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Author: Mark S. Weiner


Thanks to the Entire Clan

I’ve been gratified and moved throughout this symposium to see people I deeply admire and respect take up my ideas and run with them. For me, it’s been a powerful experience of intellectual community in the digital age. And so as our symposium draws to a close, I want to take a moment to extend my thanks. I’ll be responding to Mark’s and Sudha’s recent posts and to other posts that may come in later tonight in the comments section.

First, thanks to Deven Desai for organizing the symposium and keeping it running so smoothly, and to the good folks at Concurring Opinions for hosting our discussion.

Next, thanks to the dedicated, international clan of participants who read my book and provided such learned, lively, and diverse commentary about it. I can hardly believe the range of topics we’ve covered. To Mark Fenster, Lucas Grosman, Arnold Kling, Jan-Christoph Marschelke, Tim Murphy, Jeanne Schroeder, Sudha Setty, Stephen Utz, and Doyle Quiggle, I raise a glass from here in Connecticut.

Finally, thanks to those readers who posted in the comments sections, and to everyone who followed along with our discussion. If you’d like to take up any points with me directly, please feel warmly welcome to get in touch.

Best wishes to everyone for a relaxing weekend, wherever you are in the world—and thanks once more for such an interesting, enjoyable exchange of ideas. Wow!


Protecting Dignity: A Perspective from the Rule of the Clan

Lucas Grosman raises the interesting issue of the right to honor. While he flags the diminishment of that right relative to its protection in pre-modern socio-legal systems (I think of the antebellum south), he also notes that honor is explicitly protected in some European and Latin American constitutions, as well as in international human rights covenants (e.g., Article 12 of the UDHR).

For reasons I note below, I think such protections are important on principle. But it’s also worth highlighting what they generally aren’t, namely protections of collective or family honor. If someone subjects me to intentional infliction of emotional distress, even by citing my ancestry in a derogatory fashion, my cousin sitting comfortably at home can have no claim. For a right for individuals to be free from such harm that’s justified partly on collective terms, one could turn to India—a nation in many respects in the midst of the socio-legal transformations we’ve been discussing—for instance to the recent case of Arumugam Servai v. State of Tamil Nadu (2011). There, the Supreme Court condemns the use of derogatory language against scheduled castes not only because it harms the particular individuals subjected to the insult and because it leads people to fight (pace Beauharnais v. Illinois), but also because all “communities” should be treated with respect in a diverse society.

But thinking in explicitly individualist terms, protecting honor can be conceived as part of a more general protection of human dignity. And in my view, one of the reasons the concept of dignity ought to form the core of modern constitutionalism is that it secures on liberal terms one of the goods the rule of the clan provides so well. In this sense, the constitutional concept of human dignity is part of the intellectual and imaginative transformation Jan Marschelke and I have been discussing—a key to securing governments that protect liberal autonomy by looking back to concepts drawn from pre-modern forms of order.

Some weeks ago, I made a short video about the concept of human dignity in German constitutionalism, which I’ll include below with the hope that it’s relevant to this exchange with Lucas. I certainly had The Rule of the Clan in mind when I made it. Also, we’ve exchanged many words in this symposium—why not exchange some visuals?




An American Historian Hesitatingly Queries an Irish Philosopher

Thanks to Tim for his deep and intricate engagement with Jeanne’s post and with my response. I confess that at this point—as an Aristotelian-Roman-Thomist argues with a Lacanian Hegelian about the origin of rights—I feel I really ought to step aside and let the learned speak, for the sake of others who are following along as much as for the sake of my own skin. But I wonder whether the issue Tim raises can in fact even be answered philosophically, though of course thinking in philosophical terms can help us pose the question in the right way. In brief, if I understand Tim correctly, he asserts that jural relations of abstract right necessarily originate at the same time as family relations—at the same moment a community comes into being—and that the constitutive family unit of this community is the nuclear rather than the extended family. Is that right, Tim?

I am about to walk onto some of the most delicate ground imaginable right now—namely querying an Irishman about his language—and I beg Tim’s patience for my brutish American stumbling. But here goes. You refer to the Irish term for nuclear family. Are you referring to teaghlach? If so—again, forgive my uncertainty—isn’t the word based on or deeply connected to the root of “house”—and, more particularly, “hearth” (teallach)? And is there any reason to think that this house or hearth didn’t in fact refer to the common fire shared not by the nuclear but rather by the joint or extended family that Henry Maine revealed linked Ireland and India to a common Aryan ancestor? Again, I’m close to walking on air here in terms of my expertise, but isn’t there also some of the same implication in the Welsh term for clan, gwely, finding its root in the term for “bed”? And I believe this is the sense in which long ago George Gomme explored the relation between the hearth cult and the English village community. And so in fact couldn’t the etymology of the Irish term be quite consistent with the collective ownership of tribal land—implying a much more recent (in historical terms, anyway) functional individuation of jural relations, as well as the development of the nuclear family with which the term is associated today, in modern speech?

And speaking of the nuclear family, I agree that one wouldn’t want to understate psychological or social diversity. Point well taken. Nor would one want to imply that legal systems in status-based societies don’t enable all manner of relationships that are entered into by individuals, including contractual relationships. But in functional terms, and often in formal ones, even these relationships seem to me to be predicated on the force of extended kin relations.


Uncle Rich and the Trojan Horse

There have been a great many interesting posts and counter-posts in the symposium over the past couple of days. It’s been especially enjoyable to imagine this international group assembled together in one metaphorical room via the internet. Participants and commentators have written from Malaysia, Pakistan, Germany, Greece, and Argentina, not to mention Florida, California, and New York—marvelous!

Thanks to Lucas Grosman, writing from his perch at the University of San Andés. I like his story about Uncle Rich, who unhesitatingly loans his nephew money in exchange for a much deeper loyalty than a mere cash nexus could demand (pace Schroeder on Adam Smith, Desai on “The Godfather,” and Henry Maine on the movement from Status to Contract). The advertisement dramatizes how the security provided by the sociolegal order I call the rule of the clan “legitimizes and gives occasion to increasing family interference with individual autonomy.” Lucas writes: “In this sense, it is not only the case that ‘supportive’ extended families get leverage to interfere, as the bank commercial emphasizes, but also that such interference is based upon a genuine interest. The extended family now has an additional reason to be concerned about the decisions the borrower makes, and more often than not it will traduce such concern in concrete commands.”

That the same dynamic can be found in the provision of goods by the state, as Lucas notes, underscores the stakes at issue for societies overcoming what the 2004 Arab Human Development Report calls “clannism,” under which the state employs and may be coopted by family-based patronage networks. In a remarkable work that I highly recommend, the Palestinian intellectual Hisham Sharabi described these conditions with the term “neopatriarchy.” (Of course, the dynamic can be found in various guises across the world. Consider how the ruling clans of the Philippines today threaten its democracy.) It’s for this reason essential that the state be under effective, legitimate democratic control; that it be based upon a truly common identity that transcends family loyalties (or, in the case Doyle Quiggle describes, tribal loyalties); and that, as Jan Marschelke pleads, this common, public identity be culturally compelling enough to compete with more particularistic, ineluctable identities that are the basis of status relationships.

There’s special poignancy, I think, that the advertisement with Uncle Rich airs in Argentina—a country that points up the very “structural fragility” of the liberal, democratic project to which Lucas alludes.


Response to Schroeder on Legal Subjectivity

I want to thank Jeanne for her lucid and forceful second post, which also responds to Tim’s earlier comments. I find her analysis a compelling way of framing the argument I make and stories I tell in the book. As in the intellectual tradition she describes, I don’t “assume the existence of the individual subject,” rather I believe “subjectivity is created through jural relations in a modern state.” In this respect, by historicizing the self, the book implicitly departs from standard liberal views. This is one of its features that, as Jeanne notes in her review, makes the book more consistent with speculative, European than liberal, American theory.

I wonder whether the divergence between Jeanne and Tim isn’t at bottom one between a legal philosopher and a scholar immersed in Hegel’s historical vision, and why Jeanne may find my account more persuasive than Tim does. “[A]lthough Hegel thinks that [the jural relations of abstract right] are the most logically primitive (which is why he discusses them before he discusses family relations),” Jeanne notes, “this does not mean that they are empirically prior. Indeed, his point is that they were empirically late to develop (which is why subjectivity and citizenship are modern inventions).”

The way that law has constituted and shaped the self over time has been an important theme in much of my work, though I haven’t articulated the theme in Hegelian terms. Nor in fact have I theorized the issue at length. Instead, I’ve sought to forward my conceptual analysis largely in narrative form. In my second book, Americans without Law (2006), I examined a group of thinkers who articulated a civic rhetoric I called “juridical racialism,” which I argued was implicated in the way the boundaries of civic belonging were constructed in the United States from the late-nineteenth through the mid-twentieth century, a period that saw certain advances in both federal power and economic modernization. Here’s how I described the relation between law and the personal biographies of the men whose stories I told—and how I described my own historical method:

“In each instance … the development of federal power facilitated by juridical racial thought was linked to a distinct mode of personal being centered on individual subjection to the idea and institutions of the state. I illustrate this bond …. [t]hrough interpretation and presentation of individual biographies and the conceptions and practices of the self [they] reveal[] … Each [figure] I examine was an anti-traditionalist modernizer at the level of both society and the human person, an individual who attempted not only to further the progressive advancement of social and economic life, but also to transform his own personal being according to the needs of the new world he envisioned. Each inscribed the social dynamics and institutional imperatives of modernity into the deepest regions of his own self, structuring his life according to those masculine attributes of ‘infinitely competent responsibility and self-cohering discipline’ characteristic of modern legal identity.”

This aside, I suspect that Tim probably would agree with the following statement of Jeanne’s, and that he would also appreciate the psychological and cultural consequences of the legal relations of equality she describes, no matter how one understands the origin and foundation of those relations. “To be equals – or more accurately, to be able to recognize others as equals,” Jeanne writes, “requires that we be individuated (recognized as our own ends and not means to the ends of the clan), and therefore separate and alienated from those we naturally love to some extent. This is the tragedy of modernity: positive freedom through individual rights comes at a great cost.”

I think we can see that cost in modern representations—valorizations—of the rule of the clan, which ironically form part of the cultural foundations of the liberal rule of law.

I’ll leave Jeanne’s comments about Adam Smith for further consideration, but I imagine Frank Pasquale found them interesting.


On Desai on “The Godfather”

I’m very happy that Deven points us toward “The Godfather.” It’s significant, I think, that one of the greatest American films of all time opens with a meditation on the difference between liberal legality and a form of clan justice. And while the culture referenced there is that of Italy (long a locus classicus for academic studies of honor culture), the point the scene makes is a more general one, namely the multiple rationalities at play in the group-based socio-legal order represented in the opening. As Deven writes: “What happens when all structures are gone? Where do you turn? Your company? Your school? … The immigrant undertaker, Bonasera, who tries to live under the new rules of his new country, America, finds that the system fails him. … He wants revenge for the beating and attempted rape of his daughter. He goes to the clan, [in the figure of] the Godfather.” (A side note: I think we can well picture a future world in which, absent certain legal structures, people would generally turn to their companies for redress, seeking out the in-house counsel of their corporate employers to vindicate their broader legal interests.) Naturally, as I note in the book, the Mafia and traditional clans contrast dramatically in that the Mafia is dedicated to unlawful activity—a profound and significant difference. Yet the widely applicable moral of the scene, as Deven points out, is that adhering to the dynamics of clan retribution not only engages deep human impulses, but is also under certain conditions fully reasonable. In addition, as he also notes, such group-based justice is governed by rules. Feud isn’t anarchy; it’s a certain type of order.

I like the way that, in 1972, this scene riffs on a central theme of American and Latin American popular writing by imagining the breakdown of law (I’ve discussed a related feature of popular culture in the Americas here). And there are reasons why this theme is so persistent—reasons why the efforts of popular artists to think about the present by invoking an ancient way of approaching justice remain so compelling. Among the reasons, I think, is the psychological and cultural tension Jeanne described in her first post.


Response to Quiggle

In his two compelling posts, written from a point of view one doesn’t often encounter on a legal blog, Doyle Quiggle asks “how do we replace a union of feeling (clan) with a union of words (constitution)?” It’s a question that applies well beyond Afghanistan, but Doyle speaks with special experience of that country, where for many people modern ideas of law are delegitimized by their association with ISAF/NATO forces, as well as with the “social proof” to which the Taliban enthusiastically point: “Afghan women and children killed by drone strikes; night raids; burned Korans; pissed-on dead bodies of Islamic fighters; US Special Forces running amok and killing dozens of civilians.”

In thinking about the possibilities of legal and constitutional development in Afghanistan, Doyle turns to the issue I’ve been discussing with Jan in relation to German constitutional modernization, about which we’ve invoked the spirits of von Savigny and Grimm. He turns, that is, to “the imaginative sensibility that lies at the core of the liberal rule of law” and notes how deeply it contrasts with the sensibility of the rule of the clan among ANA/ASF soldiers. “The Afghan National Army,” he writes, “has largely failed to create the imaginative mechanisms that should enable its members to transcend clan loyalty and its honor-compulsions.” Nor has it been able to provide “the genuine goods the rule of the clan provides, especially solidarity and a measure of social justice,” under the auspices of a liberal conception of law and government.

As a result, Afghan army soldiers find themselves poised against their insurgent kin, confused about their own loyalties, unstable in their identity—and deep in dishonor. To overcome this shame, some “empty their AK into their US counterparts.”

“You Americans have merely been talking to yourselves,” Doyle’s tent-mates tell him. Caught in our solipsism, we fail to appreciate the nature of a cultural divide—a divide that, at its core, is socio-legal in character. In that failure, we threaten our friendship with many people who might otherwise be part of a common effort.

Among them are the two professors in Khyber Pakhtunkhwa who commented on my first post. One of the reasons I wrote my book is to help readers well beyond the academic world appreciate why understanding their point of view is so important.

I thank Doyle for his sensitive and arresting portrait of the human stakes at play.


Response to Marschelke

I’d like to take a moment here to respond to Jan’s comment from yesterday—for which, my thanks.

Jan, leaving aside the issue of legal sub-communities for now, I would say that the legal identification you describe is a task not so much for politics but for literature and the arts. It’s there we see the most direct cultivation of the imaginative sensibility that is the ultimate cultural foundation of the liberal rule of law. At the heart of this imaginative sensibility is an attitude toward history and interpretation that enables the free construction of the self. And, notably, often such moments of cultivation engage ancient stories or myths about the rule of the clan (to take two examples I discuss in my book, think of Walter Scott’s Waverly or Salman Rushdie’s Satanic Verses). If one main goal of my book is to suggest the centrality of the modern state to individualism, another is to suggest the centrality of certain forms of literature and culture to the autonomy-enhancing liberal state.

On a related matter, I’ve been struck by the way in which Germany in particular has faced the challenge of cultivating the cultural legitimacy of law not only in the wake of World War II, after the transformation of German constitutionalism, but more notably over the past few decades, as the country has become notably multicultural. In Germany, you confront an interesting and difficult social and cultural conversation between liberal, legal modernity and many immigrants who were raised under the rule of the clan. I seem to remember a number of striking films made by German filmmakers about the issue, though I can’t recall their titles. Is it possible also that some of the filmmakers are Germans of Turkish descent? There, again, the role of the arts in navigating the historical transition from status to contract.

As for clubs and clans. I think the question isn’t when clubs become a legal force, but rather when to clubs become more like clans? Under the rule of the clan, there is no formal, or practical, possibility of exit. But we could imagine a world in which that impossibility would apply even to organizations not restricted to members of a particular lineage (e.g., gangs).


Responses to Kerr, Marschelke, Schroeder, and Kling

As our symposium about The Rule of the Clan gets underway, I wanted to use this space today to respond to a question posted on one of the comment threads and to the posts of the other symposium participants thus far. I’ll be silently adding to this post over the next couple of hours.

1) Orin Kerr reasonably asks what I mean by “liberal” and what I mean by a “strong” state. Here is my response from the comments section:

Hi Orin, thanks for your question. By “liberal,” I mean a government dedicated to advancing the freedom of the individual—not only by having constitutional limits placed on its own authority, but also by fostering substantive goods that enhance personal autonomy. By “strong,” I mean sufficiently powerful to vindicate this individualist ideal, either by providing those goods itself or by ensuring that they are provided on terms under which persons are treated as individuals rather than as members of ineluctable groups. Most important among these goods is the provision of justice itself, which is why in the book I examine the process through which the Anglo-Saxon state overcame the blood feud, regulating and ultimately displacing kin-based retribution as a response to wrong—and why I think the history of Germanic law provides an interesting window onto Afghanistan, Somalia, and other parts of the world with weak states today. In any event, my approach to your question is why Arnold Kling very interestingly wrote that I make a “libertarian case for a strong central state”—a characterization that really intrigued me, because I’ve never thought of myself in those terms (far from it). I take this view because I believe that when the state is absent, weak, or too limited, the result is not a world of maximal individual choice but rather one of extended families and what Henry Maine called a society of “Status.”

I’ll be responding to Orin’s follow-up question—in which he presses me for a further definition—in the comments thread.

2) From his German perspective, Jan-Christoph Marschelke points out that having largely overcome the rule of the clan, liberal democratic societies are in “permanent danger of losing references for identification”—asking, in essence, what kind of cultural life can best sustain a society whose legal system in principle is dedicated to advancing individual autonomy? This is a conundrum a number of liberal theorists have noted—I’m thinking especially of Rogers Smith (n.b.: he was a dissertation adviser of mine many years ago)—and that form a central concern of my book. If a culture of honor and shame is the cultural circuitry of a radically decentralized constitutionalism, what kind of culture, and what approaches to the imaginative life generally, are best suited to sustain the effective liberal state I describe in response to Orin? In Jan’s words: “What kind of story has the liberal state to tell in human terms? … Can [its] legal system offer identification via law?” I wonder if he’s thinking even of the kind of “sensuous” and “poetic” quality that Karl Friedrich von Savigny and Jacob Grimm once ascribed to ancient Germanic law (and that was seen as one of the grave deficiencies in the development of an international legal order)?

In my book, I note that one of the curious features of liberal modernity is the extent to which it romanticizes and often valorizes anti-liberal legal systems. I mention the movie “Avatar,” but I equally could have discussed aspects of “Game of Thrones.” As Jan notes, I don’t see most cultural products like these as signs of atavistic regression. Instead, valorization of the rule of the clan is often the sign of liberalism’s growing legal advent (an issue we should bear in mind in the course of following social and legal modernization across the world, including the Middle East and North Africa). Learning to distinguish between cultural life that’s nourishing or corrosive of liberal constitutionalism is a key task of liberal, legally-oriented cultural criticism. I would class the kind of sitcoms Jan mentions in the former camp, because in valuing community, the “clans” of such shows are really more like clubs, with free entry and exit based on personal choice.

More important, to prevent the return of the rule of the clan in its various guises, liberal states not only need to possess democratic legitimacy and be effective in advancing individual autonomy—they also need to find ways of meeting the genuine goods the rule of the clan provides, especially solidarity and a measure of social justice, lest liberalism collapse into a hollow core.

I’ll be responding to Jeanne’s and Arnold’s comments shortly. When I do, I’ll simply add my them to this post.

[And here is my next response, at 3:10 p.m.] Read More


Three Phenomena Encompassed by the Rule of the Clan

Rule of the ClanThanks very much to Deven and all the good folks at Concurring Opinions for this opportunity. I’m grateful to them for gathering such a wide-ranging group to talk about The Rule of the Clan, and to all the participants for taking part in our conversation.

Before we start, I’d like to underscore one of the main arguments of my book that may be of particular interest here. In short, it is that a strong liberal state makes individual freedom possible. Legal history and comparative law reveal that without the authority of an effective state, a host of communal groups rush in to fill the vacuum of power, instituting the rule of the clan. This diminishes the status of the autonomous individual—the core value of modernity and, more broadly, of the liberal Enlightenment. When states are weak, the individual becomes engulfed within the collective groups on which people must rely to advance their goals and vindicate their interests.

The rule of the clan encompasses three contemporary phenomena. Here is how I defined it recently in The Chronicle of Higher Education (the link is to a gated site):

First, and most prominently, I mean the legal structures and cultural values of societies organized primarily on the basis of kinship—societies in which extended family membership is vital for social and legal action and in which individuals have little choice but to maintain a strong clan identity. Today these societies include Afghanistan and Yemen, but they have existed across history and throughout the world.

Second, by the rule of the clan I mean the political arrangements of societies governed by what the U.N.’s 2004 Arab Human Development Report calls “clannism.” These societies possess the outward trappings of a modern state but are founded on informal patronage networks, especially those of kinship, and traditional ideals of patriarchal family authority—under which the state treats citizens not as autonomous actors but rather as troublesome dependents to be managed. Clannism often characterizes rentier societies struggling under the continuing legacy of colonial subordination.

Third, and most broadly, by the rule of the clan I mean the antiliberal social and legal organizations that tend to grow in the absence of state authority or when the state is weak. These groups include some dedicated to unlawful activity, such as petty criminal gangs, the Mafia, and international crime syndicates, which in their feuding patterns and cultural markers of solidarity look a great deal like clans and in many respects act like them.

I argue that in all its forms, the rule of the clan diminishes the status of the autonomous individual because the weakness of the state fosters a culture of group honor and shame. As I noted in Foreign Policy, this culture reinforces the autonomy of clans by establishing group codes of behavior, and it strengthens their internal coherence by providing an incentive for members to keep watch over one another. Group honor and shame form the cultural circuitry of radical constitutional decentralization.

The culture of the clan values groups over individuals, but it also provides individuals with profound social and psychological benefits. Clans offer equality and solidarity. This makes adhering to the rule of the clan rational for those who live within it. It also explains why the rule of the clan persists and endures, even in the cultural imaginary of modernity. The rule of the clan certainly is far more explicable in human terms than the modern liberal state.

In my book, I seek to highlight that the challenges liberals face are similar as they encounter the clan in all its forms, wherever they live. The underlying issue America confronts in preventing vigilantism, for instance—clannism—is akin that raised by the proliferation of private violence in Mexico and by the local, tribal resolution of disputes in Afghanistan.

In this respect, liberals across the world are part of a common cause to build and safeguard government institutions that protect individuals by advancing the public interest—not promoting the state per se, but nurturing a state that possesses democratic legitimacy and that is dedicated to substantive principles of the common good.

A Lacanian legal theorist (Schroeder), a libertarian economist and blogger (Kling), a scholar of Islamic law in Australia (Saeed), an Argentinean constitutionalist and law school dean (Grosman), a German expert on multi-culturalism (Marschelke), a scholar of administrative law and the regulatory state (Stack), a scholar of administrative law and social theory (Fenster), an Irish legal philosopher teaching in Malaysia by way of Iceland (Murphy), and an American scholar who, among other experiences, has lived with Afghan National Army forces while teaching U.S. soldiers in Afghanistan (Quiggle)—I tip my hat to each one of them and look forward to our discussion.