Texto de um livro de Direito destinado a estudantes, sobre a perspectiva anarquista de oposição à Lei e ao Estado.
[…] political philosophers and, in particular, anarchists, have challenged the traditional acceptance by Western cultures of the state and its associated concept of law imposed by a sovereign. Although anarchist thought has never been regarded as “belonging” to legal philosophy, it does in my view offer some interesting contributions to an understanidng of law.
This neglect of anarchist thought is hardly suprising: law is typically regarded by legal theorists as imposing order on a society, while anarchism is frequently associated with chaos and disorder. However, while the “anarchist” label is sometimes adopted by people wishing to reject order altogether, that is not the primary use of the term is political philosophy. Anarchist theory does not reject order as such, but it does reject order imposed on a society by a centralised hierarchical authority such as a state. The political motivations behind this rejection vary considerably between anarchists: broadly speaking, some are libertarians or anarcho-capitalists who see the state as an obstacle to radical individualism or a completely free market; others hold communitarian ideals, and regard the state as a violent institution which creates inequalities between people (through institutions such as private property), which prevents people from taking responsibility for ordering their own communities, which obstructs human potential and mutual co-operation, and which perpetrates more violence and war than it prevents.
Early anarchists tended to identify the concept of law with state-based authority, meaning that their rejection of the state also entailed a rejection of law. For instance, Peter Kropotkin observed that law is seen to be remedy for all evils: “Instead of themselves altering what is bad, people begin by demanding a law to alter it. — A law about fashions, a law about mad dogs, a law about virtue, a law to put a stop to all the vices and all the evils which result from human indolence and cowards.” In placing our reliance on laws given to us by the state, according to Kropotkin, we fail to exercise our own judgement and initiative in ordering our existences, and become subservient to both the law and the state. Reliance on the state prevents us placing reliance on ourselves and from forming co-operative relationships with others. Similarly, Leo Tolstoy, a Christian anarchist, defined laws as “rules, made by people who govern by means of organised violence for non-compliance”. Rather than representing the will of the majority, for Tolstoy, law represents the subjective wishes if a few privileged people, who create laws which server their own interests and protect their private property. Tolstoy argued that the violence of law cannot be justified: if people are irrational and need violence to exist, then everybody must have the right ot use violence, not just the few who have power; if, on the other hand, people were (as he thought) rational, “then their relations should be based on reason, and not on the violence of those who happen to have seized power”.
Any anarchist rejection of law is, however, tied to its rejection of the state. Anarchism does not entail a rejection of law as such, as long as it is possible to disengage the concept of law from the presence of a state. In other words, law may be acceptable, necessary, and even positive for anarchists, as long as it is not arbitrarily imposed by a superior and oppressive institution such as the state. Such a non-state law may be difficult for modern Western lawyers to envisage: after all, our very concept of law tends to assume the existence of state coercion. But anarchists have argued that we do not need to think of laws as a hierarchical institution which forces its subjects into compliance. Nor should law necessarily be regarded merely as a set of rules or static limits. Rather, it might be “a design, an experiment, and a learning process”. More practically, it could be created and enforced by consensus and with the co-operation of all members of a society. Such a law may seem idealistic, impracticable, even impossible. (Though when we think that something is impossible it is important first to remember Foucault’s Chinese encyclopaedia. Is the object impossible, or are we simply limited in our imagination?) Clearly, a greater awareness of the law of non-Western and indigenous cultures has led in recent years to some acceptance of broader concepts of law, which are not based upon the presence of centralised state authority…
Margaret Davies, “Asking the Law Question” (3rd ed, 2008).
retirado do Urban Dissent