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Excerpted From: Michael Haber, Covid-19 Mutual Aid, Anti-Authoritarian Activism, and the Law, 67 Loyola Law Review 61 (Fall, 2020) (259 Footnotes) (Full Document)


MichaelHaberAs the magnitude of the COVID-19 pandemic and its impact on everyday life were staring to become clear in the early spring of 2020, terms like "social distancing" and "flatten the curve" entered the public lexicon, and "mutual aid" went from a niche activist term to a topic of interest in the popular press. Some of these mainstream news articles briefly note that the term was popularized by the Russian anarchist and naturalist Peter Kropotkin, but they provide few details about the universal scope of his concept or the intellectual context in which Kropotkin developed his ideas.

Late nineteenth-century writers like Herbert Spencer, William Graham Sumner, and Thomas Huxley grew to great prominence as public intellectuals by providing pseudoscientific rationalizations for the brutality of European and American racism, colonialism, and industrial capitalism; modernity may have hardships, they argued, but this is natural, simply the modern forms of a universal Darwinian struggle, the "survival of the fittest." In direct response to the popularity of these writers, Kropotkin, who saw himself as the more serious Darwin scholar, spent years studying collaboration in nature, describing his findings in Mutual Aid: A Factor of Evolution. Kropotkin argues that competition is a part of evolution, but not the end of the evolutionary story; in both animal groups and human societies, sharing, solidarity, and collective group care have been essential tools for sociobiological survival throughout history and around the world. Looking broadly at Indigenous practices in Africa, Asia, Australia, the Americas, and among European "Barbarians," Kropotkin recasts the story of world history as not one of endless conflict and war, but one where many of our societal advancements come from sociability, solidarity, and mutual aid.

Kropotkin describes mutual aid among people as rooted in a "vague feeling or instinct of human solidarity and sociability." It is "infinitely wider" than personal sympathy or love of one's neighbor; mutual aid is a sense "of the close dependency of every one's happiness upon the happiness of all; and the sense of justice, or equity, which brings the individual to consider the rights of every other individual as equal to his own." Of course, Kropotkin was well aware that by the time of his writing, economics, politics, commerce, law, and most powerful European institutions embraced an all-encompassing laissez-faire philosophy, a belief that "men can, and must, seek their own happiness in a disregard of other people's wants." Despite the tremendous power and pervasiveness of this worldview, Kropotkin finds mutual aid sprouting up as a tool of resistance to this new order at the margins and in the cracks of laissez-faire modernity all around the world. He sees mutual aid in French, German, Austrian, and Belgian villages resisting the encroachment of the nation-state; in communal land ownership, peasant associations, and agricultural cooperatives in France, Switzerland, Germany, Italy, and Denmark; in the communal farming models gaining popularity in the late nineteenth century across Russia and Crimea; in the ancient traditions of mutual aid that persisted into modernity in Turkey, Persia, India, China, and parts of Africa; in European and U.S. labor unions and strike tactics; in cooperatives and Russian artéls; and in various forms of fraternal societies, village and town clubs, and associations of workers.

To Kropotkin, mutual aid is a universal, nearly-irrepressible and trans-historical instinct shared by humans and animals, a common thread between the lives of ants, bees, birds, Indigenous cultures, medieval and early modern European villages, and industrial labor unions. His framework is broad and inclusive, but most contemporary depictions of mutual aid focus on recent history, perhaps briefly mentioning friendly societies and the mutual aid projects of the Black Panther Party before turning to more recent disaster-response efforts. Other recent analyses try to define mutual aid inductively, and while they end up with more specificity, they can suffer from a far more limited political horizon: mutual aid becomes almost another form of social welfare program, distinguishable from charity, public assistance, social insurance, and social service programs only in that money is generally pooled among members and distinctions between helper and helped are somewhat minimized. This article takes a different analytic approach, situating today's mutual aid groups as connected to an ancient tradition of collective care, but more deeply imprinted by radical women-of-color feminism, an anti-authoritarian activist tradition that mostly dates to the 1970s.

As mutual aid has become an increasingly common and sophisticated practice across a planet suffering the devastating consequences of climate change and, now, the COVID-19 pandemic, mutual aid groups have come to face new and complex legal questions. Many mutual aid groups question or reject conventional nonprofit legal tools like incorporation, tax exemption, and grantbased fundraising, causing issues that might be easily settled for ordinary non-profits to become more legally complex.

This article argues that, while mutual aid groups should reject the legal conventions of non-profit charities if that aligns with their political outlook, they would benefit from a deeper understanding of those legal norms and conventions--as well as the possible alternatives to those norms and conventions--before summarily rejecting them. It argues that mutual aid groups should be careful about whether or how to balance their overarching political principles against the potential advantages of legal tools that can provide more certain short-term protection for their operations, their members, and their communities. Ultimately, the article encourages mutual aid groups to make these decisions by focusing not only on mutual aid as a tool for community preservation and survival, but also as a strategy for building long-term grassroots power and community-based counter-institutions that can challenge systemic forces of exploitation and oppression.

Part I of the article presents a brief history of mutual aid practices in the context of U.S. history.

Part II describes COVID-19 mutual aid groups within the political context of anti-authoritarian activism. With an understanding of this historical and political context.

Part III then presents an overview of some key legal issues confronting COVID-19 mutual aid groups.

The article concludes by arguing that mutual aid groups should not limit their visions to short-term disaster response but instead try to maintain and grow their networks to build long-term community power.

[. . .]

The year 2020 will long be remembered for the global COVID-19 pandemic that has killed hundreds of thousands and the attendant disruptions to the global economy. It will be remembered for the Trump Administration's efforts to downplay the importance and seriousness of the virus, while simultaneously casting doubt on some of the fundamental institutions of the country. It will be remembered for the protests and uprisings demanding accountability for police officers who killed Black people without provocation or punishment and the brutality of the police response to those demonstrations. Just below those headlines, perhaps slightly under the surface, 2020 also brought a flowering of grassroots mutual aid projects building the infrastructure necessary to try to support their communities through these crises.

Mutual aid may be ancient and instinctual, as Kropotkin argued, but it is not always identical in different contexts. Just as the structures of solidarity among ants, Indigenous tribes, early modern villages, and nineteenth-century labor unions are all quite different in their details, twenty-first century mutual aid groups are confronted with questions of how to care for their communities and live out their commitments to personal autonomy, to real democracy, and to building a social change movement that is already constructing the world that activists want to see.

Andrej Gruba ic and Denis O'Hearn, building on the work of Fernand Braudel, James Scott, Pierre Clastres, and Kropotkin, describe mutual aid as an example of what they call "infrapolitics." When compared to radical tactics like street protests, demonstrations, strikes, and uprisings, infrapolitics aims to be unobtrusive, almost invisible. This quietude affords the space to develop prefigurative infrastructure for political action, "the cultural and structural underpinning" necessary for deep and lasting change. This is very much the project of mutual aid at its best; it is not only delivering groceries, picking up prescriptions, and helping with rent payments; it is doing the often harder work of developing the relationships within our communities necessary to build the infrastructure of a better world. It is this building process that is critical to the bigger goals of mutual aid, as Spade writes: "Our movements must contend with the structures in place in order to dismantle the weapons they use against our communities, and simultaneously build new ways of surviving that are based in our principles of liberation and collective self-determination."

Perhaps the best-developed theory of exactly how this better world will come about is the idea of "dual power." Although the term dates to the Russian Revolution, activists today use it following the influential writings of the American theorist Murray Bookchin. Bookchin uses the term to mean a confederation of local, municipal-level direct democracies that, through their local power, exert a form of counter-power that can ulitmately challenge forces of oppression, including the power of police, capital, and the state. Mutual aid groups, organized as horizontal, deeply democratic, community-responsive counter-institutions that have begun to confederate into networks are already starting to build that power.

This is where issues about the relationship between mutual aid and questions around tax, incorporation, and risk are most philosophical. It is perfectly understandable that mutual aid groups committed to this kind of infrastructural politics are inclined to reject things like forming non-profit corporations and obtaining insurance. Yet mutual aid groups have not abandoned the use of government-backed currency, government-built roads, or government and corporation-backed technologies like the internet and cell phones as part of their work. Indeed, many rely on the ease of corporate tools like Venmo and PayPal instead of working with credit unions or exploring alternative systems like community currencies. Perhaps at some point, a refusal to engage with today's tools and technologies devolves into a juvenile counterculture of symbolic protest, what Bookchin derided as "lifestyle anarchism." At the same time, a deep commitment to anti-authoritarian principles is what gives mutual aid its radical potency, and the ability of the non-profit industrial complex to capture and coopt movements is indisputably an ever-present threat to this model of social change.

This article takes no position on how mutual aid groups should decide difficult questions like those around incorporation and managing risk of liability other than this: mutual aid groups should consider these questions thoughtfully and in the context of their broader political vision. To disengage from these important questions because they seem complicated or tedious is to betray the importance of the project of mutual aid for the sake of convenience. Even more importantly, ignoring these questions leaves mutual aid projects vulnerable to external lawsuits, agents provocateurs, and aggressive state crackdowns, as has happened to mutual aid projects repeatedly for over a century--from the National Ex-Slave Mutual Relief, Bounty, and Pension Association and the International Workers Order to the Black Panthers, Common Ground Collective, and Occupy Wall Street. There is an important role for movement lawyers to play in supporting mutual aid groups, helping them understand these legal issues in a way that balances activist principles with the potential benefit of available legal tools, while centering and giving priority to mutual aid values, culture, and decision-making processes. If mutual aid groups are serious about the project of building sustainable counter-institutions that last beyond any one short-term crisis and instead start to address our ongoing, systemic crises, digging into these technicalities and developing thoughtful, principled answers to these difficult questions is an essential step toward building dual power.

Clinical Professor of Law and Attorney-in-Charge, Community & Economic Development Clinic, Maurice A. Deane School of Law, Hofstra University.

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