by Christos Marneros
8th October 2020
[Part of a series of articles drawn from the 6th International Anarchist Studies Network Conference, September 2020]
The relationship between law and anarchy tends to be characterised, to say the least, as an uncomfortable one. Taking, usually, a purely negative approach towards law, anarchist thought – in all its heterogenous tendencies – is, usually, characterised by a total opposition against law, which tends to be understood as an irrational, immoral and oppressive ‘tool’ of the state apparatus that promotes the interests of the government against, and not for, its subjects. Law has the ability to justify the obligation of the people to adhere to the rules of the state and to that extent, it justifies the state’s monopoly on violence – ‘state behaviour is an act of violence, and it calls its violence “legal right”; that of the individual, “crime”’ writes Max Stirner . These views are, famously, echoed by Pierre-Joseph Proudhon when he states: ‘Laws! We know what they are and what they are worth. Gossamer for the mighty and the rich, fetters that no steel could smash for the little people and the poor, fishing nets in the hands of government’ . But beyond being an ‘unworthy hoax’  that justifies and legalises the ‘brutish’ acts of the state, the law becomes also an insurmountable barrier that fetters any potentiality towards living a life characterised by spontaneity and revolt against hierarchy; and to that extent, it limits and at times terminates the ability of human beings to confront their immanent everyday problems and resolve them according to the particular and singular needs of a situation that they are faced with, without being attached to the commands of the laws of the state or ‘enabled’ in principle but, simultaneously, hindered in reality. According to Pyotr Kropotkin, people become
perverted by an education which from infancy seeks to kill in [them] the spirit of revolt and to develop that of submission to authority; we are so perverted by this existence under the ferule 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 .
To that extent, people are unable to respond, engage, create and think-otherwise because they expect to receive all the answers to their problems from a transcendent authority of the law of the state, or adapt to the modality that one thing will be valid in the name of a higher abstract principle but another will be valid in everyday reality (for example the oppressive nature of Third World debt and related restructurings or violent conflict in the name of profit).
Despite its invaluable contribution and the ever-pertinent critique of the state of affairs, this ‘classical’ – if it can be named so – anarchist dismissive approach to law needs to be re-examined and rearticulated if it is to pose an effective nuisance to the mechanisms of domination and the oppression of dogmatism and dominance under a transcendent mode of being. This is because, a head-on confrontation with the law and the state – a potential for a general insurrection – does not appear to be a pragmatic, or even an effective solution due to the blurry meanings of the law and the state and the overcomplicated relations that characterise our (post)modern societies, including the difficulty of defining and identifying the boundaries of the state and its law. Perhaps, it is the recognition of this impasse that led, more recently, to an emergence of work that tries to think ‘seriously’ about law and its relationship with anarchy in new and interesting ways, including analyses about how questions relating to a living of a life beyond law and the state can be placed in a different sense ‘compatible’ with an anarchic ethos.
In this paper, I aim to think anew about the relationship between law and anarchy. In order to do so, I examine and expand on the late French philosopher, Gilles Deleuze’s notions of the institution (Section 1) and the nomos of the nomads (Section 2). As I argue, these two notions, perhaps, have something interesting to offer to an ethos that tries to live immanently and do politics in an an-anarchic way, beyond the dogmatism of law and rights at least in their transcendent modality, pointing towards a non-juridical way of thinking, what I shall call an an-archic jurisprudence.
- Institutions against the law
In his first major work Empiricism and Subjectivity: An Essay on Hume’s Theory of Human Nature, Deleuze makes a distinction between law and institutions. Following, David Hume’s critique of the idea of a society based on ‘a social contract’, Deleuze states that:
The essence of society is not the law but rather the institution. The law, in fact is a limitation of enterprise and action, and it focuses only on a negative aspect of society. The fault of contractual theories is that they present us with a society whose essence is the law, that is, with a society that has no other objective than to guarantee certain pre-existing natural rights and no other origin than the contract. Thus, anything positive is taken away from the social, and instead the social is saddled with negativity, limitation and alienation. The entire Humean critique of the state of nature, natural rights, and the social contract, amounts to the suggestion that the problem must be reversed … The institution, unlike the law, is not a limitation but rather a model of actions, a veritable enterprise, an invented system of positive means or a positive invention of indirect means .
In this passage, we observe a distinction between the idea of law and that of an institution with the first said to be operating as a mere limitation of actions, a restraint. This view suggests that the people that create ‘a society’ form – and are formed by – a social contract based on a fundamental sense of law that places restraints on the ‘brutish’ impulses and passions which would be harmful to the rest of the population in the absence of such a contractual bond, very much akin to Hobbes’ views. Deleuze, via Hume, argues that a notion of the institution is quite the opposite of law, in the sense that the institution is something that operates as ‘a model for action’ that is characterised by a positive invention and, in that sense, it does not limit action but expands the possibilities of a wider range of actions and responses to the multiplicity of encounters one is faced with each time – the institution is a sort of an enterprise, which is ever-changing, and hence it cannot bind and restrain. Institutions are created in order to ‘satisfy [their] tendencies and needs’  and they are ultimately dissolved or changed if such needs are redundant. Hence, the importance of the distinction between law and institutions is, for our purposes, that thinking through or with institutions rather than law, in the sense described above, enables a different perspective about thinking the social, an an-archic way as I explain below, which is ‘profoundly creative, inventive and positive’ .
Despite not expanding further on this distinction, it seems that Deleuze held a fairly consistent approach to it. For instance, in his later book on Leopold von Sacher-Masoch, Coldness and Cruelty, Deleuze states that ‘laws bind actions; they immobilise and moralise them’ . To that extent, law operates through the imposition of certain transcendent action-binding values; classically through the distinction of good and evil, right and wrong, judging actions by hierarchising beings in terms of these actions. In contrast, Deleuze remarks that ‘pure institutions without laws would by definition be models of free, an-archic action, in perpetual motion, in permanent revolution, in a constant state of immorality’ .
An institution can be said to be envisaged as an open-ended, nomadic space, as I explain below, where we can find each other  and create with each other. It is a way of responding to a particular situation not because we are a priori commanded by transcendent norms (legal or moral), but because a situation calls us to create something that is capable to respond to a singular need of the transformation of the social. Further to that, an institution should not operate just as a ‘space’ where we find each other, but as one where we have the capability of losing each other, of losing or changing the institutions themselves and through our practices – which are never predetermined – losing our own selves and whatever we held as a dogmatic notion of truth and norms. What I mean by that, is that an institution is also ‘an indication of a need for distance, however elastic, temporary, revocable, that is, connected to those that turn out to be the transformations, the metamorphoses, of the social’ . In our particular jurisprudential sense we need to always be vigilant for the situation where an institution loses its purpose, or becomes ineffective in responding to the particularities of novel situations. We need to maintain, in other words, the courage to do away with it and to that extent to be able to create something new against convenience, habit or ‘common sense’ or because its laws and norms dictate that we need to hold on to it even when it stifles life.
In that sense, an institution can be said to hold a paradoxical level of consistency which is determined by a different understanding of how one can operate through laws in a non-juridical way – if they can be called so – that is not reduced to a hierarchical permanent formation and set finality, since they are to sustain the potency to recreate their rules anew in the present; and as such to reorganise an institution according to the particular needs and uses before a specific and singular circumstance .
- ‘It is a nomos very different from the “law”’ 
Institutions can be understood as an open-ended space, a nomadic one, where their means are realised by what is called nomoi, as opposed to laws. Following this line of thought, in this part I aim to think beyond the dogmatism of law by examining a thinking-otherwise of law in terms of what Deleuze names nomos. In Difference and Repetition, Deleuze refers to the practice of the distribution in land in its Homeric use as nomos [νόμος] . While, nomos [νόμος] is widely known as the modern Greek translation of the English word ‘law’, according to Deleuze, its Homeric use significantly differs from our understanding of what law is or could be nowadays – ‘it is a nomos [νόμος] very different from the “law”’ , say Deleuze and Guattari. Following the analysis of the meanings of the word by the French linguist Emmanuel Laroche, Deleuze explains that nomos [νόμος] for Homeric society has a pastoral sense. For Deleuze, this meaning of allocation or distribution was not a matter of land distribution, because as the philosopher states the understanding of nomos as land-distribution was ‘only belatedly implied’ . Instead, Deleuze remarks:
Homeric society had neither enclosures nor property in pastures: it was not a question of distributing the land among the beasts but, on the contrary, of distributing the beasts themselves and dividing them up here and there across an unlimited space, forest or mountainside. The nomos designated first of all an occupied space, but one without precise limits (for example, the expanse around a town) – whence, too, the theme of the ‘nomad’ .
Here the figure of the nomad seems to counter the enclosed space – or striated space in Deleuze and Guattari’s terminology – as provided by the official laws of a society based on a so-called ‘sophisticated’ legal system and rights, for example, a distributor father-figure of a state apparatus or a sovereign.
On the contrary, the nomad, in this particular sense, moves within a smooth space. Deleuze and Guattari crucially explain that ‘striated’ or ‘sedentary’ space ‘is counted in order to be occupied’  whereas smooth space is ‘occupied without being counted’ . This suggests that striated space, faithful to the calculable or metric mentality of the state apparatus and of the law in the sense I described earlier, calculates which entities, ideas, rights and modes of life are ‘fit’ to be included within the enclosed space of its boundaries of rightness and propertyness. This ‘calculation’ is operated by state’s laws and customs which have as a ‘measure’ the transcendent morality of the state apparatus and its interests – they act still in accordance with the model of the sovereign, superior and unparticipated ‘judgment of God’. On the other hand, smooth space is a place for creation and invention without a predestined or pre-empted distribution of shares, rights and so forth. It is there to be occupied and moulded accordingly, in order to serve particular needs and respond to a particular situation – the institution, as explained above, corresponds to this understanding of a smooth space.
Smooth space is the boundless place of the nomad or nomas. The nomads are characterised by a constant movement within a smooth jurisprudential space, as opposed to a striated juridical one. The latter ‘measures, puts barriers, borders and hierarchizes between insiders and outsiders’, while ‘such a static or striated formation of identities for nomads is insignificant since their constant movement ensures the dissolution of any form of identity that could supposedly claim any sort of purity’ . The nomads are, thus, affiliated with a notion of an an-archic movement in an open space without a beginning or end. We can say that a nomad proceeds in a mode of becoming, in the sense that one refuses to be limited by any form of transcendent, moral, fixed or eternal rules, norms and identities – as such, the nomad comes to disorient the conformity of the obedient subject to the state.
According to Deleuze the nomads follow a nomos [νόμος], or we can say a jurisprudence which is based on an experience – and not an archē [ἀρχή] – of a ‘nomadic distribution’ , which is ‘a sort of crowned an-archy, that overturned hierarchy’  . Similar to the operation of institutions as opposed to the law, the nomadic distribution functions in an open space that is unlimited, without predetermined beginnings or limited ends. Perhaps, the most distinct characteristic of the nomads is then that they always try to slip away from the transcendent state apparatus, its laws and rights. While, the state always tries to appropriate nomadic creativity – presenting it even as ‘entrepreneurship’, ‘innovation’ and ‘progress’ the nomads must remain vigilant and find the line of flight to escape capture, and to continue to live in a creative an-anarchic space . Thus, even though the an-archic distribution of the nomads may, often, appear to be ‘captured’ within the dogmatism of law and the state apparatus, this is not the case according to Deleuze and Guattari:
even though the nomadic trajectory may follow trails or customary routes, it does not fulfil the function of the sedentary road, which is to parcel out a closed space to people, assigning each person a share and regulating the communication between shares. The nomadic trajectory does the opposite: it distributes people (or animals) in an open space, one that is indefinite and non-communicating. The nomas came to designate the law, but that was originally because it was distribution, a mode of distribution. It is a very special kind of distribution, one without division into shares, in a space without borders or enclosure. The nomas is the consistency of a fuzzy aggregate: it is in this sense that it stands in opposition to the law or the polis, as the backcountry, a mountainside, or the vague expanse around a city (‘either nomos or polis’) .
The nomos [νόμος] of the nomads, their distribution into space, paves the way for a necessarily non-juridical understanding of a law, since it escapes the narrow preset boundaries of juridicalised hierarchy and juristic dogmatism. It is in that sense an-archic ‘akin to a dispersal [but] somewhat orderly’ . Akin perhaps to the way a particular logic used in, say, mapping a geographical territory determines also what one sees (or not). Just like the unmapped chaos that accompanies becoming and pure immanence, the map of a nomadic distribution is possible as it is still ‘consistent’ in its an-archy, and that enables it to expose the transcendence-infused morality’s ‘blackmail’ of the supposedly catastrophic results in the absence of an archē [ἀρχή]. The mapping of the rights-map is a ‘sham’ that permits the eternalisation of the pacifying domination in the form of rules disguising the a priori necessitated distinction between the ‘masters’ and the ‘subordinates’ and the ways in which they can each pragmatically ‘exercise’ their rights.
An an-archic jurisprudence is, then, an ethicο-political action that aims to break the boundaries of the dogmatic mode of thinking and existing that is promoted with state law, a supposedly transcendent morality re-establishing the primacy of a concrete notion of identity, as opposed to the constant movement of becoming . It is a way to expose and to ‘disturb the state and the law from the outside’ . In that sense, it is in a constant opposition and strife against the dogmas and hierarchies of any state apparatus, and it should be ready to respond adequately to any assault coming from them. It has to possess a lethal instinct ready to destroy any form of dogmatism and ‘break the wheel’ of the ‘current state of affairs’ (of what also leads one to say what they think but then also say ‘yet, at the end of the day…’), refusing to compromise and to be ‘pacified’ by any call for pseudo-progress and consensusualism .
 Max Stirner, The Unique and Its Property, Trans. Wolfi Landstreicher (Underworld Amusements, 2017), 209.
 Pierre-Joseph Proudhon, ‘The Authority Principle’ in Daniel Guerin (ed.) No Gods, No Masters: An Anthology of Anarchism, Trans. Paul Sharkey (Edinburgh: AK Press, 2005), 90.
 Mikhail Bakunin, The Political Philosophy of Bakunin: Scientific Anarchism. Trans and ed. G.P. Maximoff (Glencoe, IL: The Free Press of Glencoe, 1964), 136.
 Pyotr Kropotkin, ‘Law and Authority’ in Emile Capouya and Keitha Tompkins (eds) The Essential Kropotkin (London: Palgrave Macmillan, 1975), 27.
 Gilles Deleuze, Empiricism and Subjectivity: An Essay on Hume’s Theory of Human Nature. Trans. Constantin V. Boundas (New York: Columbia University Press, 1991), 46-47.
 Gilles Deleuze, ‘Instincts and Institutions’ in David Lapoujade (ed.) Two Regimes of Madness: Essays and Interviews 1975-1995. Trans. Ames Hodges and Mike Taormina (Los Angeles: Semiotext(e), 2007), 19.
 Alexandre Lefebvre, The Image of Law: Deleuze, Bergson, Spinoza (Redwood City, CA: Stanford University Press), 54.
 Gilles Deleuze, Masochism: Coldness and Cruelty. Trans. Jean McNeil (New York: Zone Press, 1991), 78.
 Ibid., emphasis added.
 The Invisible Committee, The Coming Insurrection. (Los Angeles: Semioetext(e), 2009), 97.
 Ubaldo Fadini, ‘Deleuze’s Notion of The Institution: In A Direction of Different Distance’ (2019) 13(4) Deleuze & Guattari Studies 528, 528.
 For a similar view, see Russell Ford, ‘Humor, Law and Jurisprudence’ (2016), 21(3) Angelaki, 89, 94.
 Gilles Deleuze and Félix Guattari, Nomadology: The War Machine. Trans. Brian Massumi (Los Angeles: Semiotext(e), 1986), 16.
 For a brief discussion on that, see Andrew Culp, Dark Deleuze (Minneapolis: University of Minnesota Press, 2016), 56.
 Gilles Deleuze and Félix Guattari, Nomadology: The War Machine. Trans. Brian Massumi (Los Angeles: Semiotext(e), 1986), 16.
 Gilles Deleuze, Difference and Repetition, Trans. Paul Patton (New York: Columbia University Press, 1994), 309.
 Gilles Deleuze and Félix Guattari, Nomadology: The War Machine. Trans. Brian Massumi (Los Angeles: Semiotext(e), 1986), 18-19.
 Ibid., 18.
 For the distinction between ‘smooth’ and ‘striated’ space see Gilles Deleuze and Félix Guattari, Nomadology: The War Machine. Trans. Brian Massumi (Los Angeles: Semiotext(e), 1986), 18-19.
 Gilles Deleuze, Difference and Repetition, Trans. Paul Patton (New York: Columbia University Press, 1994), 36.
 Ibid., 41.
 Gilles Deleuze and Félix Guattari, Nomadology: The War Machine. Trans. Brian Massumi (Los Angeles: Semiotext(e), 1986), 22-30.
 Ibid., 50-51.
 Thanos Zartaloudis, The Birth of Nomos (Edinburgh: Edinburgh University Press, 2019), 142.
 For a brief discussion on the becoming of the nomads see John Sellars, ‘Deleuze and Cosmopolitanism’ (2007) 142 Radical Philosophy 30, 34-35.
 Saul Newman, ‘Anarchism and Law: Towards a Post-Anarchist Ethics of Disobedience’ (2012) 21(2) Griffith Law Review 307, 327.
 I using here lethal and ‘destruction’ in similar terms to Walter Benjamin, ‘Critique of Violence.’ Trans. Edmund Jephcott in Peter Demetz (ed.) Reflections: Essays, Aphorisms, Autobiographical Writings (New York: Schocken Books, 1986), esp. 297.