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The Clan,Law and Individuation

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4 Responses

  1. Timothy Murphy says:

    Hello Jeane. You note that Mark observes the necessary relationship between rights and the state and I think this is indeed a strong theme in the book: that individuals have “rights” in liberal modernity that do not exist, as a category, in the collectivist context of the clan. You go on to say that speculative theory holds that the individual and the private law regime of rights are mutually constituting, and also that the liberal capitalist state, understood as including the private law regime of property and contract, is necessary for the individuation that permits the creation of rights and the actualization of freedom. Moreover, you suggest, by refusing to recognize the role of the state in creating and preserving rights, libertarianism threatens to emasculate it in a way that could allow the re-emergence of clan values.

    I’d like to proffer a radically alternative view (but an old, indeed the classical, view) regarding the origin of “rights”, a view that, like the libertarian perspective (but not necessarily embracing that label), does not recognize the role of the state in creating and preserving rights. The view I’ll advance here also raises questions about the treatment of custom and customary law in Mark’s book, which associates “custom” with kinship, collectivism, Status, and the Rule of the Clan, and “law” with the state and individualism as well as the Contract of the modern liberal state.

    The distinction between classical and modern theories of rights is that classical theory emphasizes the jural relation between people within society while modern theory emphasizes subjective rights. In the classical view, which I hold to be correct, because rights and claims are three place relations they are necessarily social. In any jural community, rights are entitlements; they are what are discovered to be due in particular contexts. A right is a juridical construct with three elements: an entitlement associated with a type of person and, therefore, with an individual of that type; the recognition of that entitlement by others, and without which recognition the entitlement would not effectively exist; and the enforcement of that entitlement, without which it would be vacuous. Rights – entitlements – come into being only when they have been recognized, established, and honoured in particular situations. (A right is an entitlement that can be either a benefit or burden. In modern English, in which rights are understood to attach to individuals as positive entitlements only, it is odd to speak of a requirement or an obligation as an “entitlement”, but in classical rights theory – given that rights are jural, social, three place relations – “entitlement” works, so to speak, both ways.)

    Where do such entitlements or rights originate? The answer: in community (not in individuals) – and that means any community, clan-based or otherwise. In your review essay of Mark’s book, and in Arnold Kling’s review, there is reference to the perhaps surprising but in my view laudable absence of social contract theory in the book. Mark acknowledges that human society or community is a spontaneous ordering of the natural sociability of humans. However, the suggestion is that the original social order is one – as Evans-Pritchard said of the Nuer – “without law” and with custom only. But custom is law, and any community of people is a jural order with customary law. Civil society is a spontaneous order that gives rise to a spontaneous jural order made up of customary law, which (much later) state or positive law expresses in part and develops.

    For a community to exist certain rights or entitlements must exist also; without them the community – which constitutes a network of entitlements – would collapse and no longer be a community. The Roman jurists recognized that every society was governed partly by laws which were peculiarly its own – the “ius civile” of a particular society – and partly by laws which were common to all mankind – the “ius gentium”. The Roman law definition of justice given in Justinian’s “Institutes” is, “Iustitia est constans et perpetua voluntas ius suum cuique tribuens” (“The virtue of justice is the constant and enduring will to render to each what is due”), and all communities have a sense of justice that give rise to its network of entitlements, which will include always the “ius gentium”. The “ius gentium” is not invented as a common law; rather it is in fact common and only later discovered to be common. It is common because humans are spontaneously intersubjective, reasonable, and social beings whose lives together are in very basic and important ways similar in different societies; the Roman idea is that the “ius gentium” is a response to the very basic exigencies of human life that, as a matter of fact, are common to humankind. Some laws are fundamental in that they are essential to communal life: were people not to act for the most part in accord with them, the jural order and, by extension, the social order would not survive.

    No human society can survive in which random and indiscriminate killing is approved or practised; and no human society can survive if whatever is in any way owned may be taken against the owner’s will by another at that other’s whim. The adage “pacta sunt servanda” represents another example of this type of natural justice. In other words, in early, pre-clan or clan, communities you have rights-based “private law regimes of property and contract” – these regimes are not a product of liberal or any other kind of statism.

    I think that all law – and all justice – is in this sense about “rights”: to ask what type of person in the general case and what individual in a particular case is entitled to is to ask what right exists and who has what right in that particular case. Rights, therefore, like law and “the just”, are discovered and decided. All law, moreover, is about potential or actual conflicts of claims, for the function of a dispute over conflicting claims is to discover and determine rights. There can be conflicting claims; only incoherently and temporarily can there be conflicting rights. The question of the substantive justice raised in particular situations by claims and arguments for rights is a matter for juridical discussion, discovery, and decision. What is always discovered in court is a right that resolves a conflict of claims.

  2. Mukhtiar Muhammad says:

    I specially like the part of the book that deals with the Pashtun code. I invite friends around the globe to study this part and understand Pashtuns and their code.

    Mukhtiar Muhammad
    Assistant Prof. of English
    Khyber Pakhtunkhwa(KP), Pakistan

  3. Mark S. Weiner says:

    Thanks for this really thoughtful and interesting comment, Tim. I’ll be interested to hear how Jeanne responds. For my part, I would make two points. First, regarding terminology, I’m with you, though there is perhaps some slippage in the book. In my chapter on Evans-Pritchard and the Nuer, I point out his assertion, and I imply was mistaken (though I don’t make an issue of it), that the Nuer lacked “law.” But in any case, whether one describes pre-modern communities as possessing or not possessing something we call law, as opposed to custom, is less significant than what those terms mean. What’s important for me about the Nuer is the fact that the nature and the force of their legal claims are co-terminus with the shape of their kin relations. This gets to my second point. It’s true that, as you write, “in early, pre-clan or clan, communities you have rights-based ‘private law regimes of property and contract’” and that “these regimes are not a product of liberal or any other kind of statism.” Look to any community and you’ll find trade relations, for instance, that are governed by rules. But typically such regimes function with kin relationships either formally or implicitly as a precondition. And this seems to me to make the regimes or property and contract that we associate with liberal legality very different from those of the communities you describe—and different in the extent to which law constitutes the self. What do you think?

  4. Jan-Christoph Marschelke says:

    I´d like to add a general question on the topic of alientation and liberalism.

    I recall having read a very interesting book by Alain Ehrenberg (“Weariness of the Self” is the English titel, I believe) who connects the rise of new forms of depressions (e.g. of the narcissistic kind) to the claims of post-modern society. The individual which is overstrained by being responsible for inventing itself and the successes and esp. failures of its invention.

    Just a more or less marginal phenomenon accompanying social change or a major pathology longing for a sort of “clan therapy”?