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).

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