(1) In 2011 there was a worldwide protest movement called Occupy, for example with makeshift camps at Wall Street in New York and outside St Paul’s Cathedral in London. There were perhaps hundreds of people who camped, and thousands more who participated in the demonstrations. All this occurred during the aftermath of a global financial crisis largely caused by reckless banking practices which saw the imposition of austerity measures by governments even while the banks were bailed out with public money. The movement had a number of major themes, including protest against stark wealth inequality, undemocratic institutions which represent the interests of the privileged few, and environmental degradation.Footnote 21

The Occupy camps tended to be run on anarchist principles.Footnote 22 Decisions were made, and censured meted out, only at the General Assembly. This moved to a system of super-majority voting, seemingly in order to be able to reach any decision at all, the unanimity of consensus proving unachievable. Censure could include denial of access to camp facilities. People who were disruptive or difficult might be shunned or systematically ignored—or more ominously:Footnote 23

[T]here has to be some way to get rid of them – though usually this has to happen outside the meeting.

There are a number of criticisms we can make here.

First, if decisions are to be taken by the General Assembly, then removing members by a procedure outside that structure, for lawyers, immediately sets alarm bells ringing, not least for a lack of due process.Footnote 24 Further, although the point is left unsaid, it is difficult to see how this expulsion is achieved if not by force. As Newman says, anarchists cannot rest assured that having removed law they have not created a different form of domination.Footnote 25

Second, we might object that the General Assembly was itself a dominating power. After all, it was seemingly the General Assembly which gave itself the power to act as sovereign. There may well be people who refused to grant it that power, or to legitimise it by participating in its original self-constitution. As Wilson says, anarchism must resist becoming what is has so relentlessly critiqued, recreating its own forms of absolutist or dogmatic politics.Footnote 26

Even those who did participate in the General Assembly are still entitled to call foul. Now, in response to that assertion, Chartier seems to suggest that an anarchist who participates in a process of rule-making or dispute resolution cannot later withdraw their consent if the end result is adverse to them. He says that the regime can enforce its decision against such a person ‘without aggression’.Footnote 27 This is unpersuasive. For a start, a rule or process might turn out to be misapplied or misinterpreted, and there is no reason to assume that an initially willing participant consented to that. Further, the person might simply change their mind about the merits of the rule or the process. In that regard, consent is an on-going state of affairs, and when it ends, it ends. Just because someone consented at the beginning, it does not follow that they cannot withdraw that consent, or that they are bound to all things subsequently. (This is, for example, a very important point when it comes to sexual offences.)

Third, when moving to super-majority voting, what is supposed to happen to the minority? A frequent response is that a disappointed minority might secede to form their own community. However, that choice only works if the minority have somewhere else to go. What is more, there is no necessary reason why the minority should leave, rather than the majority; it takes matters no further forward simply to say that there are more of the majority without an explanation for why numbers should matter. Also, if the minority refuse to leave, once again we are confronted with the question of whether they can be forced to leave, or if they stay, whether they can be forced to conform their behaviour. In other words, super-majority voting does not eliminate the spectre of force being used against the unwilling.

Further, Halling suggests that if a community secedes from an anarchist federation, it would still have to share its natural resources.Footnote 28 After all, the anarchist abhors private property, summed up in the aphorism ‘Property is theft!’Footnote 29 This is because ownership is seen as another hierarchical relationship. However, if the seceding community refuses to share, we are back once more to the question of whether it can be forced. Further, to the extent that the seceding community must share its resources, presumably it is also entitled to share in the natural resources of the original community, at which point it looks less and less like a secession after all.

The difficulties of sharing can be thrown into sharper relief with the following thought experiment. Along comes an invading force. What is the anarchist society to do? If they truly believe in consensus, then the anarchist could not fight the invaders without the consent of the invaders. Nor could the anarchist simply say that they are defending their freedom. Yes, the anarchist might value their freedom, but the invader might not, and if the anarchist simply says that freedom does matter after all, and that they are right, and uses force to uphold that claim, that is the same pattern of behaviour for which the anarchist criticises the law. Similarly, without risking moral hypocrisy, the anarchist community cannot say that consensus is morally essential, but only to their society, which otherwise may freely dominate others.

(2) Our second case study is taken from research on English housing cooperatives. Typically, a housing cooperative might be where residents in houses are members of an organisation which collectively owns or manages the houses. Residents might pay rent to the organisation to fund the provision or up-keep of the houses. Through its members, the organisation will formulate its own rules, and in this way residents retain a democratic control over the organisation and thus the terms on which housing is provided.Footnote 30 Great store is put on individual equality, but not all cooperatives need be overtly anarchist. Nevertheless, they face similar challenges when it comes to resolving disputes.

Henry recounts an example from one cooperative where those who did not pay their rent were subjected to unannounced visits by a group of people, the purpose being to collect the rent through the technique of ‘invading members’ privacy and subjecting them to intimidation’.Footnote 31 Again, this sounds like coercion. After all, censure which does not coerce will not assist in upholding a rule which a party has not previously been persuaded to abide by. Indeed, there was also talk of seemingly forcible expulsions from the cooperative. Even then, Henry notes, that system was ‘sufficiently stressful and insufficiently rewarding’ that the cooperative switched to the use of state law as the ultimate sanction, because it was predictable, effective, rational and objective, and so not derailed by emotions and personal relations.

(3) Finchett-Maddock provides another case study on a collective in a social centre. Social centres are communally run buildings which might be occupied as a squat or rented or owned. They tend to be run on a voluntary and democratic basis, founded upon anarchist principles, and they provide a range of services or facilities, such as a library, or in this case, bicycle repair by a group of people:Footnote 32

There was one scenario where an individual had stolen £1700 from the bike repair shop money, claiming that it was rightfully his as he had given his time without having been paid (although the whole ethos there is around voluntarism and mutual aid). They were in a quandary as whether to punish him through their own collective parameters, or have the state law involved – which would mean the taking of a crime reference number in order to get the money back somehow. Thus, there was the moral and the legal dilemma of (a) trying to right the situation within their means; and (b) needing the money to be reported in some way as they obviously needed it. The reason of course is that an anarchist view sees no role for prisons or the police and therefore they were arbitrary and yet necessary. The eye for an eye feeling that he encountered he portrayed as more masculine revenge, and the collective are pretty balanced, and therefore all that was done was that they named and shamed him in an article on Indymedia.

There are a number of interesting points we might note about this incident.

First is the notion that the accused had ‘stolen’ money. This implies property, and the claim that the money was proper to the collective, rather than the accused. Again this sits awkwardly with the anarchist creed that property is theft.

Second, the collective ‘named and shamed’ the accused. Admittedly it is a non-violent response. However, there is no suggestion that the accused consented to this. No justification is offered as to why the collective were entitled unilaterally to impose their preferred outcome and tarnish his reputation, nor was there any due process to test whether the collective’s assessment of the situation was correct.

Third, the collective never recovered the money. The victims went without. The only sure way of recovery was acknowledged to be recourse to the police. Perhaps this is less of a problem for £1700. However, in other circumstances, the amount stolen might be greater, or the problem might not be theft but physical or sexual violence—as occurred in some Occupy camps.Footnote 33 Naming and shaming will not likely prevent repeat incidents of violence.

It may be true to principle for a non-violent consensus-seeking anarchist that they suffer whatever gets done to them if they cannot convince the other party to agree to their point of view. However, a persistent submission would seem to risk denying a person’s dignity, even agency. Indeed, if the correct response to any conflict is to yield, the result is the anarchist living under the rule of another’s domination after all.

Instead of recourse to state law, Rothbard proposes an anarchic vision of society without a centralised system of justice. Instead, he suggests a system of private courts and enforcement agencies, which succeed or not according to market forces.Footnote 34 However, this is no less repressive than state law when the person on the receiving end does not recognise the authority or rules of those private companies.

(4) A final case study might be international law, that is, those rules which govern the relationship between nation states. Some authors point to this as an actual example of an anarchist legal system, on the basis that there is no world government to enforce international law against errant states.Footnote 35 In other words, these are rules which have not been imposed upon states, but have been agreed or recognised by them in their horizontal dealings with each other. The claim is that most states obey most agreed rules of international law most of the time.Footnote 36 This may well be true—and it might similarly be said that most anarchists behave well in their communities, and most citizens in a society governed by the rule of law are happy with that state of affairs. However, that is the easy part; if there are only a few disagreements, the difficult question is how to resolve them. What is noticeable about international relations is how often states revert to force or the threat of force after all, whether through economic sanctions designed to coerce (for example, against Iran or Russia or North Korea),Footnote 37 or outright military intervention (for example, in Afghanistan or Iraq or Libya or Syria or Crimea).

To summarise, what these case studies reveal is that the peaceful anarchist has not yet identified a system for resolving disputes successfully, nor a system which eliminates altogether the occurrence of one side unilaterally imposing its solution supported by some form of intimidation or threat of force. Perhaps the use of force is relegated to a matter of last resort, but the same could be said of the law as well. To the extent that both anarchy and the law have resort to force, anarchy cannot claim to be superior to the law in that regard. So let us take a different tack and say something now in defence of law, because anarchists might be surprised to find familiar values being instantiated here.