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Randall Amster, "Breaking the Law"

Chuck Morse writes:

"Breaking the Law: Anti-Authoritarian Visions of Crime and Justice"

Randall Amster, The New Formulation


Restorative Justice: Healing the Foundations of
Our Everyday Lives

By Dennis Sullivan & Larry Tifft

Monsey, NY: Willow Tree Press, 2001

The Struggle to be Human:

Criminology, and Anarchism

By Larry Tifft & Dennis Sullivan

Orkney, UK: Cienfuegos Press, 1980

By now it is obvious to almost
everyone that current “criminal justice” practices are at
best ineffective and at worst brutal. Critics on many fronts have attacked
the prison-industrial complex, with its “three-strikes”
laws and for-profit bureaucratic schemes. Even the mainstream media
have reported on the United States’ record rates of incarceration,
the privatization of the prison industry, corporate use of convict labor,
prison overcrowding, and the increasing application of the death penalty.
There is now broad outrage at this systematized insanity masking as
“law and order” and many have begun to search for alternative
methods of understanding concepts such as crime, punishment, and justice.
There is cause for hope in this, but also concern, given that so much
still needs to be done and that the current crisis continues to worsen
dramatically.In exploring other possibilities, it is
instructive at the outset to consider the radical notion that the present
law-and-order paradigm ought to be abandoned entirely, as many in anti-racist,
anti-authoritarian, and anarchist circles have increasingly argued.
Indeed, it is often taken as axiomatic in the anarchist lexicon that
“laws” (as they have come to be understood in modern society)
must be wholly rejected. While this is a view that I have echoed and
endorsed in previous works,(1) it is nonetheless crucial to understand
the full implications of such a position. After all, while there is
a certain seductive quality to the belief that, once freed from the
shackles of law, human communities will spontaneously develop egalitarian
and inclusive social practices, it is still often the case that “the
aspect of anarchist ideas of social organization which people find hardest
to swallow is the anarchist rejection of the law, the legal system,
and the agencies of law enforcement.”(2) To merely accept the
abolition of law as an anti-authoritarian fait accompli, then, is to
oversimplify the issue and risk speaking a language that is counter-intuitive
to many that we would hope to reach with our words and visions.

Luckily, we have lights on the horizon
such as Dennis Sullivan and Larry Tifft to help us navigate through
such conundrums. In a series of collaborations spanning nearly twenty-five
years, Sullivan and Tifft have consistently advanced a positive and
organic vision of social processes that exist beyond the strictures
of law, authority, and the state. Serving quite literally as “bookends”
to their body of shared scholarship, The Struggle to be Human
(with sections including “Law: An Instrument of Authority”
and “The Wish to be Free: Commitment to Eden”) and Restorative
(with chapters entitled “The Violence of Power”
and “A Radical Perspective on Crime and Social Harm”) evoke
the creative powers of human intellect and imagination, and serve as
much-needed benchmarks for any anti-authoritarian project that seeks
to critically interpret and deconstruct prevailing myths about law,
the state, and the criminal justice system. And although their formulations
have some shortcomings and moments in need of qualification, we ought
to be eminently thankful for these works of sanity in a world that has
seemingly gone mad with bureaucratic regulation and punitive predilections.

The starting point for their mutual exegesis
is aptly stated in the introduction to The Struggle to be Human,
namely that “we can never find meaning or freedom in living if
we consider life processes from the floundering orbits of law, the state
or corporate economy, but only through lifting ourselves to the warmth
of experience and human community.”(3) Amplifying their point
and tapping into longstanding anti-authoritarian and anarchist tenets,
Sullivan and Tifft continue their missive: “All law, authority
and institutions of state are based on force, violence and the fear
of punishment.(4) . . . The function of law historically has been to
deny some people the right to their personal journey, to detain us,
by demanding that we resolve our contradictions within the confines
of law and the state. . . . Law prohibits us from freeing ourselves,
experiencing ourselves in the struggle to be human.(5) . . . To accept
law, therefore is to accept a reality in which there is imposition of
person upon person. It is to accept the reality of enslavement, the
plantation of the welfare state. It is to accept the division of the
world into parts that translate into subject and objects, and the mechanisms
to manage this hierarchical division, denying autonomy to everyone.”(6)

The above passage is notable on a number
of levels. First, it represents the authors’ attempt to expand
the criminological paradigm beyond its preordained walls of “law
and order” rhetoric—no small feat at a time when few had
the temerity to raise such concerns. Second, these sentiments serve
to locate the authors specifically within the anarchist tradition of
scholarship and praxis, going back at least to Kropotkin’s famous
insight that, “We are so perverted by an education which from
infancy seeks to kill in us the spirit of revolt, and to develop that
of submission to authority; we are so perverted by this existence under
the ferrule of a law, which regulates every event in life—our
birth, our education, our development, our love, our friendship—that,
if this state of things continues, we shall lose all initiative, all
habit of thinking for ourselves.”(7) Finally, the above passage
also indicates a tendency of the authors to border on the hyperbolic—a
fact that is somewhat understandable when attempting to arouse passions
for revolutionary change, but unnecessary for scholars whose powers
of persuasion ultimately need not rely upon the vicissitudes of polemic.

Of course, simply pointing out the hierarchical
and oppressive nature of “law” is well and good as an initial
endeavor, but it does beg the question of how human communities will
sustain and regulate themselves in the absence of law. On this point,
the early work of Sullivan and Tifft alludes to themes that will be
fleshed out in more detail in the later writings, calling for communities
grounded in “mutual aid, cooperation, spontaneity and peace,”(8)
as well as “self-reciprocity,” “equity,” and
“love.”(9) Taken together, these strands serve to trace
the boundaries of the authors’ vision of “a moral order
in accordance with which people, from their inner convictions, act towards
others as they desire that others should act toward them. It is a social
order in which each is able to live and act according to his or her
own judgment.”(10) Again, such themes comport with the anarchist
tradition, from Kropotkin’s Law and Authority (“No more
laws! No more judges! Liberty, equality, and practical human sympathy
are the only effectual barriers we can oppose to the anti-social instincts
of certain among us.”),(11) to Colin Ward’s Anarchy in Action
(“We must eliminate all the social causes of crime, we must develop
in man brotherly feelings, and mutual respect; we must seek useful alternatives
to crime.”).(12)

At this point, however, the thesis begins
to fray a bit around the edges, mostly due to difficulties in enunciating
precisely what such “alternatives to crime” will look like
in actual practice and application. Certainly, such difficulties are
not unique to Sullivan and Tifft’s work, but rather have been
a central challenge for anarchist writers from Godwin to the present—and
while they do cite positive examples of reconciliation in their later
work Restorative Justice (such as a shooting victim and his
assailant meeting eleven years after the incident and achieving a modicum
of understanding and forgiveness), it is still the case that specific
details as to how the current crisis can be transformed and how alternative
systems would deal with acts such as theft, assault, rape, or murder
are sorely lacking here. This is not to say that these issues are not
raised at all, but rather that they are mostly addressed in theoretical
terms and not by way of concrete examples or working models.

Specifically, the theoretical question
essentially becomes: “Can a society exist in which nothing limits
the individual, where all regulation is an affair of the individual
and not of the collective will?”(13) Answering this question,
the Russian anarchist Alexei Borovoi states what some have taken as
a sine qua non of anarchist thought (although, as we shall see, one
that is not without controversy): “There has not been a single
society, even prior to the birth of the State, that has not made certain
demands upon its members. While specific regulations may vary from society
to society, some form of regulation is always necessary. Aside from
legal codes, there exist in all societies what can be called codes of
convention. The force of these codes is perhaps greater than the force
of laws. The fundamental difference is that these codes are based on
a collective accord.”(14) As Giovanni Baldelli likewise notes
in Social Anarchism, “No society is ethical in which each member
does not naturally absorb its governing principles of right and wrong.
Written law represents a generally unsuccessful substitute for a universal
understanding of ethical principles.”(15)

Here we begin to get a sense of the ambivalence
anarchists have toward concepts such as “regulation” and
“social control.” Are we to grant such primacy to the individual
that no form of collective intervention is acceptable? If we do allow
collective intervention, how do we keep it from becoming authoritarian
and destructive of individual liberty? In short, how do we avoid the
pitfalls of law and the state while preserving the integrity of our
communities? Struggling with such queries, the early work of Sullivan
and Tifft reflects such ambivalence and even contradiction, initially
asserting that, “Social custom, religious dogma and moral codes
are yet more subtle forms of domination which, like education and official
propaganda, are harnessed by the state to perform as ancillary functions
of law.”(16) Later in the same work, however, the authors endorse
a view of communities that are regulated not by laws but by “mutual
agreements” and by “a sum of social customs and habits.”(17)
Expanding on this ambivalence within anarchism, Colin Ward similarly
endorses “values and norms” as substitutes for law, whereas
anarcho-anthropologist Harold Barclay cautions against “the confusion
of the term law with norm or custom in such a way as to claim that anarchist
societies have law.”(18)

Specifically, Barclay is objecting to the
work of writers such as Thom Holterman and Henc van Maarseveen, who
published an influential anthology titled Law and Anarchism.(19)
In their respective chapters, Holterman observes that anarchists often
deny that their moral duties to other community members have anything
to do with the law, asking “Why not recognize that it is law,
but law which comes from society and not law which is imposed by the
state?”(20)—whereas van Maarseveen claims that “anarchists
merely reject a particular sort of law; law as such is not rejected.
. . . The anarchist political order implies the existence of a system
of legal rules.”(21) Criticizing this work as mainly an “attempt
to reconcile anarchism with legal theory . . . primarily by confusing
and obfuscating terms,” Barclay points out that it is imperative
to recognize that “there are on the one hand rules which are imposed
by the state through its government—in other words, laws—and
there are other kinds of rules not imposed by the state. . . . An anarchist
society is clearly different from a state society in that in it there
would be no penal sanctions—no law.”(22) As Borovoi likewise
observes, “anarchism admits social norms. The norms of a free
society resemble neither in spirit nor in form the laws of contemporary
society. These norms will not seek the detachment of the individual
from the collectivity. Anarchist norms will not be a torrent of decrees
from a higher authority.”(23)

To their credit, Sullivan and Tifft do
not fall into the trap of equating anarchist norms with “laws,”
but instead maintain a sharply critical stance toward all state-bound
modes of criminality and sanctioning practices. In fact, certain passages
in The Struggle to be Human presage the more detailed explications
of their later work through references to concepts such as “face-to-face
justice,” “the airing of conflicts,” and “the
reality of returning to work and living with the other person,”(24)
embodying what Jeff Ferrell has built upon as “an anarchist criminology
which argued for replacing state/legal ‘justice’ with a
fluid, face-to-face form of justice grounded in emerging human needs.”(25)
Indeed, Ferrell nicely anticipates the linguistic direction that Sullivan
and Tifft will take, since by the time we arrive at the publication
of Restorative Justice, much of the overt language of anarchist
theory and scholarship has been replaced by concepts such as “apology,
forgiveness, and reconciliation,”(26) as well as the frequent
invocation of notions of “restorative communities” and “needs-based
justice.” While there is nothing especially problematic about
this subtle yet noticeable shift from anarchist to restorative terminology,
it does signal certain changes in form and substance that mark points
of distinction—and at times even tension—between the authors’
earlier and later works.

To be sure, there is a palpable sense of
caution and even respectability in the language of Restorative Justice
that is largely lacking in The Struggle to be Human. This does
not mean, however, that the nature of the collaborative project of these
“journeymen provocateurs”(27) is any less radical, but perhaps
indicates a more measured perspective on the difficulties of maintaining
a lifetime of opposition to state-bound practices and remaining faithful
to a vision that is contraindicated in much of the society that we are
constrained to inhabit. In other words, where their younger selves had
no compunction against resorts to hyperbolic language and straightforward
calls for revolutionary praxis, the latter versions appear more concerned
with developing the nature of the vision more keenly before issuing
such plaintive calls. But again, this is not to imply that the fervor
has waned, only perhaps that it has sharpened its focus in terms of
what it has stood against and as to what it will stand for. Indeed,
it might fairly be said that Sullivan and Tifft comprise—along
with “peacemaking criminologists” such as Hal Pepinsky(28)—the
“anarchist wing” of an emerging social movement called “restorative
justice” that seeks to move beyond punitive models in favor of
processes of reintegration and reconciliation. In fact, this might be
considered an important evolution of both the anarchist and criminal
justice dialogues, in the sense of extending the historical arc of Godwin,
Kropotkin, Ward, et al., but also by charting new paths with the introduction
of concepts such as reconciliation and restoration as fundaments of
anti-authoritarian praxis.

The essence of Restorative Justice
is that “we must move to create personal relationships, social
arrangements, and communities that promote patterns of interaction that
are non-hierarchical, non-power-based.”(29) The central notion
is that “justice-done restoratively requires that participants
continually remain open to each other’s concerns, ideas, needs,
feelings, desires, pain and suffering, so that each can see the other
not as a resource to be used or exploited or as an object to be derided
or scorned, but as he or she is, similar to oneself, a person engaged
in an unending struggle to become human, with dignity. . . . When such
collaboration takes place, we experience the beginnings of a restorative
community, of a political economy of peace and democracy.”(30)
Here, it might well be objected that Sullivan and Tifft appear naïve,
calling essentially for a world in which people are simply supposed
to be nice to each other. But this critique misses the larger point
that for Sullivan and Tifft it has always been the case that “spirituality
must precede social change . . . a spiritual awakening is necessary
. . . the social revolution must come from within,”(31) indicating
a rationale for these earnest appeals to the better instincts and higher
ideals of human consciousness.

Moreover, despite linguistic overtures
to concepts such as “democracy,” it is clear that this is
still essentially an anarchist project premised upon “solidarity,
compassion, cooperation, friendliness, unselfishness, and peacefulness,”(32)
evidenced by the authors’ express commitment to examine “all
forms of violence and power, all ideologies, perspectives, practices,
and social arrangements that in any way force others into positions
of lesser being, into deficit status, that disallow their needs to be
taken into account.”(33) Thus, while the explicit use of the term
anarchism has been omitted, implicit references to anarchist theory
and practice are rife throughout Restorative Justice. As one
might expect, Kropotkin in particular is given due consideration for
his penchant for “moral development” and “equal well-being.”(34)
Harold Barclay’s work also figures into the argument: “Anthropologists
of every ilk have shown us multitudinous examples of societies that
have neither laws nor a state but which are every bit concerned about
justice, reparation, and human well-being.”(35) Throughout the
text, it is made clear that any such undertaking—toward restorative
justice and away from state-bound “law and order” motifs—must
also include “calling the larger set of social arrangement into
question.”(36) In other words, the restorative justice vision
is not simply one of opting out and creating model communities of harmony
and peace, but rather taking on the fundamental bases of hierarchy and
structural violence that permeate modern society. In this sense, the
project has not lost any of its radicalism but instead seems to have
begun to come to terms with the sheer magnitude of its aim.

So let me be clear that the principles
espoused by the later Sullivan and Tifft do not reflect an accommodation
or appeasement. In their collaborative and individual writings there
is a pervasive sense that one who takes their teachings to heart will
be called upon to stand against the state, to be an outsider vis-à-vis
mainstream society, to be viewed as a lawbreaker and even a heretic.
Here, Sullivan and Tifft are in excellent company, including the legendary
Henry David Thoreau, who stated in Civil Disobedience that: “Law
never made men a whit more just; and, by means of their respect for
it, even the well-disposed are daily made the agents of injustice. .
. . (B)ut if it is of such a nature that it requires you to be the agent
of injustice to another, then I say, break the law.” As Robert
Paul Wolff inquires in his tome In Defense of Anarchism: “But
on what grounds can it be claimed that I have an obligation to obey
the laws which are made in my name by a man who has no obligation to
vote as I would, who indeed has no effective way of discovering what
my preferences are on the measure before him? . . . . [T]he citizens
have created a legitimate state at the price of their own autonomy!
They have bound themselves to obey laws which they do not will, and
indeed even laws which they vigorously reject. Insofar as democracy
originates in such a promise, it is no more than voluntary slavery.”(37)

Sullivan and Tifft are obviously not unaware
of such eventualities, having noted in The Struggle to be Human
that “Laws are so numerous that no one could possibly not break
them. There are laws that individuals choose to break and laws which
individuals are forced to break. . . . If all laws were strictly enforced,
everybody would be criminalized.”(38) As things stand today, we
may not be far from such a condition, with modern society coming to
represent what the authors have referred to in Restorative Justice
as a “panopticon gulag.”(39) Indeed, this makes the stated
aim of people such as Dennis Sullivan and Larry Tifft all the more urgent,
namely “to create a society where it is easier for people to be
good, a society in which we can better enjoy each other’s company.
To create this kind of society is our daily prayer and the reason for
our undertaking.”(40) All who are struggling for justice, compassion,
and dignity, will feel a kinship with these visionaries; I for one am
thankful for their example, teachings, and legacy as stalwarts in the
quest to attain just human relations. Their books ought to be read and
embraced by anyone interested in shining a light on the brutalities
of today and exploring the possibilities for realizing a brighter tomorrow.


1. See Randall Amster, “Restoring (Dis)order: Sanctions, Resolutions,
and ‘Social Control’ in Anarchist Communities,”
Contemporary Justice Review 6, March 2003; “Chasing
Rainbows? Utopian Pragmatics and the Search for Anarchist Communities,”
Anarchist Studies 9, March 2001.

2. Colin Ward, Anarchy in Action
(New York: Harper & Row, 1974), 126.

3. Larry Tifft and Dennis Sullivan, The
Struggle to be Human: Crime, Criminology, and Anarchism
UK: Cienfuegos Press, 1980), 3.

4. Ibid., 7.

5. Ibid., 39.

6. Ibid., 40.

7. Peter Kropotkin, “Law and Authority,”
in Kropotkin’s Revolutionary Pamphlets (New York: Vanguard
Press, 1927).

8. Tifft and Sullivan, The Struggle
to be Human
, 47.

9. Ibid., 178.

10. Ibid., 146.

11. See note 7.

12. Colin Ward, Anarchy in Action,

13. Alexei Borovoi, “Anarchism
and Law,” Friends of Malatesta (Buffalo, NY, undated
pamphlet), 2.

14. Ibid., 4.

15. Giovanni Baldelli, Social Anarchism
(New York: Aldine-Atherton, 1971), 150-1.

16. Tifft and Sullivan, The Struggle
to be Human
, 44.

17. Ibid., 72.

18. Harold Barclay, “Law and Anarchism,”
in Culture and Anarchism (London: Freedom Press, 1997), 154.

19. Thom Holterman and Henc van Maarseveen
(eds.), Law and Anarchism (Montreal: Black Rose Books, 1984).

20. Ibid., 27.

21. Ibid., 66.

22. Harold Barclay, “Law and Anarchism,”

23. Borovoi, “Anarchism and Law,”

24. Tifft and Sullivan, The Struggle
to be Human
, 74.

25. Jeff Ferrell, “Against the
Law: Anarchist Criminology,” Social Anarchism 25, 1998.

26. Dennis Sullivan and Larry Tifft,
Restorative Justice: Healing the Foundations of Our Everyday
(Monsey, NY: Willow Tree Press, 2001), viii.

27. Ibid., xxvi.

28. See, e.g., Harold E. Pepinsky, “Communist
Anarchism as an Alternative to the Rule of Criminal Law,” Contemporary
Crises 2, 1978; Harold E. Pepinsky & Richard Quinney (eds.), Criminology
as Peacemaking
(Bloomington, IN: Indiana University Press, 1991).

29. Sullivan & Tifft, Restorative
, 160.

30. Ibid., 119.

31. Tifft and Sullivan, The Struggle
to be Human
, 147-51.

32. Sullivan and Tifft, Restorative
, 54.

33. Ibid., 129.

34. Ibid., 113, 119.

35. Ibid., 143 (quoting Harold Barclay,
People Without Government: An Anthropology of Anarchism (London:
Kahn & Averill, 1982)).

36. Ibid., 71.

37. Robert Paul Wolff, In Defense
of Anarchism
(New York: Harper & Row, 1970), 29, 42.

38. Tifft and Sullivan, The Struggle
to be Human
, 58.

39. Sullivan and Tifft, Restorative
, 10.

40. Ibid., 194.

From: The New Formulation: An Anti-Authoritarian
Review of Books
- Volume Two, Number Two --- Winter Spring 2004
- http://www.newformulation.org/index.html