Constitutionalism and Dominium

Anarchists compared the philosophical principles that eighteenth-century revolutionaries had championed with the political arrangements the bourgeoisie had invented to advance them and found the latter wanting. Proudhon found a prime illustration of the mismatch in the evolution of French republicanism.

Charting a history of ideas from the Reformation to the French Revolution, he associated constitutionalism with the mutation of contract theory from a principle of free criticism to a doctrine of imperium. The constitution was exemplified by Rousseauean republicanism, the otiose constitution of 1793, the ‘autocratic’ constitution of 1804,Footnote ²⁰ representative government and universal male suffrage (an innovation Proudhon regarded as ‘a mystification and a tyranny’ for eliding the natural pluralism of society), even before Napoleon III’s coup d’état and coronation.Footnote ²¹

Constitutionalism was also the result of utopian speculation. It rehashed an outmoded monarchical political form, replacing homage and fealty with civic duty, patriotism and legal obligation. The republican constitution was arbitrary, oppressive, and obsolete. It was not true republicanism, but rather a harbinger of chaos since it entrenched, albeit in new forms, the injustices it sought to overcome. Accordingly, Proudhon’s answer to the question, ‘What Finally is the Republic?’ was ‘anarchy’ (the bad sort). Republicans who stopped short of anarchy in the positive meaning of radical decentralisation were simply dime-store monarchists. Their proposals for the right to work, for example, reaffirmed the necessity of bosses and leaders, and the demand for universal suffrage simply consecrated a constitutional monarchy.Footnote ²²

On the other side of the Atlantic, Josiah Warren, ‘the first American anarchist’, noticed the same disjuncture in the theory and practice of constitutionalism.Footnote ²³ As Modrzejewska argues, his general complaint was that constitutional orders de-individualised their subjects by denying them power to judge independently their formulas for ‘prosperity, security, and freedom’.Footnote ²⁴ In the United States, this power had been placed in the hands of ‘a few’, thus rendering ‘all persons and property in the States as insecure as possible’. Far from enjoying freedom, citizens languished ‘under the most unqualified despotism that exists on the earth!’.Footnote ²⁵ His remedy was: ‘no organization, no indefinite delegated power, no “constitution” no “laws” nor “bye-laws”, “rules” or “regulation” but such as each individual makes for himself and his own business’.Footnote ²⁶ For Warren, a former Owenite, this was not an invitation to atomisation, but rather to co-operation and free agreement.

The failures of the constitutional project were traced to processes of integration and consolidation in the state.Footnote ²⁷ Proudhon used the term ‘dissolution’ to unsettle this constitutional orthodoxy in his first two works of constitutional theory, Du Principe Fédératif (1863) and Si les Traités de 1815 ont cessé d’éxister (1863).Footnote ²⁸ Analysing ideological and sociological shifts between the Treaty of Westphalia (1648) and the Treaty of Vienna (1815), he argued that the period had been marked by ‘dissolution’ of spiritual forces,Footnote ²⁹ the monarchical principle and the principle of political association, and the concomitant rise of secularism, republicanism and the notion of economic exchange. The mistake constitutionalists made, he contended, was to treat the first two shifts as definitive and leave the principles of association unchanged. The Peace of Westphalia and the Treaties of Vienna were only staging posts in the ‘dissolution’ of European absolutism. New secular times demanded new federal constitutions. He called for the further ‘dissolution’ or ‘liquidation’ of ‘political hierarchy’, and the federal ‘organization of economic forces’, or what he called ‘agricultural-industrial federalism’, to replace the ‘industrial feudalism’ spreading across Europe.Footnote ³⁰ This ‘constitution of society’, he argued, would complete the shift from absolutism to anarchy. Now using the term approvingly, he concluded that constitutionalism was a wrongheaded attempt to seed principles of liberty, equality and fraternity in ground ploughed by hierarchy, duty and obedience.

Warren used the idea of ‘clanship’, or ‘the worst feature of barbarism’, to explain the problem of constitutionalism. Clanship corralled individuals into parties or tribes and categorised refuseniks as traitors. It was a form of nationalism. The idea of ‘my country right or wrong’ was replicated in the motto, ‘My tribe, my whole tribe, and nothing but my tribe!’ Clanship also spelt rivalry and hostility, ‘retaliation or revenge’. Ultimately, it led to conflict because it denied the possibility of internal discrimination, the acknowledgment that justice was never black or white and that ‘the right […] may be among either party’. Clanship said: ‘whoever is not for us is against us’. It denied secession by forcing defectors to follow constitutional rules that forced perpetual union, and it regarded ‘disintegration without the consent of the majority’ as ‘universal confusion’. Against clanship, Warren called for a ‘Luther in the political sphere – and another in the financial sphere, – another in the Commercial, – another in the educational sphere, to rouse the people to use their own experience’.Footnote ³¹

Examining the limits of constitutionalism in a history of the French Revolution, Peter Kropotkin revisited Proudhon’s critique in the early years of the twentieth century. The revolution, he argued, was a movement against arbitrary authority, for liberty, equality and fraternity. Constitutionalism was an attack on ‘the law-and-order societies of that period’. These had concentrated political power and economic wealth in the hands of the ‘aristocracy and the clergy’, whilst rendering the people ‘beasts of burden to the ruling classes’. The Revolution declared ‘the sovereignty of reason’, advocated ‘trust in human nature’ and ‘equality among men’, opening new ‘vistas to mankind’. These were noble causes, Kropotkin argued. Yet they were checked by a political project that demanded ‘obedience to the law’ and which instituted parliamentary representation as a proxy for ‘the will of the nation’. It abolished ‘feudal taxes and services’ but established ‘freedom of contract between free men’, which protected systemic inequalities based on existing distributions of private property.Footnote ³²

For Kropotkin, the economic and ideational forces active on states, apparently outside their jurisdiction or control, were forces unleashed by constitutionalism itself: the result of constitutionalism was conflict within and between states, which states then arrogated the right to pacify.Footnote ³³ Returning to the history of the French Revolution, he compared the bourgeoisie’s appropriation of aristocratic property and dispossession of the rural workers with the ‘plunder’ that took place across western Europe during the wars that followed.Footnote ³⁴ According to this analysis, there was no demarcation between the domestic sphere and what functioned ‘beyond’ or beneath, or anywhere else.

In the late nineteenth and early twentieth centuries, anarchists observed the same pattern repeated across the globe. Documenting the course of the Mexican Revolution in 1912, Voltairine de Cleyre, a freethinker drawn to anarchism by the obvious injustice of the Haymarket trial, described how constitutional regimes worked hand-in-hand with rapacious, sneering investors: peoples regarded as ‘ignorant’ or ‘primitive’ were simply forced ‘to give way before those who will so develop [their…] resources’.Footnote ³⁵ Anarchist analysis suggested that it was only a matter of time before every despised group outside the state’s boundaries was similarly ‘tamed’.Footnote ³⁶

Kōtoku Shūsui, a translator and transnational antiwar activist executed for contemplating the assassination of Emperor Meiji, diagnosed constitutionalism’s failure in imperialism. The republican premise of his argument was that the role of the nation state was ‘to ensure continual social progress’ and the betterment of humanity.Footnote ³⁷ The revolutionary movements sparked by the French Revolution had ‘temporarily wiped out’ the pathogens that threatened this purpose: patriotism, the ‘microbe that causes the disease’ and militarism, ‘the means by which the microbe is transmitted’. But they had proved unable to permanently check the epidemic. As patriotic love of country gave out to national aggrandisement, constitutionalism acted as the midwife to Napoleon, Metternich and Bismarck. Like other anarchists of this era, Kōtoku anticipated Charles Tilly’s famous thesis, that ‘war made the state and the state made war’ and internationalised it. Armed force bought territorial ‘greatness’ to the state at the cost of civic well-being and international solidarity. By the twentieth century, imperialism had contaminated the world order, ‘government and the opposition’, ‘the humble and the mighty’ alike.Footnote ³⁸

Yet it was not just the institutions of the state or global economic forces that concerned anarchists. Many worried (indeed, still do) about what Proudhon called ‘gouvernementalisme’Footnote ³⁹ or the tendency of governmental logics to pervade normal discourse, and increasingly even anarchist discourse. The attempt to avoid this conceptual sullying explains why anarchists tend to redescribe their practices with neologisms for politics, power and the state and the conceptual confusions that result.

Proudhon developed his theory of ‘gouvernementalisme’ from a thesis about the ways in which the ideology of government spreads through revolutionary movements, to society, to be conjoined with a system of patronage, such that rule and sinecures become the modus operandi of government. Incarcerated in 1851, he wrote:

The thrust of the argument was that the state was a block to freedom, an institution that enslaved. The form of government was not irrelevant. But as Emma Goldman argued: ‘every government whatever its form character or color – be it absolute or constitutional, monarchy or republic, Fascist, Nazi or Bolshevik – is by its very nature conservative, static, intolerant of change and opposed to it’.Footnote ⁴¹ This assessment explains why post-war anarchists habitually referred to the welfare state as the ‘warfare state’. Writing in the late 1980s, Colin Ward, one-time editor of the journal Anarchy, bemoaned the poor investment British socialists had made in ‘the idea of the state’. Fabian and Marxist dreams of slick administration and benevolent elitism had stifled socialism’s rich ‘traditions of self-help and mutual aid’. The reality was grinding bureaucracy, and it had left working people vulnerable to the whims of neo-liberals, eager to slash budgets in the name of desert and voluntarism.Footnote ⁴²

In short, constitutionalism constitutionalised government and state authority – it did not free the people. It was a new wrapper for a form of order that had sought to resist the ‘dissolution’ Proudhon imagined was inevitable. In his extensive writings on European international relations, he argued that the collapse of empires and the attempt to build nation states would inevitably fail, since nation states (whether French, Italian, Polish or German), homogenised, unified and governed what was inescapably plural: peoples.Footnote ⁴³ This was Warren’s argument, too. The purported transcendental, providential or millenarian nature of the constitution was its Achilles heel: it could not bend, only break. By frustrating processes of ‘dissolution’, it fell prey to forces that attenuated its values. In whatever way this weakness was explained, anarchists concluded that constitutionalism marked the re-structuring of the state system, cementing European global hegemony, unleashing hitherto localised economic forces, through the extension of liberal property regimes worldwide, and redefining the fault lines of international politics.

Capitalism and the Transformation of Slavery

The language of abolitionism anarchists adopted as anticonstitutionalists to describe their opposition to the state was rooted in a critique of capitalism. It centred on the claim that constitutionalism engendered a transformation of slavery. Proudhon’s first book, What is Property? (1840), his most famous intervention in modern European thought, set out the main lines of the thesis. The book opens with the claim that the establishment of private property follows a ‘transformation’ of slavery, from chattel to wage slavery and that constitutional government is required to sustain it.Footnote ⁴⁴ Inverting Rousseau’s claim that the republic would make us free, he argued that by giving private property constitutional protection, the republic in fact legalised ‘theft’. By depriving citizens of the materials that give them ‘thought […] will, and […] personality’, it gave property owners the ‘power of life and death’ and transformed slaves into wage slaves.Footnote ⁴⁵

Six years later, and with no apparent familiarity with Proudhon’s work, Josiah Warren published the first edition of Equitable Commerce. In it, he lamented the ‘disgusting’ reality that shopkeepers must ‘disconnect’ the value of a good from the labour time put into its sale or production,Footnote ⁴⁶ and the parallel processes put in train by the establishment of government. The alienation of ‘individual sovereignty’ to secure civil rights produces ‘insecurity’: because the constitution is not consciously and voluntarily agreed, consent is assumed and enforced, and the whims of government are de facto arbitrary.Footnote ⁴⁷ Parting company with Robert Owen, Warren concluded that communism was as much a cause of ‘slavery’ as the institution of private property, since it robbed the individual of his ‘sovereignty’, subsumed into the collective.Footnote ⁴⁸ As an alternative, he promoted a system of labour notes which valued products, good and services, by labour time needed to produce them, not their exchange value.Footnote ⁴⁹

Proudhon’s and Warren’s attacks on private property were not the last attempts at abolition. In the late nineteenth and early twentieth centuries, as anarchism gained traction as a global movement, anarchists articulated a full-blown critique of the political economy of constitutions. In summary, anarchists argued that the republican constitution, in so far as it protected the right to private property, entrenched patriarchy, structural domination in the workplace, and promoted or necessitated imperialism and war.

Bakunin described the labour contract, predicated on the private ownership of property, as a time-limited form of slavery. When considered across the lifetime of the un-propertied worker, it was ‘real slavery’: it rendered the worker a ‘subordinate, a passive and obedient servant’, and turned the employer into a nearly ‘absolute master’. Slavery, he argued, was a function of the worker’s need to work today to pay for food tomorrow, and equally, the proprietor’s structural need to profit from the labour of others. The relationship permanently depressed wages because workers competed for employment while proprietors competed for profit. ‘Is this calumny? No, it is in the nature of things’, he observed. Capitalism enslaves us all.Footnote ⁵⁰

These arguments circulated widely in labour movements. Albert Parsons, one of the labour organisers caught in the Chicago police dragnet after the Haymarket bombing, argued that capitalism attenuated constitutional rights and norms. Defending himself against trumped-up charges of conspiracy in 1886, he took the stand to present a thesis on labour exploitation popularised by the Knights of Labor.Footnote ⁵¹ The constitution, he argued, perpetuated enslavement by enabling employers to amass vast wealth and assume the arbitrary power of former slavers. Market competition unburdened masters from selecting their ‘own slaves’ and instead obliged wage slaves to select their masters. Workers were free to sell their labour but only on the employers’ punishing terms.

Moses Harman, a sex radical and editor of the heroically transgressive paper Lucifer the Lightbearer, later reiterated the argument. ‘The black man’, he argued, ‘was the white man’s money’. The anti-slavery movement ‘destroyed capitalism in one of its most concrete forms’, but it left capitalism intact.Footnote ⁵²

Parsons’ execution in 1887 was a graphic demonstration of the arbitrariness of the constitution and the inherent violence of capitalism. On the back of the Chicago proceedings, Lizzie M. Swank, an educator-cum-labour organiser, completely revised her opinion of American institutions. Having once respected the dependability of free elections ‘free thought, free speech, and free press’, she concluded that the constitution gave ‘working men […] no rights which a capitalist is bound to respect’.Footnote ⁵³ In a similar vein, Voltairine de Cleyre described the US constitution as the ‘first concession’ to tyranny. Made to meet ‘the demands of Commerce’, it was a ‘merchant’s machine’ which rode ‘rough-shod’ over rights. The people, she argued, ‘endeavoured to set bounds over which the federal power dare not trench’ and enact freedoms ‘of speech, of the press, of assemblage and petition’. But these efforts only met with violence. In the land of the free, she remarked, ‘the police club is now the mode’.Footnote ⁵⁴

Extending the critique of constitutionalism to the analysis of marriage and religion, Emma Goldman, de Cleyre and others decried women’s enslavement. Contesting Proudhon’s account of secularisation, they pointed to the enduring power of organised religion to spotlight the persistence of theologism and patriarchy.Footnote ⁵⁵ The marriage contract, sanctified by the Church, functioned to perpetuate the notion that women must be held in permanent tutelage and thereby made them the surety of their fathers and husbands.Footnote ⁵⁶

Writing in the short-lived women’s journal The Agitator, Jenny d’Héricourt, one of Proudhon’s fiercest critics,Footnote ⁵⁷ gave a blistering account of the constitutional position of women. Noting that Proudhon had also failed to free himself from patriarchal prejudice, she was quick to observe that patriarchy was constitutionalised in the construction of male suffrage and citizenship as well as by marriage contracts and employment laws.Footnote ⁵⁸ In France, ‘as everywhere’, she argued, ‘men are slaveholders’. Under the present law, women:

Parsons’s paper The Alarm applied the analysis of constitutional enslavement to highlight the genocide of Indigenous people. Commenting on the ‘Starvation Winter’ of 1883–4, the paper observed that Native Americans had ‘been “civilized” out of existence; exterminated from the continent by the demon of “personal property”’. In Montana that year, a fatal mix of greed, callous disregard and administrative bungling had killed about a quarter of the Piegan population.Footnote ⁶⁰ The Alarm’s general finding was that the people had been ‘sold into slavery’, their land ‘appropriated by “law”’. They had been ‘disinherited, robbed and murdered by the piracy of capitalism’.Footnote ⁶¹

Lucy Parsons, Albert’s widow and labour agitator in her own right, turned the constitutional critique towards racism and misogyny.Footnote ⁶² In 1892, when lynching ‘reached a high-water mark’,Footnote ⁶³ she asked where ‘justice’ had ‘fled’? Women ‘stripped to the skin’, were lashed and lynched with impunity by ‘leering, white-skinned, black-hearted brutes’.Footnote ⁶⁴ De Cleyre argued that racism was baked into ‘Anglo-Saxon’ economics and law. In her analysis of the Mexican Revolution, she compared the mass deportations of Yaquis by the Madera government to the ‘murderous manner’ with which the US government had treated Indigenous people. Broadening the anti-constitutional critique to what would now be called intersecting regimes of domination, she asked what the ‘keepers’ of the constitution had done to ‘preserve the conditions of freedom of the people’? This was her answer:

Anticolonial and anti-imperialist critique recalibrated the argument but did not fundamentally revise it. Intervening in debates about liberalisation, political renewal and the transformation of autocracy, non-European anarchists observed the ease with which republican and liberal governments suspended their commitments to liberty, equality and fraternity when faced with the opportunity for self-aggrandisement. Naked racism and domestic inequality explained the flimsiness of western constitutionalism. As Nadine Willems notes, in Japan, activists in the 1890s, echoing Proudhon’s concerns for the United States in the 1860s, warned would-be westernisers about the impoverishing effects of industrialisation and the cultural debasement of liberal and republican politics.Footnote ⁶⁶ Kōtoku’s anti-imperialist critique included the observation that constitutional regimes had become corrupted by nefarious economic forces. England, he observed, ‘cherishes liberty and loves peace’.Footnote ⁶⁷ But the ‘fruits of imperialism’ were ‘greed, corruption, and decadence’.Footnote ⁶⁸ There was no route back to virtue through constitutional reform. The reality was that liberal and republican elites were in cahoots with militarists and financiers. According to this analysis, constitutionalism was a new platform for exploitation, empowering political, military and industrial elites to enrich themselves at the people’s cost. In the mid twentieth century, contemplating the political settlement of the Korean war in 1952, the anticolonial activist M. P. T Acharya suggested that the two Cold War alternatives were separated by the width of a cigarette paper. Constitutional democracy in the global south, he argued, was ‘a façade’ for the ‘naked dictatorship’ guaranteed by ‘Bolshevism’ in the global north.Footnote ⁶⁹

Painting constitutionalism as a system of domination, anarchists routinely compared old-world conservatism to new-world republicanism. Like Bakunin, Emma Goldman dubbed governments on both sides of the Atlantic, Machiavellian. Hard-won rights and freedoms, she noted, were always subject to ‘the arbitrary mercies of the preveleged [sic.] few’. Monarchists and republicans granted only ‘as much liberty as its interests will permit’, cynically invoking ‘democratic liberties’ as ‘a cloak to better blindfold the exploited mass’ and arm themselves with ‘a strong whip to keep them in check’. The effect of this anticapitalist, anticonstitutional critique was to emphasise the overlaps between constitutionalism and autocracy, spurring blunt demands for the state’s abolition.

Sovereignty and Law

Nineteenth-century anarchists had a crisp, philosophically rich critique of sovereignty. Writing in 1851, the ethnographer and former Communard Élie Reclus contemplated the relationship between authority, law and justice. He argued that sovereignty, which he defined as the unlimited or absolute power of the law, rendered justice meaningless. If law was understood as the ‘will of the legislator’, ‘pure Will’ and ‘the expression of authority’, it was, by definition, ‘arbitrary’.Footnote ⁷¹ Authority, Reclus argued, says: ‘I am justice, and outside of me there is nothing but nothingness and injustice. For justice is only harmony with the law, and the law is only the expression of authority’. The commanding power of authority made ‘all manifestations of authority […] equally just and legitimate’. He concluded: the ‘law is not law because of its justice’, rather, it is ‘just because it is the law’.Footnote ⁷²

The anarchist complaint about sovereignty was that law forced compliance with rules regardless of their justness. Reinforcing Reclus’s view, Tolstoy acknowledged the historical shift from absolutism to legalism but downplayed its significance for the exercise of sovereignty: the authority once vested in the Pope, the Emperor and then the king, he argued, was now commonly placed in the ‘assembly of elected persons, or a whole nation’.Footnote ⁷³ In The Slavery of Our Times, one of his best-known political essays, he argued that the common thread tying the English, French and American constitutions to the Japanese and Turkish was the idea that law was an expression of popular sovereignty. Yet, law was established by ‘those who have power, and therefore [is] always and everywhere […] profitable to those who have power’: the many, the few or the one. In Resurrection, his fictionalised account of the Russian prison system, he evoked Proudhon’s critique of property as theft to expose the injustice of sovereign law. His hero, the guilt-ridden estate owner Nekhlyudov, characterises law as ‘an instrument for upholding the existing order of things to the advantage of our class’.Footnote ⁷⁴ Law ‘persecutes and executes’ political activists who contest and defy it and designates transgressors, usually victims of intergenerational injustice and oppression, as ‘criminal’.Footnote ⁷⁵

Tolstoy’s conception of sovereign law as slavery chimed with the critique presented by the lawyer and abolitionist Lysander Spooner. In 1886, agitated by President Grover Cleveland’s ‘inaugural promise to administer the laws of the country “justly”’,Footnote ⁷⁶ Spooner collapsed the sovereignty of the ‘new world’ constitution into the absolutism of the ‘old world’ and, answering his own question, ‘[w]hat, then is a “sovereign” government?’, wrote:

The argument, which cashed out the critique of domination and paralleled the sociological analysis of the transformation of slavery, underwrote the defence of individual sovereignty on both sides of the Atlantic.

Law and Judgment

The second broad anarchist claim was that law established a normative system of command that discouraged independent judgment.Footnote ⁷⁸ In Proudhon’s work, the argument relied on an antinomic distinction between relational or social law and ideal law. The first is mutualist, reciprocal and operates in society because it is real. The second, ideal law, is hierarchical and infantile, immature for not being more anarchic.

In the final book of De la Justice, ‘On the Moral Sanction’,Footnote ⁷⁹ Proudhon explained his account of the basis and meaning of law and punishment through a critique of Rousseau. Rousseau’s ‘legislator’, he argued, is ultimately just a ‘man’, while our ideologies of right try to elevate the legislator, whether a ruler or the people, to something more. Another way of thinking about this, he argued, is to see that the unity of law and spirit has been sundered by the development of modern institutions, while modern jurisprudential theory has deliberately alienated man and society from the law. As a result, law and the legislator become fetishised, and degenerative, a vehicle of domination. Ceremony, transubstantiation, kings, ‘the legislator’, sovereignty and so forth, are all part of the possibility of law, but they confuse the origin of law with its spectacle. Proudhon argued: ‘it is against all philosophy, after having recognised the internal sanction, to still speak of an EXTERNAL sanction, whose minister would be God, the Church or society’.Footnote ⁸⁰ Remove the social element, and law will ‘dry up in individualism’, leaving justice ‘inert in a solitary existence’. Yet solitary finality is precisely what the law aspired for us. Proudhon noted:

Socialising law was central to the possibility of a justice immanent to humans and society, a concept and process that inevitably mutated as society changed.

Following Proudhon, later anarchists advanced two related points. First, that law is parasitic on shared moral norms. Second, that the codification of social rules encourages conformity to rules that entrench domination. In Kropotkin’s account, which tracked closely to Proudhon’s, law originated from a ‘pact or national contract’, not always freely accepted.Footnote ⁸² It piggybacked on local ‘manners and customs’.Footnote ⁸³ On the one hand, law was a set of ‘prescriptions serviceable to rulers’. On the other hand, it expressed deep-rooted ‘maxims which represent principles of morality and social union wrought out as a result of life in common’.Footnote ⁸⁴ This ‘two-fold character’ explained law’s purchase and complexity: law can reflect widely shared moral norms (thou shalt not kill), while at the same time channelling these moral precepts to nefarious ends (murder is fine in war). Proudhon had earlier compared law to the Decalogue, juxtaposing the commandments ‘Thou shalt not kill’, ‘Thou shall not steal’ with the injunctions ‘Thou shalt not assemble’, ‘Thou shalt not print’.Footnote ⁸⁵ Kropotkin used the same formulation: ‘Do not steal’, says the Code and immediately after, ‘Those who refuse to pay taxes will have their arm cut off’.Footnote ⁸⁶ This twofold character of law explained why law reached into areas where there was no need for it, and the persistence of immoral laws ‘useful only to rulers’.Footnote ⁸⁷

Turning to law’s dampening effects, Kropotkin argued that the ‘attributes of law and authority’ are to judge without regard to conscience’. Kropotkin’s close friend and fierce anti-Marxist Warlam Tcherkesov used Tolstoy’s language to argue that law made ‘slavery of thought […] an obligatory matter’.Footnote ⁸⁸ For his part, Tolstoy observed that those subject to law and excluded from its determination simply jumped to orders.Footnote ⁸⁹ Looking at the other side of the relation, he also argued that law bred irresponsibility. The ‘hypnotic state’, he argued, instilled in lawmakers an ‘idea that they are invested with a special, supernatural importance and grandeur’. They ‘become so intoxicated’ that ‘they cease to see their responsibility for their own actions’.Footnote ⁹⁰ Constitutionalism did not ease this problem. Indeed, the shift from absolutism to legalism exacerbated it by blurring lines of decision-making. In ‘ancient times’, Tolstoy argued, ‘tyrants were accused when evil deeds were committed’. In constitutional regimes, ‘crimes inconceivable under Nero’ were committed with impunity because it was impossible to determine who had willed the act.Footnote ⁹¹ Obedience was a function of both, but in the second, it smothered resistance and accountability.

Law and Violence

The third strand of the critique brought the violence of law into view. In part, anarchists understood violence as a corollary of inequality and domination, but they also used the idea of violence to explore the imperatives of the state. These arguments were connected: the labour contract and private property would be unenforceable without the organised violence of the state, and likewise, the state could not sustain this mission or any other without the willing connivance of the propertied class, either through the purchase of state debt or through direct taxation.

Anarchists further noted that the gains of capital and state must also be protected from external effects, for example, currency speculation, cheap labour undercutting domestic production or the threat of conquest and territorial annexation. ‘What are tariffs but warfare?’ Proudhon asked, rhetorically, ‘And what lies beneath tariffs, what are they, other than fear of letting one’s capital be undermined by speculation and fear of debt, in short, by the spectre of famine?’ We are all, ‘proletarian and prince’, subject to the dictates of our basic needs, but plunder, conquest and capitalism are not the most rational means of addressing the problems of distributive justice.Footnote ⁹²

Because irrational economic systems are both possible objects of theory and observable, their contradictions are comprehensible. So, too, are their iniquities. But if the iniquities of a given distribution of property or mode of production are evident to all, and the benefits accrue to only a small portion of society, that small portion of society must rely on the instruments of force to sustain advantage. Proudhon coined the term ‘militarisme’ to explain how this modern industrial domination of one caste over another is possible. This is the unity of government or the state, with industry and the military, where the dictates and imperatives of the latter militarise society in turn: militarisme and étatisme, are two sides of the same coin. The more the state desires to expand and to unify, the more militarist a state must become to hold those parts together. Violence does not need to be direct in this context: society can be pacified by its near-universal adoption of a specific form of governmentalism. Proudhon argued: ‘One effect of this arrangement is a surge in the expenditure of the State, which ought to be called by its true name, war fees, as hierarchy is consolidated and, as it spreads, or, and it amounts to the same thing, as governmentalism grows, it deepens’.Footnote ⁹³

The cost of maintaining a police force, a standing army, a military industrial complex and so on is precisely the drain on the economy that the state must then deploy violence to sustain. There is no necessary distinction here between ‘domestic’ and ‘international’ relations because organised violence is central to both. If this were untrue, that war was merely a legacy of barbarism, an aberration of the moral sense, it would follow that:

But that, Proudhon argued, is precisely what modern constitutionalism does. It is a truism worth repeating that law cannot write or enforce itself and so reflects and constitutes the material and epistemic power that lies elsewhere, other than in law itself. It is bad enough to assume that law contains its own justification by virtue of being law, it is a leap into dystopia to concede that fact alongside the history of state formation, which is no doubt why this history is routinely glossed or ignored in these narratives.

‘In the history of society’, Kropotkin argued, law was established to organise ‘Vengeance under the name of Justice’.Footnote ⁹⁶ Under the influence of eighteenth-century philanthropy, it had evolved into a reforming tool. Yet the smack of vengeance remained, and law still forced compliance under threat of punishment. In The Slavery of Our Times, Tolstoy characterised law as an instrument that ‘compelled […] by blows, by deprivation of liberty and by murder’.Footnote ⁹⁷ Submission was driven by habit and fear. Although the means of ‘enslavement and oppression’ had become more sophisticated over time, in The Kingdom of God Is Within You, he argued that it worked in the same way in America and France as it had done under Nero or Genghis Khan.Footnote ⁹⁸

Emma Goldman described the psychology of violence as a dread of abstruse forces.Footnote ⁹⁹ Law was violent in this sense: its commands and repercussions were obvious, but the grounds of its prescriptions were veiled and unexplained. Others pointed to repressive deployments of law: the use of armed police and private militia to break up strikes and the mistreatment of prisoners were prominent examples. Law, anarchists argued, also entrenched repressive practices: rape in marriage, the criminalisation of sex workers and homosexuals, vivisection and animal husbandry.Footnote ¹⁰⁰ Added to these were the effects of the systemic inequalities law structured, for example, the exponential rates of suicide in the unemployed.Footnote ¹⁰¹ The authorities’ acquiescence to violence committed against those at the bottom of the social hierarchy was also traceable to law. Lynching and pogroms were not lawful,Footnote ¹⁰² but these forms of violence were explained, ignored or justified by the gendered social, class and racial hierarchies law embedded.Footnote ¹⁰³

In sum, anarchists downplayed the significance of the distinction between absolutist and legalist sovereignty to delegitimise law as command. The anarchist counter reinforces the pluralist and common law claims that law evolves out of ordinary social practice but extends it to argue that legal norms are parasitic on social rules and rooted in the monopoly of violence.Footnote ¹⁰⁴ The anarchist critique thus disputes the Kelsonian (if not Kelson’s) claim that sovereignty is the pinnacle of a system validated and regulated by a hierarchy of legal norms.Footnote ¹⁰⁵ Anarchists detached normatively grounded rules from hierarchy and pushed against the explanation of legality. We consider the reframing in the discussion of individual sovereignty below. But we turn first to the idea that law is authorised by the sovereign people or constituent power.

The Social Contract and the International Anarchy

Admitting that the juridical claim to authority derived from other sources, Bakunin ventured that the ‘majority of jurists’ had been inspired by the notion of an original contract or agreement.Footnote ¹⁰⁷ He traced the error to a faulty conception of social practice. His generic account of Hobbes and Rousseau disputed the depiction of the state of nature as asocial and amoral. The thrust of his critique was that contract theory wrongly deemed individuals to be incapable of sustaining or enduring meaningful social relationships in the absence of authority. Bakunin was not attentive to the details. The gist of the argument was that individuals were portrayed as mutually suspicious and uncooperative. Nodding also to Locke, he contended that ‘explicit or tacit’ agreements were made simply to avoid mutual destruction.Footnote ¹⁰⁸

Bakunin’s assessment dovetailed with Proudhon’s earlier analysis. This had focused on the idea of reason. Turning to Leviathan, Proudhon challenged Hobbes’s efforts to show that the same ‘right reason’ that had led individuals to ‘rob and murder’ in nature could be tapped to create a moral order in the state. Hobbes’s ‘genius’ was to have grounded ‘right’ in ‘non-right’ or the arbitrary.Footnote ¹⁰⁹ Rousseau’s contribution, which Proudhon judged even less generously, was to root reason in the collective body of ‘the people’. In the Social Contract, Rousseau aimed to find a ‘form of association’ that would enable individuals to live in society without compromising their liberty. The result, Proudhon argued, was a form of community that forced obedience through membership and sacrificed independence and individuality. Rousseau’s contract created ‘the people’, an ‘abstract personality, a moral individuality’ that was ‘incapable of thinking, acting or moving by itself’, and therefore needed a ‘Legislator’ to represent it.Footnote ¹¹⁰ Lamenting Rousseau’s profound influence, Proudhon argued that his singular achievement was to have modernised the concept of divine right. Realising that his idea of authority had been created ‘from on high’, he made it appear to ‘come from below’.Footnote ¹¹¹

Using contract as a foil, Bakunin and Proudhon retheorised the nature of the human predicament. Their argument centred on an account of social interaction and the evolution of government. Proudhon described individuals by ‘nature and instinct’ as ‘predestined to society’ and simultaneously ‘averse to it’. Like most non-human animals, humans were social creatures, but they were also fiercely protective of their independence.Footnote ¹¹² Bakunin’s typically pithy rendering of this view was that humans were not only the ‘most individual’ beings on earth but also the ‘most social’.Footnote ¹¹³ Contract theory glossed this complexity: it universalised the experience of individuality and reason, squeezed ‘society’ out of existence and by using a concept of ‘nature’ ironically directed attention away from actual sociability. As Bakunin put it: ‘contract becomes the foundation of society, or rather of the state; for it should be noted that in this theory there is no place for society, only the state, or rather society is completely absorbed by the state’.Footnote ¹¹⁴ Yet the pluralism of society, the tension between sociability and individuality, dependence and independence, explained why individuals were prone to government and why they generally obeyed rules while also subjecting them to moral scrutiny and the dictates of reason or conscience.

The critique of contract extended to international relations. Restating Proudhon’s holistic view, Bakunin argued that the state ‘was only a part’ that imposed itself ‘as the whole’. It ignored or violated ‘the right of everything’ that lay outside it. Moreover, the founding of the state did not resolve the problem of difference, contestation or justice. Rather, conquest became its political mission or supreme goal. Large or small, ‘powerful or weak, despotic or liberal, monarchical, aristocratic, democratic, and even socialist’, the state was necessarily a colonising force.Footnote ¹¹⁵ Since a universal empire is anathema to the plurality of peoples, and the freedom of states vis-à-vis one another is a function of their sovereignty, brutishness becomes the prerogative of states and a source of permanent global instability.

The Fiction of a Constituent Power

Contract theory grounded government in consent but highlighted the abstract nature of the individual and sovereignty, and the intractable problem confronting constitutionalism, namely, how to reroute the law’s authorisation from the absolutist sovereign to the sovereign people. Rousseau’s answer was constituent power, but it was not one that Proudhon accepted. In his critique of Rousseau, Proudhon argued that the ‘sovereign’ or ‘the People’ is ‘a fictitious being, an ideal person, a mere conception of the mind’. Philosophically, this concept of ‘the people’ was homogenising and it wrongly subsumed actual individuals into a collective ‘mass’.Footnote ¹¹⁷

Anarchists pushed this critique in different directions. Proudhon argued that Rousseau had stripped the people of power almost as soon as he had declared it sovereign, a move that enabled any clique capable of speaking in its name. The Proudhonist and one-time partner of the news agent Julius Reuter, Sigmund Engländer, concentrated on the mechanics: the appointment of a constituent assemblies to determine the citizens’ rights and duties. Taking the French Convention as his model, he described the designers as ‘Frankensteins’, mechanics who dreamed of creating new life from the dregs of the old. In France:

This primary division empowered the people’s representatives to use the full force of the law to protect their authority. In 1871, Élie Reclus, then the Paris Commune’s director of the Bibliothèque Nationale, observed that Adolphe Thiers, the head of the Versailles government, had invoked the symbolic unity of the people against the actual people of Paris, to criminalise the government of the Commune. Presenting itself as sovereign, Thiers’ government asserted itself as ‘the Law, Right, Justice’ and judged the Commune as ‘crime’. Reclus concluded that Thiers was no different from Charles X, the advocate of absolute monarchy in the July days of 1830, Louis Cavaignac, the scourge of the 1848 revolution, or Napoleon III.Footnote ¹¹⁹

In America, Lysander Spooner argued similarly, this time focusing on the economic interests that elites protected in the people’s name. Not only was it the case that those who claimed to be ‘the authorized agents, for the time being, or for certain short periods, of all “the people of the United States”’ could produce ‘no credentials, or powers of attorney, or any other open, authentic evidence that they are so’, but also that they were ‘notoriously […] not so’. They were ‘the agents of a secret band of robbers and murderers, whom they themselves do not know, and have no means of knowing, individually; but who, they trust, will openly or secretly, when the crisis comes, sustain them in all their usurpations and crimes’. Just as the Communards had been mown down by those who invoked their name, the ‘agents of all “the people of the United States,”’ would ‘fly at once to the lenders of blood money’ as soon as their ‘exactions meet with any formidable resistance from any portion of “the people” themselves’.Footnote ¹²⁰

Anarchists habitually used the term ‘Caesarism’ to highlight the ease with which authorities pacified dissent by invoking the unity of the people. After Napoleon III’s coup, Joseph Déjacque, a participant in the 1848 revolution, journalist and poet, argued that the Emperor had not broken the law when he usurped the ‘sovereignty of the people’. Rather, he had taken advantage of the concept of the peoples’ will and invoked abstract unity to crush opposition.Footnote ¹²¹

Tolstoy bemoaned as delusional the efforts ‘learned jurists’ made to convince themselves and persuade others that constitutional government was ‘representative of the aggregate of citizens’ and therefore ‘bound by considerations of justice’.Footnote ¹²² Recognising that government and the state were ‘two ideas of a different kind’ and that it was a mistake to confuse the overthrow of ‘government’ with the abolition of the State’,Footnote ¹²³ Kropotkin similarly characterised government as a ‘power placed above society’. Neither the social composition of representative institutions nor the size of the electorate could mitigate its social detachment. Even a government of ‘social revolutionaries’, Kropotkin argued, ‘will retain all the faults of representative assemblies’.Footnote ¹²⁴

The democratisation of government did nothing to assuage anarchist fears about popular sovereignty.Footnote ¹²⁵ Indeed, anarchists argued that the constitutional mechanisms for checking power were undermined rather than enhanced by democratisation. Asking himself whether ‘the democratic State, based upon the free suffrage of all its citizens’ could curtail individual freedom, Bakunin concluded that the answer ‘would depend entirely on the mission and the power that the citizens surrendered to the State’: he continued, ‘A republican State, based upon universal suffrage, could be very despotic, more despotic even than the monarchical State, if, under the pretext of representing everybody’s will, it were to bring down the weight of its collective power upon the will and the free movement of each of its members.’Footnote ¹²⁶ Tolstoy voiced similar concerns. In his view, democrats used different algorithms to determine policy, but democracy is otherwise comparable to monarchy and oligarchy.

Anarchists admitted that groups and individuals were not completely institutionalised through their construction as ‘the people’. But they argued that the space for agency was vanishingly small, and always liable to closure. Tolstoy argued that government produced ‘lethargy’ or slavishness on the part of those who willingly participated in ‘governmental violence’ to gain the upper hand in the social war established by property.Footnote ¹²⁸ Gustav Landauer, by contrast, used Étienne la Boétie’s concept of ‘voluntary servitude’ to dissect the toxic psychologies of power that locked citizens into submission.Footnote ¹²⁹

Where did this critique point? Using the republican critique of domination to uncover the entrenchment of domination in the state, anarchists removed constitutional politics from its normative mooring in the sovereign state. Unlocking the values of the constitutional project, they argued, required the retirement of this sovereign people and the instatement of individual sovereignty.

Sovereign Individuals

With the late twentieth-century ‘democratic turn’ of anarchist theory, the language of individual sovereignty has all but disappeared. Communalism is now anarchism’s primary theoretical cue. Rejecting marketized constructions of individual liberty, post-war anarchists have variously argued that individual sovereignty evokes stylised rebelliousness,Footnote ¹³⁹ a philosophically wrongheaded aspiration for independence or a form of ‘undifferentiated subjectivism’ that presents discovery ‘exclusively’ in terms of self.Footnote ¹⁴⁰ For Bookchin, ‘individual sovereignty’ was suspiciously malleable to ‘bourgeois’ and liberal doctrines.Footnote ¹⁴¹ For Graeber, the concept did not compute: ‘sovereignty’ referred to the ‘uniform grid of heavily policed barriers’ which neoliberal globalisation perversely reinforced.Footnote ¹⁴²

At the turn of the twentieth century, the concept was still part of the common currency. Kropotkin put individual sovereignty front and centre of his Encyclopaedia Britannica entry for ‘anarchism’.Footnote ¹⁴³ Similarly, Emma Goldman described anarchism as ‘the philosophy of the sovereignty of the individual’.Footnote ¹⁴⁴ In her 1909 ‘New Declaration of Independence’, she argued:

She closed with this proposal:

Proudhon and Warren had both had a hand in shaping the anarchist idea that Goldman defended. In The General Idea of the Revolution (1851) and True Civilization (1869), respectively, each defended individual sovereignty and voluntary contract to contest the legitimacy of constitutional government and expose the coercion that anchored the duty to obey. For both, the individual was the motor of all human processes, the source of all moral dignity. Any constitutional politics that failed to recognise that the individual’s dignity depended on the near-infinitely plural free associations they pursue, and communities they build to realise their own ideals, was not worth its name.Footnote ¹⁴⁶ Rousseau was Proudhon’s foil: ‘No one would obey a law to which he as not consented’. As Engländer put the point: ‘Must I, a single individual, by the foolish abstraction of popular sovereignty be content with things which I regard false?’Footnote ¹⁴⁷ In Montpellier, one of Proudhon’s many horrified opponents condemned his defence of ‘individual sovereignty’ as an attack on revolutionary principles: popular or national sovereignty, individual freedom and individual property. The idea of individual sovereignty, they argued, spelt lawless savagery.Footnote ¹⁴⁸

Proudhon replied in kind, rejecting the imposition of republican law as autocratic: ‘The law of the majority is not my law; it is the law of force; hence the government based upon it is not my government; it is government by force’.Footnote ¹⁴⁹ This was neither a plea for a legal guarantee of individuality, nor what Pettit calls a defence of ‘individual atomism’.Footnote ¹⁵⁰ Rather, it supported an idea of plural association, the precondition of individuality, the promotion of interdependence and freedom as non-domination, sustained by social equality and the permanent right of secession.

Warren introduced a principle of interpretation to distinguish coercive constitutional practice from voluntarist constitutional principle. Avoiding Proudhon’s verbal gymnastics, he argued that formal ‘exacting, aggressive institutions or constitutions’ lent themselves to both forms of association. The ‘pivot’ on which their legitimacy turned was ‘the person who decides as to their meaning’. Coercive constitutionalists wrongly promoted the precept ‘one decides for all’: the reality in the United States. Against it, Warren advocated the ‘freedom to differ’, recognising that ‘every individual does unavoidably measure’ the constitution ‘and all other words by his own peculiar understanding or conceits’ and that the embrace of this reality neutralised ‘the war element in verbal controversies, and the binding power of all indefinite words’.Footnote ¹⁵¹ The genuine constitution, he argued, gave voice to individuals and was directed towards the recovery of explicit consent, free contract and individual sovereignty.

In the 1860s, Proudhonist principles percolated through the membership of the IWMA. Addressing ‘the internationalists’ in 1864, the year of the IWMA’s founding, Malatesta distinguished the ‘inalienable’ sovereignty ‘vested in every individual’ from the sovereignty ‘credited […] to anointment by God or to a majority among the people’ and ‘their chosen representatives’. The first relied on the ‘harmony of interests’ or ‘freely arranged compacts’ and the second on ‘force and property’.Footnote ¹⁵² When the International collapsed in 1871, catalysing the emergence of the antiauthoritarian current in international socialism, these principles formed the bedrock for anarchism.

Bakunin, Marx’s adversary in the International, had declared himself a Proudhonist ‘anticonstitutionalist’ as early as 1848. As a devotee of Proudhon’s ‘negative’ programme, he elided ‘constitution’ with ‘state’ and characterised the latter as the deification of the ‘right of force’ for the ‘organized political exploitation of the majority’ by a minority.Footnote ¹⁵³ Leading the charge against Marx twenty years later, he accused the ‘statists’ in the International of trying to force the membership to adopt a repressive constitution. The choice facing internationalists, Bakunin argued, was ‘liberty with division and dissolution’ or ‘political unity with slavery’.Footnote ¹⁵⁴

The classification quickly became a filter to sort antiauthoritarian ‘federalists’ from authoritarian ‘centralisers’, a tendency we explore in depth in Chapter 4. Those who fell into the anarchist camp advocated federalism because they were proponents of individual sovereignty against ‘government’. In a pithy restatement of the anarchist position, Malatesta argued that government ‘signifies delegation of power’ or the ‘abdication of the initiative and sovereignty of every one into the hands of the few’.Footnote ¹⁵⁵

In the United States, anarchist abolitionists advanced parallel critiques of elite domination, often centring on slavery.Footnote ¹⁵⁶ Following the contours of Warren’s thought, Lysander Spooner heightened its transformative force. As Shone argues, Spooner defended a ‘natural right of sovereignty’ and defined this as the ‘liberty of individuals to run their own lives and control their own property, subject only to the restriction they respect the natural sovereignty of others’.Footnote ¹⁵⁷ His doctrine, Mack argues, was Lockean, except he threw out Locke’s view that government derived legitimacy from consent.Footnote ¹⁵⁸ As he put it: ‘Any number of scoundrels, having money enough to start with, can establish themselves as a “government” because, with money, they can hire soldiers, and with soldiers extort more money; and also compel general obedience to their will’ (1870, 16). In the Unconstitutionality of Slavery (1846), he called the constitution as a witness against the criminality of state legislation by stressing the infringements of ‘constitutional law’ on ‘natural law, and men’s natural rights’.Footnote ¹⁵⁹ His assessment of the law’s trouncing of the constitution amounted to a reassertion of the revolutionary demand for independence.Footnote ¹⁶⁰ Impressed by Spooner’s argument, Frederick Douglass broke with William Lloyd Garrison, his former mentor, to defend the constitution and exhort abolitionists to enforce its basic precepts.Footnote ¹⁶¹ Douglass closed his celebrated address, ‘What, to the Slave, is the fourth of July’, with a call to arms: ‘I hold that every American citizen has the right to form an opinion of the constitution, and to propagate that opinion, and to use all honorable means to make his opinion the prevailing one’.Footnote ¹⁶²

Douglass’s restatement of Spooner’s concept of individual sovereignty not only justified the use of force against the white slavers’ institutionalisation of domination but also suggested a permanent tension between established and continuous practice. It was the exercise of individual sovereignty that checked the drift towards statism. As citizens increasingly fell prey to the latter, anarchists turned their attention to the inequitable practices constitutionalism sustained.

The Social Constitution

Rejecting the idea that the political sphere was defined by the relationship between society and government, the ‘crucial distinction’ in classical constitutional thought,Footnote ¹⁶³ anarchists used individual sovereignty to empower the permanent contestation of rules and norms to enable the free evolution of justice. In other words, anarchists advocated individual sovereignty because they believed it could do the work that the constituent power was ill equipped to do: apportion and balance power without recourse to a sovereign authority that subsumed or sublimated political difference. It represented a move from monism to pluralism, government to self-government, statism to community.

Anarchists conceptualised the social and political constitution in different ways. Proudhon linked the social constitution to the assertion of economic rights over political rights, defended social pluralism and, laying the groundwork for Bakunin’s critique of despotic republicanism, also free association.Footnote ¹⁶⁴ In his view, society was composed of myriad ‘social groups’ all expressing their intentionality as a function of two conceptions of social power: pouvoir, understood as a material force, and puissance understood as coordinated, epistemic potentiality.Footnote ¹⁶⁵ Politics was a function of this latter coordinated group authority, not the simple decree of a sovereign ‘I’. The degree of injustice was proportional to the degree of sovereignty the individual had to give up involuntarily for membership of the community.

Kropotkin incorporated Proudhon’s conception of power in the theory of mutual aid. Proudhon, he argued, had rightly distinguished material conditions or ‘culture’ from ‘civilisation’, or what Kropotkin called ‘the intellectual and spiritual organisation of society’. On this view, the difference between the social and political constitution lay in the responsiveness to the ‘discrepancy’ between ‘actual life’ and its ‘idealization’. Linking the social constitution to self-governing and self-administering entities which accepted and adjusted to it, he described the political constitution as an arrangement that soldiered on regardless, attempting to contain the ‘unbearable contradiction’.Footnote ¹⁶⁶

In Mutual Aid (1902), Kropotkin devised three ideal types, ‘primitive society’, ‘village community’ and ‘city state’, to illustrate the evolution of the social principle.Footnote ¹⁶⁷ Consciously decoupling ‘civilisation’ from liberalism, he tracked the extension of mutual aid from intimate to public settings. Examining mutual aid in consanguineous families, neighbourhood communities and urban agglomerations, he observed that ‘progress of civilisation’ comes when individuals ‘united in societies’ are ‘ready to receive it’. It did not come ‘from bullets’.Footnote ¹⁶⁸

The writer and philosopher Gustav Landauer deployed concepts of the social and the political to describe opposing constellations of ideas: voluntarism, diversity, communality on the one hand and allegiance, homogeneity, and institutionalism on the other.Footnote ¹⁶⁹ The first was a condition of sociability which united people as ‘brothers without domination: an-archy’.Footnote ¹⁷⁰ He called its organisational principle ‘ordered multiplicity’,Footnote ¹⁷¹ composed of multiple autonomous ‘social institutions’ creating ‘a union of many sovereign elements’. The second was its antithesis, the ‘principle of centralism and state power’.Footnote ¹⁷²

Martin Buber, Landauer’s friend and admirer, presented the most sophisticated theoretical model of the social constitution. In Buber’s work, the social and political are discreet lenses to examine and theorise order, ‘crystallisations’ of the state and society,Footnote ¹⁷³ sociological forms that refer to the ‘nature and ‘apportionment of power’.Footnote ¹⁷⁴ Buber defined the state as the institution designed to control ‘all the activities of its citizens’ and harmonised ‘all wills’ with ‘a single supreme will’.Footnote ¹⁷⁵ Society was a shorthand to describe ‘families, societies, groups, circles, unions, co-operative bodies, and communities varying very widely in type, form, scope, and dynamics’ that existed within the state’s boundaries.Footnote ¹⁷⁶ Outlining a history of western thought, he argued that the political principle now prevailed in both spheres, effectively subsuming society in the state. Changing the scope of the state’s regulatory powers without addressing the nature and apportionment of power – ‘rolling back the state’ – was not, then, a ‘social’ move. Nor was the institution of welfarism, or warfarism, to use Ward’s term for the post-war constitutional settlement. The social constitution, Buber argued, entailed the reassertion of the social principle, diminishing the hold of the political over society and promoting federalist change.

Buber acknowledged the challenges presented by the social constitution. Social relations, he argued, were inherently conflictual, and their resolution always tended to favour the political principle. There was no pure sphere of the social, just as there was no pure sphere of the political. Even if the balance between the social and political was weighted in favour of the social, power could always be apportioned in dominating and authoritarian ways.Footnote ¹⁷⁷ The ever-present danger was the assertion of the political constitution over the social.

Justice

Anarchists conceptualised justice as the outcome of the struggle for power in and through association, and against other associations. They rejected both natural law conceptions that grounded justice in first principles and legal positivist accounts which conflated it with state sovereignty. For the anarchists, justice emerged from (or was immanent in) the confluence of individual conscience and social context over time. This process was conceptualised differently, but the general principle was that society was a historical manifestation of justice (the positive ‘is’, in Kelsen’s framing), while change and critique was driven by the rational, emotive, conscientious or cultural ideal (Kelsen’s ‘ought’). Anarchists were not insensitive to the historical transformation of these norms or the material structures that blocked change. Quite the opposite. It was precisely these structures of power and (in)justice that they held up against the ideal of anarchy.

In Proudhon’s terms, justice is immanent in the mutual exercise of force. Force could be anything ranging from the force of inertia to interstate war. In other words, just as the exercise of force is ubiquitous, so are claims to justice and right. Justice, Proudhon argued:

Proudhon emphasised the interplay between ‘religious morality and rational morality’, ‘God-given rights and human rights’Footnote ¹⁷⁹: secularisation made justice real, empirical, and social. Tolstoy recast the relationship as a tendency towards dogmatism in all forms of ‘religion’ or outlook. Dogmatism, encapsulated in the doctrine of infallibility, sovereignty and the law, gave rise to ‘definite’ and ‘obligatory laws’, no longer open to dispute and the instruments of oppression. Only in the divine, he argued, could religion reveal the transhistorical ‘sign-posts on the infinite road to perfection towards which mankind is moving’.Footnote ¹⁸⁰ In Kropotkin’s theory of mutual aid, justice is entrenched in social norms and habits and revised through transgression.Footnote ¹⁸¹ Transgression, rooted in compassion, forces collective reflection on existing codes and practices and challenges injustice to promote change. Intervening in debates about Indian independence, Acharya distinguished ‘organic’ social practice from authoritative sovereign rule to describe conventional constitutionalism as ‘the beginning of conservatism’ and a dam ‘against life and movement’.Footnote ¹⁸²

Voltairine de Cleyre found the common thread running through these ideas: ‘Justice is progressive!’ To think otherwise was to fall foul of ‘metaphysical’ dreaming or the ‘exploded theory that “rights” are positive, unalterable, indefinite somethings passed down from one generation to another […] and come into existence in some mysterious manner at the exact moment that humanity emerges from apedom’.Footnote ¹⁸³ Justice was a product of individual conscience evolved in and with societies, as well as in opposition to them. The scope for individual judgment, sovereignty, experimentation and error is the lynchpin of this dynamic relationship. As we argue in Chapter 3, anarchy was its ontological foundation and primary motor.