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.]

3) Jeanne Schroeder’s post is very interesting to me, because where Arnold Kling finds my views in dialogue with libertarianism, Jeanne finds them consistent with continental theory. Indeed, I  believe that she finds them more sympathetic with continental theory than with liberalism. I’m struck by this perception. Although I don’t especially draw on continental philosophy in the book, my own intellectual development began by engaging the tradition of the Frankfurt School. I would say that I probably continue to be influenced by my early reading of this tradition, and that I bring this influence to a project I would identify as one of liberal legal and cultural criticism.

I think of myself as a liberal, and I think of my book as a defense of the liberal state and its values, but I tried hard to write a book that could be in dialogue with people across the political spectrum. One of my aims in writing The Rule of the Clan was to be cogent without being doctrinaire and to reach across traditional intellectual boundaries.

Jeanne identifies an essential tension created by law in liberal society, and she highlights how law fosters certain longings of the self that find their expression in culture. The liberal state promotes individuation through law, perhaps even makes the self possible (I’ve written about this dynamic in relation to traditions of racial thinking in the U.S. in an earlier book). Yet in fostering individualization, law promotes alienation—and thus arises a nostalgic fantasy of return to a society of Status (e.g., “Avatar”: see my response to Jan above).

I’m struck also by Jeanne’s invoking Ronald Coase on the nature of the firm. While I’m by no means opposed to the corporate form per se, I do worry that major corporations are increasingly assuming a clan-like status, in both formal, structural ways as well as cultural ones; that a strain of recent political discourse that calls for the radical diminishment or wholesale dismantling of the state has furthered this trend; and that this long-term process should pose a profound concern for people dedicated to the principles of individualism and individual freedom to which liberal society is dedicated. A minimal state is not a world of the free market, it is a world of the rule of the clan—whether in traditional form as the extended family or in post-modern form as the multi-national. Thus, the need for government institutions that vindicate the public interest as a means to foster the individual. And I think this is where Arnold Kling and I may find useful common ground, and one reason I’m grateful for his engagement with my work.

4) I’ve had a number of pleasant surprises since publishing The Rule of the Clan. One is learning how much I enjoy being on talk radio—who would have thought? Another is hearing from readers who live in clan societies, and from Americans like Doyle Quiggle who have spent time in places such as Afghanistan, that my analysis speaks to their personal experience.

A third is the extent to which libertarians have engaged with my work. This last surprise has been especially gratifying to me, because I had expected them to reject my argument out of hand. Against my prejudice, this hasn’t been the case at all. Instead, I’ve been pleased to have libertarian readers like Arnold Kling, whose review prompted a number of libertarians to read my book sympathetically.

As Kling notes, I spend a chapter of The Rule of the Clan discussing the legal history of Iceland. I began writing the book in Iceland on a Fulbright fellowship, and I owe a debt to the people my wife and I met during our stay there during the summer, fall, and winter of 2009, who showed us their beautiful country. As an intellectual matter, I was interested in how Iceland’s constitutional history differs from that of Anglo-Saxon England, though both are Germanic societies. One of the great stories of English constitutional history is the development of strong Anglo-Saxon kingship. Under the leadership of figures like Alfred the Great, Anglo-Saxon rulers were able to regulate and ultimately abolish the kin-based blood feud as a mode of dispute resolution. But medieval Iceland never developed such central royal authority. Instead, the island was governed in a highly decentralized and essentially privatized fashion (at least, it was until Icelanders put themselves under the authority of the King of Norway in the thirteenth century).

The decentralization of Icelandic government had numerous consequences that modern liberals would judge negatively. I should emphasize that one of them was not instability—at least, not for a long time. Like many societies without a strong central government, Iceland existed in relative stability for hundreds of years, until the great feuds of the Sturlung Era. Rather, the negative consequence of legal decentralization and privatization was that Icelanders were dependent on their literal and fictive kin to vindicate their legal interests. Icelandic society was a very far cry from a stateless society strictly segmented by lineage. Nevertheless, with its incomplete state, medieval Iceland existed under one form of the rule of the clan. It was a world in which kinship was an unwritten branch of government.

Margaret Thatcher once famously asserted that “there is no such thing as society,” that there are only men and women and families. When central government institutions are weak, the family does indeed become extremely powerful as a force of social and legal order. Yet this powerful family is not the nuclear family, which forms the essential mechanism of individualization in most western nations, but rather the extended family, the clan. And the consequence of this mode of socio-legal ordering is a world greatly out of line with the society of individual liberty that libertarians seek to foster—a world of extended families and quasi-clans, not of individual men and women. And this fact seems to be the point from which a very productive conversation begins.

In the review of my work to which he refers, Kling has raised a question about an aspect of my argument to which I’ll respond in a future post. But for now, I’m kicking off for the day. I’ll respond to Orin’s second comment tomorrow.

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