Category: Symposium (The Rule of the Clan)

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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.

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(W)oman does not exist.

I have only time for a quick response to Tim. I am certainly not ignoring post modern feminism. As a Lacanian, post modern (or perhaps more accurately, post-post modern) feminism is what I “do.” The idea that there is not coherent concept of (W)oman is not a denial that societies do in fact characterize people into men and women (The Lacanian concept of woman does not refer to female human beings, but to persons, regardless of their anatomy or sexual orientation who take on the feminine position, which is precisely the position of “not existing” — (The) woman does not exist in the same way that, according to  Lacan, the big Other of the symbolic order, and, according to Hegel, God, does not  exist. They, instead are essential, they insist. Existence is the static dead status of things and “man” who, in Zizek’s wonderful rewording of Lacan’s point, is a woman who thinks she exists – but that gets into the highly technical analysis of the Hegelian-Lacanian distinction between being and essence).

I also am not in any way implying that specific women (as well as specific men) in traditional societies carve out meaningful lives. I am, however, generally agreeing with Mark’s point that persons in clan societies are not “individual subjects” in the same way as persons in the modern liberal state are (and, they certainly don’t have the legal status as such). In this connection, however, one must remember that words like “clan” “modern state”, etc. are analytical categories. There will always be empirical exception to and within these neat categories.

As an aside, in medieval Europe, a woman who did achieve renown was often referred to as a virago, which was not a reproach, but the compliment that she had the moral strength of, and therefore was a sort of honorary, man (vir) — think of Elizabeth I’s famous speech. (As such, I am told that in St. Jerome’s Vulgate, Eve is referred to as virago before the Fall, and as mulier after — according to St. Isadore’s highly questionable etymology, this Latin word for woman comes from a root that means soft and vulnerable).

 

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No Redress for your Lost Honor

In The Rule of the Clan, Mark Weiner points out that in moving from Status to Contract, from the rule of the clan to the rule of law, courts replace clans as adjudicators of disputes and providers of redress when lives, limbs, or property are taken. However, in many cases this passage implies not only a transformation in the channels of redress but also in its content –or, rather, on whether redress is deserved at all.

There is a particular right whose significance is substantially diminished in this process, namely, the right to honor (sometimes referred to as the right to reputation or to dignity, which can also mean something different). This right occupies an important place in many constitutional systems in Europe and Latin America, as well as in international human rights covenants (e.g., Universal Declaration of Human Rights, article 12; American Convention on Human Rights, article 11). (I tend to think that in the U.S., honor, as such, is protected at the state level, e.g. by laws prohibiting libel, not at the federal constitutional level; but perhaps I am missing something).

In essence, your right to honor is affected if someone lies about you or insults you. To redress such attacks, civil or criminal remedies may follow. However, remedies addressing injury to honor have tended to shrink in the last decades, especially when opposite to honor is freedom of speech, as it is often the case. Thus, the doctrine of actual malice laid down by the US Supreme Court in New York Times vs. Sullivan reduces significantly your chances to recover if you are a public person whose honor was attacked by a non-malicious newspaper. Similarly, international bodies insist that criminal laws prohibiting libel should be repealed in the name of freedom of speech. In Argentina, a few years ago, the Supreme Court adopted the NY Times doctrine and followed the international advice to eliminate criminal liability for libel.

Whereas, as Mark Weiner explains, traditional organizations such as clans find honor to be a central value worth your life, in more liberal settings the trend I have noted seems to mark the decline of honor as a value worthy of legal protection. However, the decline of the right to honor is not straightforward or universal. Could one take the level of protection of the right to honor vis a vis the right to free speech (a paradigmatically liberal right) as a proxy of the prevalence in a given society of more traditional values once related to life in a clan? Is the reduction of the legal protection to honor the result of a cultural shift, or rather an anticipation of such shift? Or, if the causal relationship between law and culture is multi-directional, could it be both? These are questions for legal historians and sociologists, among which I cannot count myself; as an amateur, I can speculate, though, and Mark, I am sure, can take it from here.

 

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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.

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Response to Mark – Topic: “Legal identification, identification with law, identification with liberal law etc.”

Mark, thanks for your response! I think it´s been going an interesting way.

1. Which concept of law or which legal sphere?

In my two posts I tried to follow the question, how to identify with the idea of liberalism (and rule of law) as you roughly sketched it in your book. (While some other particpants challenge this scetch in very interesting ways, I chose to take it for granted in order to see what follows from it). The problem of this liberalism seems that at first glance (or as we know it) it seems to lack the qualities of the clan collective (e.g. solidarity, security, orientation). In both posts I tried it from a legal point of view.

a) Exit “Why do we follow rules
In my first post I started with the question “Why do we follow the law” noticing two things:

– we quickly reach the limit of the legal system when we ask where the authority of the legislator comes from (which may be a possible reason for obdience)
– from the perspective of concurring rule systems (clan vs. institutionalized legal system) again we leave this strict legal concept when we ask more broadly: what makes us follow rules?

As far as I understood, Tim Murphy makes a similar point when he argues that “any community of people is a jural”. If we work with a concept of law which encompasses custom we can hardly focus on legality as a criterion to sever the legal rules of liberal society from the rule of the clan. This means that we have to look for the special quality of this liberalism elsewhere. Or change the concept of law.

b) Exit “Intrinsic legal qualities to identify with”
In my second post I was picking up your interesting question whether a “”sensuous” or “poetic” quality” in the law could provide identification with it. Within the little space a blog gives, I tried to sketch why I think this would probably be incompatible with the ideas of legality within the framework of liberalism (as in ROC). So I proposed that politics must take over and you answered you´d see the “task for [...] literature and the arts” (didn´t Richard Rorty argue in a similar way in Contingency, Irony, and Solidarity?).

2. Identification: A task for politics or for literature and arts?

I have doubts about it (maybe pretty German doubts). Because it sounds to me like: Politics can´t do anything, we´ve got to leave it up to those who´d like to feed us with artefacts about it (which need to be sold on markets in order to be heard, anyway). The story that liberalism has to tell has quite something to do with making an offer: “We don´t provide you the keypoints of your personal narrative. We provide a broad framework to let you tell your story yourself.”. So the question is which parts of the framework have to be adjusted in order to make this offer convincing? To take a contentious example contrasting stereotype U.S. and German positions: If the state doesn´t provide a framework for reliable health care but only some companies (can) do then why trust in the state? But this kind of framework is, of course, not a task for literature and the arts.

Anyway, this probably asks for a differentiation of the concept of identification. One could argue that a network of insurances has little of the qualities of clan care.

Is it maybe difficult to identify with liberalism because it doesn´t ask to identify? I think it does want us to identify but not encompassingly (not like parents who might be interested in every single aspect of the child´s life). Instead, it seems to ask to identify with any persons as being confronted with a set of certain situations (e.g. not having sufficient access to legal recourse; not having been hired because of discriminating reasons). Categorizing rather into “fellow-citizens” (which points to classic problems like: what about the paperless, fugitives, asylum seekers? Human rights discourse: human beings).

So the question would be: How much must this state do (or omit) for the people of a society (not: community) to make this “thin” but sufficient (minimum) identification with its institutions and the other members of it possible?

(By the way – your question about German film makers with Turkish roots: Yes, e.g. Fatih Akin , famous is “Head on”, which very much treats ROC-themes.)

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Subjectivity, Rights, Families, and Clans

Thanks very much, Jeanne, for your post, “Hegel, Smith, Subjectivity and Intersubjectivity”, which takes up some of the points made in my response to your earlier post, “The Clan, Law and Individuation”, and thanks to you, Mark, for your comments on that response and also on my remarks about the book’s treatment of liberalism.

Jeanne, you remark that as a Hegelian you are puzzled by the notion of “subjective” rights, and you say also that you think “virtually every modern jurist” accepts the Hohfeldian idea that rights and duties are jural in nature, that they “run to specific individuals or groups of persons and are enforced by society in general”. “Subjective” is of course a very tricky word; by “subjective” rights I mean rights associated with the individual human being, the subject, typically by virtue of the subject’s existence. In contrast to the Hohfeldian consensus that you perceive, I think many modern human rights theorists maintain that all persons are entitled to certain forms of treatment independent of their communal bonds, social roles, historical period, and cultural traditions; in contemporary debates, the underlying question as to whether rights can be proved actually to exist is usually developed as a series of questions concerning the foundation of human rights, and most common is an attempt to ground human rights in some form of political, moral, or legal theory based on the rational nature of the human being. Frederic Kellogg remarks that the concept of a priori natural rights involves the notion that certain definable fundamental goods or opportunities are “morally wed to individuals or groups”; Finnis’s theory of rights as derivatives of a set of “basic goods” combined with methodological principles; Dworkin’s assumption of “a natural right of all men and women to equality of concern and respect, a right they possess not by virtue of birth or characteristic or merit or excellence but simply as human beings with the capacity to make plans and give justice” – these are all examples of what I consider to be “subjective” rights theory. (One further point: you note that my reference to rights as claims (i.e. as a resolution of conflicting claims) is “incorrect to a Hegelian”, but I understand that approach as, at the very least, quasi-Hohfeldian.)

In my previous response I sought to emphasize the classical view that rights are jural relations arising from the fact of humans living in community; they are a function of communal life, not of individuality – of society rather than of subjectivity. You say that your formulation of subjectivity as created through interpersonal relations among at least two subjects that must be objectively recognized and enforced by others appears to bear some resemblance to this approach, but the Hegelian view, if I understand it correctly, that subjectivity is created primarily (perhaps exclusively) through jural relations in a modern state, seems to me to be misplaced.

Mark cites with approval your observation that “[a]though 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), 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)”. My objection to this is that “the jural relations of abstract right” (which is roughly equivalent, you note, to modern private law) and “family relations” necessarily originate simultaneously – specifically they originate spontaneously when a community comes into being.

To explain my position I’d like to say something about the origin of human community. This is not something addressed directly in the book but I do think, as I said in my previous response to Jeanne, that Mark thinks of human community as a spontaneous ordering of the natural sociability of humans (he does not adopt a social-contract perspective). That said, I think the book slips sometimes into suggesting that community or society is an organization. I’m thinking here in Hayekian terms and on that basis would query Mark’s statement that the clan is a natural form of social and legal organization that “people, reflexively turn to … in want of an alternative” (RoC, p.7). One important reference (p.23) is to the Scottish Highland clan system as “a product” of the twelfth century, when feudal institutional structures “were wedded to Celtic family groups that had, over centuries, come to control various tracts of land” – but to what extent was this really a choice, in the sense of an option that was “turned to”, reflexively or otherwise?

Let’s go back further (and in a way that makes clear my references to the “classical” view are references to the Aristotelian-Roman-Thomist tradition of law and justice): Neither Aristotle nor St Thomas say explicitly that humans have always lived in community simply because they take for granted that humans cannot live otherwise. In the Nicomachean Ethics Aristotle asks if the happy man can be happy alone, or if he needs friends, and he responds that the latter is the case (“It would be strange to make the happy man solitary. For none would choose to be solitary in order to have all good things; for man is social, and born apt to live with others”); and that man is a social animal is asserted frequently by St Thomas in the Summa Contra Gentiles, in the Summa Theologiae, and in his commentaries on Aristotle’s Nicomachean Ethics and Politics. Both Aristotle and St Thomas rely on what they take to be a universal fact: no one chooses the solitary life. Even if a choice were possible, humans would choose community, because outside community they would not be happy. But only in a community in which peace prevails can happiness be achieved; and it is this order that is the object of choice. That humans live communally is given; the order of concord or peace (the common good) is chosen on a continuous or constant basis; it is an order that is maintained by those within it acting well, and undermined by those within it acting badly.

On this view, in which community is natural or intrinsic to humanity, the family unit, whether nuclear or “patchwork”, is evidently the basic building block of the community. An extended family or kinship-based clan society can only come later. In his post, “What Overcame the Clan in England?”, Arnold Kling suggests that in a clan-based system land can be owned collectively and allocated according to traditions as administered by the clan leaders, whereas in a nuclear-family system, families need to be able to obtain their own land, which requires a system for exchanging land and leads to concerns with property rights. But surely a clan system can precede a family system only where a “family system” is defined in modern terms, which is a partial definition only. Mark responded to Arnold in part by saying that one of the notable features of ancient and medieval Germanic culture was the longstanding importance of the nuclear rather than the extended family. Was not this nuclear family the basis for the development of the clan? (Incidentally, Mark in his book notes that the Gaelic word “clann”, from which “clan” derives, means children – perhaps there are regional variations (I suspect not) but in the Irish language (Gaeilge) the word “clann” denotes the family, usually the nuclear family.)

When humans live together in pre-clan communities built around family structures they are brought up to do a whole host of things in particular ways. These “ways of doing things” include, for example, the customs, practices, well-known and accepted procedures and mutual expectations that establish the jural relationships particular to any community. These jural relationships represent the sense of justice and the law – including the sets of rights or entitlements – of the community; and necessarily included is the law that the Romans termed the ius gentium that I discussed in my previous response to Jeanne. Again, the ius gentium – the set of laws that are common to humankind – is a response to the basic exigencies of human life that, as a matter of fact, are common to humankind. 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 (“promises ought to be kept”) represents another example of this type of natural justice. (Conventional justice is that which may be settled legally or by agreement. The fundamentals of contract law express what is naturally just, but many of its details are community- or jurisdiction-specific and conventional (for example, whether an agreement, in order to be a valid contract, must be written or not). The same can be said for the rule a library lays down as to when a borrowed book must be returned: it is natural that the book be returned, but conventional loan periods vary from book to book and from library to library.)

Returning to Hegel (who had, I think, a rather less plausible account of the origins of human community than the Aristotelian-Thomist account), the question arises as to how these original jural relationships on the one hand, and the pre-clan family-based societies on the other hand, related to each other. Hegel’s view was that family relations were empirically very much prior to the jural relations of abstract right. How could this be? How could even a pre-clan, family-based community exist without the private law ius gentium? In Mark’s comments on my response to Jeanne’s post on “The Clan, Law and Individuation” he emphasizes that legal claims in clan societies are co-terminus with the shape of their kin relations, and also that in early, pre-clan or clan, communities, the rights-based private law regimes of property and contract (e.g. rule-governed trade relations) function typically with kin relationships either formally or implicitly as a precondition. This seems not to accord with the Hegelian view of private law, but it seems also to tie the ius gentium to kinship in kinship-based societies. However, consider laws concerning murder (not private law, I know, but a relevant example nonetheless), property and contract. As I’ve said, no human society can survive in which random and indiscriminate killing is approved or practised; if whatever is in any way owned may be taken against the owner’s will by another at that other’s whim; or if “promises” may be either promises or lies (a crucial point for trade relations, among other things). I don’t think these laws could be waived or altered in any society on the basis of kin relationships (either formally or implicitly) because kin relationships, whether pre-clan or clan, are what constitute the community, and the community, to survive, needs these laws. And clan societies are communities, after all, in which the community takes precedence over the individual.

A final word, on individuation: The book refers to the “revolutionary, individuating power of the nuclear family” (p.160) as one of the many beneficial individuating aspects of the modern liberal state but no such individuation is deemed really possible in pre-clan or clan cultures. Much depends, obviously, on what we mean by individuation, but it seems to me that the psychological and social diversity within even the tightest knit clan group may be too easily understated. Jeanne’s review essay interprets the book, reasonably fairly, I think, as suggesting that within the clan, “man, and even more strikingly, woman, is neither free nor an individual. She is subordinate to her function within the group – in the case of woman, reproduction…. A woman has no individualism because her body is the receptacle of the family’s lineage and honor.” This is strong stuff and ignores the postmodern feminist insight that there is surely no meaningful category of “women” in any type of community; moreover it seems to me to be not respectful of the many different women who express their individual selves in multifarious ways in clan and other kinship cultures.

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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.

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The Trojan Horse

 

“Of course I can lend you the money, how could I refuse. After all, you are part of my family, and, in our family, if someone is in need, we try to help them,” says a man in his sixties to a younger one, probably his nephew. But we soon learn that there is no such thing as a free lunch: in the next scene, the lender explains how the borrower will make his money worth. It is a long list, which includes such things as taking care of the lender´s huge dogs (enter two mastiffs, panting) while Uncle Rich is on vacation and picking him up from the airport in the small hours when he is back. Moreover, we also learn, the loan will give the lender the right to interfere from now on with the borrower´s private life –his choice of job or girlfriend, his life style, even his hair cut. Apparently, Uncle Rich has strong ideas about all these things, and he is ready to enforce them. We thus come to realize that this family loan is in truth a Trojan horse; and that is, of course, the whole point of the story, since this is a TV commercial (now showing on Argentine TV) advertising a new type of bank loan which, we are told, is particularly convenient. Potential borrowers are invited to choose Contract rather than Status.

 

This, of course, is a biased and incomplete picture of what goes on in these situations, but let me focus on what is true about it. People may obtain from their extended family a type of economic or financial support they would hardly obtain elsewhere; but providing such support legitimizes and gives occasion to increasing family interference with individual autonomy. 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. When this happens, the price paid for family support is loss of autonomy.

 

Now the same could be true about the State. When citizens of the Soviet Union were denied the right to travel abroad, the Soviet Government alleged that it could not risk losing the huge investment it had made on those citizens, should they decide not to return home. After providing a first class education at no cost, the citizens in question, could –if allowed– now migrate to a country which did not actually make such an investment (neither on Soviet citizens nor, for that matter, on its own citizens) yet would reap the fruits. The Soviet Union, according to this argument, faced a classic free-rider problem.

 

There are a number of reasons why the above argument to deny the right to travel abroad is flawed, and should not be endorsed, but I hope the general point remains clear: providing support has implications on the supporter’s power, if not right, to interfere with the autonomy of the person who, whether by request or not, receives such support. Families –and States—have fewer or no incentives to provide support when they cannot guarantee that the beneficiary will pay back in some currency or other. (I am using “pay back” and “currency” in a very loose sense, of course, to account for the myriad of things extended families and States may expect to obtain in return for their support, even when that expectation is implicit).

 

Mark Weiner’s wonderful book The Rule of the Clan emphasizes the extent to which the absence of the State in any given area invites the emergence of clans instead. This applies to police forces and courts, of course, but also to economic support. Moreover, a State actively engaged in the provision of goods such as healthcare or education speaks to the egalitarian goal that Mark Weiner identifies as inherent in societies of status. In that sense, The Rule of the Clan can be read as an argument in favor of a State that honors the liberal ideal of respecting people’s autonomy, while guaranteeing the support –or some of the support— that in more traditional social organizations clans or extended families provide.

 

That, I believe, is the aspiration of liberal social democracies, i.e. societies that wish to be true to both liberty and equality. I find it an aspiration worth endorsing, and I would not call it Utopian by any means, but it is important to bear in mind the structural fragility of the project, and the likely trade-offs it involves.

 

It takes a very enlightened State to strike the right balance. Uncle Rich, of course, would not be the example to follow.

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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.

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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.