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 [email protected]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 Panthéon-Sorbonne (2001-2005) Master’s in Criminal Law and Criminal Policy in Europe from Panthéon-Sorbonne (2000-2001) Master’s 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
Transcript
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 [email protected] 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. 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. 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. 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. 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. 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. 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. Sirus Kashefi Legal Anarchism: Does Existence Need to Be
Regulated by the State? Some Introductive Chaotic Photos of
Governed Existence 8
9. Sirus Kashefi Legal Anarchism: Does Existence Need to Be
Regulated by the State? 9
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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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