On Being Anti-Imperial: Consensus Building,Anarchism,and ADR

1. Introduction

This article explores the reach and possible limits of “imperial legality” by comparing two kinds of practices intended to enable actors to resolve conflicts and reach consensus without the force of sovereign impositions: contemporary anarchism (not as it is often imagined but actually lived) and professional consensus building as it is now rapidly emerging as part of the alternative dispute resolution (ADR) movement. Although not often compared to one another, the everyday practices of anarchism – which are intensely focused on decision making and dispute resolution – share many similarities with ADR. As we shall see, anarchists have produced an extensive literature on the micro-processes and interpersonal skills of voluntary collaboration, one that rivals some of the best training material produced by the field of ADR. Despite these similarities, however, these two systems of non-statist social-legal ordering stand in very different positions vis-à-vis the reproduction of what Michael Hardt and Antonio Negri call “Empire,” which is the term they use to describe our current, if contested, capitalist world order – a transnational network comprised not only of influential nation-states but also “supranational institutions, major capitalist corporations, and other powers.” ¹

Imperialism stands for “domination and the imposition on others of one’s own legal and economic systems.” ² But like many contemporary scholars, Hardt and Negri argue that Empire governs today via horizontal rules that state and nonstate actors produce through extraterritorial, decentralized networks (which often converge around the resolution of conflict and the expansion of markets) as much as through vertical rules that flow top down from national and supranational institutions. ³ In their words:

The new paradigm is both system and hierarchy, centralized construction of norms and far-reaching production of legitimacy. . . . The development of the global system (and of imperial right in the first place) seems to be the development of a machine that imposes procedures of continual contractualization . . . [and] that creates a continuous call for authority. ⁴

As a tool of a global capitalism, imperial legality is thus reproduced (potentially everywhere) through complex and decentralized configurations of authority and consent – both in macropolitical structures and the microspaces of people’s lives.

ADR provides us with apt illustrations of imperial legality in its horizontal form. Different kinds of ADR offer, on the one hand, alternatives to the traditional mechanisms of sovereign authority such as public adjudication, legislation produced through elite representation, and sovereign choices of law. (Think, for example, of mediation, negotiated rule-making, and clauses in cross-border contracts that enable parties to produce their own rules governing disputes through private agreements.) On the other hand, numerous scholars have examined how through these various consensus-based alternatives, parties reproduce dominant imperial political, economic, and legal orders – what Laura Nader has called a neocolonial civilizing mission or governing through harmony ideology, rather than ostensibly through violence or state law. ⁵

By contrast, anarchism represents a form of social ordering that, despite some of its similarities to ADR, is used today by those who wish to resist or reconfigure Empire. If ADR is routinely criticized for failing to account for its own internal hierarchies – the politics and structures of power embedded within it – anarchists are deeply, even obsessively, conscious of the danger of replicating, through horizontal processes, the practices of domination they are seeking to live without. Indeed, they are a group of global subjects who believe that it is precisely through cultivating intensively consensual social and legal relations that they can begin to live outside the logics of imperial law.

This article therefore examines anarchist consensus-based process in an effort to explore the possibilities and limitations of a legality that (at least in the view of many of its subjects) is corrosive of imperial ambitions. But first one caveat is in order. In this article, I suggestively describe contemporary North American anarchism as a form of legality, although I agree with scholars of legal pluralism that not all examples of collective social life are properly described as legalistic. ⁶ Anarchist communities, however, organize themselves not only around a set of shared social practices and moral ideals that animate these practices, but also through explicit, general rules that govern how a group should make decisions about collective actions, how to determine when these decisions are valid (that is, properly applied to all members of a group), and how to revise and resolve disagreements about these decisions – what we could call, if we could stretch H. L. A. Hart’s theorizing of law to a nonhierarchal and nonstate community, legality as a “union of primary and secondary rules,” ⁷ and what Scott Shapiro more recently described as legality as “social planning.” ⁸ Second, North American anarchists, raised in liberal rule-of-law cultures, developed mechanisms to order their internal relations not independently from statist legality (as did some of the preindustrial communities studied in legal pluralism literature) but rather quite explicitly as a break from it. As David Graeber writes of anarchism: “One does not solicit the state. One does not even necessarily make a grand gesture of defiance. Insofar as one is capable, one proceeds as if the state does not exist.” ⁹ In this article, I am therefore suggesting that contemporary anarchist communities have produced something law-like – indeed, a kind of anti-imperial legality: legality because they use transparent, formal, general procedural rules to generate normative decisions about how they will coordinate and constrain their own collective behavior and actions, and anti-imperial because these consensus-based rules are designed as an alternative to the kinds of domination embedded in both capitalist and statist rationalities.

Thus what emerges from even a brief comparison of anarchist and professional (ADR) consensus-based practices is not a picture of similar processes deployed for disparate ends, but rather a different understanding of process itself and a different way of being in relation to it. If ADR professionals primarily envision consensus-based procedures as a tool to solve problems that can be persistently reconfigured to achieve its users’ aims, anarchists primarily envision consensus building as a highly normative and ethical organizational practice – a way to live a radically egalitarian life by and for oneself, and with others who wish and choose to do the same. In other words, these two sets of horizontal, consensus-based procedures embody very different practices and forms. On one level this point is obvious: anarchism is a holistic political and social philosophy whereas ADR’s overarching aspiration is to facilitate dyadic and group decision making and dispute resolution whatever its users’ normative ends. But on another level, the comparison holds insights for how consensual legal processes can either tend to strengthen or alternatively break from the status quo. Professional consensus building’s capacity to render itself “merely” procedure – a means to further another set of ends – makes it remarkably easy to scale up to imperial proportions. Conversely, anarchism’s vision of process – which aspires to collapse distinctions between means and ends, which refuses to constrain anyone who does not participate, and which seeks transformation deep in the minutia of selves, social practices, and political relations – offers its subjects an ideal of legality that is hostile to imperialism and a limited set of tools to pursue strategies of governance on a global stage.

II. On Anarchism

Perhaps made most visible in the 1999 Seattle protests against neoliberal globalization, the contemporary strand of North American anarchism that I describe in this article has roots in the socialist-libertarian anarchism of the nineteenth century, which embraced, among other things, voluntary association, mutual aid, and the de-nationalization of resources and territory rather than private property, capitalist economic relations, and governance through state law. ¹⁰ But among their inspirations, anarchists today ¹¹ also include egalitarian forms of indigenous governance (the Zapatistas are a popular example), feminist critiques of hierarchical civil rights organizing, ¹² and the anti-nuclear campaigns of the 1970s that adopted Quaker consensus-building practice. ¹³ As a diverse, diffuse, decentralized, and practice-based movement, contemporary anarchism far exceeds anything I could adequately capture in this article, especially through an analysis confined to academic texts, organizing material, and ethnographies. Still, I will briefly and provisionally set forth a generally shared set of ideas that help explain why, among anarchists, some form of consensus building is today often considered the only kind of decision making “entirely consistent with a society free of systemic physical coercion” ¹⁴ and therefore the only kind of decision making acceptable “for any group that wants to call itself radical.” ¹⁵

The first idea that informs anarchist consensus building is self-organization: rather than organize others, anarchists aim to create by and for themselves the social relations and institutional structures they wish to see in the world. In his work on the early twentieth-century German anarchist Gustav Landauer, Richard Day captures this idea as follows: “We cannot wait for ‘everyone’ to choose to live in non-statist, non-capitalist relationships, or we will very likely wait forever. Nor can we force socialism on anyone, since that would violate our commitment to respecting the autonomy of individuals and groups. Hence there is no choice for those of us who desire to live differently but to begin to do so ourselves.” ¹⁶ Thus anarchists commonly endeavor to self-organize the institutions of everyday life: for example, workplaces, social centers, housing collectives, labor unions, neighborhood associations, and schools.

The second idea follows from the first: there is a mutually constitutive relationship between self-organization and self-transformation. Basic to anarchism is the claim that structures of domination are experienced and performed through self and social interactions. “The state,” Landauer wrote, “is not something which can be destroyed by a revolution, but is a condition, a certain relationship between human beings, a mode of human behavior; we destroy it by contracting other relationships, by behaving differently.” ¹⁷ Capitalism likewise is not simply a set of legal and economic rules governing the means of production, but is “a paranoia that you have to exploit other people or they will exploit you . . . [and] a gender-related indoctrination of tying your sense of self-worth to the performance of certain tasks.” ¹⁸ Hence, for anarchists, social, political, and economic change foundationally requires changes in one’s own personality and social relations.

As a result, anarchism cultivates an intense focus on life in its entirety – all the minutia of everyday social interaction is deeply relevant to its praxis. Individuals and groups resist hierarchy and domination not through seizing state power or even necessarily reforming it, but rather through – at every level and every moment of their existence – creating an “ethics radically different from what prevails under capitalism” ¹⁹ and a corresponding social practice that “chips away at the ‘hard crust’ of ‘our inner statehood.’” ²⁰ Self-transformation, moreover, is not only a means but its own celebrated end of activism. As one anarchist publishing collective puts it:

it is crucial that we seek change not in the name of some doctrine or grand cause, but on behalf of ourselves, so that we will be able to live more meaningful lives. Similarly we must seek first and foremost to alter the contexts of our own lives in a revolutionary manner, rather than direct our struggle towards world-historical changes which we will not live to witness. In this way, we will avoid the feelings of worthlessness and alienation that result from believing it is necessary to ‘sacrifice oneself for the cause’ and instead live to experience the fruits of our labours . . . in our labours themselves. ²¹

These two ideas – self-organization and the injunction to seek change by, for, and through oneself – shape numerous other elements of the anarchist project. For example, anarchists cultivate a deep hostility to any sort of political representation. Ceding power to others, even through majoritarian democratic processes, constrains individual choice to predefined political alternatives. From an anarchist perspective, the democratic state operates not unlike the market to define its subjects’ range of possible options and, in this way, to make citizens, like consumers, vulnerable to exploitation. ²² But as Todd May explains, the anarchist critique of speaking for others is deeper, extending to all (social, cultural, psychological) realms of life: “in giving people images of who they are and what they desire, one wrests from them the ability to decide those matters for themselves.” ²³

Similarly, anarchists strive, as far as possible, to achieve consistency between means and ends – that is, to reflect the ends of their self-organizing ideals in the means they use to pursue them. For example, to organize local actions, anarchists use the “affinity group,” a directly democratic form of voluntary association borrowed from early twentieth-century Spanish anarchists. ²⁴ For larger efforts, they use “spokescouncils” or confederations of affinity groups that operate without formal leadership. Delegates from affinity groups relay information between affinity groups and the larger body, which typically does not have decision-making authority. ²⁵ Indeed, these non-representative and “non-hierarchical structures in which domination is constantly challenged is, for most anarchists, an end in itself.” ²⁶

What I have been describing, then, is a contemporary vision of anarchism as an alternative set of practices of self and social organization that aim concretely to expand spaces for freedom and solidarity within social networks (not necessarily the utopian aspiration to produce a stateless society writ large). ²⁷ Moreover, rather than imagine (as many classical anarchists did) decentralization as an alternative to centralization (or power at the bottom rather than the top), many activists instead embrace the idea that “struggle is to be conducted at many points . . . [because] power is exercised at many points.” ²⁸ Similarly, rather than the classical anarchist supposition that, somehow freed from the constraints of power, all humans will treat each other well, many contemporary anarchists are more likely to see power inevitably everywhere – and deeply within themselves (even as they imagine coherent, solidaristic communities ²⁹ ). ³⁰

Hence we have the anarchist emphasis on consensus building. Balancing individual freedom with social solidarity will not follow from the eradication of state or capitalist structures but must be built, step-by-step, in the spaces of (unequal and sometimes incommensurable) interpersonal relationships. It reflects a liberal humanist insistence on the autonomy of all individuals, a socialist commitment to communal obligations, and a poststructuralist observation that power can never be eliminated but only ever managed, channeled, redirected, and shared. Moreover, as I discuss in the following section, anarchist consensus building also reflects a distinctively processual discourse that suggests that individuals can learn to share power as broadly as possible by adopting particular procedural rules and interactional techniques. Thus as a normative dialogic practice of self and social governance, anarchist consensus building is perhaps suggestively summarized by Foucault. “The problem,” he argues, “is not of trying to dissolve [relations of power] in the utopia of a perfectly transparent communication, but to give one’s self the rules of law, the techniques of management, and also the ethics, the ethos, the practice of self, which would allow these games of power to be played with a minimum of domination.” ³¹

III. On Anarchist Consensus Building

Anyone schooled in ADR will likely find anarchism intriguing if only for its attention to the processes and techniques of group collaboration. “When activists talk to each other,” Graeber observes, “they tend to talk endlessly about ‘process.’” ³² On the one hand, a core principle of anarchist organizing is good faith: “one must never question the honesty or good intentions of another activist.” ³³ On the other hand, many anarchists presume that the desire to coordinate and collaborate in good faith, even when it is bolstered by shared normative commitments to conditions of material and social equality, is not enough for a group to formulate and implement shared plans and goals – to the contrary, “endless petty troubles, subtle forms of domination, and dilemmas of privilege . . . still endure.” ³⁴ The problem is that anyone who comes to an egalitarian collective has already been enculturated in the world, with all the pathologies intrinsic to statism, capitalism, and other structures of domination. Thus many anarchists speak (legal) process to power: explicit, transparent, formal procedural rules are essential to ensure that self-organization does not reproduce extant hierarchies and inequalities. ³⁵

To that end, anarchist collectives often adopt a common set of decision-making procedures (variously set forth in training pamphlets, websites, and books) to enable their own forms of social ordering. ³⁶ These procedural rules govern, for example, how a group should generate proposals to undertake various actions, solicit clarifying questions and concerns, give reasons for various positions, generate amendments and alternative proposals, and reconcile disputes between advocates of a proposal and those who oppose it. Additional techniques are designed directly to manage power dynamics; for example, keeping and reviewing speakers’ lists (and potentially moving members of traditionally disadvantaged groups to the front of the queue), appointing “vibe watchers” to attend to emotional dynamics, holding bi-monthly meetings to reflect on process, creating and disseminating records of all meetings, and conducting trainings on topics such as gender sensitivity. Members administer these processes by adopting formal roles: the stacker who keeps the speakers’ list, the facilitator, the timekeeper, and others. Everyone is expected to learn, perform, and rotate all roles and to assume responsibility for identifying and correcting power imbalances as they happen. As sociologist Francesca Polletta observed at a local meeting of the Direct Action Network or DAN (a federation of anarchist groups initially organized around the 1999 WTO protests), participants “display real respect for the process. . . . [W]hen it would have been easy for someone to jump in and impose a solution that people probably would not in the end have been unhappy with, participants instead relied on the established procedure. . . . In some segments of the movement field, participatory democracy has come close to being institutionalized.” ³⁷ And often all but the most trivial decisions are made together. For example, in one meeting of an anarchist group that I observed in the Midwest, there was a lengthy (and quite intense) discussion about the appropriate process to create a sub-group tasked with organizing a book drive for prisoners – one member suspected that other members of the group had self-selected prior to the meeting without everyone’s open participation.

The point to make clear is that constructing consensus-based relationships is extremely serious work for anarchists – as important, even more important, than the outcome of any action or decision. As one activist put it:

Consensus is not just a way of coming to a decision, or, really, not even primarily a way of coming to a decision. It’s a process. A way for people to deal with each other which puts the emphasis on mutual respect and creativity, and which tries to make sure no one is able to impose their will on others and that all voices can be heard. As a process, it’s not even necessarily the most efficient way of coming to a decision. I think . . . that it’s the process that will be most likely to produce the wisest decision, but I’d actually say that even if sometimes it doesn’t, it’s more important to reach the decision through a truly egalitarian process than to come up with absolute ideal course of action every time. ³⁸

As a result of this overwhelming emphasis on egalitarian process, the anarchist’s attention to her group’s own internal racism, sexism, classism, and other forms of domination and prejudice surpasses anything I have seen in the practice or theory of ADR. Consider Graeber’s description of his DAN chapter’s “almost continual crisis over gender issues.” ³⁹ At one meeting, a caucus of women proposed that the group adopt a facilitator specifically tasked with “monitoring gender dynamics and calling out sexist behavior.” ⁴⁰ What followed was a deeply divisive conversation about whether particular disciplinary procedures – here, a gender-sensitive “vibes watcher” – would create the very conditions for democratic consensus or, alternatively, as one male activist put it, would become “a form of fascist mind control,” or as some suspected, would unjustifiably normalize a particular kind of interaction (that is, one informed by a middle-class feminist sensibility rather than working-class styles of engagement and debate). ⁴¹ The discussion about gender and class inequality was serious enough potentially to fracture the group: “when you start opposing this idea in the name of democracy, talking about ‘oppression,’” one woman argued, “I really have to start wondering what planet you’re on . . . . The measure of our success is the kind of climate we create and if DAN creates a climate that denies parity, then DAN itself becomes a form of oppression.” ⁴²

These activists are thus all too aware that, first, there are limits to well-intentioned self-discipline (for supporters, the vibes watcher was necessary to counteract internalized, even subconscious, structures of oppression) and, second, that their particular form of procedural legality has its own disciplining effects. As devoted insiders observe, anarchist consensus building more readily embodies particular kinds of sociality (middle class, formally educated, feminist) and excludes others. ⁴³ These are some of the dilemmas that American consensus-based social movements have struggled with for decades. ⁴⁴ But as Polletta notes, unlike earlier activists, DAN participants explicitly disfavor informality: “They are sensitive to the ways in which informality can allow inequalities and exclusions to persist unchallenged. They like DAN’s formality.” ⁴⁵ A popular piece of writing in anarchist circles is thus Jo Freeman, The Tyranny of Structurelessness – a meditation, first published in 1970, on how informal and friendship-based organization masks power and breeds hierarchy. ⁴⁶ The countervailing idea is that formal (although not necessarily neutral) rules can help advance a group towards more substantive equality. ⁴⁷

Still, I suspect to many outsiders, even dedicated proponents of ADR, anarchist consensus building will likely appear extraordinarily, indeed overly, mired in the micro-details of interpersonal interaction (indeed, even some insiders speak of a “fetish of process” ⁴⁸ ). But for those who participate, it is an attempt to construct an entire way of life, expressive of individual and collective identity. As the author of the humorously titled, “an open letter to other men in the movement: shut the fuck up,” plainly put it, “consensus decision making is a model of the society we want to live in, and a tool we use to get there.” ⁴⁹ If men dominate meetings even a little bit, it’s a very significant problem. And the fault lines are not simply gender and race: Delfina Vannucci and Richard Singer remind their readers to stay vigilant against more subtle prejudices, such as dislike of “an awkward social manner, imperfect language skills, or a reticent or even obnoxious personality.” ⁵⁰ Indeed, the entire anarchist project is premised on what many call “prefiguration” – the idea that people can voluntarily collaborate to produce, in the present, the radically democratic communities they wish to inhabit. Given this “focus on the present tense,” ⁵¹ the actual practice of anarchism is markedly unromantic. It has produced a process- and skills-focused literature with such detailed descriptions of bad behavior and interpersonal problems (and techniques designed to manage them) that a casual reader could easily perceive egalitarian collectives as a hell of, in the words of Vannucci and Singer, “ugly power plays and underhanded manipulation.” ⁵²

The challenge, of course, for anarchist organizing is that there is nothing to constrain a group’s behavior other than its own collective, democratic procedural rules (a form of restraint anarchists deem both necessary and desirable). Although anarchist writers do propose contexts when it is acceptable to shift to versions of supermajority voting, everyday anarchist meetings typically run on a principle of consensus. ⁵³ Significantly, this principle often includes the right of each member to veto or “block” the actions of the rest. Members can decline to support a proposal; that is, they can “stand aside,” if they do not prefer or wish to participate in the agreed-upon course of action but nonetheless find it a good faith option for the group. But each individual member of an anarchist collective often also has the power to block the group’s decision entirely if she feels a proposal violates the group’s (or potentially her own) normative values or ethical practices. The right to block is an uncompromising assertion of the group’s commitment to individual autonomy: the group will not take action without the consent of everyone affected by the decision. In fact, a good deal of training material discusses how facilitators can try to ensure that group dynamics do not silence individual dissent. ⁵⁴ “This, and the refusal to apply moral pressure, makes it extremely difficult,” Graeber argues, “for anyone to cast themselves in the role of the victim.” ⁵⁵ At the same time, individual autonomy is understood as the precondition for genuine group solidarity. “There’s actually something kind of pleasurable . . . ” one activist reported, “[in] realizing what I think isn’t even necessarily all that important, because I really respect these people, and trust them. It can actually feel good. But of course, it only feels good because I know it was my decision, that I could have blocked the proposal if I’d really wanted to.” ⁵⁶

But as individuals mediate their allegiances to the group, the group constantly mediates the boundaries between its own integrity and its commitments to individual autonomy. A block may be considered illegitimate if it is made in bad faith—that is, if it is made for purely egoistic or self-interested reasons or if it violates a consensus that the group already established. For example, when one participant at a spokescouncil requested that the group commit to nonviolence (a common topic of moral disagreement in anarchist circles), this was the facilitator’s response: “There has been endless discussion of this already, and this is out of order. What you are saying runs against the principles of diversity of tactics which we have already discussed (at great length) and finally consensed upon . . . . The call to attend this spokescouncil was made on the principle of diversity of tactics.” ⁵⁷ Or in another context: “we called this particular spokescouncil to discuss plans for Cornwall . . . if someone wants to talk about not going to Cornwall at all, shouldn’t he withdraw that from this spokes and simply call for a different spokes for people who don’t want to go?” ⁵⁸

What emerges, then, is a sense of a group bound by individual commitments that are always tenuous, temporary, and potentially always subject to revision, revocation, and fracture. Anarchist consensus building is an effort endlessly to knit together individuals who hold different perspectives and ideologies in order to collaborate to accomplish particular goals. In this sense, its simultaneous commitment to individual autonomy and group solidarity is explicitly action-oriented, even pragmatic. But, at the same time, as a process it constantly confronts its own limits – or rather it builds these limits into its practice. Because, for anarchists, consensus is an ethical expression of relentlessly voluntary social obligations, consensus-based groups are unlikely (or rather unwilling) to achieve any sort of permanent institutionalization. Even more, they are exceedingly cautious about becoming overly instrumental, of adopting the kind of means-ends discipline “that often seems indistinguishable from . . . capitalist rationality.” ⁵⁹ Anarchism requires individuals to think about how means and ends connect in direct and immediate ways – radically democratic relations are at once the means and ends of anarchist activism. Thus every piece of writing on anarchist consensus building that I have discovered emphasizes that the outcome is never more important than the process – that is, never more important than the “attempt . . . to begin to reimagine how people can live together, to begin – however slowly, however painfully – to construct a genuinely democratic way of life.” ⁶⁰ Indeed, for anarchists, the refusal to prioritize ends beyond the production of egalitarian consensual relations is what gives consensus building its revolutionary character. As Keith McHenry, co-founder of Food Not Bombs, writes in a preface to a consensus-building handbook: “the consensus decision-making process might be the most important thing that we can do to build a democratic society. . . . [C]onsensus is on the cutting edge of global social change because it reflects the core values that every truly progressive political and social group is working towards. . . . Consensus decision making is the revolution.” ⁶¹

IV. A Word on the Rest

Flexible consensual processes are of course not simply the stuff of anarchism but also global capitalism. As scholar-activist Cindy Milstein puts it: “Anarchist values are oddly similar to many of the structural changes occurring under globalization – such as decentralization and cooperation.” ⁶² Today, it is not unusual to find consensus-building techniques (like many forms of ADR) in major transnational corporations and international financial institutions. For those who spread and sell it, consensus building is not a “philosophical choice,” but “a business imperative,” ⁶³ it “is not only possible but profitable.” ⁶⁴

Here is the standard recitation of the reasons why: in new “flat” and “networked” organizations, governors, managers, and laborers must continuously develop strategies to respond to complex shifting conditions, compete for scarce resources, pool diffuse and diverse knowledge and talent, and rapidly implement solutions. As a method for making decisions and resolving conflict, consensus building enhances collaboration, cultivates creativity, and promotes understanding and investment in the outcomes of participatory agreements. As Pierre Gagnon, a former CEO of Mitsubishi Motors, argues: “The command and control model of management is now obsolete. . . . [C]onsensus decision making yields higher-quality and higher-commitment decisions.” ⁶⁵

Consider, for example, two recently published texts: Larry Dressler, Consensus through Conversation: How to Achieve High-Commitment Decisions (2006) and Lawrence E. Susskind and Jeffrey L. Cruikshank, Breaking Robert’s Rules: The New Way to Run Your Meeting, Build Consensus, and Get Results (2006). As the titles of both texts suggest, in professional discourse the overarching justification for consensus-building processes is the quality of the decisions – the results – that can be produced through processes that incorporate a broad range of views. The problem, however, that both books address is a widespread perception that consensus-based processes are too slow, costly, and inefficient to rationalize their use, and, moreover, are likely to undermine those with formal organizational authority. As a result, both texts propose a highly circumscribed and goal-directed model. People in positions of authority decide when a consensus-based approach is appropriate, define the matter under discussion, “bring people to an informed understanding of what their choices are,” and identify the actors who are invited to participate. ⁶⁶ Susskind and Cruikshank put the point as follows: “Sometimes when people hear the phrase consensus building, they hear something else as well: nobody in charge. Nothing could be farther from the truth.” ⁶⁷ Consensus-based leadership, they continue, is “all about keeping one’s eye on the prize, and that means getting to an agreement that is seen by all parties as fair, efficient, and wise.” ⁶⁸

In some versions of professional consensus building, such as the one encouraged by Dressler, the formal leader may become an equal member of the consensus-based group entitled, just like any other member, to block the agreement if she feels that it is not consistent with the group’s criteria or values. ⁶⁹ In other versions, such as the one crafted by Susskind and Cruikshank, consensus building is itself a representative and advisory process. No member has the power to block consensus because the group’s sole task is to present advice to those with real decision-making power in the form of broadspread agreement around a particular issue.

Because the Susskind/Cruikshank model is the most cited and familiar in legal ADR literature, it is worth examining in some detail. To initiate a consensus-based process, one first identifies a convener, that is, “an elected or appointed official or a senior official in the private sector with the formal authority to take action.” ⁷⁰ A desirable convener knows the “‘movers and shakers’ on the particular issue . . . [and is] also . . . someone who has some stature in the affected organization, company, or community.” ⁷¹ For complex matters, a convener hires an expert neutral to assess the situation and, crucially, to identify the participants – that is, the people with a stake in the decision but also people who possess the requisite substantive expertise and skill to represent the interests of a category or group. ⁷² Participants, in turn, are divided into multiple tiers: for example, a steering committee and chair, representatives who deliberate and generate a consensus-based recommendation, and constituents invited to observe the process but who are empowered to speak only to their representatives. ⁷³ Together with the chair, the facilitator structures participatory and reasoned deliberations designed to move the group of representative stakeholders to an agreement (using skills for active listening, brainstorming, and question-asking that are quite similar to anarchist process).

Significantly, stakeholders who negotiate across difference do so in the shadow of more coercive decision-making defaults (e.g. voting, legislation, litigation, unilateral organizational decisions). These procedural defaults, in turn, encourage the stakeholders to anchor their interests in a rational relation to what they might achieve through more conventional means and hence make them more likely to reach agreement. The goal is an agreement with broad – but not necessarily unanimous – support that is persuasive to the convener and others with formal decision-making authority. If the process is successful, elected officials may vote to incorporate the agreement into a regulatory/legislative regime, or corporate or nonprofit officers may turn it into institutional policy or a legally binding contract. ⁷⁴ Given this explicitly representative structure – negotiators do not speak on behalf of themselves but their constituents – the model has only a thin, and often only implicit, discourse on micro-power inequalities within the dynamics of a group.

Unsurprisingly, then, these two literatures on consensus building rarely, if ever, speak to each other. For anarchists, consensus building is directly expressive of a way of life that aspires to resist domination in all of its interactions. For them, “the absence of hierarchy and authority is not an added stipulation . . . but is essential to the consensus process.” ⁷⁵ Or as Graeber argues, “one can only find consensus among a community of equals where there is no institutional structure of authority that turns participants into mere representatives of something else.” ⁷⁶ The intentional splitting of a group is thus a legitimate (at times even desirable) response to a failure to reach consensus. The very point of consensus building is to diffuse decision-making power as broadly as possible and secondarily (although not insignificantly) to reach agreement and knit together a community. This dedication to voluntarism and decentralization, combined with the intensive commitments that anarchist consensus building demands, makes it challenging to form broad-based coalitions or shift to larger-scale spheres of influence – aims that many scholars and practitioners of ADR today aspire to pursue. Even more, sympathetic critics worry that anarchists’ devotion to radically democratic procedure may deflect and displace the work of hashing out substantive goals. ⁷⁷

By contrast, for Susskind, Cruikshank, Dressler, and others, the point of consensus building is different. They offer a set of procedural techniques aimed at consolidating the interests of a broad range of stakeholders who are connected only by loose associational ties. Their overarching aim is to enable these stakeholders to generate agreement around specific issues in ways that evade more hierarchical resolutions and that simultaneously legitimate the exercise of power by those in charge. The process they envision does not predetermine its own uses or normative content; to the contrary, it is designed for a maximal range of actors, contexts, and ends. At the same time, however, the process clearly reflects distinctive rationalities. It is a tool – or rather, a set of purposeful means-ends calculations – to enable people to manage existing systems better: to take the twin liberal ideals of efficiency and representative democracy and try to improve them. To that end, it grounds itself in both instrumentalism and authority. Indeed, because professional consensus building aims to expand participation and collaboration within preexisting hierarchical systems in pursuit of particular goals, it is, by definition, relevant to our global imperial legal regime.

But, to be clear, none of this is meant as an indictment of professional consensus building. To the contrary, scholars such as Susskind and others have produced something valuable. They have designed reformist procedural mechanisms intended to make decision making more deliberative, more experimental, more innovative, and more participatory in electoral politics, the workplace, the community organization, and the firm – mechanisms that actors can, in turn, purposively use for a range of progressive ends and, of course, also for non-progressive and coercive ones. A more accurate description of professional consensus building must recall the opening quotation from Hardt and Negri: it is a procedure of “continual contractualization” that simultaneously “creates a continuous call for authority.”

V. Conclusion

One way of framing this short article is as a suggestive exploration of how consensus-based processes, as a form of legalism, can become scalable and potentially deployed as a means to advance imperial ends. For many consensus-building professionals, the immediate horizon of their problem-solving processes is the world (which, in turn, is fixed by and through states, corporations, and domestic and international institutions). As such, even devoted ADR proponents commonly reason that a consensual process should not overtake its expressed external aims. Thus, at some point in a consensus-building deliberation, a professional facilitator may declare that the process has gone “too far,” that it has become inefficient, that people have lost sight of their goal, and that they therefore should, in Susskind and Cruikshank’s words, refocus “their eyes on the prize.” Anarchists, by contrast, insist on an incredible amount of labor to reach decisions that are directly democratic and nonrepresentative, and they very often refuse to distinguish this labor from other more pressing and dramatic (or more mundane and bureaucratic) ends. Anarchist process, although surely not entirely non-cooptable, is therefore certainly much more recalcitrant – and, perhaps more to the point, much less desirable – than ADR to scale up and redirect for imperial purposes. Because of anarchists’ relentless aspirations to reject hierarchy and domination and their refusal to speak for others, one simply cannot use anarchist process as an expert tool to solve other people’s problems (or, for that matter, as a tool that can be made subservient to profit-seeking gains). To take it seriously, there is no choice other than to experience it by and for oneself. In this sense, I would suggest, anarchist consensus building is a practice of being anti-imperial.

It is not that anarchists do not dream of transforming the world; they do. And in this sense, they dream of operating at a larger scale. The crucial difference is that anarchists take one’s self and one’s social relations as the subject and object of revolutionary concern and, accordingly, they aim to develop a social practice that already presupposes the kinds of transformations that they imagine could someday reoccur on a world-historical plane. Thus for anarchists, the immediate horizon of their problem-solving processes is self and community. As a result, anarchists take what often appears to make process (at some level) besides the point – its recursive attention to itself – and they turn this recursion into the point; that is, into the very reason to formally structure social and political relations. Process’s capacity for infinite regression therefore does not present to anarchists the same kind of danger of myopic futility as it does, I would venture, to nearly all other administrators of legal procedure. Rather it is far more likely to present its own social virtue and overarching political end. Or to restate this point in terms of legality, for anarchists, what Hart called secondary rules – rules about how to create and change rules – are primary in the sense that they directly govern social practices and social relations. Through participating in consensual processes, people perform the endlessly social work of producing a radical consciousness (one, to be sure, that is contingent upon the commitments of the anarchist endeavor). And through consensual process, anarchists try to insulate themselves – literally their self and social constitutions – from the tentacular reach of imperial law.

That all said, I do not intend this article to sound as advocacy or prescription: rather than producing the exhilaration of creating new egalitarian forms of self and societal organization, anarchist efforts at consensual self and social transformation can in practice devolve into bitter, moralistic, and self-serving recriminations (that, yes, reinforce the hierarchies and inequalities they are trying to live without). If anarchist training material on consensus building and group collaboration is any indication, then surely this is sometimes the case. Still, as egalitarian activist groups actually labor in the world today to instantiate their own positive anti-imperial praxis, they offer us a very different perspective from which to consider the relation between legal process and imperialism: by living inside consensual rules, one can affirmatively act to constitute one’s self and one’s communities as their own radically democratic ends.