Political activists and theorists of all stripes have equal entitlement to the term “direct action”. Such indiscriminate access came as a surprise to me. Until recently, I was under the apparently mistaken impression that direct action is reserved for the political left, most often its anarchist element. Yet some libertarians have identified it as a valid means to achieve their ends as well. However broad its accepted definition may be, a critical reading of direct action and its intellectual roots suggests libertarians are misusing this socialist shibboleth. For those who feel the intellectual history of ideas should matter for political activists who appeal to them today, I offer this essay.
Those libertarian anarchists who call for direct action are either working with too vague a definition or are making a contradiction in terms. A January 20th Facebook post by libertarian activist Cory Massimino is one example. Massimino voiced support for Chelsea Manning’s US Senate campaign, but warned,
“it’s important to not fall into a narrow view of social change. There’s more to it than mere policy reform and Manning’s campaign actually seems all the more valuable in a broader framework of direct action and education.” (emphasis added)
Massimino’s emphasis on grassroots change is not the target of my puzzlement. Neither is his support of Chelsea Manning, whose whistle-blowing received widespread praise among market anarchists. My only objection is to his use of the term of art “direct action”. Using this term in this way risks a conflation of very different types of anarchism with very different goals. This doublespeak misrepresents libertarianism to the public. If market anarchists truly grasped the meaning of direct action, they would recognize such tactics are inconsistent with libertarianism.
What does direct action mean? Although the term’s earliest appearance came in a pamphlet printed by the Industrial Workers of the World, a 1912 essay titled “Direct Action” by American anarchist and early feminist Voltairine de Cleyre contains one of the first definitions.
“Every person who ever thought he had a right to assert, and went boldly and asserted it, himself, or jointly with others that shared his convictions, was a direct actionist. Some thirty years ago I recall that the Salvation Army was vigorously practising direct action in the maintenance of the freedom of its members to speak, assemble, and pray. Over and over they were arrested, fined, and imprisoned; but they kept right on singing, praying, and marching, till they finally compelled their persecutors to let them alone. The Industrial Workers are now conducting the same fight, and have, in a number of cases, compelled the officials to let them alone by the same direct tactics.
Every person who ever had a plan to do anything, and went and did it, or who laid his plan before others, and won their co-operation to do it with him, without going to external authorities to please do the thing for them, was a direct actionist. All co-operative experiments are essentially direct action.
Every person who ever in his life had a difference with anyone to settle, and went straight to the other persons involved to settle it, either by a peaceable plan or otherwise, was a direct actionist. Examples of such action are strikes and boycotts; many persons will recall the action of the housewives of New York who boycotted the butchers, and lowered the price of meat; at the present moment a butter boycott seems looming up, as a direct reply to the price-makers for butter.”
The passage seems like a passionate polemic celebrating cooperation without the state. Though transparently radical, direct action sounds at first glance like it could be used by any group opposed to government coercion. In fact, given this all-encompassing definition, it’s difficult to think of strategies that don’t qualify.
But like it’s author, the essay is far from neutral in reality. De Cleyre’s politics, which evolved dramatically from early association with individualist anarchists to her later affiliation with communist anarchists like Emma Goldman, did not straddle these fringes to remain impartial. Her’s was not simply an “anarchism without adjectives” as she once claimed. Comments throughout the essay demonstrate a disdain for markets, industrial entrepreneurship, and the price mechanism. For her, class struggle, rather than scarcity or individual preferences, form the source and substance of economic phenomena. Later in the essay, de Cleyre adopts an exploitation theory of economic development when she claims workers will be inevitably reduced to subsistence wages. This assumes an objective labor theory of value, which economists following the Marginal Revolution, particularly the Austrians, vehemently deny and convincingly refute. Economist Bryan Caplan has written about the Libertarians of the Spanish Civil War and how their brand of political anarchism contain similar theoretical and ideological commitments, notwithstanding their bitter conflict with communist militants.
This is not to dismiss all of de Cleyre insights in the realm of politics and society, nor to claim against historical evidence that direct action can’t be effective. Neither are these observations on her priors meant as an ad hominem attack on de Cleyre, who’s personal life admirably and honestly reflected her ideals through often miserable circumstances. However, it should be jarring indeed to hear market-anarchists or anarcho-capitalists use her term direct action in reference to their own project, since these movements rest on markedly different intellectual foundations.
A closer reading of de Cleyre’s essay helps clarify the intention behind her broad and roomy definition of direct action. She goes on to claim American abolitionists as direct actionists.
“When the fugitive slave law was passed with the help of the political actionists of the North who wanted to offer a new sop to the slave-holders, the direct actionists took to rescuing recaptured fugitives. There was the “rescue of Shadrach,” and the “rescue of Jerry,” the latter rescuers being led by the famous Gerrit Smith; and a good many more successful and unsuccessful attempts. Still the politicals kept on pottering and trying to smooth things over, and the Abolitionists were denounced and decried by the ultra-law-abiding pacificators…”
Then, de Cleyre casts the contemporary union movement in a like mold.
“These workers have, in one form or another, mutually joined their forces to see what betterment of their condition they could get; primarily by direct action, secondarily by political action…”
The observation that both abolitionists and unions had to further their agendas outside the letter of the law is not arguable. Clearly, de Cleyre wanted to persuade readers to support the union movement, but why frame the matter in this way? As she continues, the need for contextualizing unions within a longstanding American tradition comes into focus. De Cleyre sought to assuage the public’s anxiety over violent union tactics at the turn of the century by situating them within a less controversial and by then mythologized history of reform movements. Minimizing this violent tendency of the union movement was her main objective.
“Now everybody knows that a strike of any size means violence. No matter what any one’s ethical preference for peace may be, he knows it will not be peaceful. If it’s a telegraph strike, it means cutting wires and poles, and getting fake scabs in to spoil the instruments. If it is a steel rolling mill strike, it means beating up the scabs, breaking the windows, setting the gauges wrong, and ruining the expensive rollers together with tons and tons of material. IF it’s a miners’ strike, it means destroying tracks and bridges, and blowing up mills. If it is a garment workers’ strike, it means having an unaccountable fire, getting a volley of stones through an apparently inaccessible window, or possibly a brickbat on the manufacturer’s own head. If it’s a street-car strike, it means tracks torn up or barricaded with the contents of ash-carts and slop-carts, with overturned wagons or stolen fences, it means smashed or incinerated cars and turned switches. If it is a system federation strike, it means “dead” engines, wild engines, derailed freights, and stalled trains. If it is a building trades strike, it means dynamited structures. And always, everywhere, all the time, fights between strike-breakers and scabs against strikers and strike-sympathizers, between People and Police.
On the side of the bosses, it means search-lights, electric wires, stockades, bull-pens, detectives and provocative agents, violent kidnapping and deportation, and every device they can conceive for direct protection, besides the ultimate invocation of police, militia, State constabulary, and federal troops.
Everybody knows this; everybody smiles when union officials protest their organizations to be peaceable and law-abiding, because everybody knows they are lying. They know that violence is used, both secretly and openly; and they know it is used because the strikers cannot do any other way, without giving up the fight at once.”
De Cleyre has brushed aside significant differences between abolitionists and unions in order to emphasize a more superficial similarity: they were both initially unpopular and operated outside legislated law. By labeling both direct actionists, she artfully portrays union violence as ultimately laudable and inevitable. Sure, people get hurt, but “everybody know this”. It’s necessary. She equates the anomalous terrorism of John Brown with the far more rampant violence of early 20th century strikes. She also fails to distinguish between voluntary employment contracts and involuntary slavery. De Cleyre successfully crafted a seemingly neutral definition of “direct action” to obscure these differences. By her casuistry, the meaning of direct action was thus shrouded from the outset.
However, the most crucial dissimilarity between unions and abolitionists (which de Cleyre conveniently ignores) concerns not violence, but property rights. The abolition movement was consistent with a philosophy of natural law and property rights (as was the individualist anarchism of de Cleyre’s early years). Indeed, notable abolitionists like Frederick Douglass eventually came to see the American Constitution as an inherently anti-slavery document, since it appealed to natural rights. He and Lysander Spooner, 19th century libertarian anarchist and one time competitor with the US Postal Service, both agreed that the Constitution technically outlawed slavery when it was first signed. The late 19th century union movement drew instead on a framework of legal positivism that rejected the concept of property rights in order to accelerate toward a rationally constructed socialist society. De Cleyre’s own opposition to the institution of property motivated the definition of direct action in her polemic, which conceals these important distinctions between the unions and the abolitionists. Though de Cleyre’s early writing was supportive of property rights, (of Emma Goldman, she once wrote, “She [Goldman] wishes to destroy the right of property, I wish to assert it.”) her later work turned against it entirely. Thus, in an essay titled “The Commune is Risen”, written the same year as “Direct Action”, de Cleyre declares the 1871 Paris Commune’s failure was due to the fact that it “respected property”. The apparent neutrality of de Cleyre’s direct action belies a positive assertion of socialist utopianism. Thus, when a speaker utters the phrase “direct action” they are implicitly proclaiming a position on property and its role in society.
I was first introduced to the idea of direct action by a 1971 debate between Michel Foucault and two Maoist militants Victor and Gilles, which appears in Power/Knowledge, a collection of Foucault’s interviews and miscellaneous writing. The context of the discussion was France’s social unrest following May 1968. At question was whether a people’s tribunal could administer justice on behalf of oppressed peoples following a revolution. While Victor and Gilles think so, Foucault contends that any court system is inherently supportive of existing power structures and therefore cannot be relied upon to promote revolutionary objectives. De Cleyre herself was similarly disillusioned by the American justice system after the Haymarket protesters were hung in 1887. For Foucault, courts have a genealogy inextricably linked to capitalism’s development. Everything from judicial precedent to the Feng shui of a courtroom enable bourgeois elites to exploit groups at the margins of society. Law enforcement can’t be refracted back on oppressors simply because the gavel lay in the revolutionaries’ hands. Instead, the people themselves must take the reins of justice through “direct action”. This solution was too radical even for Foucault’s Maoist interlocutors, who’s faith in mob justice was more reserved.
Foucault’s extreme use of the term is not altogether typical. Like de Cleyre, he was hardly a static thinker. Perhaps direct action meant something different to him in later years, after flirting with the work of “neoliberal” scholars like Gary Becker and F.A. Hayek. It’s possible that Foucault’s conception of direct action in 1971 was overextended by his own personal drive to pursue “limit experiences”, as Mark Lilla has posited in The Reckless Mind: Intellectuals in Politics. In such pursuit, Foucault often sacrificed logical consistency for the sake of novelty. For example, his call for direct action would seem to minimize the role of leftist intellectuals, of which he is one, in revolutionary movements. More fundamentally, his analysis of court systems as products of history is itself a product of history with its own torturous relation to power, and is therefore vulnerable to its own critique. In order to historicize the foundations of Western society, he sometimes played fast and loose with the methodology of actual historians. For instance, those familiar with the Law Merchant or the history of English common law may question just how essential and codependent state criminal justice systems actually were capitalism’s development, though this argument may be more valid for the civil law system in pre-Revolutionary France. However, the flaws in Foucault’s argument don’t weaken his ultimately correct interpretation of direct action as such.
For Foucault, direct action implies a rejection of property rights per se. Society’s ills are not caused by the current court system merely because it is out of line with property rights as they should be. As de Cleyre would agree in her maturity, the entire concept of property rights must be discarded. By extension, so too must the philosophy of natural rights that buttress a liberal property rights system.
Some readers may favor a softer interpretation. Surely, the meaning of direct action has evolved with the times. One might argue that de Cleyre’s original intentions are irrelevant for political activists today. Activists within the American Civil Rights movement often called their non-violent resistance to segregation direct action. So too did anti-colonial movements in Asia and Africa. Do these movements inherently undermine property rights? No they do not. Admirable and righteous though these movements are, however, they’re interpretation of direct action is insufficiently narrow. By labeling peaceful civil disobedience a form of direct action, they risked contradicting their professed philosophies and projecting an incoherent vision for the future. Indeed, this was the very confusion that de Cleyre’s sophistry was meant to elicit.
Dr. Martin Luther King Jr.’s Letter from Birmingham Jail exemplifies this tangle. King outlines his program for social change in order to convince members of a local church congregation that his methods are as enlightened as his cause. King states, “In any nonviolent campaign there are four basic steps: collection of the facts to determine whether injustices exist; negotiation; self purification; and direct action.” However, King’s conception of direct action bears little resemblance to the aims and strategies which de Cleyre attempted to justify in concocting the term. Again, nonviolence is not the crucial inconsistency. The luminaries King cites in presenting his vision for a just society evince a deep dedication to natural rights and a learned understanding of natural law.
Turning back to the congregation’s concerns, King elaborates on the underlying premises for his vision of a just society.
“You express a great deal of anxiety over our willingness to break laws. This is certainly a legitimate concern. Since we so diligently urge people to obey the Supreme Court’s decision of 1954 outlawing segregation in the public schools, at first glance it may seem rather paradoxical for us consciously to break laws. One may well ask: “How can you advocate breaking some laws and obeying others?” The answer lies in the fact that there are two types of laws: just and unjust. I would be the first to advocate obeying just laws. One has not only a legal but a moral responsibility to obey just laws. Conversely, one has a moral responsibility to disobey unjust laws. I would agree with St. Augustine that “an unjust law is no law at all.”
Now, what is the difference between the two? How does one determine whether a law is just or unjust? A just law is a man made code that squares with the moral law or the law of God. An unjust law is a code that is out of harmony with the moral law. To put it in the terms of St. Thomas Aquinas: An unjust law is a human law that is not rooted in eternal law and natural law. Any law that uplifts human personality is just. Any law that degrades human personality is unjust…
…I hope you are able to see the distinction I am trying to point out. In no sense do I advocate evading or defying the law, as would the rabid segregationist. That would lead to anarchy. One who breaks an unjust law must do so openly, lovingly, and with a willingness to accept the penalty. I submit that an individual who breaks a law that conscience tells him is unjust, and who willingly accepts the penalty of imprisonment in order to arouse the conscience of the community over its injustice, is in reality expressing the highest respect for law.”
The contrast between de Cleyre and King could not be more plain. For King, the problem is emphatically not property rights itself, but rather the current confluence of policies and interests conspiring to exclude minorities from social and economic life. His astute critique of America’s white power structure centered on infidelity to the principles embodied in its founding documents, not those principles themselves. King worked within the court system to achieve equal protection under the law for minorities. Demonstrations were intended to elicit tension and gain leverage for the purpose of later negotiation; they were directed at redefining property rights within a community, not eradicating property as such. Certainly there were socialist elements within the American Civil Rights movement who rejected property rights and the rule of law, but what King himself calls direct action is better defined as civil disobedience a la Henry David Thoreau. It is unfortunate that King used such an illiberal term to describe his striving for a more liberal society. He certainly was not the last to overlook its implications for property and natural rights.
Taking this originalist (if somewhat biographically deconstructed) approach, direct action is well-defined. It can be applied to the destruction or theft of private property, improvised militant action against police, walkouts at university lectures, or human roadblocks, among other things. Again, violence is not the defining feature. There are peaceful and mundane ways to engage in class struggle for the overthrow of property, just as there are violent ways to promulgate liberalism. The left exerts a powerful usufruct right to direct action. This claim is fitting, but not all leftist dissent has license to the use the term. Dramatic media stunts by environmental groups shouldn’t qualify as direct action because their objectives are often insufficiently radical: they usually only wish to weaken property rights by bolstering federal regulation or encouraging subsidies of renewable energy, rather than eliminating property altogether. Tea Party rallies can’t be called direct action, except ironically. Nor can the conduct of Sovereign Citizens. These are not complaints. Those movements negate the initial intent of the term: to diminish property rights and undermine a philosophy of natural law. To the degree that right-wing terrorism misguidedly aims to strengthen property rights, it is not direct action. Apparent exceptions, such as Timothy McVeigh’s reported obsession with the term prior to the Oklahoma City bombing, can, I think, be more or less explained away by deranged insanity. Moreover, Neo-Nazis and identitarians hardly proclaim to be classical liberals. Hayek’s characterization of fascism as merely an advanced form of collectivism in The Road to Serfdom is just as valid today as when it was written in the final days of World War II. Though sometimes misused, the meaning of direct action hinges on the user’s conception of property.
In American popular culture, direct action has enjoyed something of a moment since the Occupy Wall Street movement. Amid increasingly militarized domestic police forces and ongoing foreign wars, a fascination with pure tactics and the sexy terms of art thereof has partially supplanted substantive discourse on social issues. The inability of politicians to affect meaningful reforms for the left or right has bred frustration. A fear of vitriolic reprisal has drained the willingness of public intellectuals to extol the virtues of property rights and a market economy. Whatever the trends causing its resurgence in popularity, direct action remains mostly specific to radical social anarchists. Even when wannabes use the term, their politics are rarely liberal. Whether borne of logical consistency or cultural affectation, direct action is a creation of the left for the left in both speech and practice.
Yet more recently, certain libertarian anarchists with quite divergent purposes have begun calling for direct action as well. This lack of discernment in word choice is troubling.
Cory Massimino participated in a panel at the 2016 International Students For Liberty Conference in Washington, D.C. on the corrupting and conforming effect of politics.
“Even genuine and radical people who try to use the government to achieve their ends end up becoming part of the system they once fought against. For example, a young, radical Bernie Sanders was arrested in 1963 for taking part in a civil rights sit-in. But by 1999, Sanders, now a Senator, was enthusiastic about Clinton bombing Yugoslavia, which prompted a group of anti-war radical leftists to organize a sit-in at his office, where they were arrested after he refused to talk to them. This is not special to Bernie. This is what electoral politics does to people.”
As Massimino narrows in on the subject of prison abolition, he remains libertarian in his approach. He lists Public Choice problems like rational ignorance and rent-seeking, first rigorously analyzed by Buchanan and Tullock, as issues that prevent politics from being a panacea. He warns of the Hayekian knowledge problem to caution skepticism of top-down policy solutions. Massimino only really dips into an illiberal mode, and even then unknowingly I suspect, when proposing that listeners engage in “direct action” to counter the state’s criminal justice system. (The emphasis below is my own)
“…what are some ways to fight the enforcement aspect of the criminal justice system?…
Resist the prison industrial complex: Utilize direct action and organize against prison construction. Divest from banks and corporations that profit from prisons. Expose prison profiteers like Hillary Clinton. Monitor the police, finance legal defenses, and engage in jury nullification.
Build alternatives to prison: LGBT people of color in New York run a Safe Neighborhood Campaign, which trains local business and community groups to stop violence without calling the police. Local, decentralized efforts to protect people’s rights are also valuable tools in the fight for freedom.”
What’s confusing about this passage is that the actual concrete proposals Massimino lists are thoroughly libertarian and agorist. Resistance of this kind to prisons is consistent with a classically liberal conception of property rights. There is a discontinuity between Massimino’s aims or ideology and his choice of words. Given the Marxist economics de Cleyre subscribed to, we should be surprised to hear of direct action alongside praise of methodological individualists like Buchanan, or Austrian subjectivists like Hayek. Moreover, some of the recommendations, like “finance legal defense, and engage in jury nullification” occur explicitly within the court system. As with King’s statements above, a redefinition of property rights seems to be the goal. If direct action implicitly denies the legitimacy of property rights per se, then either Massimino’s recommendations are inconsistent with each other or he is using the term incorrectly.
Articles posted by the libertarian anarchist think tank Center for a Stateless Society similarly muddy the water when they classify participation in black markets as an instance of direct action. A 2014 article by Jeff Ricketson blithely equates direct action with a go-getting attitude and disregard for bureaucratic red tape. This is a sterile shadow of what direct action means to the radical left that created the term. Ricketson’s article is titled “Direct Action as Entrepreneurship”, a title progressives and social anarchists would rightly scoff at.
““Direct action” is a necessarily nebulous term. It includes in its purview agorism, strikes, community organizing, civil disobedience, cop blocks, etc. Anything wherein people act together against an ailment imposed on their society is direct action.
Importantly, direct action is not advocacy. It does not seek to change opinions. Part of the reason for its enormous success in many places is precisely this: It forces others to cease their illegitimate behaviors. When it succeeds, it does not do so because of the approval of those in power. Rather, it is a tool for forcing change in spite of the disapproval of the system as-is.”
This libertarian adoption of a socialist buzzword is all the more unfortunate because it is so avoidable. Ricketson writes that direct action is “necessarily nebulous”. Yet this necessity evaporates with an only mildly closer reading of de Cleyre’s original 1912 essay. The nebulousness is a product of de Cleyre’s motives in defining the term. Important implications of direct action for natural rights are sidestepped by taking de Cleyre’e definition at face value. Note the word “illegitimate” in the second paragraph. By what criteria do we judge behavior to be legitimate? When does direct action itself become illegitimate? Either we take a classically liberal approach, or we take a progressive framework of social justice as our guide. The decision is consequential. It is the decision de Cleyre wished to forestall to persuade her readers of the radical arguments in her essay.
The libertarian writer who comes closest to recognizing the significance of this choice is Nathan Goodman, who’s article “Beware Panaceas: Promises and Pitfalls of Agorism, Illegalism, and Syndicalism” outlines his reservations about alliances between the three species of anarchism.
“…illegalist and syndicalist tactics may undermine property rights even when they do not involve appealing to the state. This is fairly obvious for illegalist tactics, which explicitly valorize theft as a form of direct action. Syndicalism may also involve the coercive transfer of property, particularly when it entails seizing factories from their owners. There are worthwhile questions to ask about the legitimacy of existing property claims given historical injustices such as the enclosures and other state actions that have privileged capitalists and impoverished workers. However, action that serves to transfer property from one person (or group of persons) to another person or group without the consent of the initial owner is zero or negative sum action. Given that we have limited time, labor, resources, and entrepreneurial alertness, there is a real opportunity cost to devoting our efforts to securing transfers rather than production and mutually beneficial exchange.
Economist William Baumol draws an important distinction between productive and unproductive entrepreneurship. A great deal of unproductive entrepreneurship is mediated through the political. Rent-seeking, lobbying, securing monopoly privileges, and war-profiteering are all good examples. But unproductive entrepreneurship can also occur outside the state apparatus, through theft and plunder.”
While perceptive, Goodman’s analysis dances around a yet more damning conclusion on these alliances. To compromise with an opposing radical fringe is to surrender. Almost by definition, these groups are radical, because their aims are uncompromising. The emulsion of unlike anarchisms under one banner is self-defeating. It’s also meaningless. One group’s direct action is another’s reactionary stifling of progress. Agorism will not be tolerated by the socialist vanguard party just because market anarchists say agorism is a type of direct action. The distinctly anti-market connotations of direct action can’t be eschewed for the sake of ecumenicism. It is not a neutral term available to any and all without qualification.
Obviously, there is no vocabulary police. The meaning of direct action has certainly changed over time. However, the trace of de Cleyre’s political consciousness cannot be removed from her creation. Whereas the meaning of synthetic objects can be deducted analytically, and propositions of physics or chemistry are amenable to the scientific method (though these too have a frame of reference problem), political constructs require a Wittgensteinian language game to be played before the rules of use can be intuited. While the rules of this political language game have changed substantially since de Cleyre made the first move, the initial position she set can’t be ignored. The confounding trouble with language in politics, for actors and spectators alike, is that just where our words are most malleable to a speaker’s purpose is their meaning most fraught with contention. Usurping meaning with a rule change is a constant threat, but affecting an enemy’s parlance for a new purpose does not eliminate the strictures of its grammar.
The likeliest explanation for libertarians’ desire to exert some claim over direct action is that all anarchists long for the good old late 19th century. Throwing their progenitors into one big tent provides strength in numbers, especially for market-anarchists whose forefathers are less well-known. But anarchists of that time period were acutely aware that the agorism of Lysander Spooner and the individualism of William Godwin were incongruous with the direct action of de Cleyre and the collectivism of Mikhail Bakunin.
Possibly, the dubiety about direct action stems from a more subtle conflation of common law and criminal law. Interpersonal contracts and judge-made remedies to property disputes are of a different genus than legislation created by politicians and enforced by bureaucratic agencies. Whereas common law evolved largely from the gradual codification of extant social norms, state legislation must be girded by a more positivist conception of law and its purpose.
As Roscoe Pound relates in his An Introduction to Philosophy of Law, late Roman law relied on a natural law philosophy that found its way into common law practice. After the Enlightenment took a rationalist turn, legal positivism came into vogue. These divergent legal philosophies crossed paths throughout history, but remained logically distinct. Natural law philosophy has occasionally been co-opted for positivist purposes, and vice versa. Although stoicism began as a counterculture movement, their ideal of natural law was eventually assimilated into the imperial Roman culture, even among its imperial elites. Yet in practice, the state administered often arbitrary law enforcement and continued self-interested territorial expansion. Not very stoic. This tenuous commingling of statism and natural right was solidified in Justinian law, which has trickled down into modern international law via Hugo Grotius. Occasionally imprisoned during religious wars and eventually exiled to France, the Dutch jurist Grotius would posit in 1625 that nation states possess a primitive right to rule, while paradoxically rejecting absolutism and claiming nations were also answerable to the rule of law.
The confusion between positive and natural law is not merely artificial or contrived. There is a very real problem of determining when a law of nature can or should be positively codified into the laws of man. But while pre-modern and early modern legal and political philosophies rested on theological foundations, the increasing atheism of 19th century intellectuals set the stage for a high season of equivocation. When the source of justice ceases to be religious tradition, it must still face the limits of human reason. Thus, 19th century legal scholars like Jeremy Bentham railed against common law legal fictions as acts of elitist cunning, though many of the courtroom procedures he decried were the result of a more continuous, decentralized and organic social process. Some legal fictions have the virtue of efficiently allocating resources amid practical uncertainties. An example is the doctrine of survival, which establishes that if both individuals in a line of inheritance die at the same time, the older individual is assumed to have died first. Bentham effectively failed to distinguish commutative judge-made law (which were usually consistent with natural rights) from re-distributive laws originating in legislatures (which were often not). Similarly,socialist of a few decades hence mistook the provenance of societal ills to be anarchic market production, rather than state interference in its operation.
Most libertarians ostensibly appreciate the difference between the legal positivism of state criminal law and the natural rights philosophy associated with common law. However, having inherited some of Bentham’s utilitarianism via John Stuart Mill, as well as a penchant for nonconformism from individualist anarchists, libertarians risk a careless and unstable fusion when they call for “direct action”. They are applying a term created by progressive-era radicals to justify rebellion against common law or criminal law and transplanting it to their own siege against criminal law but not common law.
While socialist anarchists must share blame for being naive enough to think their program would be sustainable without resorting to something like state criminal law, libertarians cannot be excused for sending this ill-formulated signal of misguided solidarity a century after the fact. If nothing else, I hope this admittedly reductionist explication of the matter might elucidate for progressives why libertarians decry legislative bodies only to recommend resolution in civil court. Progressives and social anarchists may be understandably perplexed by such a maneuver being called direct action.
My intention here has not been to paint de Cleyre as particularly diabolacle in her origination of direct action. On the contrary, she was probably just as guileless as today’s libertarians are about the consequences of her arguments. Even in 1912, I’d guess (though this is only unsubstantiated speculation on my part) some socialists and communists, especially outside the United States, might have been displeased by de Cleyre’s depiction of unions as inheritors of bourgeois reform movements, especially religious movements, since this would sanitize the true radicalism of the socialist project. Whatever the contemporary reaction was when de Cleyre published her essay, libertarians who don the banner of direct action today utterly fail to recognize the political milieu that spawned the phrase. Despite its purportedly inclusive definition, transporting direct action to today’s libertarian movement misses the central purpose of de Cleyre’s essay: to persuade readers that the destruction of capital equipment and the murder of scabs are morally justified means to attain the abolition of property rights.
Despite the problematic roots of direct action, certain libertarians have latched onto some Platonic form of it in order to frame their own project of agorism, and they don’t appear to be letting go any time soon. In years to come, this unfortunate naivety may breed as much confusion for newcomers to both movements as did progressives’ 20th century insurgency on the word “liberal”. Libertarians who use the term direct action do themselves and socialists alike a disservice by implicitly suggesting it is consistent with a philosophy of natural rights. Direct action is far more radical and illiberal than that.