1. 1. Sirus Kashefi Legal Anarchism: Does Existence Need to Be Regulated by the State? Starting to read and to write about anarchism and the law since 2009, to write this thesis on August 14, 2012, Toronto, 7.34 AM; finished on January 4, 2015, Toronto, 7.40 PM Osgoode Hall Law School, York University Legal Anarchism: Does Existence Need to Be Regulated by the State? PhD Thesis in Law By Sirus Kashefi s.kashefi@hotmail.com Precariousness and Poverty (2015-?) PhD Student at Osgoode Hall Law School (2009-2015) Under Social Assistance and Absolute Poverty in Montreal and Toronto (2006-2009) PhD in Law from Panthon-Sorbonne (2001-2005) Masters in Criminal Law and Criminal Policy in Europe from Panthon-Sorbonne (2000-2001) Masters in Criminal Law and Criminology from the University of Tehran (1997-2000) LLB from Azad University of Mashhad (1992-1996) Supervisor Distinguished Research Professor Allan C. Hutchinson, Osgoode Hall Law School Supervisory Committee Members Associate Professor Michael Giudice, Department of Philosophy, York University Professor Edward Peter Stringham, School of Business and Economics, Fayetteville State University 1
2. 2. Sirus Kashefi Legal Anarchism: Does Existence Need to Be Regulated by the State? I dedicate this thesis to endless non-human and human victims, particularly my sister Sedigh, of unlimited cruelties of politicians and humanity as a whole. Until the last voiceless victim suffers in the world, I continue to fight against all States altogether. I, as a wondering and powerless individual, carry my gallows over my shoulder; my loss will be nothing but losing it. We will arrest you! We will torture you! So stop informing others! If your slogan is this, ours is this: We have entered this arena, and we will not step down until we set ourselves free of the chains of existence, or break away from the chains of injustice! Sattar Beheshti (1977-2012) 1 Is He A Nihilist Dancer? He makes fun of all scriptures He plays with all philosophers He challenges all authorities He dances with all ideologies Is he is a nihilist dancer? Sirus Kashefi2 2
3. 3. Sirus Kashefi Legal Anarchism: Does Existence Need to Be Regulated by the State? My thesis neither hopefully follows York Universitys ideology, nor fortunately obeys Osgoodian and anarchist propaganda, rather it mostly depicts my own imagination and opinion: the misanthropic critiques of authorities, forcibly realized through my tragic as well as comedic existential experience and knowledge. As a result, its methodology seems to function as a duck dreaming to fly as an elephant! Is it methodology or mythology? Moreover, I really hope that my vehement criticisms of those academically mercantilist, corrupt, bureaucratic, authoritarian, or even racist institutions will not crown them with celebrity in the fiefdom of so-called knowledge, because they may not deserve any admiration! These miserable consumers of produced knowledge by academic imperialism may partly show the ridiculous place of Canada, as a Third World Nation in social science, in exporting scholastic knowledge. Since, a band of White gangsters have historically conquered and mercilessly controlled this nation at the back of the so-called First Nations and non-white immigrants in their bloody and rogue control, copied upon British and American colonialism and imperialism in our world based on money, power, and systemic injustice. 3
4. 4. Sirus Kashefi Legal Anarchism: Does Existence Need to Be Regulated by the State? The Table of Contents Some Introductive Chaotic Photos of Governed Existence........................................................................... 8 Acknowledgements and Criticisms.............................................................................................................. 10 Abstract....................................................................................................................................................... 12 The Schematic and Summary Plan............................................................................................................. 13 Introduction ................................................................................................................................................. 14 Chapter 1: The Critical and Controversial Concepts ................................................................................... 23 1.1 Abstract....................................................................................................................................23 1.2 Anarchism, the Anarchist Thoughts, and Libertarians..............................................................23 1.2.1 Anarchism: From Broadness to Adjectiveless ..................................................................23 1.2.1.1 Anarchism and Libertarianism: To Be or Not To Be Contrary ...................................24 1.2.1.2 Anarchism Without Adjectives...................................................................................26 1.2.2 The Anarchist Movements, Schools, Publications, and Organizations.............................27 1.2.3 The Libertarians: A Privileged and Spoiled Caste ............................................................28 1.3 The Importance of Anarchism..................................................................................................30 1.4 Legal Anarchism: A Complex Discipline ..................................................................................33 1.5 Power and Authority.................................................................................................................36 1.5.1 The Similarities, Differences, and Omnipresence.............................................................36 1.5.2 The Critiques of Authority.................................................................................................38 1.5.2.1 The Ideological Justification of Authority...................................................................38 1.5.2.2 The Destructive and Corrupting Aspects of Authority................................................42 1.6 The State .................................................................................................................................47 1.6.1 Some Elements of the State.............................................................................................47 1.6.1.1 The Ambiguous and General Definitions of the State................................................47 1.6.1.2 State Jurisdiction.......................................................................................................51 1.6.1.2.1 The Creation of Frontiers and the Protection of Citizens ...................................51 1.6.1.2.2 The Nation-State: The Belligerent and Dirty Misadventures ..............................52 1.6.2 The State and Democracy................................................................................................56 1.6.2.1 From Liberal Democracy to Theocratic Democracy ..................................................56 1.6.2.2 Anarchist Democracy................................................................................................58 1.6.3 Statelessness...................................................................................................................61 1.6.4 The State and Human Nature...........................................................................................65 1.6.4.1 An Old Question in Political Philosophy ....................................................................65 1.6.4.2 The State Effects on Human Nature..........................................................................66 1.6.5 Extremity ..........................................................................................................................69 1.6.5.1 The Extreme Happiness: The Luxury of Civil Servants .............................................70 1.6.5.2 The Extreme Suffering: Organized and Unlimited Violence ......................................77 1.6.5.2.1 The Scale, Intensity, and Legitimacy of State Violence .....................................77 1.6.5.2.2 The Overregulation and Overcriminalization of Individuality and Sociality.........80 1.6.5.2.2.1 The Extreme Rules.....................................................................................80 1.6.5.2.2.2 The Extreme Sanctions ..............................................................................82 1.6.5.2.2.3 The Place of Freedoms and Rights ............................................................87 1.6.5.2.3 State Violence Against Nature...........................................................................89 1.6.5.2.3.1 From Political Violence Against Animals.....................................................90 1.6.5.2.3.2 To Political Violence Against the Entire Environment.................................92 4
5. 5. Sirus Kashefi Legal Anarchism: Does Existence Need to Be Regulated by the State? 1.7 Conclusion...............................................................................................................................95 Chapter 2: The Anarchist Analysis and Critiques of the Law and Punishment............................................ 99 2.1 Abstract....................................................................................................................................99 2.2 The Introductive Notices ..........................................................................................................99 2.3 The Critiques of Law..............................................................................................................101 2.3.1 The Substantive Critiques of Law...............................................................................102 2.3.1.1 The Materialistic Critiques...................................................................................102 2.3.1.2 The Psychological Critiques................................................................................104 2.3.1.3 The Legal Whorehouse.......................................................................................108 2.3.1.3.1 The Law School...........................................................................................109 2.3.1.3.1.1 The Corporate Center of Indoctrinating Legal Prostitution and Robbery 109 2.3.1.3.1.2 Racist Obedience to the Law..................................................................113 2.3.1.3.1.3 The Lack of Transparency and Democracy............................................117 2.3.1.3.1.3.1 Academic and Legal Dictatorship....................................................117 2.3.1.3.1.3.2 The Academic and Legal Sanctions Against Outsiders...................122 2.3.1.3.2 Lawyering: The Practice of Legal Prostitution and Robbery ........................123 2.3.1.3.2.1 The Lawyers...........................................................................................123 2.3.1.3.2.1.1 The Very Bad Reputation and Moral Bankruptcy ............................123 2.3.1.3.2.1.2 A Corporatist and Propagandist Institution of Obedience................126 2.3.1.3.2.2 The Judges ............................................................................................133 2.3.1.3.2.2.1 The Sacred and State White Animals..............................................133 2.3.1.3.2.2.2 The Erected Dictators......................................................................135 2.3.2 The Procedural Critiques of Law................................................................................138 2.3.2.1 The Myth of Equality before the Law...................................................................138 2.3.2.2 The Myth of the Presumption of Innocence ........................................................140 2.4 Conclusion.............................................................................................................................143 Chapter 3: State Stigmatization and Repression....................................................................................... 146 3.1 Abstract..................................................................................................................................146 3.2 The Mechanisms of State Control: State Repression v. Protest Permission..........................146 3.2.1 Absolute Power to Repress............................................................................................147 3.2.2 Begging Permission to Protest against State Violence...................................................152 3.3 Delegitimization: The State Against Its Own Rules................................................................155 3.3.1 Historical Delegitimization...............................................................................................157 3.3.2 Modern Delegitimization.................................................................................................162 3.4 Judicial Legitimacy: The Anarchists vs. the State Criminals ..................................................170 3.4.1 Accepting vs. Denying Judicial Legitimacy.....................................................................170 3.4.2 A Forced Justice for the Libertarians..............................................................................176 3.4.3 An Impotent Justice for the State Criminals....................................................................179 3.5 Conclusion: The Hopeful Revolts or Revolutions...................................................................183 Chapter 4: The Anarchist Alternatives....................................................................................................... 187 4.1 Abstract..................................................................................................................................187 4.2 The Problems and Principles.................................................................................................187 5
6. 6. Sirus Kashefi Legal Anarchism: Does Existence Need to Be Regulated by the State? 4.2.1 The Problems.................................................................................................................189 4.2.1.1 The Problems of Utopianism...................................................................................189 4.2.1.2 The Problems of Organization.................................................................................192 4.2.1.2.1 Unbalanced Organization between Individualism and Socialism .....................192 4.2.1.2.2 The Affinity Groups..........................................................................................194 4.2.1.2.2.1 Platformist Anarchism...............................................................................195 4.2.1.2.2.2 Synthesist Anarchism...............................................................................196 4.2.1.2.2.3 Class Struggle Anarchism ........................................................................197 4.2.1.3 The Problems of Labour..........................................................................................200 4.2.1.3.1 The Leftist Criticisms and Solutions.................................................................201 4.2.1.3.2 The Rightist Criticisms and Solutions...............................................................205 4.2.1.3.3 The Leftist Criticisms of Labour in a Free Market System................................208 4.2.1.4 The Problems of Natural Resources and Technology.............................................212 4.2.1.4.1 The Natural Problems......................................................................................213 4.2.1.4.1.1 The Rightist Approach..............................................................................213 4.2.1.4.1.2 The Leftist Approach ................................................................................220 4.2.1.4.1.2.1 From the Ownership of the Environment.............................................220 4.2.1.4.1.2.2 To the Liberation of the Environment ..................................................225 4.2.1.4.2 The Technological Problems............................................................................227 4.2.1.4.2.1 Radical Anarchism....................................................................................228 4.2.1.4.2.2 Moderate Anarchism ................................................................................235 4.2.1.4.2.3 Excessive Anarchism ...............................................................................239 4.2.1.5 The Problems of Money and Taxation.....................................................................243 4.2.1.5.1 The Problems of Money...................................................................................243 4.2.1.5.1.1 The Leftist Approach ................................................................................244 4.2.1.5.1.2 The Rightist Approach..............................................................................247 4.2.1.5.2 The Problems of Taxation................................................................................249 4.2.2 The Principles.................................................................................................................253 4.2.2.1 The Principle of Endless Alternatives......................................................................254 4.2.2.2 The Principle of Agreement and Contract ...............................................................258 4.2.2.2.1 The Foundation of Anarchism..........................................................................258 4.2.2.2.2 The Godlike Contract.......................................................................................262 4.2.2.3 The Principle of Decentralization and Autonomy throughout Federation.................265 4.2.2.4 The Principle of Non-Aggression.............................................................................268 4.2.2.4.1 The Anarcho-Capitalist Approach....................................................................269 4.2.2.4.2 The Critiques and Challenges..........................................................................271 4.2.2.5 The Green Principle ................................................................................................273 4.2.2.6 Free Love................................................................................................................278 4.3 The Alternatives.....................................................................................................................282 4.3.1 The National Alternatives ...............................................................................................283 4.3.1.1 The Individualist Alternatives...................................................................................283 4.3.1.1.1 The Pure Approach..........................................................................................283 4.3.1.1.2 The Synthesist Approach.................................................................................286 4.3.1.1.3 The Critiques of the Individualist Alternatives ..................................................288 4.3.1.2 The Socialist Alternatives........................................................................................290 6
7. 7. Sirus Kashefi Legal Anarchism: Does Existence Need to Be Regulated by the State? 4.3.1.2.1 Some Key Ideas...............................................................................................290 4.3.1.2.1.1 The Preventive Effects of Public Opinion and Participation on Criminality290 4.3.1.2.1.2 The Temporary Autonomous Zones and Squatting..................................292 4.3.1.2.2 The Mutualist Justice .......................................................................................294 4.3.1.2.3 The Collectivist Justice ....................................................................................298 4.3.1.2.4 The Communist Justice ...................................................................................301 4.3.1.2.4.1 Equality and Consumption According to Need .........................................302 4.3.1.2.4.2 The Rainbow Family of Living Light..........................................................304 4.3.1.2.5 The Syndicalist Justice ....................................................................................306 4.3.1.2.6 The Eco-Anarchist Justice ...............................................................................309 4.3.1.3 The Capitalist Alternatives.......................................................................................313 4.3.1.3.1 The Free Market Law and Punishment............................................................315 4.3.1.3.1.1 The Crimes Against the Individual and Her Property................................317 4.3.1.3.1.2 The Crimes Against the Environment.......................................................320 4.3.1.3.2 The Free Market Enforcement Agencies .........................................................322 4.3.1.3.3 Some Critiques of the Capitalist Alternatives...................................................325 4.3.2 The International Alternatives.........................................................................................328 4.3.2.1 The Rightist Alternatives .........................................................................................329 4.3.2.2 The Leftist Alternatives............................................................................................333 4.4 Conclusion.............................................................................................................................337 4.5 My Alternatives and Final Notices..........................................................................................340 4.5.1 Abstract ..........................................................................................................................340 4.5.2 The Alternatives..............................................................................................................341 4.5.2.1 The National Principles ...........................................................................................341 4.5.2.1.1 The Principle of Existence ...............................................................................342 4.5.2.1.2 The Principle of Freedom to Choose ...............................................................343 4.5.2.2 The International Principles.....................................................................................348 4.5.3 The Conclusive and Critical Notices...............................................................................349 4.5.3.1 The Brutal Critiques of the Anarchists and Legal Anarchism ..................................349 4.5.3.2 My Uncertain Contribution to Legal Anarchism .......................................................353 Acronyms.................................................................................................................................................. 358 Bibliography .............................................................................................................................................. 359 In English and French..................................................................................................................359 In Farsi.........................................................................................................................................437 Annex: Professor Martels Comment on My Thesis Three Chapters........................................................ 438 Footnotes.................................................................................................................................................. 440 7
8. 8. Sirus Kashefi Legal Anarchism: Does Existence Need to Be Regulated by the State? Some Introductive Chaotic Photos of Governed Existence 8
9. 9. Sirus Kashefi Legal Anarchism: Does Existence Need to Be Regulated by the State? 9
10. 10. Sirus Kashefi Legal Anarchism: Does Existence Need to Be Regulated by the State? Acknowledgements and Criticisms It is the truth from the State about those who believe in academia and in what has been sent down upon the Professor. The State will remove their misdeeds and amend their condition.That is because some who disbelieve follow anarchism, and others who believe follow the truth from their State. Does thus the Professor present to them Statism. (Muhammad 47:2-3) With all of my heart, I would like to thank Professors Allan Hutchinson, Michael Giudice, and Edward Stringham for their exceptional open-mindedness and tolerance toward me, a student half-mad and half-revolted (a volcanic man?), and nobody really knows when I am going to stand for either one or that one! I also hope that they could forgive my sincerity, violent language and critiques, especially those attacking the university and lawyering, which I may defend as the freedom of speech, behind which I may take a rest for a while against the cruelty of existence, imposed partly by the academic dictators and their ass-kissers. However, when it comes to finding a job by your connection or networking, I would say that you might be so cool either not to do anything or not to count on your prestige to ask any academic position for me. It seems that you were born in a different caste, much far from mine, in order to act as a supervisor, a superior Professor, or an academic master; the cruelty of existence would hopefully be far from deeply touching you to realize what does immigration or poverty mean. Your kindness could not pass from giving some signed and sealed recommendations or from some beautiful words of compliments, articulated in a British manner. Your recommendations, especially Hutchinsons, have certainly helped me to go to several conferences and workshops while enjoying my life academically and, more important, touristically, because the academicians are mostly good for cheap or mystified talk! Why shall I therefore spend my time with these takers instead of speaking with the ordinary people and visiting different places? I anyway thank you so much for these travels. During the 6 years of my prolific writings and readings, none of you has ever tried to provide me with a chance to present more my works; you have wanted to be simply a gentleman, but maybe inefficient one. May I think that because you and I are supposedly from a so-called different race or class and that you have no obligation, even morally, to help me a bit more? Le temps a quand meme pass, fort heureusement! So, if you had known my revolting thesis going to criticize so deeply existence, including your own academic and legal existence, 10
11. 11. Sirus Kashefi Legal Anarchism: Does Existence Need to Be Regulated by the State? would you have accepted to be my Professors yet? Once again, could you forgive this supposition in the name of the freedom of speech even though in its highly controversial existence? In writing this thesis, I have no debt toward any person, except my dear friend, Professor James Martel, who has carefully read my writings and given several creative comments and ideas. I would thus like to thank him so much for his kindness, trustworthiness, encouragement, suggestions, and criticisms that I have used in the context as well as annex to this thesis. There would unfortunately be certain grammatical mistakes in this thesis, which are mines. I really apologize for them in advance. During my life, I have learned not to beg anything, even when the cost of mistake is so high. I am an alone individual who has to survive by her own capacities in a jungle or psychiatric hospital that we call the world. If this thesis has no merit to defend or publish because of its deep radicalism or activism, I keep it among my other failures and solitudes; it may only satisfy my imaginary greatness in my painful reality when powerlessly revolting against existence putting me in misery, segregation, and solitude. In this case, Professor Hutchinson emailed me on October 8, 2014: I do not need to tell you that some of this stuff is simply not acceptable. You are entitled to your critical views and analysis, but they are not appropriately made in a supposedly academic work. As a supervisor, I can and will give you freedom to develop your views, but I cannot permit this style of argument and tirade. We need to talk. Could I remember that when I asked for a meeting, he did not answer at all? Furthermore, this honourable Professor has maybe forgotten that liberty is inherent in all animals, including human beings, and not therefore subject to give or to bargain, it is in my blood circulating in all my existence! Otherwise, it would be nothing but dictatorship, and, in this case, it means the dictatorship of academia. Let me finish our case by invoking Carl Gustav Jung: Loneliness does not come from having no people about one, but from being unable to communicate the things that seem important to oneself, or from holding certain views which others find inadmissible.3 11
12. 12. Sirus Kashefi Legal Anarchism: Does Existence Need to Be Regulated by the State? Abstract This thesis tries to answer the question of does existence need to be regulated by the State? The answer relies on legal anarchism, an interdisciplinary and anarchistic research based on multiple methodologies, which critically analyzes State law, on the one hand, and suggests some alternatives to the Governmental legal system, on the other hand. Furthermore, legal anarchism takes into account the elements of time and space, which means the ecological, local, national, regional, and international aspects of the legal system. Keywords: existence, State, repression, legal system, law, punishment, anarchism, legal anarchism, and anarchist alternatives 12
13. 13. Sirus Kashefi Legal Anarchism: Does Existence Need to Be Regulated by the State? The Schematic and Summary Plan 1) The Critical and Controversial Concepts Anarchism Anarchism, the Anarchist Thought, and Libertarians Anarchist Movements, Schools, Publications, and Organizations The Importance of Anarchism Libertarians Legal Anarchism Similarities, Differences, and Omnipresence Power and Authority Critiques of Authority Some Elements of the State The State and Democracy The State Statelessness The State and Human Nature Extreme Happiness Extremity Extreme Suffering 2) The Anarchist Analysis and Critiques of the Law and Punishment The Introductive Notices The Materialistic Critiques The Psychological Critiques Law School Legal Whorehouse Lawyering The Substantive Critiques of Law Myth of Equality before the Law The Critiques of Law The Procedural Critiques of Law Myth of the Presumption of Innocence 3) State Stigmatization and Repression Absolute Power to Repress The Mechanisms of State Control Begging Permission to Protest Historical Delegitimizatio Modern Delegitimizatio Delegitimization: The State Against Its Own Rules Accepting vs. Denying Judicial Legitimacy Judicial Legitimacy: The Anarchists vs. the State Criminals Forced Justice for the Libertarians An Impotent Justice for the State Criminals 4) The Anarchist Alternatives Utopianism Organization The Problems and Principles The Problems Labour Natural Resources and Technology Money and Taxation The Principles Endless Alternatives Agreement and Contract Decentralization and Autonomy by Federation Non-Aggression Principle Green Principle The National Alternatives Free Love Individualist Alternatives Socialist Alternatives Capitalist Alternatives The Alternatives Rightist Alternatives The International Alternatives Leftist Alternatives Principle of Existence National Principles Principle of Freedom to Choose The Alternatives International Principles My Alternatives and Final Notices The Conclusive and Critical Notices Brutal Critiques of the Anarchists and Legal Anarchism My Uncertain Contribution to Legal Anarchism 13
14. 14. Sirus Kashefi Legal Anarchism: Does Existence Need to Be Regulated by the State? Introduction The question to know whether existence must be regulated by the State or not is beyond any doubt a large research requiring exhausting thought in all existential directions: individuality, sexuality, family, education, language, food, housing, health care, power, authority, democracy, economy, culture, art, sport, psychology, sociology, history, religion, morality, technology, geography, the environment, etc. This thesis has nonetheless ambition to examine the legal system, which is a big and crucial part of every State, throughout the anarchist ideas. As a result, does existence need to be regulated by the State? is the legal and philosophical question of my thesis in the framework of legal anarchism. The answer to this large question goes hand in hand with the necessity of the State. I merely define existence as humanity and naturality in their physical and psychological identity in relation to each other in cosmos. Human existence mixes with non-human existence according to this definition. As a result, we cannot separate the issues of Governmentality from those of nature to which human beings take part. We are actually one part of nature and not its master and proprietor, as hotly advocated by both religion and capitalism. As we will observe, especially throughout the Green Principle (GP) in the Chapter 4, all animals, including us, have an equal right to exist, even though the respect of such a right seems to be dilemmatic. Besides, as we will later see, the Statesmen/women are doggedly struggling to regulate or even to destroy all existence, i.e. humans and non-humans, legally or illegally. I therefore try to take into consideration non-humans, submitted to our domination so arrogantly and mercilessly, in this thesis. According to this dialectical approach, I would like to be anti-racist insomuch as I deny humans as a superior race if you would really like to hear about race to other races or non- humans, which is not actually far from the philosophy of the so-called Master Race,4 because we are just one race with its own evolution or even devolution. Is there eventually any race more than nature? As a result, is there really any other law than natural law? I define the State as an institution that imposes its norms upon a population within a territory by using executive, legislative, and judicial powers. As we will see, these so-called territoriality and separation of powers are mostly fictive, because all elements of State apparatus obey one rule: the preservation of the status quo and continued State power inside as well outside State jurisdiction. By legal anarchism, I mean a complex discipline that critically analyzes the law and punishment in terms of several disciplines (especially law and anarchism), on the one hand, and presents some alternatives to State law, on the other hand. 14
15. 15. Sirus Kashefi Legal Anarchism: Does Existence Need to Be Regulated by the State? That existential question has hitherto created two groups of intellectuals: the proponents of the State (i.e. the Statists or the archists according to Professor Martel) and the opponents of the State (i.e. the anarchists) who have developed two types of ideas about Statism and Statelessness. We observe each group divided endlessly into many different and controversial ideas or isms: individualism, capitalism, communism, socialism, monarchism, republicanism, democratism, Judaism, Christianism, Islamism, anarcho-individualism, anarcho- capitalism, anarcho-collectivism, anarcho-socialism, anarcho-syndicalism, anarcho-primitivism, ethical anarchism, etc. As far as I am concerned, I am only able to analyze the libertarian ideas for three reasons. Firstly, from time immemorial, some great bands of iconic Professors, Gods/Goddesses, prophets, clergies, mullahs, rabbis, caliphs, imams, emperors/empresses, kings, queens, princes/princesses, philosophers, theologists, terrorists, criminologists, scientists, sociologists, anthropologists, psychologists, militarists, politicians, lawyers, gangsters, industrialists, propagandists, merchants, ass-kissers, writers, playwrights, poets, artists, actors/actresses, singers, or even athletes and their clans have fervently discussed, justified, defended, worshiped, supported, or implied the necessity of the State to govern all existence of humanity, animality, as well as naturality. They have indeed presented this too big institution as the only salvatory end and means guaranteeing all existential happiness at all levels of individuality, family, community, regionality, nationality, and internationality as well. They have wonderfully done their job through endlessly systematic and institutionalized war, violence, terror, plunder, propaganda, ideologies, and gesticules, such as social contract, utilitarianism, realpolitik, dance, writing, flattering, singing, playing, and sporting. They are endless people all over the world.5 Their ideas and actions are unsurprisingly well known among the law Professors and law students around the world. To talk abundantly about polity, or the subjugation of the masses to few civil authorities, is really a great intellectual and professional fashion as well as achievement. As a result, we can observe the States and their legal systems everywhere! Secondly, anarchy is at best useless and utopian, at worst a kind of psychosocial and dangerous illness in the law schools, which are perfectly indoctrinating the legalistic professionals to look at the anarchists as the psychopathic personalities or the nave people. According to the dominant ideology in these schools, the libertarians are nostalgically living in the past. Professor Martel has however asked whether libertarian means anarchism or not. He thinks that at least in the US, the liberatarians constitute a conservative group that is generally against the State, but pro-capitalist. They are not actually anarchists, because they do not entirely oppose the State. Nonetheless, in other places like Spain, the anarchists have often called themselves libertarians, so it may be just a matter of nomenclature. The original sin of the libertarians is that they do not believe in any type of State law. On the contrary, the legalistic professionals are well educated and generously paid to worship the State as the 15
16. 16. Sirus Kashefi Legal Anarchism: Does Existence Need to Be Regulated by the State? sacred source of law and order. As the Bible implies, the State, the source of hope, will fill the legalistic professionals completely with joy and peace because they trust in It. Then they will overflow with confident hope through the power of the Holy Legislator. (Romans 15:13) The libertarian thoughts about the law and punishment are mostly unknown in the law schools in which few Professors and students have certain rudimentary knowledge about some archaic anarchists, especially William Godwin and Pierre-Joseph Proudhon. Thirdly, the more we think that we know the State, the more it stays out of our knowledge and control to become a gigantic machine, which is deliberately or undeliberately impotent regarding individual and social injustice. In this case, the global financial crisis, matched with austerity measures imposed upon the poor, is a current and striking example. Paradoxically, the State remains at the same time an omnipresent power that forcibly regulates our existence before birth, during life, and after death as well. God protect us against the Statesmen/women. Amen! In this case, the anarchist critiques and alternatives would preciously provide new reflections on freedom and autonomy in our hyper-regulated life. Thus, it would be important to analyze the anarchist ideas about the law and punishment. By using library research and collecting information principally from books and articles, my methodology focuses mostly on the criminal law and philosophy. My methodological challenges principally stem from three facts. Firstly, anarchism is not at all a homogeneous group of ideas, practices, or movements, because it has permanently evolved according to the problems of humanity and the environment as well. For instance, anarchism treats the issues related to children, women, aboriginals, immigrants, refuges, discrimination, racism, white supremacy, dictatorship, violence, war, slavery, poverty, exploitation, globalization, art, natural resources, and animals.6 In other words, anarchism, as an open-ended model, contains many different opinions and cases that reveal the similarities and disparities among the anarchist thoughts as for the ends and means to arrive at an anarchist society. As far as I am concerned, my thesis can be just an individual and descriptive reflection about a highly complex institution, called the State whose holistic research is a difficult, if not impossible, task. I am unfortunately far from carrying out a complete research fully analyzing all libertarian reflections on the legal system. Secondly, the anarchists are not often lawyers rather they are philosophers, economists, or politicians. Their works are hence more philosophical, economic, or political than legalistic. Law Professor Eltzbacher has judiciously stated that anarchism analyzes juridical institutions from the philosophical standpoint and with reference to their economic effects. Therefore, to understand its essence without falling to all possible misunderstandings requires that one has to be familiar with the jurisprudencial, philosophical, and economic concepts relating to anarchism. This Professor has accordingly founded his study about the anarchistic teachings upon three concepts of law, the State, and property.7 16
17. 17. Sirus Kashefi Legal Anarchism: Does Existence Need to Be Regulated by the State? Except the anarcho-capitalists or more akin to what Americans call liberatarians, as Professor Martel has noticed, the anarchists have rarely developed certain detailed systems when it comes to norm and its application in a libertarian society. In other words, if they are extremely deep in their analysis and critiques of the law and punishment, they seem to be fragile in their alternatives to State law insofar as they are usually arguing by the general and philosophical statements, rather than by legal statements. For them, the ways of putting the anarchist ideas into practice are principally the responsibility of all concerned generation and not exclusively that of certain initiated savants. Analyzing their ideas regarding the legal system cannot be thus reduced to a mere legal methodology, but it requires understanding many other disciplines (e.g., history, religion, myth, philosophy, ethics, economics, politics, anthropology, sociology, psychology, femininity, and the environment), whereby they undermine the existence of State law and propose some alternatives. For a thesis, it is challenging to remain in a purely legalistic environment while studying libertarian ideologies about law and order. Indeed, my unconventional methodology, which focuses principally on the criminal law because of my criminal education and interests, is somehow surrealistic insomuch as it analyzes and criticizes the legal system in a libertarian manner, which is to say outside the laws Empire. It indeed focuses on legal anarchism, which would be an unconventional discipline because of its anarchist nature. In this case, the relationship between anarchism and surrealism would explain my nonstandard methodology and style, since reality and imagination (utopianism) overlap each other in legal anarchism to desire a non-hierarchical and non-decentralized society, i.e. the opposite of our traditional education and culture. When it comes to the importance of legal anarchism, Professor Martel has judiciously mentioned that anarchy and the law generally seem so antithetical in the normal ways that law is considered. Anarchism also seems alegal. Anarchy and the law are not paradoxically inimical, even though the archaic concept of law seems to demand an exclusive monopoly on law that pushes aside all alternatives.8 Thirdly, the rich diversities of anarchist ideas make a research difficult to classify them according to some fixed frames (such as individualism, socialism, collectivism, capitalism, and environmentalism), because there exists some degree of overlap or controversy among them. For example, we can simultaneously regard Proudhon as an individual, socialist, capitalist (petit bourgeois according to Marxs fetishistic terminology), anarchist, or even minarchist who moderately advocated a federal State in both national and international levels.9 The same difficulty to classify a libertarian thinker is observable throughout the rightist anarchists (such as Troy Southgate) and the leftist libertarians (such as Lysander Spooner, Benjamin Tucker, Samuel Edward Konkin III, and Gary William Chartier) in whom the nationalist, individualist, socialist, capitalist, and anarchist elements are present and mixed. There is furthermore some degree of permeability in legal division, since we can classify some concepts according to several categories. For example, the Judge is both the source of applying and creating the law, especially in the 17
18. 18. Sirus Kashefi Legal Anarchism: Does Existence Need to Be Regulated by the State? common law in which there is the concept of Judge-made-law. As a result, all my classifications in this thesis are somehow arbitrary, which principally aim at facilitating the analysis of the libertarian theories about the law and punishment. In other words, the divisions of topics in this thesis (such as socialist, communist, individualist, substantive and procedural critiques of law) have their own advantages and disadvantages. By dividing subjects into different elements, I actually want to facilitate their analysis without forgetting their similarities and interferences. I should also add the problem of anarcho-capitalism to this challenge, because the social anarchists do not really recognize this type of anarchism, due to its inequality and exploitation that likewise exist in the current capitalist systems managed by both political and economic elites. Moreover, some intellectuals (such as Rousseau, Hegel, and Nietzsche)10 who are supposed to be anarchists or a source of inspiration for the libertarians strengthen the anarchist controversies. Despite its multidisciplinary and abundant literature, legal anarchism still seems to suffer from the lack of modern alternatives. I thus try contributing to legal anarchism by building a bridge between its traditional ideas and our modern life requiring new regulation, which I cannot miniaturize according to a simple anarchist life. Is it a kind of modernization of legal anarchism? It is maybe true! If I cannot besides present any reliable alternative to the current legal systems, I am not so worried for two reasons. On the one hand, countless, great, and honorable thinkers have already presented many different alternatives in the frame of isms. On the other hand, the masses endless stupidity to be governed (partly thanks to so-called charismatic leadership) has hitherto justified la raison dtre de ltat, developed by a significant source of intellectuals and politicians as well. For example, Khomeini, the charismatically crook leader of the Iranian Revolution who successfully seduced many Persian intellectuals as well as several Western thinkers (e.g., Professor Foucault)11 by articulating anti-imperialism and political spirituality,12 said: Economics is for donkeys!13 This bloody dictator did perfectly consume all his charismatic and seductive power in the wake of anti-Western sentiment in Iran: gharbzadegi, Westoxification, or West-struck- ness.14 My thesis is neither an apology for nor a pamphlet against legal anarchism, rather it is a paper for individual, social, economic, political, and legal freedom with a very critical, vehement, insulting, sarcastic, satirical, profane, provocative, pompous, coarse, or pornographic language! Does my language unconsciously constitute a type of Freudian critiques of the State in existence partly appeared throughout the dictatorship of academia? In the society or even in the world where they are accustomed to calling personal frustration or mental disorder all vehement criticisms of social, political, economic, legal, military, and academic structures, or reducing them to a purely personal problem, why is it shameful to write by a so-called aggressive or personal language? If the entire world is OK, but I, as a supposedly frustrated person, am not OK, why cannot I use my own language? Am I a 18
19. 19. Sirus Kashefi Legal Anarchism: Does Existence Need to Be Regulated by the State? vulgar person and far from the natural state of an educated person? Who has legitimacy to say us what is wise and what is not, what is a proper language and what is a coarse language? Am I mad or mentally ill in a world where all authorities are cool, OK, and healthy? In a world in which a dog of the US President has more value than my five years of PhD study, who cares about my ideas realized throughout a violent or frustrated language? If I am all frustrated, mentally weak, and powerless, what is the matter of the style of my language? Who cares? Who cares about my cry in front of the iron walls of power and authority? When the elites as well as the mass media have skillfully reduced the structural problems to a simple individual problem, the disarmed individual in front of these problems may find certain right to a linguistic style fitting her so-called frustration or mental disorders. Her reaction could be a bad reaction to a crazy world. Does she unconsciously play a role that the society has already provided for her as a psychopath? However, an aggressive language does not kill, but an aggressive power does absolutely. I must be so calm, while the white-collar religious criminals forced me to abandon my family and to immigrate; I must be so educated, while the uneducated gangsters are happily destroying existence; I must be so wise, while the mad men are forcing us to be governed; I must be so polite, while the crazy people are politely or euphemistically massacring; I must be Should not I strike them back? All in all, neither I have really intention to publish this thesis, nor any publisher wants to publish it, many thanks to my vulgar or frustrated language! Although I do not present any dogmatic idea, I keep my natural right to criticize. In reality, I have scarcely anything in this world better than my ideas. Like all ideas and theories, my opinion is not without conflict, antithesis, or controversies. It can be only a consciously or unconsciously individual experience and interpretation, or certain feelings that are maybe far from reality. It can easily become obsolete or renewed one day or another. Due to my anti-Governmental ideas, I am not an objective researcher. Who is not an ideological person as Aristotle regarded humankind as a naturally political animal? Who is hence an objective individual far from all ideologies? Does postmodernism challenge formidably the modern confidence in objectivity and truth?15 In this sense, Professor Feyerabend has noticed: The process of knowledge production and knowledge distribution was never the free, 'objective', and purely intellectual exchange rationalists make it out to be.16 Can I accordingly mention anarchist knowledge or anarchist science to which legal anarchism belong? I also wonder if all defended and published theses have been objective, subjective, or both. Furthermore, this thesis may be my last chance to revolt against those who have mercilessly put nature and us into a miserable and painful situation through governing and repressing nature and us. Let us, i.e. all powerless or voiceless people, stand up against those whose extreme luxury and violence founded upon human and animal flesh and blood; a brutal language should be our last rampart behind which we can still take a rest and feel our dignity. What fate does existence reserve for us more than revolting against our marginality or committing suicide to 19
20. 20. Sirus Kashefi Legal Anarchism: Does Existence Need to Be Regulated by the State? end our humiliated life? My thesis is indeed an unashamed writing against what I see as a highly problematic, if not wholly unjust, institution called the State. In this regard, I challenge not only other ideas, but also my own ones. I openly declare that my thesis is a revolt against the State. The gigantic apparatuses of the State, mingled with the masses ignorance and cruelty, forced me to immigrate and to endure various forms of injustice, because of my birthplace, poverty, ideas, attitudes, and revolt, as they have perfectly done against my family as well as countless individuals whose existential crime is to be alone and outsider, all alone and outsider. As a result, everywhere I go, they are legally discriminating me as a member of the visible minorities or une bte noire who has never hopefully learned the art of ass kissing: I was born free to die freely, I have no master whoever, whenever. There is no shame on me for defending a subjective thesis, but on the very respected and worshipped personalities who socially, economically, politically, and legally govern and exploit nature and us as well. They do it to the detriment of corruption, hunger, poverty, wage slavery, discrimination, racism, sexism, inaccessible or expensive health care, homelessness, unhealthy or expensive housing, child labour, prostitution, jingoism, militarism, political repression, mass murder, torture, sexual violence, deportation, police brutality, biased justice, punishment, indoctrination, elitist education system, and finally the pollution and destruction of the ecosystems. I suppose that these people are living and sleeping very well without any feeling of shame or guilt: let me never be ashamed. (Psalm 31:1) So, why should I feel ashamed of writing a personal thesis? Are you yourself objective enough to judge me as a subjective PhD student? My subjectivity or existential revolt does not nevertheless prevent me from analyzing the pro and con arguments about the legal system, even when I am not able to take any position among them. In addition, could my maniacal, loving, or exhausting footnotes and bibliography prove this? I indeed immigrated to a country whose White Grandfathers of the Constitution had come to Kanata with their armies to usurp, to massacre, to rape, to plunder, to destroy, to punish, and to indoctrinated white supremacism in the name of Western civilization. Is might right? Is this the law of the strongest or the law of the jungle? Their White Grandchildren are nowadays criminalizing and punishing the so-called illegal-immigrants and illegal-workers! Does history repeat in a vicious circle? I am thus aware of my unwanted place at OHLS, traditionally a White male school, in the middle of Canada, a bloodily stolen and legally cheated territory from the so-called First Nations, deeply rooted in genocide, racism, and discrimination. I have painfully become conscious of my immigration and citizenship in a royalist, liberalist, and capitalist State that usurped bloodily and intelligently a land that we now call Canada, which remains a British colony to which the British Monarchy is hotly welcomed. In this sense, I am aware or rather scared of my extremely hot and controversial existence, ideas, and plume! Do I present myself as a simple victim or pure egoist? Where shall I eventually go to be treated with dignity and fairness as well? Shall I go to nowhere to be a noman? 20
21. 21. Sirus Kashefi Legal Anarchism: Does Existence Need to Be Regulated by the State? Throughout my thesis, a reader will indeed realize that I am highly critical of the academicians, particularly the law Professors, apparently paid for justifying the status quo that means all injustice imposed over us by so- called law and order. As we will see, the law Professors are the necessary agents of producing or reproducing authority and hierarchy. Thus, I really thank so much again my supervisor, Professor Hutchinson, and the members of my supervisory committee, Professors Stringham and Giudice, for their respect and open-mindedness that have allowed me to articulate freely my ideas. As far as my thesis plan is concerned, I divide my analysis into four Chapters. Each Chapter contains an abstract at the beginning and a conclusion at the end in order to facilitate the readers understanding. Although I use the term conclusion in every Chapter, I think that there is really no conclusion, because every conclusion is potentially able to produce other ideas to become themselves other conclusions, and so on. Professor Martel has accordingly suggested that anarchism is anticonclusion by definition. The same could be true when it comes to the Hegelian theory of thesis, antithesis, and synthesis insofar as they are interchangeable. Indeed, we have scarcely a limited idea, rather a group of homogeneous or heterogeneous ideas overlapping each other. In the first Chapter, I try analyzing certain controversial concepts in anarchism, which are important in legal thought and practice. In the second Chapter, I will show the anarchist analysis and critiques of the law and punishment. In the third Chapter, I will explain why and how the State has stigmatized and repressed the anarchist individuals, groups, and movements, mostly by violating its own constitutional rules (such as the rule of law and due process). In the fourth Chapter, which is the longest and the most detailed Chapter, I will show the libertarian alternatives to State law at both national and international levels. I will also present my anarchist alternatives, and express my critical notices about the anarchists and legal anarchism. The last part of the Chapter 4 constitutes actually my uncertain contribution to legal anarchism, since Professor Hutchinson suggested my contribution to the matter. In other words, I have ambition to think about some kinds of freely decentralized legal systems that may work in our mega societies, which rely increasingly on each other because of natural resources, the internationalization of human rights and economy, as well as the international dialogues among individuals and communities throughout mass communication (particularly the Internet in nowadays) and immigration. Nevertheless, I would show my hesitations and inquiries about any conclusive or definitive idea, theory, or alternative at the end of the Chapter 4. They could demonstrate my final arguments and questions about legal anarchism in order to create more constructive or even destructive thoughts, studies, or actions to have an equal, peaceful, and clean existence. Finally, since starting my thesis program at Osgoode in 2009, I have written and presented some ideas about the relationship between the law and anarchism, which are available in 21
22. 22. Sirus Kashefi Legal Anarchism: Does Existence Need to Be Regulated by the State? https://independent.academia.edu/NoManNoLandNowhere. I try not to repeat them or, at least, I want to present some of them in a new frame with a new bibliography, because I despise to be a repetitive writer! Amen! 22
23. 23. Sirus Kashefi Legal Anarchism: Does Existence Need to Be Regulated by the State? Chapter 1: The Critical and Controversial Concepts 1.1 Abstract To understand legal anarchism, on which I focus my thesis, requires defining and analyzing certain key concepts that critically construct legal anarchism: anarchism, anarchist thoughts, libertarians, law, power, authority, and State. I should also discuss the functions of the State through several elements, which are nation, nationality, democracy, Statelessness, and human nature. The definition and the analysis of legal anarchism rely on knowing the different anarchist ideologies that take into account the plurality of authority in time and space. They indeed contain certain open and diverse terminologies. Because two terms, law and anarchism, make the concept of legal anarchism, this Chapter principally defines and analyzes those key concepts whose knowledge and critiques are essential to the anarchist attitudes toward the legal system. As the symbols and the functions of the legal system, power, authority, and the State are interchangeable concepts that the libertarians hate, since they generate the extreme happiness for the so-called civil servants and the extreme pains reserved for the ordinary people, which are realizable throughout organized luxury and violence. State violence does not nonetheless stop at human existence at all, since it affects non-human existence as well. 1.2 Anarchism, the Anarchist Thoughts, and Libertarians Yet the Statists have been succeeded by some generations of anarchism who have lost all thought of praying to the State and followed their own free love; and they will, in time, meet with utter disillusion and State repression. (Maryam 19:59) As an evolving identity, anarchism has generated various decentralized and spontaneous thoughts, movements, schools, publications, organizations, as well as freethinkers, which increase, decrease, or advance according to various situations in different times, in order to facilitate such a foundation. 1.2.1 Anarchism: From Broadness to Adjectiveless Anarchism has evolved from broadness into adjectiveless, since the anarchists have realized that despite their differences, there would be some common elements providing a foundation on which a free society relies. The 23
24. 24. Sirus Kashefi Legal Anarchism: Does Existence Need to Be Regulated by the State? libertarians have accordingly tried to synthesize various anarchist schools, to which I will also come back in the Chapter 4, in order to support such a foundation. 1.2.1.1 Anarchism and Libertarianism: To Be or Not To Be Contrary It is firstly important to notice that I am aware of the problems coming from defining a concept, because each definition depends on several concepts that need definition in turn. As a result, terminology is one of the most difficult tasks in a research. It specifies the borders and the length of a research. The definition of a concept could be endless endeavors that are hardly satisfiable. The same should be true as for my definitions, which indeed struggle to give some insights into our understanding of anarchist thought in connection with the legal system. The anarchist terminology is accordingly uncertain and challenging, even the libertarian scholars do not agree with the key concepts, such as the distinctions among anarchy, positively a Stateless society or negatively chaos, anarchism, mostly a leftist expression and doctrine advocating natural order in contrast to the artificial or State- imposed order,17 and libertarianism that is usually a rightist expression. As far as my thesis is concerned, I use anarchism, libertarianism, anarchist, and libertarian as the interchangeable concepts, without denying their differences. In Government or Anarchy? in the Debates on the Constitution, Blau, Professor emeritus of religion at Columbia University, has accordingly concluded that it was a justification of Jeffersons faith in the people that those who wanted a Constitution as a protection against the anarchy in democracy, because they distrusted the people, won the ratification of the Constitution by winning the suffrage of the people.18 Under the pressure of several great thinkers (very especially Hobbes and Locke), chaos theory19 has become chaosology matched with anarchophobia, which means anti-anarchist attitudes20 or the belief that the States must be independent without any supranational authority (e.g., the EU and the UN) over them.21 Like the definition of liberty based on positivity and negativity,22 the definition of anarchism contains both negative (destructive) and positive (constructive) aspects: the rejection of the State and voluntary cooperation.23 By anarchism, I understand a non-hierarchical order based on common decision and cooperation among the individuals, groups, communities, or nations by adopting various strategies to respect ecology, autonomy, justice, and individual and social freedoms and rights in accordance with their own capacities and diversities. In this sense, anarchism is both negative and positive. On the one side, it is aware of its permanent struggle against the production or the reproduction of authority on various scales, and, on the other side, it tries facilitating mutuality among different participants in harmony with direct democracy and the environment. As we will see, to accomplish such a democratic system is neither practically easy nor desired in some circumstances, especially in a free market society. 24
25. 25. Sirus Kashefi Legal Anarchism: Does Existence Need to Be Regulated by the State? The controversial aspects of anarchism are observable throughout its definition, which may exclude or put into question certain ideas presented as libertarian or rightist anarchism (i.e. anarcho-capitalism). In this case, Sapon and Robino argue that since the middle of nineteenth century, the term libertarianism had been used in a left political context (i.e. left libertarianism or libertarian socialism), and only its right ideological context use (i.e. right libertarianism) came into fashion in the 1950s.24 In this terminological aspect, Fernndez uses libertarian in it its original sense, that is to say anarchist. He believes that they used this concept almost exclusively in this sense until the 1970s when the Libertarian Party grossly misnamed it by not only glorifying capitalism, the mechanism that denies both positive freedom to the vast majority and equal freedom, but also retaining the coercive apparatus of the State while getting rid of its social welfare functions.25 As a result, those libertarians have widened the rift between poor and rich, and increased the liberty of the rich by reducing that of the poor who find the boot of the State over their necks. Those egotists, who are in fact enemies of freedom in the full sense of the word, have once hijacked the exceedingly useful term of libertarian in the US.26 Bufe has accordingly stated Anarchism is not Libertarianism.27 For Professor McElroy, although the anarchists of the nineteenth century commonly called themselves socialists, they consistently proposed the free market as the alternative to the capitalist system. At that time, socialism meant to organize a society by contract in which workers received the full product of their labour through cost the limit of price, advocated by Josiah Warren as a value resulted exclusively in the compensation for labour or for its product.28 Butler has stated that this cost principle or labour for labour rejects interest on money and, therefore, all banks and banking operations, stock jobbing, and the present financial systems and institutions built on money. In turn, it aims at giving to everyone an equal opportunity to acquire knowledge and property, as well as counteracting the natural inequality of humanity. In short, it wants to give men, women, and children the just reward for their labour.29 It seems that the term libertarianism would avoid the negativity of both anarchism, associated with terrorism and disorder according to public opinion and to Government, and capitalism, as the symbol of imperialism, colonialism, and exploitation according to the leftists. The same could be true as for religious anarchism, even though it appears in a leftist style as, for example, Tolstoy presented his anarchistic communism through Christian ideology.30 Professor Milstein has thus argued that Anarchism is a synthesis of the best of liberalism and the best of communism, elevated and transformed by the best of libertarian Left traditions that work toward an egalitarian, voluntarily, and nonhierarchical society.31 Many other activists and academicians have likewise expressed while adding individualism to their interpretation of anarchism.32 25
26. 26. Sirus Kashefi Legal Anarchism: Does Existence Need to Be Regulated by the State? A question remains to know whether anarchism is contrary to or synonymous with libertarianism. In other words, to be or not to be contrary, that is the question in the relationship between anarchism and libertarianism. In this case, anarchism without adjectives can provide some elements of reflection. 1.2.1.2 Anarchism Without Adjectives Anarchism without adjectives, which somehow implies Reclus anarchisme tolr,33 has actually tried to conciliate different anarchist schools around some common principles. For instance, these principles contain existential dignity (i.e. the respect of existence in which the GP takes part), liberty, authonomy, and decentralization. De Cleyre had already expressed the possibility of exercising anarchism without adjectives.34 Professor Curran has thus argued that anarchism includes a set of principles to which most anarchists subscribe, but these principles are broadly interpreted and diversely applied within the panorama of ideas and schools that it accommodates. This breadth includes an anarchism of the left and an anarchism of the right, even if much of the left is loathe to embrace the rights anarcho-capitalism into its fold.35 As for Malatesta, he thought about anarchist pluralism containing both anarcho-communism (i.e. the common ownership of the means of production mingled with distribution according to needs) and anarcho-collectivism (the common ownership of the means of production mingled with distribution according to work performed). Such pluralism eventually led him to see the superiority of moral communism upon collectivist mentality, which would bring back wage labour and privilege, in an anarchist society.36 He furthermore hoped that the anarchists would abandon their differences to find a ground for common action.37 Louise Michel also expressed a similar opinion: I think that each of the tendencies will provide one of the stages through which society must pass: socialism, communism, anarchism.38 Faures La Voix Libertaire, founded in 1928, accordingly struggled to unify or to synthetize three major anarchist movements (i.e. individualist, communist, and syndicalist) in order to avoid their political and social division and isolation,39 which means synthesis anarchism or synthesist anarchism. The Bastian Circle, founded by libertarians such as Professor Rothbard, would start to publish Left and Right: A Journal of Libertarian Thought between 1965 and 1968 while urging all libertarians to join the New Left.40 In addition, the vague borders among different libertarian schools (such as individualist anarchism and anarcho-capitalism) may facilitate to recognize the value of anarchism without adjectives. In this sense, Gurin has found out certain terminological debates insofar as despite the diversity, richness, contradictions, and doctrinal disputes of anarchist thought turning very often around the false problems, there are some homogenous conceptions. A social anarchist is thus an individual anarchist as an individual anarchist can be a social anarchist, even though he does not dare to say his name.41 For example, Woodworth says: I have no prefix or adjective for my 26
27. 27. Sirus Kashefi Legal Anarchism: Does Existence Need to Be Regulated by the State? anarchism. I think syndicalism can work, as can free-market anarcho-capitalism, anarcho-communism, even anarcho-hermits, depending on the situation. But I do have a strong individualist streak. Just plain anarchism against government and authority is what Im for.42 As a result, do we need some ideas far from all isms or ideologies in a human sense as already implied by a revolted man who called himself a citizen of the world? Is Professor Rothbard right to argue that the categories of left and right have been changing so rapidly in recent years in America that it becomes difficult to recall what the labels stood for not very long ago?43 Professor Ray would go in the same direction by concluding that a libertarian likely has more in common with the political Left than the political Right, but whether in his personal life he will tend to behave in a liberal/permissive way or in an authoritarian/directive way cannot be predicted.44 He has moreover argued that to be a humanistic liberal does not guarantee that a person will also abandon authoritarian practices.45 All anarchist elites indeed share the passion of monopolizing the anarchist thoughts and movements, thanks to their mental and material capacities and superiority, especially in wealth, higher education, academic job, and networking. The ideological lines of their talking have hence become blurred in practice, through publications and propaganda not only in their own circles, but also in the mass media and the society as a whole. 1.2.2 The Anarchist Movements, Schools, Publications, and Organizations O anarchists, libertarian God has created you from male, female, and transgender, and made you peoples, tribes, comrades, groups, organizations, schools, movements, websites, and publications that you may know one another or hate each other. Indeed, the most noble of you in the sight of libertarian God is the most revolutionary of you. (Al Hujurat 49:13) The anarchist or quasi-anarchist schools, movements, tendencies, groups, organizations, journals, magazines, blogs, websites, research institutes, projects, and radio are increasingly growing around the world with their own nepotism, jargons, concepts, strategies, and agendas for the whole of humanity, animality, and nature as well.46 My personal experience may prove that many of these groups or organizations are as bureaucratic, hierarchical, and segregating as any other Governmental organization (such as the university) that the anarchists are traditionally attacking, despite their extreme propaganda of non-hierarchy and equality. 27
28. 28. Sirus Kashefi Legal Anarchism: Does Existence Need to Be Regulated by the State? 1.2.3 The Libertarians: A Privileged and Spoiled Caste In spite of different ideologies among leftists and rightists, both sides have been traditionally rooted in the middle and upper classes, rarely in the lower or under class for which the leftist anarchists are ceaselessly crying and propagating or selling their own products. As Professor Shantz has argued, capitalism greatly owns two soft and tough powers when it comes to reacting against the dissident movements: cooptation, absorption, and marketization (e.g., Critical Legal Studies (CLS), Rainbow Gathering, and punk movement),47 on the one side, criminalization and repression as I will be later analyzing , on the other side.48 To ridicule the anarchist movements by making them futile (e.g., egoist anarchism) in the fight against capitalism (i.e. class struggle anarchism)49 would be another weapon in the hands of capitalist elites to absorb the dissidents in a cheap and pacifistic manner. The law schools especially and the universities generally are traditionally placing themselves in the first side, thanks to their fortunate, spoiled, conservative, submissive, and fearful Professors and students as well. On the one side, the leftist libertarians have been traditionally imbued with the ideas of revolution, class struggle, strike, sabotage, protest, and resistance, which mean propaganda by the deeds and the words as well. On the other side, the rightist and individualist libertarians are so busy with their business and spirituality (e.g., nudism, naturism, primitivism, vegetarianism, free love, and punk rock), which make them useless or verbalistic thinkers and activists, tolerated by authority as long as they are socially isolated and politically disinfected, or economically beneficial for capitalism as a niche market. In other words, the Papa State is not eventually very bad when its educated or spoiled children remain and play only in its playground. For instance, on the one hand, there are the iconic academicians, who are endlessly criticizing the law and the State together, belonging to the prestigious academic and freemasonic clubs. In this case, the Godfathers of the so-called CLS Movement50 are honorable Professors at Harvard Law School, Stanford Law School, and Northeastern University School of Law: Duncan Kennedy, Roberto Mangabeira Unger, Mark Kelman, and Karl E. Klare. These good boys know very well how to play with a group of burning and legalistic words without firing their position at the heart of these elitist, Mafia, and hierarchical systems based on State sponsorship, capitalism, and conservatism. We really need to see the emergence of a movement against these iconic and opportunist legal thinkers, since the university has rarely been anything better than a secret, undemocratic, and criminal system skillfully absorbing the academic Godfathers and Godmothers, it is rotten to the core.51 For example, Unger, a Harvard law Professor, had firstly denounced the Lula da Silva administration as the most corrupt in Brazils history, and then became his Minister for Strategic Affairs!52 It should be cheaper for a State to give bread to some 28
29. 29. Sirus Kashefi Legal Anarchism: Does Existence Need to Be Regulated by the State? intellectual malcontents, who are the masters of critical verbiage, in order to shut them up than punishing or brutalizing them, which may erect them to the statue of martyrs. On the other hand, Professor Niman states that the American and European communities have discovered the economic benefits of hosting a Rainbow Gathering.53 It would not be surprising that the anarchists, except certain unfortunate ones (e.g., Proudhon, Stirner, Grave, Most, and Rocker), belong to a very well respected caste, well-paying workers, or the so-called petite bourgeoisie, such as doctors, engineers, artists, historians, geographers, economists, teachers, and Professors. They have both time and money to critically analyze and deeply discredit every element of State apparatus. They have thus developed their own sophisticated argots, loyal acolytes, and technical movements (e.g., Proudhonism, Neo-Proudhonism, Bakuninism, Kropotkinism, Warrenism, Rothbardianism, and Chomskyism) whose understanding needs to study intensively, which is not obviously the case of many people who must work for the wage slavery. We are able to find in their argots many complex expressions, such as reformist anarchism, revolutionary anarchism, post-anarchism, post-structuralist anarchism, post-left anarchy, anarcho-primitivism, and so on.54 Could we apply to the anarchist academicians what Professor Bratich has already said about obscurantism, jargonism, and armchair strategizing posties (i.e. postmodernists, poststructuralists, and postcolonialists)?55 Are the anarchist argots at odds with anarchist emphasis on popular education as a means of enlightenment and liberation from Government intervention?56 About the intellectual revolt against popular education, Professor Carey has noticed that the spread of literacy to the masses has drived the intellectuals in the early twentieth century towards producing a mode of culture (modernism) that the masses cannot enjoy. The new availability of culture through television and other media has actually impelled the intellectuals to evolve an anti- popular culture mode that can reprocess all existing culture and take it out of the reach of the majority. This mode, variously called post-structuralism or deconstruction or just theory, began in 1960s with the work of Jacques Derrida, which attracted a large body of imitators among academics and literary students eager to identify themselves as the intellectual avant- garde.57 As in all, the classification of the libertarians seems to be actually fictive when taking the element of class into account, because they, ironically like the Governors, belong to a privileged and spoiled caste. Does their charismatic personality lead to charismatic authority crowning all struggles for equality with failure even in an anarchist society? The critique of this caste could be the foundation of freethinking, so let us criticize them as violent as they do regarding the State. Long live liberty and down with all anarchist Masters in this world as well as elsewhere! Amen! It is not useless to remind that the iconic and martyric personalities in the history of anarchism traditionally belong to radicalism, socialism, communism, syndicalism, or they are somehow close to these schools, such as 29
30. 30. Sirus Kashefi Legal Anarchism: Does Existence Need to Be Regulated by the State? anarcho-primitivism, green anarchism, and anarcha-feminism.58 Leftist anarchists or leftist libertarians has nowadays absorbed many controversial Godmothers/fathers, post-anarchists, Professors, thinkers, revolutionaries, environmentalists, activists, feminists, sexologists, criminologists, journalists, artists, syndicalists, and sympathizers as well.59 They are also many individual anarchists that we can difficulty classify in a specific anarchist school, because they have simultaneously embraced several aspects of anarchism such as egoism, socialism, and the free market.60 Some scholars have also attributed the term libertarianism to anarcho-capitalism (a completely laissez-faire society), which has flourished in the US since the 1970s, in contrast to anarcho-socialism or libertarian socialism.61 They are many classical and modern free market anarchists who are mostly American economists and Professors.62 Besides, they are religious or spiritual anarchists: Christian anarchists, Jewish anarchists, Islamic anarchists, Buddhist anarchists, etc.63 Furthermore, Professor Martel suggests that we should look at Professor Fergusons Emma Goldman: Political Thinking in the Streets64 in which she has presented many lists of anarchists and talked about what these lists do to her text. 1.3 The Importance of Anarchism As the foundation of legal anarchism, anarchism is one of the most important theories for four reasons. Firstly, although the anarchist thoughts have mostly come from and principally developed in Western culture, anarchism is multicultural or universal, since anarchism is older than archism.65 For example, China has produced specific libertarian ideas since 2500 years ago,66 while Southeast Asia and Africa have their own traditional anarchism.67 The West has ironically pioneered in the modernization of the State and strengthened its functions (especially its legislation throughout the so-called rule of law) since the Greek City-States. Moreover, if I rely principally on Western legal anarchism, this does not mean at all that other anarchist ideas and practices are less important, but I hope that other researchers will develop them more. Secondly, the libertarian thoughts explore almost all aspects of human as well as non-human existence in many abstract and concrete ways, during human and environmental evolution or revolution: metaphysics, physics, economics, politics, sociality, sexuality, individuality, family, education, food, housing, art, music, culture, sport, animals, etc. We may find rarely any analytical and critical system of thought and practice as large and deep as anarchism. 30
31. 31. Sirus Kashefi Legal Anarchism: Does Existence Need to Be Regulated by the State? Thirdly, the anarchist ideas are one of the most disgusted, abhorred, ridiculed, miniaturized, manipulated, misinterpreted, misunderstood, or discredited phenomena among the people, the intelligentsia, and the politicians who have the different interests to disregard them. For instance, the discussions about the anarchist violent activities, loudly known as propaganda by the deed, during the late 19th and early 20th centuries incarnate a very negative idea of anarchy coming principally from the politicians and their adored scholars who rarely see anything positive in Statelessness, but chaos and violence. Certain anarchist Godfathers/mothers (such as Bakunin, Joann Most, Kropotkin, and Emma Goldman) however preached those activities to their acolytes.68 On the one hand, the politicians and intellectuals may see no great value in an anarchist society where equality and justice are crowned. On the other hand, they are absolutely blind and mute when it comes to comparing anarchist violence, which is not certainly common among all libertarians, and its effects with the current situations of Stateness. They indeed beautify State-subject or more exactly State-slave by the terms civilization and democracy, regardless of all Governmental war-making machines, conscription, invasion, occupation, slavery, corve, espionage, massacre, plunder69 (e.g., taxation and the Absentee Property Law of the Israeli Government),70 etc. They are willingly but wrongly presenting human history as a State-making history71 when glorifying the advantages of the States, particularly health care, education, and social welfare that have increasingly become private nowadays. In short, they see in the State-making of history a development of civilizing the so-called barbarians that have supposedly neither culture, nor justice, nor democracy, but savagery and disorder. Our Statist historians have doggedly struggled to show that the State people are superior to the Stateless people, while our State-makers have unlikely been to give up their claims to sovereignty, they will tend to confront their opponents violently to ensure their control over the resources necessary for effective territorial domination.72 Fourthly, the anarchist theories are extremely diverse and controversial containing rich analysis, critiques, and alternatives to the hierarchal and authoritarian societies. Such diversity may stem from two facts. On the one side, the anarchist theorists are mostly coming from either the middle class or the upper class that has had both wealth and education to elaborate many abstract, sophisticated, artistic, or scientific concepts, which are mostly inaccessible to the masses whose anarchistic and spontaneous revolutions are fervently advocated by the revolutionary anarchists. For example, Professor Comforts efforts against the allied bombings during the Second World War, as Professor Honeywell has found out, matched with his anarchist tradition based on immediate human goals over abstract and distant ones.73 Nonetheless, as long as education and highbrows terminologies are inaccessible to all people, the grassroots will be ignorant and, consequently, continue to be the target of academic, cultural, political, and economic exploitation by few elites, including the anarchists. Lewis has accordingly pointed out: man is a political animal is of course completely false; it is as false as Hobbes remark that he is a fighting animal. He 31
32. 32. Sirus Kashefi Legal Anarchism: Does Existence Need to Be Regulated by the State? is neither. It is only the wealthy, intelligent, or educated who are revolutionary or combative.74 On the other side, the State and its mechanism are very complex phenomena that require knowing many disciplines: politics, economics, religion, education, family, culture, sport, and technology, among others. The anarchists take into account this complexity, thanks to their material and intellectual superiority. However, if anarchism is so rich in many critical aspects throughout isms and posties, legal anarchism needs more analysis and critiques, since the anarchists have been mostly philosophical, political, or economic thinkers rather than the lawyers. Although almost all anarchists (Godwin, Proudhon, Kropotkin, and David Friedman, among others) have been speaking a lot about the legal system, there are few legal anarchists, which should be as oxymoronic as legal anarchism per se. There is indeed a small amount of lawyers among the anarchist castes, sympathizers, activists, or theorists, such as Stephen Pearl Andrews, Spooner, Aristide Briand, Istvn Bib, Gambuzzi, Gori, Pentecost, Scott Wood, Meijer-Wichmann, Merlino, Eltzbacher, Huebert, Epstein, Holterman, Chartier, van Dun, Benson, David Friedman, Barnett, Kinsella, Zywicki, Mendenhall, Ben ONeill, Baars, Amster, and Bob Black.75 We could call them the political lawyers, which would refer to Professor Kirchheimer who has already used political justice for the partial legal system or the abuse of legal rules for political purposes.76 In spite of studying law at the University of Turin, Galleani abandoned legal practice, because he had come to disregard the legal profession. He thus transferred his energies and talents to radical propaganda.77 I think that because the legal job, as Godwin argued many years ago,78 is amazingly full of cheating, deception, arrogance, and immorality, it is scarcely able to produce either a freethinker or a revolted individual. In addition, when a lawyer goes against State law, she/he most probably leads to fall into the trap of inconsistency with her/his own profession founded on Governmental recognition. For example, Schuster argued that Spooner had given to anarchism a legalistic interpretation, whereby he had verbally destroyed the American Constitution.79 Spooner certainly put into question the American legal Bible while he declared the unconstitu