Jeff Ferrell

Against the Law: Anarchist Criminology

1998

http://library.nothingness.org/articles/SA/en/display/127

Social Anarchism Issue 25 1998

To live outside the law, you must be honest.

-- Dylan, “Absolutely Sweet Marie”

Anarchism is an orientation toward social life and social relations that is ultimately no orientation at all. In fact, anarchism might best be thought of as a disorientation; that is, an approach which openly values fractured, uncertain, and unrealized understandings and practices as the emerging essence of social life. What follows, then, is guaranteed to be an incomplete account of anarchism and anarchist criminology, a failed attempt at orientation. This failure certainly derives from the account’s origins in the work of a single author, and from that author, like others, being caught up in the dementia of deadlines and daily work. But it also derives from the nature of anarchism itself. Like most all theoretical or practical models, anarchism incorporates a variety of limitations and contradictions (Feyerabend 1975). Unlike most other orientations, anarchism acknowledges and celebrates these failings, and doesn’t bother to hide them behind cloaks of absolute certainty or competence.

Unlike most modernist intellectual orientations, anarchism and anarchist criminology don’t bother pretending to incorporate reasoned or reasonable critiques of law and legal authority, either. In fact, to the extent that the legal and cultural machinery of the modern nation state, and the accumulated experiences of daily life under such regimes of power, construct “reason” and a sense of what is reasonable, anarchists and anarchist criminologists argue that progressive social change requires the “unreasonable” and the “unthinkable.” In other words, to the degree that reason and “common sense” help keep us locked within present arrangements of authority and power, it seems in our interest to stop making sense, to imagine the unimaginable. Beyond this, as will be seen, anarchists and anarchist criminologists also launch aggressive and “unreasonable” critiques against law and legal authority because they see time and again that such authority undermines human community and constrains human diversity. Unlike some other critical or progressive criminologies, then, anarchist criminology stands not as a careful criticism of criminal justice, a “loyal opposition” to the state and state law. It stands instead as a disloyal and disrespectful (Mazor 1978) attack, a “counterpunch to the belly of authority” (Ferrell 1996: 197). As the Industrial Workers of the World (The Wobblies) — a free-swinging anarchist labor union of the early twentieth century — said: “We are not ‘undesirable citizens.’ We are not citizens at all. We are rebellious slaves....Therefore we are not respectable. We admit it and we are proud of it” (Industrial Worker 1912:2).

In promoting fluid and uncertain social relations, and attacking the sorts of legal authority which stifle them, anarchist criminology aims its disrespectable gaze both high and low. Anarchist criminology arrogantly assaults the structures of state and legal authority ensconced above us; but it also humbly encourages all those below and beyond this authority who invent ways of resisting it, and imagines with them a host of unreasonable and egalitarian alternatives. With H. L. Mencken, anarchist criminology seeks to afflict those comfortable with legal power and privilege, and to comfort those afflicted by its abuses.

Against the Law: Through the Past, Darkly

Anarchist critiques of law and legality, and thus the roots of contemporary anarchist criminology, trace as far as anarchism itself. Early anarchist writers and activists like William Godwin (1756–1836), Max Stirner (1806–1856), Michael Bakunin (1814–1876), and Peter Kropotkin (1842–1921) focused some of their most scathing and sophisticated attacks on state authority and legal control. Godwin (1971: 275, 276) for example argued that “whatever inconveniences may arise from the passions of men <sic>, the introduction of fixed laws cannot be the genuine remedy,” in that such laws tend “to fix the human mind in a stagnant condition,” to inhibit lived solutions to human problems, and to promote state-administered “criminal justice” and punishment. Kropotkin (1975: 30, 31, 56) likewise critiqued the law’s “tendency to crystallize what should be modified and developed day by day,” but went further to call for the abolition of prisons — “monuments of human hypocrisy and cowardice” which promote rather than prevent criminality — and for the destruction of state law itself: “In place of the cowardly phrase, ‘Obey the law,’ our cry is ‘Revolt against all laws!’” Similarly, Stirner (1971: 148, 157) called for “war... against establishment itself, the State” — for the state to be “abrogated, annihilated, done away with, not reformed” — and argued that crime in this context constituted a sort of individualistic rebellion against state law and authority. But perhaps Bukanin (1974: 58, 204), in calling for the destruction of the state and its replacement with “the spontaneous and continuous action of the masses, the groups and the associations of people,” presented the twisted potential of the anarchist attack on state law most succinctly: “The passion for destruction is a creative passion, too.”

Appropriately, anarchist critiques such as these have emerged not just as theoretical statements, but out of head-on confrontations between state legal authorities and anarchists attempting to construct alternative arrangements. Especially for Bakunin and Kropotkin, anarchist criminology was part of revolutionary activity against the Russian oligarchy and the emerging nation states of capitalism. In fact, Bakunin’s notion of “the spontaneous and continuous action of the masses” referred to an actual case of anarchist revolt: the Paris Commune of 1871. In the U. S., anarchists like Emma Goldman (1869–1940) and Alexander Berkman (1870–1936) likewise mixed labor and social activism with insightful critiques — see for example Goldman’s (1969: 109–126) essay “Prisons: A Social Crime and Failure” — and spent large periods of their own time in prison for their trouble. Most remarkable were the Wobblies. The Wobblies blended deceptive strategies to avoid legal prosecution with out-and-out defiance of the law; as their national newspaper, the Industrial Worker (1913: 2), put it: “Damn the laws of the ruling class. We will have none of them. Capitalist law and order means law forced upon the workers by order of the capitalists.” But beyond deception and defiance, the Wobblies and their allied unions also invented strategies that could successfully turn the turgidity of the law against itself, and thus win for them labor and political victories. In the workplace, they at times obeyed every rule and regulation so precisely as to finally grind all work to a halt; in the streets, they systematically violated unjust laws in such great numbers as to overload courts and jails, and force dismissal of their cases (Ferrell and Ryan 1985; Kornbluh 1988; Ferrell 1991).

Anarchist criminology’s uncertain trajectory of course continues into the present as well. In fact, the past few decades have seen an efflorescence of anarchist criminology. In 1974, the membership of the American Society for Political and Legal Philosophy for some odd reason “voted overwhelmingly for ‘anarchism’” as the topic for their national meeting, and a book of essays on anarchism, law, and justice (Pennock and Chapman 1978: vii) followed in 1978. That same year, criminologist Harold Pepinsky (1978) published an article advocating “communist anarchism as an alternative to the rule of criminal law,” and later transformed this approach into a “peacemaking criminology” (Pepinsky 1991; Pepinsky and Quinney 1991; see Pepinsky and Jesilow 1984) opposed to the violence inherent in the concept and practice of state law. Around this same time, criminologist Larry Tifft (1979; Tifft and Sullivan 1980) developed an anarchist criminology which argued for replacing state/legal “justice” with a fluid, face-to-face form of justice grounded in emerging human needs. More recently, Bruce DiCristina (1995; see Ferrell 1995a) has constructed a critique of criminology and criminal justice from the work of anarchist philosopher of science Paul Feyerabend (1975). And I (Ferrell 1994, 1995, 1995a, 1996; Ryan and Ferrell 1986) have developed an anarchist criminology aimed especially at examining the interplay between state/legal authority, day-to-day resistance to it, and the practice of criminality.

As before, though, contemporary anarchist attacks on state legality and control continue to emerge also out of non-academic realms. In 1968, a century after the Paris Commune, French “Situationists” spurred on an anarchist revolt against the centralized French governmental and economic system with slogans like “Work Is The Blackmail of Existence” and “Boredom Is Always Counterrevolutionary.” Beginning in the late 1970s, and in the Situationist politics of its founders, the British and U.S. punk movement likewise promoted “DIY” — do-it-yourself — in place of outside authority and control. From bands like the Sex Pistols (“Anarchy in the U.K.”) and The Clash (“Working for the Clampdown,” “Guns of Brixton,” “Know Your Rights”) to Rancid (“11th Hour,” “Time Bomb,” “As Wicked”), the punks have continued to promote anarcho-critical understandings of state law and state injustice as well. During the 1990s, outlaw anarchist radio stations like Free Radio Berkeley (Ongerth and Radio Free Berkeley, 1995) have not only broadcast punk and other alternative music, but have defied FCC regulations to broadcast programs like “Copwatch” and “The First Amendment Show.”

And there is more — more illegal “micro-power” stations hidden all around the country, more punks and prisoners with critical and “unwholesome” attitudes toward authority, more people whose day-to-day disavowals of state legality lie outside my knowledge and perhaps that of most others as well. This is, or course, exactly as it should be. Anarchism and anarchist criminology constitute less a closed intellectual system administered by a handful of experts than a critical undercurrent in which everyone may or may not be caught. And in this sense, anarchism and anarchist criminology exist as part of a long and dark “secret history” (Marcus 1989) of resistance, moving underground by force or by choice, and always flowing under and against state and legal authority.

Against the Law: The Spiraling Harm of Criminalization and Legal Control

Anarchist criminology certainly incorporates the sort of “visceral revolt”(Guerin 1970: 13) that characterizes anarchism itself, the passionate sense of “fuck authority,” to quote the old anarchist slogan, that comes from being shoved around by police officers, judges, bosses, priests, and other authorities one time too many. Moreover, anarchists would agree with many feminist and postmodernist theorists that such visceral passions matter as methods of understanding and resistance outside the usual confines of rationality and respect (Ferrell 1997). But anarchist criminology also incorporates a relatively complex critique of state law and legality which begins to explain why we might benefit from defying authority, or standing “against the law.”

Many contemporary critical criminologists agree that state law as practiced in the United States is so thoroughly lubricated by economic privilege, intertwined with patriarchal arrangements, and protected by racist procedures as to constitute a mailed fist regularly brought down on the heads of women, the poor, ethnic minorities, young people, and other outsiders to economic power or state authority. Anarchist criminologists agree as well, but go on to argue that the practice of centralized state law harms people, groups, and the social fabric which joins them even if not aimed directly at “the powerless.” Put differently, the administration of centralized state authority and legality destroys community, worsens criminality, and expands the abusive power of the state throughout the contemporary social order — and then, through its discriminatory practices, doubles this harm for those pushed to the bottom of this system. Among the broad harms of state legality:

State legality operates as what Pepinsky and Jesilow (1984: 10) have called a “state-protection racket,” extorting cash and conformity from those unlucky enough to be caught up in it. From speed traps to parking fines, from the plethora of licensing fees to the bureaucratized bungling of the IRS, the state operates as a vast revenue machine, an elaborate extortion device serving itself and those who operate it. And, as in any extortion operation or protection racket, state law provides for a host of state-sanctioned strong-arm tactics to enforce and enrich the fleece: impoundment, seizure, imprisonment, death. Clearly, such a system exists to perpetuate itself and to protect the powerful in and around it; the ideology that all of this occurs “in the interest of the community” seems at best a sort of cruel joke, or, to paraphrase the Wobblies, a cheap cologne sprinkled on the dunghills of state extortion. If you think otherwise, if you believe that this gigantic machine functions for us all, you might ask some frustrated middle class car owner trying to protest a parking ticket, some kid bankrupted and imprisoned for marijuana possession — or damn near any homeboy walking an inner city street.

Like a tangle of poisonous weeds, the labyrinth of state legality grows in the absence of human community, and once in place, further chokes possibilities for fluid and engaged human interaction. In a social world increasingly fractured by alienated labor and economic inequality, privatized leisure, and the paranoia of the lonely crowd, police calls and civil suits proliferate — as does the sense that such disjointed, externalized tactics somehow constitute appropriate measures for solving disputes and achieving justice. But as parents file for (and are granted) restraining orders against three-year-old playground bullies (Thompson 1996), as suits and countersuits multiply, as the daily fear of crime is shadowed by a daily fear of legal intrusion, human communities continue to unravel. Ultimately, a reliance on state legality reinforces the power and authority of centralized control systems, disables the potential for human community and human justice outside their bounds, and increasingly reduces human interaction to a stale dichotomy of legality and illegality.

As the interactionist/labeling tradition in criminology has taught us, the confinement of people and groups within state-administered categories of criminality, and within state-administered systems of punishment and retribution, promotes not rehabilitative humanity but rather a downward spiral of crime, criminalization, and inhumanity. For the individuals and groups targeted by such a system, the spiral intertwines disassociation from non-criminal communities, constricted personal and professional identities, growing anger and resentment, and finally an amplification of criminality and criminal careers. For the larger society, this spiral interweaves state and media sponsored fears of crime, an ideology of state-sanctioned retaliation, and thus broad paroxysms of objectification, dehumanization, and legal retribution. In this way, a system of state law and state “justice” perpetuates, within individual lives and larger social relations, the very problems it claims, falsely, to solve.

Within this system, the “rule of law” continues to proliferate, to penetrate more and more corners of social and cultural life (Cohen 1979). As in a Weberian nightmare, state legality constitutes a sort of bureaucratic cancer that grows on itself, that produces an ever-expanding maze of legal control, and that in turn generates an ever-expanding body of bureaucratic and legal sycophants employed to obfuscate and interpret it. In 1886, Kropotkin (1975: 30) documented “a race of law-makers legislating without knowing what their laws are about....legislating at random in all directions;” a century later, that race continues to spew forth legal regulation at a remarkable rate. As such legal controls grow in number and coverage, they of course constipate the conduct of social life, forcing all of us into ongoing contortions within and around them. More troubling, the proliferation of legal controls finally suspends what little protection law once may have afforded. When every facet of social and cultural life is defined by legal control, and thus by state definitions of legality and illegality, we all remain continually vulnerable to the egregious exercise of state power. So, in a typical example, a recent series of highway drug busts in Arizona were predicated on a single traffic offense by drivers: “unsafe lane usage” (Steller 1996). Finally, as state legality expands, we’re all guilty — if not of “unsafe lane usage,” then of another among the growing multitude of offenses. And finally, as the modern state and its many subdivisions make more and more of social and cultural life against the law, we must choose to stand against the law as well.

Against the Law: A Note on the Situated Politics of Crime and Resistance

Anarchist criminology’s profoundly radical critique of state law as a system of inherent inhumanity, and its sense of therefore standing “against the law,” leads to a criminology of crime and resistance as well. Labor historians and sociologists of work have long documented the pattern by which systems of authoritarian, alienating work generate among workers incidents of sabotage — of intentional rule-breaking and disruption — as a means of resisting these systems and regaining some sense of humanity and control. Anarchist criminologists suggest that this pattern may likewise be found in the interplay of state legal control and criminality. Rather than dismissing criminality as mindless misbehavior, or worse, simply accepting the state’s construction of legality and illegality as definitive of good and bad human conduct, anarchist criminologists seek to explore the situated politics of crime and criminality. Put more simply, anarchist criminologists argue that the political (and politically inequitable) nature of state law and state criminalization means that acts of crime under such a system must also carry some degree of political meaning. And so, as with Foucault and Genet (Simon 1991: 31), anarchist criminologists seek to blur and explore the boundaries between crime and political resistance. This exploration neither assumes a priori that all crime constitutes resistance to state authority, nor ignores the often (but not always) negative consequences of criminality for people and communities. It does, though, call for paying careful attention to various criminal(ized) activities — graffiti writing, “obscene” art and music performances, pirate radio broadcasts, illegal labor strikes, curfew violations, shoplifting, drug use, street cruising, gangbanging, computer hacking (Ferrell 1995, 1996; Ferrell and Sanders 1995) — as a means of investigating the variety of ways in which criminal or criminalized behaviors may incorporate repressed dimensions of human dignity and self-determination, and lived resistance to the authority of state law.

Anarchist Criminology and Anarchist Community

As implied in its critique of centralized state authority, and its embracing of various alternatives to it, anarchist criminology calls for human communities which are decentralized, fluid, eclectic, and inclusive. Moreover, anarchist criminology proposes that this sense of inclusive, non-authoritarian community can benefit critical criminology itself. Clearly, anarchist criminology shares much with the epistemic uncertainty and situated politics of feminist criminology; with the decentered authority and textual deconstruction of postmodern and constitutive criminologies; with the critical pacifism of peacemaking criminology; and of course with the broader critique of legal injustice common to all critical criminologies. Even left realist criminology, though coming in some sense from a “direction polar opposite” (Einstadter and Henry 1995: 232) to that of anarchist criminology, shares with anarchist criminology a concern with identifying and exploring the situated consequences of crime and crime control. In the spirit of eclectic inclusivity, then, anarchist criminology argues against partitioning critical criminology into a series of small intellectual cubicles, and then closing one critical cubicle to the occupants of another (Pepinsky 1991). Instead, anarchist criminology calls for an ongoing critical conversation among perspectives, for a multi-faceted critique of legal injustice made all the more powerful by its openness to alternatives. Cohen (1988: 232) speaks of his “lack of commitment to any master plan (such as liberalism, left realism, or abolitionism), a failing, I would like to think, not of my own psyche but of the social world’s refusal to correspond to any one theory.” Anarchist criminology shares this lack of commitment to master plans — including its own — and embraces instead fluid communities of uncertainty and critique.

A Footnote on Failure

Perhaps an anarchist criminology, and an anarchist vision of justice or community, won’t ultimately work. Perhaps, in its “pure” form — whatever “pure” might mean to an approach which embraces particularity, confusion, and adulteration — anarchism incorporates too much fluidity and disorder to ever construct itself fully. And perhaps so with anarchist criminology: as an approach which acknowledges no set boundaries, which claims no pedigreed intellectual heritage or exclusive scholarly turf, anarchist criminology may ultimately constitute no more than a defiant sensibility, an outlaw orientation and analysis, which floats around and against criminology (Cohen 1988). From an anarchist viewpoint, of course, so much the better; for anarchists, nothing succeeds like uncertainty, nothing fails like success. And from this viewpoint, an anarchist criminology which fails to reach full fruition, which fails (and refuses) to “win out” over other perspectives, remains for this very reason an important thread in the larger project of critical criminology. For in a criminal justice universe of centralized and constricting authority, in an academic universe still largely fouled by mythologized standards of truth and imposed hierarchies of credibility (Becker 1967), anarchist criminology functions if nothing else as a useful corrective to encrusted certainty and the desire for domination. And in this way, it undermines the tendency to embrace our own intellectual authority, or the exterior authority of the state, as appropriate — or worse, inevitable — frameworks for social order and social change.

In the 1600s British poet John Milton (1958: 91), in his “Sonnet On His Blindness,” reminded us that “they also serve who only stand and wait.” Three hundred years later, the new wave of British film makers sharpened this notion’s anarchic edge. In the film The Loneliness of the Long Distance Runner (Richardson and Sillitoe 1962), lead character Colin Smith has been packed off to the harsh controls of the reformatory, where the headmaster manipulates him into running an importance race against a rival school. By the last few yards, Smith has the race won — and with it, approval of the headmaster, glory for the reformatory, and most importantly his own release from its confines. But just short of the finish line, Smith stops. While the rival school’s runner passes him to win the race, Smith stands, stares, and smiles straight at the headmaster. And in his stopping, in his willful failure, he undermines his own hope for freedom — but at the same time undermines the labyrinth of rules and regulations, the daily degradations of obsequiousness and obedience, the phony ideologies of competitive loyalty to the institution and the state, through which his freedom and that of others has long been bought and sold.

So it is with anarchist criminology. Complete or incomplete, as intellectual critique or failed moment of visceral defiance, anarchist criminology serves if only by standing outside the law, by stopping short of the seductive ideologies of obedience and conformity which undergird it. And in this stance, in this disavowal of legal authority and it destructive effects on social and cultural life, anarchist criminology serves to remind us that human relations and human diversity matter — and that, in every case, they matter more than the turgid authority of regulation and law.

Author’s Note: I thank Mark Hamm for ideas, inspiration, and the Dylan quote; and Harry Lyrico, who by word, deed and art, and despite his claims to the contrary, sketches the dangerous and honest beauty of life outside the boundaries of legality and privilege.

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