In 1903, writing under the pseudonym D. I. Sturber, a little-known California attorney, H. A. Krouse published The Anarchist Constitution.Footnote ¹ The book opens with a story about John Doe, the archetypal everyman who insists on wearing the trousers inherited from three or four generations of Does. They are grubby, threadbare and unseemly. Still, John Doe refuses to throw them out. His reverence for his shabby attire is a metaphor for his unthinking acceptance of his constitutional inheritance, also hundreds of years old. The difference, Krouse notes, is that whereas John Doe has the option of patching up his forefathers’ garb, he cannot meaningfully revise the terms of the agreement that his great, great grandfather’s generation made with their rulers. Indeed, he does not even contemplate his consent. He thinks it’s simply absurd to tailor the constitution to fit his body politic.

Krouse’s emotional appeal to John Doe is to think again. Breaking with convention, he traced the roots of ‘an-archy’ to the Greek for without ‘archive’, as opposed to the conventional without ‘rule’,Footnote ² and implored Does everywhere to set aside the records of the past, abandon law and rewrite the constitution. His an-archist message was: ‘It is not the existence of living beings which constitute society, but their relation to one another’.Footnote ³ Those relations change, can be changed and will change, and our constitutional garb ought to follow suit. The question is, how?

Krouse’s pseudonym, ‘disturber’, aptly captured the anarchic spirit of his theoretical norms. But it was a poor descriptor for his policy proposals, which were decidedly less radical. Acknowledging that anarchists were opposed to ‘“fixed precepts”’ and were ‘certainly opposed’ to laws that protected the interests of corporate elites,Footnote ⁴ he argued that they should ‘advance social conditions with as little disturbance of society as possible’.Footnote ⁵ The preamble guaranteed ‘to all an opportunity to labor, and enjoy the fruits of their labor, so that all may have an equal opportunity to provide for the material welfare of themselves and those dependent upon them’.Footnote ⁶ Its first section ‘repealed and nullified’ all existing law. Its second vested the ‘regulation of the United States’ in a ‘President and Congress’ made up of two houses. Its provisions applied to states that were part of the union before 1898, and the right of secession was made conditional on the ‘consent of a majority of other states’.Footnote ⁷

In the end, Krouse tinkers. Harvard economist Thomas Nixon Carver categorised Krouse’s work as ‘emotional anarchism’, a ‘mere explosive protest against all forms of authority, particularly against police power and other visible manifestations of authority’.Footnote ⁸ Yet, his proposed ‘New Social Compact’ mixed abandonment with caution, offering a prudent anarchism in the shadow of the assassination of William McKinley by Leon Czolgosz less than two years earlier. The Anarchist Constitution is contained in a statist frame. He made no attempt to consider the other possible styles that Doe and his fathers could have fashioned, nor outline the alternatives that the Janes in the family might have designed, had they been asked.

This book takes up D. I. Sturber’s challenge by presenting the first comprehensive retelling of the theory and practice of anarchist constitutionalising. Our argument is that the neglected history of the anarchist constitutional tradition provides a powerful critique of mainstream constitutionalism and sheds new light on anarchist organising.Footnote ⁹ We show that this constitutional tradition emerges, deliberately and instinctively, from a concept of anarchy, which we conceptualise as a self-regulating process of association without a fixed or final point of authority. Our anarchist constitution, one drawn from the theory and practice of the last 150 years, uniquely uses anarchy as a valuable norm to challenge arbitrary power and combat the inevitable hierarchies that arise in all social groups. This appeal to anarchy generates practices and forms of political community where ‘the centre is everywhere, the circumference nowhere’,Footnote ¹⁰ grounds collective security in resistance as mutual aid, conscious and voluntary pacts or treaties and provides order and stability through decentralised federation.

Why constitutionalise anarchy? There are two related reasons. The first is to fill the void that anti-constitutionalism has created in anarchism and thereby bring anarchism back into dialogue with contemporary debates in history, politics, International Relations and critical legal studies. The second is to show how anarchism speaks to pressing problems of social injustice, domination and the degradation of democracy, issues that global constitutionalists and others trace to the neoliberalisation of post-war constitutionalism: the hollowing out of the state, the offshoring of political power to multilateral institutions, the consolidation of the power of capital and the slide towards autocracy.

The anarchist constitutional tradition provides a novel analytical frame and a complementary set of normative values to address these contemporary challenges, while its history elicits some sobering lessons about the path less travelled and the hubris of twentieth-century statism. In particular, rethinking anarchy as an empirical claim about the nature of politics collapses the distinction between the domestic and the international, challenging the dichotomous Hobbesian-inflected concepts of anarchy that shape conventional political theory and International Relations theory.Footnote ¹¹ Re-positioning anarchy as a rich normative concept transcends the phantom of the ‘pre-statist’ or international ‘state of nature’, and the stark choices between order or chaos, the prospect of an international anarchy of steroidal nation states or a new world state. Normatively, anarchist constitutionalising focuses attention on the creation of relationships forged ‘from the bottom up’, an everyday constitutional politics that can be practiced not just in the home, the workplace and on the streets but also in the virtual and physical spaces that connect people transnationally.

Debates on the virtues of constitutionalism revolve around the historical and contemporary merits and virtues of the nation state. Those who defend the expansion of human rights, democracy and the rule of law worldwide, on broadly liberal and republican terms crafted in Europe and North America, face the charge that they undermine the very institutions needed to enact and protect the achievements of liberal republicanism domestically: the state. Global constitutionalism disempowers the people. But those who defend the state against global constitutionalism are themselves charged with entrenching modes of domination that global constitutionalism was designed to counter, from human rights abuses and autocracy to patriarchy and white supremacy. Attempts to decolonise the constitution, to recognise its historic link to murderous dominium and imperium, flounder as soon as the debate turns to an alternative because the bottom-up (as opposed to the elite supranational) non-state remedy has long been closed off by statists. And all the while processes of ‘globalisation and fragmentation’ accelerate, with societies subdividing and interlinking in ever more complex ways.Footnote ¹²

Constitutionalism, and constitutional political theory more broadly, we contend, has a poor track record in resisting ethno-nationalist pressures arising from the social contradictions of late modern capitalism, let alone the incremental and inevitable division of labour and society. It is equally difficult to see what tools this entrenched tradition has available to address the democratic deficit at the heart of modern politics or how a cosmopolitan global politics can be crafted using normative underpinnings that are unable to bear the weight of constitutionalism’s political ambition.Footnote ¹³ Both the fetishisation and romanticisation of the local over the global, and vice versa, are framed through the normative and analytical prism of the state. In rejecting the normative and analytical centrality of the state and state sovereignty, we encourage a reassessment of the problem of order and justice through the lens of anarchy.

In bridging the gap between constitutional theory and anarchism, and correcting the erasure of constitutionalism from anarchism, we hope to highlight the contribution anarchism makes to the urgent task of reconstituting a post-statist and anti-capitalist world order. Anarchism lays bare the statist bias in constitutional political theory. It contains a conceptual repertoire that is useful to post-colonial, liberal and socialist critics of domination and arbitrary power. It offers a fresh way of approaching the problem of conceptualising ‘constituent power beyond the state’.Footnote ¹⁴ Contributing to debates in political theory, International Relations theory and law, anarchism repositions anarchy as the ontological, political, analytical and historical a priori for politics as such.Footnote ¹⁵ Finally, we hope this study will prompt a reset in the ways anarchists think about the question of constitutions, institutions and politics more generally and help make anarchism accessible to audiences that continue to equate it with the ‘height of disorder’. As Krouse notes, anarchism disrupts. But it also invites us to break with a tradition of constitutionalism that is damaging to our well-being. It tells us that we do not need to be cynically fatalistic about the prospects of political transformation or the possibility of replacing the statist frame with something else. The alternatives are legion, and our own current predicament demands that we look beyond convention, or the standard archive.Footnote ¹⁶

Design and Structure

The book is a single case study of anarchist constitutionalising, in theory and practice, from the mid nineteenth century to the present.Footnote ¹⁷ Integrating archival, textual and philosophical analysis with co-produced empirical survey data, and reports co-authored with our project partners, we adopt the term constitutionalising to focus on a set of practices and to distinguish the anarchist constitution from conventional constitutionalism, understood as a set of broadly ideological commitments, in order to rethink contemporary constitutional, political and international theory.Footnote ¹⁸

The study has two main elements. These correspond to the book’s two halves. The first outlines the conceptual origins of the anarchist constitution by showing how an anticonstitutional critique also elicited a positive, antiauthoritarian constitutional theory which pushed the critique of arbitrary authority to its logical limit: self-government ‘without gods or masters’. From there, we move to examine concrete constitutional practices developed from the end of the nineteenth and beginning of the twentieth centuries, reflecting critically on variations in anarchist constitutionalising over time. We discuss the constitutional reform process undertaken by the Industrial Workers of the World (IWW), an experiment in real democracy trialled at the Oakland camp of the Occupy Wall Street movement, and the constitutional review initiated by Radical Routes (RR), a UK-based federation of anarchist housing and worker co-operatives.Footnote ¹⁹

Establishing an anarchist foothold in constitutional politics and creating a language of constitutionalism consistent with a body of work that avoids the term raises some tricky methodological problems. With barely a mythologised doctrine to grasp, we avoid what Quentin Skinner describes as speculative extrapolationFootnote ²⁰ by showing how anarchists addressed issues that contemporary theorists describe as constitutional, while following, as far as possible, the logic and structure of nineteenth-century anarchist thought, and tracing its echoes in the under-theorised practices of contemporary anarchist organisations. We present this as a tradition by plotting the conceptual and historical connections between individuals, and individuals and movements.Footnote ²¹ Following Bruce Frohnen, we treat traditions as intellectual and practical ‘habits’ which frame and shape the behaviours and practices of social groups.Footnote ²² We do not claim that the theory or practice is uniform, and we acknowledge the significant disparities in anarchism across time and place, in other words, anarchism’s anarchic constitution. It is this historicism that gives us our critical purchase.

Chapter Outline

The study unfolds over seven chapters. Chapter 1 establishes the limits of the current literature that bears on the relationship between anarchy, anarchism and the constitution, drawing attention to the anarchistic leanings of a mass of constitutional and related theory, and the constitutionalising inclinations of modern anarchism. Anarchism is routinely excluded from debates about constitutionalism because the perceived threat of ‘anarchy’ haunts mainstream Anglo-American political and legal thought. Anarchy is the opposite of ‘a well-constituted commonwealth’, in which, both Hobbes and Rousseau argued, there could be no division.Footnote ²³ While a whole body of critical scholarship pushes against this view, anarchy remains a conceptual block to scholarly reimagining. At the same time, constitutionalism is sidelined in modern anarchism because of its association with domination and exploitation in the anarchist critique. As a consequence, late twentieth-century anarchism strips the constitutional mechanisms anarchists proposed to curb arbitrary rule from the organisational arrangements they devised to reverse statist trends towards centralisation. Contemporary anarchists constitutionalise with one arm tied behind their backs. In the final part of the chapter, we discuss what anarchist constitutionalising involves, and how it differs from other approaches to ‘global constitutionalism’. We argue that anarchism has the potential to liberate global constitutionalism from its statist and capitalist intellectual wardens. The distinctive positive feature of the anarchist constitution, we argue, is the defence of individual sovereignty and the identification of anarchy (as opposed to sovereignty) as the foundational constitutional principle, or grundnorm, of the global order.Footnote ²⁴

Chapter 2 explores the anarchist critique of state sovereignty and law to establish the core principles of the anarchist constitution. The nineteenth-century anarchists’ dramatic departure from convention was to reject constitutionalism as a rehashed form of absolutism. Their anticonstitutional critique, echoed in much of the contemporary debate, detached constitutionalism from its moorings in social contract theory, framed law as an instrument of domination and the aggregation of individuals into mass publics, or constituent power, as a newfangled mechanism for arbitrary rule. Rejecting this static form, anarchists framed the constitution as a permanent negotiation of power between groups and individuals organised in fluid social and political institutions. The tension between social and political forces pointed to a contingent social ontology and placed conflict and difference at the heart of modern politics.

Chapter 3 takes up the challenge of conflict by theorising anarchy as order. Following Proudhon, we present a cosmological idea of nature as anarchic and theorise anarchy as a species of order. Anarchy is a species of order which has no transcendent centre of gravity, no transcendent form or finality. For anarchists, it is infinite, entropic and dynamic, like nature itself. This does not mean that anarchy is jumbled or unknowable. On the contrary, we argue that science was the tool anarchists used to uncover the ‘social forces’, or what Rudolf Rocker called ‘cultures’ that permit or disallow variety and change, and that (temporarily) structure the world around us. The point the anarchists make is that attempts to transcend anarchy, to fix things once and for all, are by definition arbitrary, demand impossible amounts of force and close down the possibility of both politics and change.

Chapter 4 examines the macro normative argument for anarchist constitutionalising in anarchy, by examining the relationship between war and politics and the architecture of the anarchist constitution: decentralised federalism. In conventional thought, the assertion of sovereignty and its defence through positivist legal theory and the monopoly of state violence provides the cure for anarchy. Law begins where force ends. But this account of politics enabled and justified the involuntary absorption and pacification of peoples into ever-widening states and the submission of others into the orbit of imperial and colonial power by force. While the international ramifications of state power in colonial and post-colonial politics have become a central part of the study of law and global constitutionalism, much less attention has been paid to the relation of both to war itself. As Jean Cohen argues,Footnote ²⁵ any attempt to theorise global constitutionalism that neglects to take war and the ethics of war into account is doomed to failure. This chapter shows that a nuanced and historically sensitive account of war, state sovereignty and the federalist alternative has been part of the anarchist tradition from the outset, and examines the strategies anarchists have adopted to reduce, channel or pacify aggression by constitutionalising anarchy.

Chapters 5, 6 and 7 trace the slow evolution and forgetting of that theory over one hundred years of anarchist constitutional practice. We do this through a close engagement with the ideological make-up, constitutions and contemporary organisation of three iconic grassroots movements: the Industrial Workers of the World (IWW), Occupy Oakland (OO) and RR. This history plots the decay of the conscious anarchist constitutional tradition and re-theorisation of anarchism as a movement for radical democracy. Like Uri Gordon, we are sceptical of the promise of radical democracy as a primary means of confronting power.Footnote ²⁶ Our hypothesis is that democracy is a poor constitutional instrument if it is not underpinned by a normative commitment to anarchy or considered alongside fuller constitutional mechanisms for challenging, dividing and balancing power that we discuss throughout.

Chapter 5 provides a historical contextualisation and study of the constitutional review conducted by the Wales, Ireland, Scotland and England Regional Administration of the IWW (hereafter WISE-RA) between 2015 and 2019, to which we contributed our social science research methods and a final co-authored report.Footnote ²⁷ We historicise the present through an account of the founding of the US IWW between 1905 and 1918. We identify the long shadow that the history of the founding constitutional documents, in particular the preamble to the IWW’s constitution and its commitment to abolishing the capitalist wage system, casts on the modern movement and the normative constraints the preamble placed on contemporary attempts to reconstitute the union. Our co-produced research highlighted how the focus on class and workerism, and the promise of ‘democracy’ as the primary mode of participation in the union, elides the other intersecting ‘regimes of domination’ that plague societies and other ways of reconstituting that hampered the IWW’s appeal to its broadly anarchist base. We advocate for a more formal anarchising of the mission and constitution of the IWW, which, at the very least, would build further ties with global, more explicitly anarchist, anarcho-syndicalist confederations and make it the broad-based, intersectional ‘one big union’ it was always intended to be.

Chapter 6 examines the concept of ‘real democracy’ to expose weaknesses in the constitutional politics of OO, the Occupy camp set up in 2011 in Oakland, California. Situating the camp in the wider Occupy Wall Street movement, in the global politics of the post-2008 financial crisis, and the ensuing politics of austerity, we use the minutes, resolutions and agendas of the OO General Assembly to show how global capitalism, its colonial, racialised and expropriative form, played out locally, and how it was resisted on the streets.Footnote ²⁸ Our focus is the attempt to ‘decolonize Oakland’. Setting the tensions between OO, the city’s workers and residents, the police and City Hall, in a longer history of racism and colonial dispossession in the Bay Area, we argue that the effort to establish ‘real democracy’, as opposed to an anarchist constitution, symbolised in the commitment to consensus decision-making, imposed uniformity on diversity, hampering the participants’ attempt to resolve conflicts over the camp’s rules and norms.Footnote ²⁹ The tensions between camp members who associated anarchy with violence and those who saw the attempt to impose tactical uniformity as a colonising move fuelled a struggle for democratic control, breeding distrust and eventually breakdown.

Chapter 7 examines the constitutional review initiated by RR, a UK federation of housing and worker co-operatives. Radical Routes have been decommodifying workplaces and dwellings for over thirty years, taking what were things to be bought and sold and placing them in trust in perpetuity or ‘usufruct’ as Proudhon preferred to call it.Footnote ³⁰ Fifteen hours a week of action towards ‘radical social change’ was a central requirement for anyone joining the federation in its early years. We discuss the disputes prompted by this constitutional requirement, ‘Rule 5.1’, to protect the activist, anti-capitalist and anarchist norms of the federation. A proposal to revise the rule generated fierce debates and painful soul-searching about RR’s organisation, aims and ideals. Rather than turn to ‘democracy’ or a new way of organising, RR instituted a root and branch constitutional review of the federation. The chapter examines these debates and shows how grievances were addressed through an implicit and often explicit commitment to anarchy and its synonyms, equality, mutual aid, horizontality and non-domination. We argue that its underlying anarchist culture enabled RR to navigate complex problems and emerge stronger, more critically self-aware and more committed to the co-op’s core mission.

The book concludes by amplifying a set of reflections discussed quietly throughout the book, on the possibility of reconstituting society from the ground up through anarchist constitutionalising. We contend that the everyday constitutionalising of our workplaces, homes and protest movements offers a route into the reconstitution of our educational structures, the provision of health and mechanisms of production and exchange. This, we argue, is a more convincing and normatively defensible way of ‘taking back control’ than the option offered by political leaders keen to maintain global power asymmetries by deglobalising through steroidal sovereignty. We argue against ‘scaling up’ an anarchist constitutional politics, first by pointing out the negative externalities of scaling, and secondly by offering a more positive defence of networking, or linking up. The anarchist constitutional politics we defend, in particular decentralised federalism, puts flesh on the bones of the ‘rhizomatic’, networked account of political and social movements common over the last two decades, without foreclosing on the political imagination through the imposition of institutional blueprints, democratic strictures, inviolable rules or exclusionary conceptions of the ‘we’. Indeed, de-centring the state, analytically and normatively, makes the intellectual and political challenges facing theorists of global constitutionalism problems for us all. Our appeal is that the re-constitution of world order entails a commitment to anarchy, a foundational norm that can guide us to a non-dominating politics, where the telos of freedom lies in openness to infinite possibilities.

In bringing anarchism into a constitutional fold, and constitutional theory to anarchism, we address five key audiences. First, we engage with radical critical theory by presenting the first comprehensive account of the theory and practice of anarchist constitutionalising. Long maligned as an anti-politics, we show how much anarchism has to offer the critical task of reconstituting a post-statist and anti-capitalist world order. Secondly, we address constitutional political theorists by exposing the statist bias in the theorisation of the normative commitment to non-domination. We add the commitment to non-domination to the already rich conceptual repertoire of global constitutionalism, and do so by rethinking anarchy, horizontalism and adjacent concepts, that can substantially deepen the post-colonial, liberal and socialist accounts of freedom in world politics today.

Third, our account of anarchism contributes to debates about ‘constituent power beyond the state’. Our hope is that constitutional and democratic theorists, concerned with social pluralism and the irreducibility of the people, and the emancipatory potential of delinking the people from sovereignty, will find the anarchist constitutional politics of decentralised federalism inspiring. Fourth, we engage with IR theory, arguably the only tradition of political thought to attempt to theorise the concept of anarchy in the last sixty years, and reposition anarchy as the ontological, political, analytical and historical, even normative a priori for politics as such, not just ‘the international’. Traditionalists will baulk, but we offer a way of positioning critical IR theory as the new realism by retheorising anarchy in the ways we propose.

Finally, we speak directly to anarchist activists and academics, not from an ivory tower, but a workplace structured by rules of competition not of our own making. Coupled with our revisionist history of the classical anarchist tradition, we hope this book encourages a reset in the way anarchists, and everyone else, think about the question of constitutions, institutions and politics more generally.