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Author: Deven Desai

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The Rule of Clan More To Say and That’s A Good Sign

To all who participated by posting, commenting, or just reading, I offer many thanks. I have enjoyed this symposium immensely. Mark’s book continues to provoke, and now there are many more views to consider and explore. I think the range of engagement shows that regardless of whether one agrees or disagrees with the book, Mark has presented powerful ideas in a way that speaks to many disciplines. I wanted to say more and found so much more to digest that I couldn’t. That too is a good sign. The symposium sated me and created new hungers. I encourage folks to find more about the Rule of the Clan at his site for the book. For those who wish to follow his work in general his blog, Worlds of Law, is great place to do so. Again many thanks to all and especially to Mark for the book.

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Seductive Clans

Clans are seductive. Mark’s book, The Rule of the Clan, shows why. The Rule of the Clan does not bring up The Godfather that I recall, but then it did not need to. The book forced the opening of The Godfather into my head. Couldn’t shake it. That opening is a microcosm of many ideas in the book. Mark shows that the impulse to embrace the clan is not weird; it is understandable. For me, Mark’s theory explains the tension between two major forces, the liberal state and the clan; both of which offer much, and both of which run into each other (Jeanne L. Schroeder’s post captures this point well). As I understand the book, the move to the clan or rise of clan systems is a symptom of liberal society in decline. At the same time there is a balance. Clan structures are warm and safe in many ways. As a first generation immigrant, I have never plugged into whatever the hell it means to be an Indian in America. At times, I wish I could. Did I reject all clans? No. No one is an island; all need some communal succor. I went to a boarding school. Boarding schools at all levels fill gaps in family life. Even as a day student, the honor code, the crest, the motto (principes non homines), and the people created a structure of support and security like no other. And days before graduation, the founding headmaster made it a point to tell us that once we left, we were in a different world, outside the clan, where maintaining honor was a bit rougher. Cal, Yale, Princeton, Quinn Emanuel, Google, the Cory Booker Campaign, had clan-like qualities too. Some of those institutions find subtle ways of excluding you even when you are in. But some of those networks have power and help in tough spots. As that grows, as one rises in the institution, individualism is less tolerated. Identity merges with the group as one drinks the culture, and loyalty, sometimes blind, ensues. But they rarely have the power of the clans that cause concern. Or they rarely exercise it for all in the clan.

So consider the Godfather scene. What happens when all structures are gone? Where do you turn? Your company? Your school? No. You seek the Godfather. The immigrant undertaker, Bonasera, who tries to live under the new rules of his new country, America, finds that the system fails him. He tries to adapt to his new world. He lets his daughter date outside his clan, but she is attacked. The culprits receive a suspended sentence and go free “that very day.” The system is at best theater for him. He wants revenge for the beating and attempted rape of his daughter. He goes to the clan, the Godfather. But the Godfather challenges him about being outside the clan, and this exchange follows:

Bonasera: I didn’t want to get into trouble.
Don Corleone: I understand. You found paradise in America, you had a good trade, you made a good living. The police protected you and there were courts of law. And you didn’t need a friend like me. But, uh, now you come to me, and you say: “Don Corleone, give me justice.” But you don’t ask with respect. You don’t offer friendship. You don’t even think to call me Godfather. Instead, you come into my house on the day my daughter is to be married, and you ask me to do murder for money.
Bonasera: I ask for justice.
Don Corleone: That is not justice. Your daughter is still alive.

And in the end Don Corleone is clear that the people who will take care of the problem must be “reliable people, people who aren’t going to be carried away. After all, we’re not murderers, in spite of what this undertaker thinks.” The rules of the feud (the book describes the importance of feuds as something other than anarchy) persist even for those not in the system. That maybe a quirk and inaccurate for most clans, but the idea of this scene is seductive. It, in fact, is true. It is why people can love the idea of Don Corleone or Tony Soprano.

The temptation or desire for quick, personal justice cannot be escaped. If it were as simple as the film, many more might seek it even with the owed, unknown favor lurking behind the exchange. Liberal democracy is always balancing that desire for immediate, visceral, decentralized satisfaction against a slower, less personal system. As Arnold Kling offers, anyone asserting a new decentralized order will work must show “a more decentralized order that does not degenerate into the rule of the clan.” So too for liberal democracy. That system must constantly prove itself. When that proof is lacking or has faded from recent memory, calls for dismantling the state will arise. They may not be accurate. But they suggest that things are not as they should be. When they start to gain force, rather than throwing the state out altogether, we must reassess and reestablish the parts of the state that give room for individuals to thrive. The Rule of Clan provides a chart to understand these constant currents, and let’s us decide what course to take.

Clip of the opening after the jump

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Symposium: The Rule of the Clan

Rule of the ClanBold. We might favor the bold, but taking such a tack can be dangerous. So why be bold? Perhaps because you have an insight, a vision, and it compels you to say what you see. Mark Weiner’s Rule of the Clan is bold in this way. It presents how an ancient, persistent part of society, the clan, shapes our world. Mark says we may hope that societies are either clan-based or liberal modern ones, but that is not so. He shows why that is the case. And he shows that if we fail to understand the clan impulse, we fail to see the ways the very liberal, modern state we cherish may rot from within. The lack of normative coherence that may be inherent for modern liberal states and the way clans reemerge when the state is weak create fertile ground for clans to take over. When that happens the freedom and space for individuality we cherish and take as a given, give way to clan structures. Those structures are understandable. They provide societies a certain stability and meaning, but when we embrace them, we give up the freedom we want. Mark shows that the cry to dismantle the state undermines the institution that gives us freedom. We must learn the way the drive towards clans operates, if our freedoms are to persist.

There is much more to say, and I will post my thoughts later. For now let me say Concurring Opinions is honored to host this symposium on The Rule of the Clan. As Mark’s initial post notes, we have a great, international and interdisciplinary group participating with us this week. We look forward to their contributions and your comments.

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Citizens United, Graffiti, and the Web

We need more outlets to challenge the way things run. Challenging corporations is difficult, necessary, and proper. Someone in San Diego tried to do that. He is losing his case. It turns out that if you scribble anti-bank messages, you could face 13 years in jail. The medium: washable children’s chalk, not spray paint, on the sidewalk in front of banks. The bank: Bank of America. Now, you might think the First Amendment would be an issue here; it’s not. According the news report, “a judge had opted to prevent the defendant’s attorney from ‘mentioning the First Amendment, free speech, free expression, public forum, expressive conduct, or political speech during the trial,’ and the defendant must now stand trial on 13 counts of vandalism.” The defendant was saying other banks were better banks. Bank of America did not like it, claimed it cost $6,000 to clean up the chalk, and apparently used its influence to have the city gang unit investigate and hand the case to the attorney’s office. Given that this defendant may not be allowed to engage in this speech, because of anti-graffiti and, my bet, property laws, all that may be left is the Web. I think offline mediums matter and should be protected. The Web is an alternative, not a substitute. But even on the Web a protester will have problems.

As I argue in Speech, Citizenry, and the Market: A Corporate Public Figure Doctrine, corporate power to speak has gone up. Corporate power to limit speech has not. A corporate public figure doctrine would allow someone to use a corporation’s logo and name to challenge to corporation on public issues. A corporation’s word mark is its given name; its logo, its face. Just as we would not limit the ability to question and identify human public figures for speech, we should not do so for corporate public figures. A foundational commitment of free speech law, perhaps the foundational commitment, is that public figures don’t and can’t own their reputations. Yet, through trademark and commercial speech doctrines corporations have powerful control over their reputations. If corporations are people for free speech purposes, as a constitutional matter, their control over their reputations can be no greater than the control other public figures have. Corporations cannot have it both ways. Corporations want and receive many of the legal rights natural persons receive. They should be subject to the same limits as other powerful, public figures.

HT: Fred von Lohmann for noting the story on Facebook.

PS. I am not saying corporations should be challenged, because they are corporations. That is silly. In that sense, I would challenge those who challenge, but that’s me.

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Constructive Feedback for Writing and Maybe Living

Writing well requires attention to style and execution, but it also requires interaction. John Gardner’s works on writing explains his views on temperament and talent. In On Becoming A Novelist he also addresses training and education. What he says about writers workshops applies for classrooms, conferences, and more:

In a bad workshop, the teacher allows or even encourages attack. … In a good workshop, the teacher establishes a general atmosphere of helpfulness rather than competitiveness or viciousness. Classmates of the writer of the writer whose work has been read do not begin, if the workshop is well run, by stating how they would have written the story, or by expressing their blind prejudices on what is or is not seemly; in other words, they do not begin by making up some different story or demanding a different style. They try to understand and appreciate the story as it has been written. They assume, even if they secretly doubt it, that the story was carefully and intelligently constructed and that its oddities have some justification. If they cannot understand why the story is as it is, they ask questions. … It takes confidence and good will to say, “I didn’t understand so-and-so,” rather than belligerently, “So-and-so makes no sense.” It is in the nature of stupid people to hide their perplexity and attack what they cannot grasp. The wise admit their puzzlement (no prizes are given in heaven for fake infallibility)… John Gardner, On Becoming A Novelist, p. 81

This attitude reminds me of my introduction to rhetoric class. We had to re-state what the author said for our first essay. We lost points for doing anything more. Saying “I think…” was not allowed. We were not ready to have an opinion. As Philippe Nonet used to say, “That you think it does not matter. Only what you show matters.” Tough advice. But good. He also said we have to let the idea present itself. We have to let it be.

A good workshop is a place where we let the writing be. Take it at face value and root around to see what is being said. Some will be good, some bad, some confusing. We will not agree with all that is said. But as Garder says, if we admit our puzzlement and share well, the writer may see how to improve or explain what was missed. Then all will have learned and constructed a new way forward. I think this approach applies to much more than writing, but leave that for another time.

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Upcoming Event Symposium on Mark Weiner’s The Rule of the Clan

Rule of the ClanI am pleased to announce Concurring Opinions will host a symposium on Mark Weiner’s The Rule of the Clan from July 22 to July 26. Mark’s book has received strong reviews:

“This erudite, quick-paced book demonstrates what the mix of modernity and clans can create: ‘medieval Iceland plus Kalashnikovs.’” — The New York Times

“Accessible, mesmerizing, and compelling.” — New York Journal of Books

“A highly revealing study with global implications.” — Kirkus Reviews

“The best book I have read this year … A libertarian case for a strong central state … directly challenges what many libertarians currently believe.” — Arnold Kling, economist, askblog and Library of Economics and Liberty

And he has been interviewed about his book by several media outlets including the Brain Lehrer Show on WNYC.

The line up is great, and we are excited to host this event and group. The list of participants shows that the book has caught the attention of a range of scholars crossing disciplines and nationalities. Here is the list, and we hope all enjoy this event.

Prof. Mark Fenster, Levin College of Law, University of Florida, author of Conspiracy Theories: Secrecy and Power in American Culture.

Dean Lucas Grosman, University of San Andrés School of Law, Argentina, author of Escasez e Igualdad: Los derechos sociales en la Constitución.

Dr. Arnold Kling, Adjunct Scholar, Cato Institute, blogger at askblog, author of Unchecked and Unbalanced: How the Discrepancy Between Knowledge and Power Caused the Financial Crisis and Threatens Democracy. Dr. Kling is also the author of “State, Clan, and Liberty,” a review of The Rule of the Clan for The Liberty Fund’s Library of Economics and Liberty.

Dr. Jan-Christoph Marschelke, Managing Director, Global Systems and Intercultural Competence Program (GSiK), University of Würzburg, Germany, author of Jeremy Bentham — Philosophie und Recht.

Prof. Tim Murphy, Universiti Utara Malaysia (University of North Malaysia), formerly professor at the University of Akureyri, Iceland, author of Law and Justice in Community (with Garrett Barden).

Prof. Abdullah Saeed, Sultan of Oman Professor of Arab and Islamic Studies, University of Melbourne, Australia, author of Islamic Thought: An Introduction.

Dr. Doyle R. Quiggle, Jr., author of “Ibn Tufayl’s Hayy Ibn Yaqdan in New England: A Spanish-Islamic Tale in Cotton Mather’s Christian Philosopher?” Dr. Quiggle has taught oratory, rhetoric and classics to U.S. soldiers in both Djibouti and Afghanistan.

Prof. Jeanne Schroeder, Cardozo School of Law, author of The Triumph of Venus: The Erotics of the Market. Prof. Schroeder is also the author of “Family Feud,” a review of The Rule of the Clan soon to be under consideration for publication.

Prof. Kevin Stack, Associate Dean for Research, Vanderbilt School of Law, author of The Regulatory State (with Lisa Schultz Bressman and Edward L. Rubin).

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Aspirations to Write Better

Yes, more from Hemingway. I am reading others as well and may share from those if so moved. For now I will say that few have what he describes here. I will say it can be developed. And I will say I am most grateful to two people who have read my work, shredded it, but did so with love. Love here was the willingness to take the work on its terms and dig and hack and purge. That is why I think the skill can be learned or rediscovered if lost. I will not name them here. I have told them. Anything else is gossip and name-dropping. That would be unseemly and share a personal moment that is for them and me. Still, I thank them. And now for the quote:

A writer without a sense of justice and of injustice would be better off editing the yearbook of a school for exceptional children than writing novels. Another generalization. You see; they are not so difficult when they are sufficiently obvious. The most essential gift for a good writer is a built-in, shockproof, shit detector. This is the writer’s radar and all great writers have had it. Ernest Hemingway, The Art of Fiction, No. 21, Paris Review

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Prism and Its Relationship to Clouds, Security, Jurisdiction, and Privacy

In January I wrote a piece, “Beyond Data Location: Data Security in the 21st Century,” for Communications of the ACM. I went into the current facts about data security (basic point: data moving often helps security) and how they clash with jurisdiction needs and interests. As part of that essay I wrote:

A key hurdle is identifying when any government may demand data. Transparent policies and possibly treaties could help better identify and govern under what circumstances a country may demand data from another. Countries might work with local industry to create data security and data breach laws with real teeth as a way to signal that poor data security has consequences. Countries should also provide more room for companies to challenge requests and reveal them so the global market has a better sense of what is being sought, which countries respect data protection laws, and which do not. Such changes would allow companies to compete based not only on their security systems but their willingness to defend customer interests. In return companies and computer scientists will likely have to design systems with an eye toward the ability to respond to government requests when those requests are proper. Such solutions may involve ways to tag data as coming from a citizen of a particular country. Here, issues of privacy and freedom arise, because the more one can tag and trace data, the more one can use it for surveillance. This possibility shows why increased transparency is needed, for at the very least it would allow citizens to object to pacts between governments and companies that tread on individual rights.

Prism shows just how much a new balance is needed. There are many areas to sort to reach that balance. They are too many to explore in blog post. But as I argued in the essay, I think that pulling in engineers (not just industry ones), law enforcement, civil society groups, and oh yes, lawyers to look at what can be done to address the current imbalance is the way to proceed.

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More on Writing and Why Clear Writing Matters

Lawyers must write. Academics must also write. Gandhi built a newspaper to get his ideas to the people. Again, writing is important. And good writing is even more important if the writing is about, or flirts with, politics. I have noted my love of Orwell’s Politics and the English Language. A main point is that when one writes in simple, clear sentences, one cannot lie. Lies are quickly revealed. I came across this passage from Hemingway and noticed a similar sentiment. Like Orwell, Hemingway explains why poor writing can work for a time, but is not good writing:

This too to remember. If a man writes clearly enough any one can see if he fakes. If he mystifies to avoid a straight statement, which is very different from breaking so-called rules of syntax or grammar to make an effect which can be obtained in no other way, the writer takes a longer time to be known as a fake and other writers who are afflicted by the same necessity will praise him in their own defense. True mysticism should not be confused with incompetence in writing which seeks to mystify where there is no mystery but is really only the necessity to fake to cover lack of knowledge or the inability to state clearly. Mysticism implies a mystery and there are many mysteries; but incompetence is not one of them; nor is overwritten journalism made literature by the injection of a false epic quality. Remember this too: all bad writers are in love with the epic. Death in the Afternoon, p. 54; (2002-07-25). Ernest Hemingway on Writing (No Series) (Kindle Locations 848-854). Scribner. Kindle Edition.

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A little weekend song, When You Get to Asheville

I don’t know why banjos, fiddles, and the like move me, but they do. Throw in Edie Brickell’s voice, I’m a goner. Steve Martin and Brickell have a rather fine album (Martin is the listed artist) called Love Has Come For You. This song, When You Get to Asheville, mentions email, but no matter, or maybe to its advantage. As another song told us, You Must Remember This… Listen for the line about the dog. Martin and Brickell capture a similar sentiment that I doubt will ever go away until we fade from this place.