Regicollis (http://www.revleft.com/vb/member.php?u=62252)
Once, again. We are talking about communism, not DotP.

[Post-Something]

I would argue the representation of the suspect, that would advocate advocates (oh damn!) And that advocaten will eventually find a loophole for a potentially guilty suspect to go free.
Way not let him represent himself?

Because that's extremely hard to do, law isn't an easy subject for those who haven't studied it, but you've raised a really good point. Since there won't be any material incentive for an advocate to stand by the person they're defending, how do you make sure all the correct legal arguments are deployed in favour of somebody?

[Tim Cornelis]

I dont recall that i ever said there was no marriage before class society.

I didn't say you did. I said Marxists, plural.


But economic and social factors did made impact on development of marriage (if Engels was right).
As for your claim, it is not enough to paste two links to prove a point. I have read the first and there is no evidence that there exists a legal system.

What is a legal system if not a set of laws that everyone is expected to live by and penalties are imposed if not adhered to?


1. legal system - a system for interpreting and enforcing the laws

Certainly, customary law is a legal system.



And remember law=/=rules.


1. A rule of conduct or procedure established by custom, agreement, or authority.

Customary law is law (evidently). Custom is a source of law.


I would argue the representation of the suspect, that would advocate advocates (oh damn!) And that advocaten will eventually find a loophole for a potentially guilty suspect to go free.
Way not let him represent himself?


Because that's extremely hard to do, law isn't an easy subject for those who haven't studied it, but you've raised a really good point. Since there won't be any material incentive for an advocate to stand by the person they're defending, how do you make sure all the correct legal arguments are deployed in favour of somebody?

Loopholes in laws exist only because they are literally encrypted, making them static. For example, if a police officer arrests you without formally declaring so, any offence that person has committed will be acquitted. Since under a code of customary law this is not established that that sense, legal loopholes will not exist.

Customary law will also be much simpler and thus most people could represent themselves, but some cannot (mentally handicapped) or some don't want to. Thus the two representatives could be the suspect himself plus an eloquent 'lawyer'. Juries would function more as dispute mediating organs.

@Utopist M
Dutch anarchist and former professor of law Thom Holterman (http://nl.wikipedia.org/wiki/Thom_Holterman) has written a lot about law in an anarchist society. His works are no doubt available at your local university library. (His works are not available in English).

[Domela Nieuwenhuis]

Because that's extremely hard to do, law isn't an easy subject for those who haven't studied it, but you've raised a really good point. Since there won't be any material incentive for an advocate to stand by the person they're defending, how do you make sure all the correct legal arguments are deployed in favour of somebody?

Why would representation be difficult if law is simple? I sure hope law will be simple post-rev.


Dutch anarchist and former professor of law Thom Holterman (http://nl.wikipedia.org/wiki/Thom_Holterman) has written a lot about law in an anarchist society. His works are no doubt available at your local university library. (His works are not available in English).

Okay, great! I'll sure look in to that.

[Post-Something]

Why would representation be difficult if law is simple? I sure hope law will be simple post-rev.

It's not that law is somehow so difficult, it's just that there's so much of it, it can be extremely dense, and it can often be difficult for somebody to know how to argue against a claim. I get the impression that Anarchists think society will be much simpler in an Anarchist world, I actually hold the opposite view, I think it will be an extremely complex and interconnected body. With all of this complexity, you're going to get many rules, and law is pretty dry stuff.

For example, there will no doubt be airplanes in an anarchist world, surely there will be regulations and somebody to be held accountable if the vehicle isn't in good condition. Somebody needs to bear the responsibility, and it can't be a free for all, because if passengers die, the passengers relatives would be so angry they'd probably resort to violence. The passengers and the pilot, or whoever isn't necessarily going to know the ins and outs of flight licences, vehicle upkeep and so on. Maybe you should have a look at some cases just to see how technical these arguments can get, it's ridiculous really, and ever since the Romans we've had specialists in law to deal with this complexity. Whether it's democratically done, how people are trained, or if anyone can become a lawyer etc, that's a different story though.

[cyu]

If you set up whatever "anarchist" system you set up, could there ever be an "anarchist among anarchists" that says, "Screw your system, I'm not listening to you and you have no right to force your system on me."

What if everyone were a vigilante? That might be a scary thought at first, but I think it leads to a different kind of thinking. Instead of "What can I get away with according to the letter of the law?" it would be more along the lines of "Who would I be pissing off if I do this?"

The more people you piss off, the more likely there will be sanctions against you. If you piss off even one person seriously enough, it's pretty unlikely you'd get away scot free. On the other hand, if you see yourself as the ultimate enforcer trying to bend society to your will, and if that turns enough people against you, then you'll be sanctioned as well.

The same happens in theoretical democracies anyway - just in a more formalized manner - if you piss off enough people, they'll just pass a law against you.

[Domela Nieuwenhuis]

What if everyone were a vigilante? That might be a scary thought at first, but I think it leads to a different kind of thinking. Instead of "What can I get away with according to the letter of the law?" it would be more along the lines of "Who would I be pissing off if I do this?"

I think people would eventually set up some system of law voluntarily.
No human society can do without a set of rules.
Not even animals live rule-free. Every animal in a herd knows who is boss and what not to do.
Break the rules? Get fucked up! (or do it right and take over power)

[cyu]

Interesting excerpt from http://www.presseurop.eu/en/content/article/2601741-workers-cooperative-defies-crisis - most of the article isn't about law enforcement at all, but there's this bit:

In Marinaleda, there is no police force and political decisions are taken by an assembly in which all citizens are asked to participate. "It is not a group of elected officials. It is people who, together, decide how to allocate tasks and what needs to be done in the best interest of the village."

I think that says much more about the environment that people find themselves in. The need for "law enforcement" is only needed if people are unhappy with their lives.

[Trap Queen Voxxy]

1. How would a legal system be organized according to anarchist principles?

It would be polycentric as opposed to statutory.


2. I'm guessing since there won't be a "government" per se, there would be more of a common law system where judges make decisions based on precedent? Will these judges have to be democratically elected?

Yes, Anarchist law also has flown from the 'natural law' theories. Kropotkin stated the following, "a principle or theory of life and conduct under which society is conceived without government—harmony in such a society being obtained, not by submission to law, or by obedience to any authority, but by free agreements concluded between the various groups, territorial and professional, freely constituted for the sake of production and consumption, as also for the satisfaction of the infinite variety of needs and aspirations of civilized beings."

This link (http://charleswjohnson.name/essays/a-place-for-positive-law/) might help.


3. What would happen if one locality has a different legal stance than another? Isn't this a problem in criminal law?

No, Anarchist law, from what I know, would be premised upon consensus based, democratically agreed upon social contracts and free association.


4. In any of the Anarchist or socialist attempts in the past, has lagal procedure ever been seriously changed?

Yes.


5. Will new laws have to be completely agreed upon by everyone, or just a majority? Wouldn't that set up different courts and legal systems for people who want different things, each backed up by their own form of coercion?

Consensus, super-majority, direct democracy, etc. No, because it would be a basic violation of the zero aggression principle and since everything is done on a ground up collective basis, it would behoove the collective to become divide and bicker over silly nonsense. Remember, we're talking about a new society in which it is no longer a number of individuals fighting and killing and slandering for power and privilege and so on but a collective coming together for the over-all benefit of the collective.

The only real issue, though I'm not well versed in theoretical law would be balancing collective action and individual liberty/rights.

[Post-Something]

It would be polycentric as opposed to statutory.



Yes, Anarchist law also has flown from the 'natural law' theories. Kropotkin stated the following, "a principle or theory of life and conduct under which society is conceived without government—harmony in such a society being obtained, not by submission to law, or by obedience to any authority, but by free agreements concluded between the various groups, territorial and professional, freely constituted for the sake of production and consumption, as also for the satisfaction of the infinite variety of needs and aspirations of civilized beings."

This link (http://charleswjohnson.name/essays/a-place-for-positive-law/) might help.



No, Anarchist law, from what I know, would be premised upon consensus based, democratically agreed upon social contracts and free association.



Yes.



Consensus, super-majority, direct democracy, etc. No, because it would be a basic violation of the zero aggression principle and since everything is done on a ground up collective basis, it would behoove the collective to become divide and bicker over silly nonsense. Remember, we're talking about a new society in which it is no longer a number of individuals fighting and killing and slandering for power and privilege and so on but a collective coming together for the over-all benefit of the collective.

The only real issue, though I'm not well versed in theoretical law would be balancing collective action and individual liberty/rights.


Ok, interesting, I think I understand what you're saying but correct me if I'm wrong. So you're saying that law wouldn't disappear at all, it would simply be de-centralized? ie, organizations and groups would decide upon their own rules and enforce them themselves mutually? That's a really good way of putting it. But let's take Kropotkin's example of a guy breaking into somebody's house for whatever reason and refuses to leave. Who's responsibility is it to kick the person off the person's personal property? The people who built the house, a police force? What about if a pram for a child was designed so badly that it broke and harmed the child, who takes responsibility? The problem I'm seeing here is:

1. How do you ensure people take the necessary precautions and hold responsibility?

2. How will mutually agreed upon contracts be enforced if there is a zero aggression principle?

Also, I'm imagining that a polycentric legal system would entail that trades and profession would group together almost like guilds and regulate their own activities, isn't self-regulation a bit risky?

[Domela Nieuwenhuis]

In Marinaleda, there is no police force and political decisions are taken by an assembly in which all citizens are asked to participate. "It is not a group of elected officials. It is people who, together, decide how to allocate tasks and what needs to be done in the best interest of the village."


Wow, that shit is really interesting!

Marinaleda on Wikipedia (http://anonym.to/?http://en.wikipedia.org/wiki/Marinaleda,_Spain)

Sorry for going off-topic for a bit...

[MarxSchmarx]

I have been very interested in this question since I joined this forum over 5 years ago.

It is the first question those new to the movement and those unfamiliar with the movement ask. Yet old timers and those within the movement simply have no good answer.

To me, this makes it probably the single most compelling limitation in anarchism or for that matter advanced socialism/stateless communism. Yet it gets virtually no attention :( for reasons I just don't understand.

What is spectacularly absent, in the ponderous volumes that have been written about civil war spain, is how the territories under CNT rule dealt with legal issues. People who remember how this worked are starting to die off, and I can only hope that some leftist historian somewhere takes this task of reconstructing how the CNT handled these issues seriously.
http://www.revleft.com/vb/justice-under-cnt-t64597/index.html?t=64597

Anyway, here are some pointers made in past threads that may find an answer in this thread:

My response :
http://www.revleft.com/vb/showpost.php?p=2363708&postcount=8
in a related thread :
http://www.revleft.com/vb/law-stateless-societyi-t168003/index.html?t=168003
dealing mostly with examples from Africa.

As well as:
http://www.revleft.com/vb/showpost.php?p=2191634&postcount=4
to this thread:
http://www.revleft.com/vb/proposed-substitutes-current-t158926/index.html


To summarize, I have long thought that Somalia's xeer system (with much modification) as a promising historical model
http://www.revleft.com/vb/somali-jurisprudence-t133881/index.html?t=133881

As you can tell from the complete dearth of responses, obviously this is an issue which has a hard time attracting serious discussion. Personally I think that's a thorough shame at best and at worst betrays a dead-end elitism on the part of many activists.

[Post-Something]

I have been very interested in this question since I joined this forum over 5 years ago.

It is the first question those new to the movement and those unfamiliar with the movement ask. Yet old timers and those within the movement simply have no good answer.

To me, this makes it probably the single most compelling limitation in anarchism or for that matter advanced socialism/stateless communism. Yet it gets virtually no attention :( for reasons I just don't understand.

What is spectacularly absent, in the ponderous volumes that have been written about civil war spain, is how the territories under CNT rule dealt with legal issues. People who remember how this worked are starting to die off, and I can only hope that some leftist historian somewhere takes this task of reconstructing how the CNT handled these issues seriously.
http://www.revleft.com/vb/justice-under-cnt-t64597/index.html?t=64597

Anyway, here are some pointers made in past threads that may find an answer in this thread:

My response :
http://www.revleft.com/vb/showpost.php?p=2363708&postcount=8
in a related thread :
http://www.revleft.com/vb/law-stateless-societyi-t168003/index.html?t=168003
dealing mostly with examples from Africa.

As well as:
http://www.revleft.com/vb/showpost.php?p=2191634&postcount=4
to this thread:
http://www.revleft.com/vb/proposed-substitutes-current-t158926/index.html


To summarize, I have long thought that Somalia's xeer system (with much modification) as a promising historical model
http://www.revleft.com/vb/somali-jurisprudence-t133881/index.html?t=133881

As you can tell from the complete dearth of responses, obviously this is an issue which has a hard time attracting serious discussion. Personally I think that's a thorough shame at best and at worst betrays a dead-end elitism on the part of many activists.


I fully agree with you, I think this is definitely one of the most important issues. I can imagine an anarchist society up until this point, and lets be honest here, other than economics, it's really the most important aspect of a society. Although you say in a number of the posts you linked that the ancaps are further in front of the leftists here, I have to disagree. When I first became interested in this topic, I came across a number of ancap articles that frightened me quite a bit. In fact, for me it was the absolute last nail in the coffin in terms of taking the idea even remotely seriously. Essentially, protection companies would spring up allowing the individual to choose how much protection they wanted, and they would settle disputes with the other protection company at a mutually agreed court. It just seemed to me such a flimsy and stupid idea I immediately realized that the leftists couldn't have been much further ahead. I have to say I'm not really impressed, even with the arguments for natural law etc. And anyone proposing no law at all just sounds a bit naive.

The one idea I think I'll need to explore is decentralized law. What do you think of this idea? A polycentric legal system.

[MarxSchmarx]

I fully agree with you, I think this is definitely one of the most important issues. I can imagine an anarchist society up until this point, and lets be honest here, other than economics, it's really the most important aspect of a society. Although you say in a number of the posts you linked that the ancaps are further in front of the leftists here, I have to disagree. When I first became interested in this topic, I came across a number of ancap articles that frightened me quite a bit. In fact, for me it was the absolute last nail in the coffin in terms of taking the idea even remotely seriously. Essentially, protection companies would spring up allowing the individual to choose how much protection they wanted, and they would settle disputes with the other protection company at a mutually agreed court. It just seemed to me such a flimsy and stupid idea I immediately realized that the leftists couldn't have been much further ahead. I have to say I'm not really impressed, even with the arguments for natural law etc. And anyone proposing no law at all just sounds a bit naive.

The one idea I think I'll need to explore is decentralized law. What do you think of this idea? A polycentric legal system.

Well you have a valid point about the ancaps. Basically they want mafioso protection rackets and something that eerily resembles vassalage. So perhaps the issue isn't so much that they are more advanced, only that they seemed to have thought about it perhaps more than leftists have, and have come up with an internally consistent, if otherwise dystopian, solution. There just isn't a leftist counterpart however. Their literature deals with these issues head on and it seems more front and center compared to leftist libertarian writings. This might be a reflection of ancaps almost all from the Anglo Saxon countries where there is a strong preoccupation with the law, particularly in litigious societies like America.

As to decentralized/polycentric legal systems, this is another area that seems to be heavily influenced by ancap ideologies from my understanding. I think there is certainly precedence for such a scheme, and I see the primary challange as how to adopt it to leftist values.

[cyu]

The one idea I think I'll need to explore is decentralized law.


From http://cjyu.wordpress.com/article/tyranny-of-the-majority-versus-gcybcajus7dp-7/

There is an anarchist concept known as decentralized democracy. That means the more someone is affected by a decision, the more say he has in that decision. If a decision barely affects 99% of the people, then none of them get to vote. The decision to kill someone affects the victim more than anyone else, so the victim should have more say in the decision than everyone else. The decision over what you eat for lunch barely affects anybody else, so obviously you don’t have the entire society voting on what you have for lunch. In cases like these, it becomes a democracy of one – thus anarchy.

From http://cjyu.wordpress.com/article/anarchy-is-order/

It would depend on your definition of anarchy. If you define it as a free-for-all, where everybody (or almost everybody) only cares about themselves, and nobody tries to protect the freedom of others, then that’s a completely different situation than a society where everybody (or almost everybody) believes in protecting each other’s freedoms.

The second scenario is what most anarchists mean when they are trying to spread the ideas of anarchism.

When you say a person is sovereign or an organization is sovereign, you also have to consider how other sovereign individuals / organizations will react when this one attempts to harm others.

[cyu]

Wow, that shit is really interesting!


Yeah, more off-topic stuff from http://www.presseurop.eu/en/content/article/2601741-workers-cooperative-defies-crisis

Its current rate of unemployment is zero per cent.

Previously, a large number of the farm workers barely knew how to read. Today, they have a kindergarten, a primary school and a secondary school. "The dropout rate is a little high. People have a home and are assured a job, so many don't see the need to study. That is one of the points on which we can improve."

People dropping out of school, not because they are forced to make ends meet, but because they are actually content - that's a far cry from some of the people in Western countries who feel they are now forced to go back to school at middle age because they no longer have a skill set that will satisfy capitalists.

[The Garbage Disposal Unit]

http://www.southendpress.org/2010/items/87941