Untimely Meditations

1. The Agony of Eros

Byung-Chul Han

2. On Hitler’s Mein Kampf: The Poetics of National Socialism

Albrecht Koschorke

3. In the Swarm: Digital Prospects

Byung-Chul Han

4. The Terror of Evidence

Marcus Steinweg

5. All and Nothing: A Digital Apocalypse

Martin Burckhardt and Dirk Höfer

6. Positive Nihilism: My Confrontation with Heidegger

Hartmut Lange

7. Inconsistencies

Marcus Steinweg

8. Shanzhai: Deconstruction in Chinese

Byung-Chul Han

9. Topology of Violence

Byung-Chul Han

10. The Radical Fool of Capitalism: On Jeremy Bentham, the Panopticon, and the Auto-Icon

Christian Welzbacher

11. German Philosophy: A Dialogue

Alain Badiou and Jean-Luc Nancy

12. Portrait of the Manager as a Young Author: On Storytelling, Business, and Literature

Philipp Schönthaler

13. Waste: A New Media Primer

Roberto Simanowski

14. The Death Algorithm and Other Digital Dilemmas

Roberto Simanowski

15. Law as Refuge of Anarchy: Societies without Hegemony or State

Hermann Amborn

16. Enlivenment

Andreas Weber

Law as Refuge of Anarchy

Societies without Hegemony or State

Hermann Amborn

Translated by Adrian Nathan West

The MIT Press

Cambridge, Massachusetts

London, England

© 2019 Massachusetts Institute of Technology

Originally published as Das Recht als Hort der Anarchie: Gesellschaften ohne Herrschaft und Staat in the series Fröhliche Wissenschaft by Matthes and Seitz Berlin: © Matthes and Seitz Berlin Verlagsgesellschaft mbH, Berlin 2016. All rights reserved.

The translation of this work was funded by Geisteswissenschaften International—Translation Funding for Work in the Humanities and Social Sciences from Germany, a joint initiative of the Fritz Thyssen Foundation, German Federal Foreign Office, collecting society VG WORT, and Börsenverein des Deutschen Buchhandels (German Publishers and Booksellers Association).

All rights reserved. No part of this book may be reproduced in any form by any electronic or mechanical means (including photocopying, recording, or information storage and retrieval) without permission in writing from the publisher.

This book was set in PF DinText Pro by Toppan Best-set Premedia Limited. Printed and bound in the United States of America.

Library of Congress Cataloging-in-Publication Data

Names: Amborn, Hermann, author.

Title: Law as refuge of anarchy : societies without hegemony or state / Hermann Amborn ; translated by Adrian Nathan West.

Other titles: Recht als Hort der Anarchie. English

Description: Cambridge, MA : MIT Press, 2019. | Series: Untimely meditations ; #15 | Includes bibliographical references.

Identifiers: LCCN 2018024748 | ISBN 9780262536585 (pbk. : alk. paper)

eISBN 9780262351416

Subjects: LCSH: Hegemony. | Legitimacy of governments | Anarchism. | State, The.

Classification: LCC JZ1312 .A6313 2019 | DDC 327.1/14--dc23 LC record available at https://lccn.loc.gov/2018024748

ePub Version 1.0

d_r0

Table of Contents

Series page

Title page

Copyright page

I Hegemonic Power Is Not a Universal

II Power and Violence, Power and Law

III Power, Law, and Nonhegemony in Polycephalic Societies in the Horn of Africa

IV The Legal Community as Guarantor of Nonhegemonic Society

Acknowledgments

References

I

Hegemonic Power Is Not a Universal

I.1. Outline of the Problem and Statement of Objectives

Once there was a brawl between two brothers, and one of them lost his life. The clan head found the victor responsible for the other’s death, and ordered him executed. Word of this verdict reached the guilty man in his hiding place. He summoned his friends and explained to them the situation: his brother had swindled him and had beaten him afterward. During the scuffle, his brother succumbed to his wounds. The listeners then resolved to form a delegation that would address such allegations in the future. After examining the circumstances, solutions would be arrived at by common consent. From now on, they declared, the clan head could no longer decide on his own; indeed, he would henceforward be excluded from the proceedings. He would only be notified once a verdict had been reached, and his role would be merely to sanction this verdict. That happened long, long ago, and that is our tradition.

I was told this story, which allegedly took place in Ethiopia, in Gollango, to the south of Lake Chamo (long known in Europe by the name Lake Ruspoli), during a research trip to the Horn of Africa. I was speaking with my informants about our respective notions of legality and illegality, and those empowered to decide between them. Here, a few scant words suffice to portray a radical social process: the transfer of jurisdiction from a centralized authority to a multitude of responsible parties. This signified an extraordinary expansion of a basic principle of Roman law concerning fair negotiations—audiatur et altera pars, which no one in southern Ethiopia could have heard of—so that not only were all sides heard but the community of those present was even drawn into the judgment process. The above tale contains, in a concentrated form, all those constellations pursued in the following inquiry: power and counterpower, hegemony and resistance to hegemony, communication and conceptions of law. These processes are examined among communities where reciprocity is a dominant societal principle—communities where the interpenetration of social networks and institutions obviates the need for centralized power. They offer a counterpoint to societies with strict hierarchical structures. The people who have devised this form of life in common are acting coequals.

Communities with this form, which can be found the world over, are in no sense a historical forestage of monarchy or a primitive state. They are instead a countermodel to the state of a kind that today only persists within state borders, and therefore must confront and occasionally negotiate with state organizational structures. Sometimes these communities are small social units, but frequently they encompass millions of people. Often they have been declared dead or obsolete as a social model, yet they continue to exist, despite the dangers they face from within and without.

In the course of my inquiry, I would like to shed light on social forms of expression, emanations, ideas, practices, and institutions that oppose or at least problematize the hegemony of one group of people over another. What has particularly aroused my interest, in examining the reasons for the strength and stability of these nonhegemonic forms of communal life, is the extent to which reigning conceptions of values and laws uphold the continuity of societies with this structure, for example, by counteracting tendencies toward the accumulation of power.

My considerations depart from several brief, elementary observations concerning the many forms of human coexistence. In the course of history, people have developed manifold varieties of communal life; the state is only one of the possibilities for society. I will contrast state structures with nonhegemonic societies presently observable in many parts of the world, and in this connection, will give particular attention to nonhierarchical societies in the Horn of Africa.

Since British anthropologists in the 1940s first shed light on regulated anarchist societies in Africa, there have been continuous attempts to disparage these communities’ social and political achievements. This merits mention, even if I will not enter into this particular anthropological controversy here.¹ The steadfast skepticism directed at antihegemonic movements is all the more remarkable insofar as critiques of hierarchical structures appear regularly within Western societies, which at times have been described as undergoing a fundamental crisis. Germane here are both political structures (for example, in the form of protest movements) as well as societal coexistence taken as a whole (with, say, the demand for streamlined hierarchies and the mediation law that came into force in 2012); here, too, stress should be laid on egalitarian tendencies evident in present-day industrial societies that highlight the relevance of this problematic.

Afterward, I will examine the nature of those communities where law has no recourse to coercion, no authority possesses a monopoly on violence, and legitimacy is granted to systems of rules elaborated by members themselves.² Only a detailed presentation of these societies will suffice to clarify the complex historical and sociopolitical relationships that link this peculiar form of law to nonhegemonic societies. The efficacy of the law here forms the basis for the established power relations—which are neither hegemonic nor violent; it is thus advisable to elucidate these concepts with reference to the analyses of Western theorists and philosophers concerning this theme. Their considerations will frequently prove suggestive, even when not directly apropos.

For my observations, power relationships have a twofold significance: in general, as a supportive or disruptive element within nonhegemonic societies, and in particular, in relation to the legal order. After examining the concept of law as a constituent part of the reality of life as a whole, I will look at specific legal cases and study in detail the ways that communicative action, undertaken in common, reaches consensual solutions and makes possible consent to decisions without resort to violence.

With my analysis, I would like to clarify the degree to which the nonhegemonic ethos, striving for autonomous forms, and rejection of centralized authority are reflected in law. But above all, I would like to understand how anarchic social formations can exist despite massive and manifold influences and threats. As we see in the Horn of Africa, autonomous jurisdiction, directed against destructive influences from without, contributes (even when its legitimacy is restricted to certain domains) remarkably to the stabilization of these forms of communal life, although or even because law, as established and exercised in the community, represents a counterweight to hegemonic violence.

I.2. Life in Common: State versus Ordered Anarchy

Man is a social being. Hence, man lives in society not as a consequence of virtue or in the pursuit of his interests but rather because no other form of being is possible.³ Only within a community based on communication is personal development possible; this is something not even Robinson Crusoe can avoid. This is not to deny the possibility that tensions may arise in the ego’s relationship to the community. Cooperation, assistance, and adaptation stand opposite selfishness, the striving for dominance, and expansion as the twin poles of social relations, and the cultural achievements of humanity throughout the course of history have depended on the testing out of the varieties of social relations and orders that lie between these extremes.

The Western perspective sees as victorious the hierarchization of society and societal division of labor, which have evolved from the Neolithic revolution through chiefdoms and monarchies to despotism and finally the modern state. Occidental thinkers have failed to conceive of the epoch before the state as anything other than chaos. In line with this view, in the shadow of the English Civil War, Thomas Hobbes, one of the founders of modern political philosophy, depicted in Leviathan a barbaric, bestial, atavistic environment where man was the wolf of man, and the war of all against all for the sake of goods and prestige was the rule. People could only break free of this condition through a contract uniting each individual will into a single common one. In addition, the honoring of contracts and execution of laws were impossible without coercion. For this reason, citizens hand over their natural rights to the sovereign, who reigns with unrestrained violence and subjugates all.⁴ The state, embodied in the sovereign, guarantees peaceful communal life to the citizen; it is hence the precondition for a harmonious society. With Leviathan, Hobbes grounded in the history of ideas the monopoly on force by the state—a principle still accepted down to the present day—and his stress on the necessity of the state continues to mark the orientation system and evaluative models of political science and sociology. Thus Karl Jaspers could write, just two years after the end of the National Socialist tyranny, that communal life is impossible without a guiding will, and requires leadership and subordination.⁵

Two striking examples of the way contemporary political science adjudges nonstate organizational forms are Somaliland and Puntland, which have emerged in the north of Somalia; both are confined to the category of failed state. Neither possesses a semblance of the classical nation-state with centralized competencies, a monopoly on force, and bureaucratic leadership. Political matters are instead regulated by bodies derived from the councils of elders. Even in its better days, one could at most have described colonial and postcolonial Somalia itself as an incomplete state. The achievement of those who have created functioning community structures in Somaliland and Puntland outside the state has been denied. Rather, the international community is committed to rebuilding a state in Somalia with a monopolized organizational structure like that of a Western state in the belief that this will generate greater security within and beyond its borders.

Michel Foucault analyzes the ways the state habituates the individual and imposes the social practices that constitute everyday life. This does not mean there is no alternative. The nation-state is still seen as the predominant political form across the globe, but there are indications that it has crossed its zenith. Increasingly, states seem overwhelmed by contemporary demands; they have curtailed their social responsibilities; and privatization is growing, and along with it the influence of lobbyists as well as international institutions. In his comparative studies, Trutz von Trotha demonstrates that evolution toward the state is not the historical norm, and given the multiplicity of its stipulations—a monopoly on force, bureaucratic apparatus, and so on—its propagation in other societies is a utopian ideal.⁶ Attempts to institute statist hegemonies at the global level are not only utopian; they also have fatal repercussions for the praxis of those postcolonial states—Afghanistan is an illustration here—where military violence has tried to install neoliberal democratic regimes.

The emergence of the state with its claims to sovereignty is therefore only one among numerous options for organizing human life in common. There is no unavoidable chain of developments leading from simple family ties, where such exist, to political power as expressed in the state through relations conditioned by violence. In the end, these are simply images handed down to us from nineteenth-century evolutionism. And as ethnology shows, the nation-state with its monopoly on force is hardly the most highly differentiated extant model of sociopolitical order.

An examination of the historical conditions under which present-day nation-states arose lies outside the scope of this inquiry. I would stress, however, that the communities presented here are in no sense prestate formations requiring only another evolutionary step (to avoid redundancy) to develop from an embryonic political stage into states proper. Anthropologists are not without blame for this unilinear evolutionist perspective. For decades, their descriptions focused mainly on small groups within nonhegemonic societies and so-called hunter-gatherer bands in particular so that conceiving of larger-dimensioned forms of socializations was impossible.

Émile Durkheim and Max Weber had already explored nonstate forms of communal life on the theoretical, largely still hypothetical plane. Indeed, it was Durkheim who coined the concept of segmentary societies to describe those composed of homologous social elements.⁷ Anthropologists took up and expanded on this concept.

More intensive research avoided societies of this type until the 1930s, when the British failed in their attempt to institute indirect rule, their customary system of colonial administration, among densely populated ethnic groups in Africa for which hierarchical organization did not exist. In indirect rule, indigenous authorities were appointed heads of administrations intended to institute and enforce orders at the behest of the colonial power. But these chiefs went unrecognized by the population at large, and no one heeded their commands. The administration found this baffling, and was unable to understand it until the anthropologists appointed by the colonial administration finally offered an explanation. Their ranks included Jack Goody, Meyer Fortes, and Edward E. Evans-Pritchard, who had researched the Nuer people of Sudan and described their social formations as ordered anarchy.⁸ The work of the British social anthropologists gave rise to heated debate. My own observations proceed from their research to explore the supportive function of law in these nonhegemonic societies. Whether societies of this type may develop hierarchies remains an open question. Harold Barclay has looked into social sectors from which a tendency to state formation might arise.⁹ Many societies, for instance, reserve substantial