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Category: Symposium (The Rule of the Clan)

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The Clan,Law and Individuation

Mark’s thesis concerning the role of the state in promoting individuation and rights is more consistent with the speculative tradition of Continental theory than with American liberalism. Mark observes the necessary relationship between rights and the state. In liberalism the individual is natural and the state the problem to be explained. In speculative theory, individualism is the problem. As an empirical matter, we are born as helpless infants within families, necessarily learn a collective language, become subject to laws, etc. and nevertheless experience ourselves as being unique. Speculative theory explains this phenomena. Individuality is an artifice: a human creation and a hard won achievement. The individual and the private law regime of rights are mutually constituting, each giving birth to the other. Furthermore, speculative theory seeks to explain the persistent and dangerous nostalgic longing for an Edenic past that never existed.(7)

By refusing to recognize the role of the state in creating and preserving rights, libertarianism threatens to emasculate it in a way that could allow the re-emergence of clan values. Being a political liberal, as well as a classical liberal, Mark cautions that modern, multi-national, business corporations are becoming clan-like.(9, 202) Although not based on kinship, corporations are collectivist in structure and governed by their own internal rules, in which members are valued only for their function.

This concern animated Ronald Coase’s The Nature of the Firm. Coase, was writing during the Great Depression when both Bolshevism and Fascism promoted non-democratic, centralized governments as the next stage of human development. Coase asked, in effect, ‘if liberal states and capitalistic economies are based on individuality, equality and competition, why do we find collective, hierarchical, centrally-planned institutions at their very heart?’ The economic theory of his time assumed that “the direction of resources is dependent directly on the price mechanism.” But, “within a firm, the description does not fit at all.” “Why are there these ‘islands of conscious’ power’” within a market economy which “market transactions are eliminated”? Coase argued that we should find economic activity organized as firms when the costs of ceding authority to a centralized hierarchy is less than the cost of using market mechanisms”.

Mark’s proposition is that the political-economic movements that seemed to be the waves of the future in the 1930′s were, in fact, riptides carrying us back to the past – Communists and Nazis drawing different lessons for a romantic nostalgia for the clan.(183, 186) Mark suggests that firms, in which status trumps contract, can be seen as a similar return of clan mentality.

Speculative theory offers a way of analyzing the phenomena that Mark describes. One the one hand, the liberal capitalist state – understood as encompassing both representative government and the private law regime of property and contract – is necessary for the individuation that permits the creation of rights and the actualization of freedom. On the other, it is equally true, according to both Hegel, and surprisingly, Adam Smith, that individualism, rights and market forces breaks down family bonds and that this is necessary for the functioning of a democratic government and the rule of law.

Moreover, individuation and freedom on the one hand, and alienation on the other, are intrinsically linked as a logical matter – they are two sides of the same coin. In order to be an identifiable individual who is not merely a cog in a clan-machine, one needs to be distinguished and to some degree alienated from others. We want to be both free individuals and yet integrated within society. Consequently we fantasize that there once was, and could be again, a society different from our own where this could occur. We are drawn reject the status quo either in the libertarian dream that wholeness could be re-established if the state were weakened, or the socialist dream that wholeness could be re-established if the state were strengthened. Both post-modern dreams of community are, according to Mark, the pre-modern nightmare of the clan.

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The rule of law and Avatar

I want to give Deven´s first task (something introductory ) a try. Difficult task. I may start mentioning three ways in which „The Rule of the Clan“ (further on referred to as ROC) struck me. A personal one, a scientific one and finally one about the intriguing effect of ROC (again quite personal).

1. Firstly, the personal one. When Mark came to Wuerzburg last December and introduced his upcoming book to us, I was struck by the fact, how many we shared with regard to the field of interest. Later on I discovered how much more there was in the hilarious work Mark had done before (I refer especially to the „Black Trials“ and to „Americans Without Law“).

2. Which leads me to the second aspect (more important for this symposium). Law, culture, collective, individual. To adquately describe the relations between these difficult concepts seems to be a key task for the post-modern challenges of societies.

We often emphasize that multiculturalism is a challenge for social life and legal systems. But why? Obviously because there are different ways of organizing social life which includes its legal organization. Why – as immigrants – don´t we just change our social life if it´s not in accordance with valid legal rules? This, of course, is a general question applying to all citizens of a state. Possibility 1: Because it conflicts with our usages. Possibility 2: Maybe because we do not accept these rules (e.g. because of 1.). Why don´t we? Maybe because we don´t agree with their content. OK, but who does agree with the content of every legal rule? Noone. So why do we still follow quite some of it? Possibility 1: We fear sanction. Possibility 2: We accept the rule of law, so we follow the rule, because „it´s law“ (a) -> not following the law will eventually lead to the breakdown of the legal system. b) -> law has a certain sanctity (a quality of whatever sort) which may claim legitimacy as such). Possibility 3 (possible reason for no. 2, especially b)): We accept the authority of the legislator.

Maybe legislator is an unfortunate term. Especially if it leads us to picture parliaments and the bureaucracy of ministeries. Maybe ‚rule-giver‘ would be better. This is one of most interesting questions in ROC. Who are the rule-givers? Kings? Chiefs? Mothers? Fathers? Coaches? Captains? CEOs? ROC features chapters about the legal structures of small societies like the Nuer (referring to Evans-Pritchard). This is important, I think, because if the heuristics of our understanding of „law“ and „state“ are too much based upon 20th century national states we fail do understand why individuals follow rules. And if we want the rule of law to work we must examine exactly this.

I alluded to the authority of the rule-giver. What role does identification play in this? From my point of view this is one of the key points of the book and still the road to open questions. Let me put it like a hypothesis:

„A liberal, democratic state
- without significant nationalist agenda (lesson learnt from 19th and 20th century)
- entangled in the usual technocratic fights against post-modern complexity
- and thus often criticized for „being too far away from the ordinary man´s problems“
is in permanent danger of lacking/losing references for identification.“

If this be true how can such a state uphold the respect for its legal rules? How can it prevent clannism to invade the gaps and vacua?

Mark presents to us films like „Avatar“ as the „romanticized, idealized portrait“ of clan life, a romanticization due to the loss of the positive offers clannism has to make: security, solidarity, identification, orientation. From a governor´s perspective providing such entertainment must thus become something like „opium for the people“, or a circus as in „bread and circuses“. It will not be enough because it cannot substitute what Mark calls „an expression of a basic human drive“. So, even though Mark convincingly argues that such artefacts do not need to be seen exclusively as „atavistic regressions“ (but as the opposite, a sign of having overcome), there still remains the question how to prevent such regressions (given the presence of that basic human drive)?

As Mark has put it in his opening blog: „The rule of the clan certainly is far more explicable in human terms than the modern liberal state“. What kind of story has the liberal state to tell in human terms if we consider that it tends to use the language of law and pretends not to meddle with people´s personal affairs? Can legals system offer identification via law (e.g. allowing religious communities to apply their traditional rules governing family affairs like marriage, divorce and inheritage)?

3. Third and final point I want to add for a start is the intriguing effect which ROC had on my perception. I see its topics everywhere.

a) On one hand in a pretty straight way. When I prepared a seminar about „Slavery and Post-Emancipation“ I learnt that the famous Mamelukes were slaves used as elite soldiers. For what purpose? To enable the ruler of certain medieval islamic societies to circumvent the dependency from clan chiefs.

b) On the other hand ROC comes to my mind when relaxing in front of the tele. E.g. when watching a sitcom like „How I met your mother“. In one episode a psychologist can´t resist analyizing the group dynamics of the 5 friends who form the key characters of the series. What is his „diagnosis“? Co-dependency, manipulativeness, hardly any respect for the intimacy of anyone in the group. Still sitcoms like this one present such groups as desirable, a family subsitute for atomized mega city inhabitants. We might be pretty far away from the questions of postmodern conditions of state building and implementing the rule of the law: But isn´t this again the romance of the clan? The group which provides intimacy, support, orientation. And happily infringes the sphere of personal freedom.

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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.

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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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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).