An Enquiry into Anarchist Jurisprudence

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05212804

An Enquiry into Anarchist Jurisprudence

An Enquiry into Anarchist Jurisprudence

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05212804

An Enquiry into Anarchist Jurisprudence

For Gen and J. Bauer

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An Enquiry into Anarchist Jurisprudence

Table of ContentsCHAPTER 1.............................................................................................................................................5 Introduction......................................................................................................................................6 Kropotkins use of rules/norms.........................................................................................................7 Substantively similar constructs ....................................................................................................10 Theories of Human Nature in Law and Authority and Concept of Law.........................................14 Internal Aspect of Kropotkins Primitive society............................................................................16 CHAPTER 2...........................................................................................................................................22 Are Kropotkins Rules Law?...........................................................................................................22 Secondary Rules in Law and Authority..........................................................................................22 The Question of Coercion..............................................................................................................26 CHAPTER 3...........................................................................................................................................29 Kropotkins Use of Law in Other Work..........................................................................................29 The Origins of Kropotkins legal theory.........................................................................................29 Human Nature A continuing problem.........................................................................................31 CHAPTER 4...........................................................................................................................................33 Legal-chauvinism...........................................................................................................................33 Equity: Flexible Law......................................................................................................................36 The State and Evolution: A Problem..............................................................................................37 Evidence from Anthropology .........................................................................................................38 From People to Officials ...............................................................................................................42 CHAPTER 5...........................................................................................................................................44 Tension between Essentialism and Conventionalism.....................................................................44 Politics in Concept.........................................................................................................................46 CHAPTER 6...........................................................................................................................................50 Locating the Union of Rules...........................................................................................................50 Positivism and the Autonomy of Law.............................................................................................51 CHAPTER 7...........................................................................................................................................53 Conclusion......................................................................................................................................53

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An Enquiry into Anarchist Jurisprudence

IntroductionThe purpose of this dissertation is to broadly ask the question does an anarchist society have law? The reason for asking the question is not just to get a binary yes or no answer it is also a means to enquire into conceptions of law. The problem with such a question is that there are different definitions for what constitutes both law and an anarchic society. In this dissertation I will focus on anarchocommunism and the positivist conception of law so have chosen to compare and contrast the Herbert Hart and Pyotr Kropotkins legal theory, two prominent authors for their respective schools. I will present the argument that Kropotkin and Hart share many similarities although have core differences. In comparing them an interesting light is shed to many traditional problems of jurisprudence. Questions such as what defines a legal system? What is human nature? Do rules and/or law need coercion? How do rules form in the first place? It will be shown that Harts Concept of Law is not a politically neutral account of law but charged in its core axioms on human nature and what constitutes a legal system. I will also attempt to refine Harts theory to garner a more accurate understanding of when a legal system exists by supplementing it with empirical evidence from anthropology and sociology so that I may accurately inquire into the core question: does an anarcho-Communist society have law?

Chapter 1 will show how we must appreciate the political purpose of Kropotkins work before we can make any comparisons and explain the reluctance for Kropotkin to use the word law. Despite this I will argue that Kropotkin does actually have what Hart termed primary rules.

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An Enquiry into Anarchist Jurisprudence

Chapter 2 will ask if Kropotkin has law according to Harts concept of law. It will be shown that while they may share the primary rules the all important secondary rules and their accompanying traits such as officials, a state and coercion are missing. Chapter 3 argues that despite Kropotkins society not fitting Harts concept of law, he still has law in his society. It will do so by looking at Kropotkins other work where he favourably looks upon the common law in anarchic societies. Leading on from Chapter 3, Chapter 4 will show that the difficulty in accepting that anarchist societies have law is due to a problem in positivist jurisprudence I have termed legal-chauvinism. There is little cultural relativity and positivist conceptions of law are fixed on state law as their paradigm example. To support my argument an investigation will be undertaken into anthropological studies to show Harts conception lacks a solid evidential base. Chapter 5 will show that there is a tension in Concept where Hart attempts to apply his theory to all legal systems at all times but he also has to construct an accurate description of state law. It will be argued that Hart initially in Concept put ordinary people at the heart of law but later law was confined to officials and the state only. In Chapter 6 I will attempt to save the theory that some sort of union took place by locating the union of rules using empirical evidence. The reasons why positivists protect the autonomy of law from social scientific analysis will be explored and in doing so a significant problem emerges that may result in general jurisprudence always being stuck in an analytical frame.

Chapter 1

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An Enquiry into Anarchist Jurisprudence

IntroductionIn this chapter I will delve behind Kropotkins language into the deeper more truthful meaning of his text. The task is necessary because we have to appreciate the political agenda of his pamphlet, Law and Authority1. If we took it at face value there would indeed be no comparisons to be made with. One could conclude very simply and quickly that Kropotkin and Hart are talking about very different things and any further analysis would not be possible. In order to make these comparisons Kropotkins reluctance to use the word law will be explored. It will be shown all anarchists are inherently anti-state and against private property. Law enables and fundamentally defines the state via constitutionalism and draws property boundaries in title deeds and the like. That is why anarchists do not like using the term in their historical analysis or future projections. Once the political agenda has been exposed I will compare the substance of Kropotkins jurisprudence, specifically the use of social feelings and usage to Harts rules. It will be argued that despite the differing language Kropotkin is actually describing Hartian primary rules. In combining the two it will be shown that Kropotkins primitive society has all three Hartian secondary rule functions and therefore Hart has unnecessarily attached what I shall call a complexity condition to his secondary rules emerging. This reveals a difference in evolution of the law between the two. I will show how Kropotkin sees the law as evolving horizontally, from within society and so does Hart in his primary rules. It will be shown the difference in evolution is that Harts law is vertically imposed by a state and requires official coercion, while Kropotkins law arises from the same method as primary rules. An analysis of Kropotkins use of law in his other work will also be undertaken to prove beyond doubt that he is talking about law. Finally it will be concluded the 6

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An Enquiry into Anarchist Jurisprudence

complexity condition is very helpful in determining the political stance of The Concept of Law leading to the next chapter where I will argue Hart focuses too narrowly on municip