Rights, Families, Clans, and the Origins of Human Community
Thanks very much to Jeanne (“(W)oman does not exist”) and Mark (“An American Historian Hesitatingly Queries an Irish Philosopher”) for their responses to my post (“Subjectivity, Rights, Families, and Clans”). Mark, you summarize part of my position as being “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”. I’m pretty happy with that (as a very shorthand description) except for two things: first, I’m not entirely comfortable with the expression, “abstract right”, and secondly, there seems to be some ambiguity about the term, “nuclear family”.
Jeanne has said that Hegel’s Philosophy of Right rejects Kant’s notion of the absolutely free individual, having no affirmative characteristics, because the freedom of such an individual, being completely negative, is only abstract and potential. To be actual, it must become positive and concrete, and this can only happen through interpersonal relations: for Hegel, Jeanne notes, “the most logically ‘primitive’ form of intersubjectivity is the jural relations of what he calls ‘abstract right’ which is roughly equivalent to what Americans call private law. By submitting to private law we give up some of our radically negative freedom to achieve a more meaningful positive freedom through our relationships with others.” So the Hegelian view, on the face of it, seems to be grounded in the idea of atomistic individuals developing interpersonal, jural relations giving rise to private law rights. However, as an empirical matter, Hegelianism holds that family and clan relations precede abstract rights, which appear to be associated with the modern state only; in Jeanne’s words, “The person starts in the bosom of the family and law allows the person to become separate and individuated. That is, in order to be a subject, and eventually a citizen, one cannot merely be a member of a clan with collective rights. Or more importantly, one must recognize others not as member of clan, but separate, individuals.”
I disagree with the Hegelian account in part because of its association of “law” with the modern state, and because I think private law entitlements – which I prefer to “abstract right” or even “private law rights” – must exist for human community to exist. While Hegelianism rejects the Kantian abstraction of the “absolutely free individual” it doesn’t seem to throw off fully the shackles of contractarianism and acknowledge the practical requirements of any form of interpersonal relations. It’s worth remarking that Kant considered it impossible for the original, “natural” condition of atomized individuals to have been a fact and, persuaded of the need for the notion to make sense of society, referred to it as “merely an idea of reason”. With this, it is reasonable to suppose, many social contract theorists agree yet the domination of the modern imagination by the contract approach has had profound consequences for modern social and political theory generally. It has led to an emphasis on the idea of human society as an organization, and this has led in turn to a focus on how society should be organized and what means should be used to organize it.
I think the idea that contract is in any way whatsoever the origin of human society is in fact inaccurate and misleading. Kant, in other words, was wrong to think social contract theory is needed, even only as an idea, to make sense of society. And as regards Hegel, when people live in community, as they must, instead of the person starting “in the bosom of the family” and being allowed by “law” to become separate and individuated, familial-communal life itself requires law in the form of a network of entitlements, including individual entitlements. James Carter wrote, “Law, Custom, Conduct, Life – different names for almost the same thing – are so inseparably blended together that one cannot even be thought of without the other” – this to my mind brings out well the fact of some individuation “in the bosom of the family” because families themselves (their conduct, their customary ways of doing things) involve networks of entitlements.
I would therefore rephrase your summary of my position, Mark, to say that “jural relations of entitlement necessarily originate at the same time as family relations—at the same moment a community comes into being”. I would add that these relations include also entitlements concerning legislation and, by extension, some form of “state”, which brings public law into the picture. In a very small primitive society legislation may be limited to war: the war-leader commands only in that sphere; he controls the time and activities of his temporary subjects only for the duration of the war; and he organizes them during the war so that the goal of defeating the enemy may be achieved. In such a society, the actual presence of the state is, so to speak, intermittent and its scope extremely restricted. It is, however, potentially present and there seems to be no evidence of its total absence from any social order. I take references to “stateless” societies as contrasts with societies in which the state is a constant and actual, rather than an intermittent and potential, presence, and in which the scope of its power is relatively much greater.
The second issue I raise regarding your summary of my position, Mark, concerns the idea of the “nuclear family”. I used the terms “nuclear” and “patchwork” to describe possible early family forms – I don’t mean exclusively the way “nuclear family” is used typically in modern speech. But what word(s) can we use for types of families that came before “extended” families? Whatever the answer to that is, surely it was some smaller family unit that was constitutive of pre-clan communities, that came before extended families? Something, after all, must have been “extended”. In my view there is a huge (chrono)logical problem with any account of the origins of community that begins the idea of extended families or kinship groups, or with notions such as “collective ownership of tribal land”. This seems to by-pass even the atomism of social contract theory. How, as an empirical matter, did such collective ownership come about? How, as an empirical matter, did the joint or extended families referred to by Maine come about? How, as an empirical matter, did clans emerge?
Regarding the Irish-language term for family, you are correct in saying that teaghlach, which is connected to the root of “house” (teach), is a term to denote the family, traditionally the extended family; clann, from which “clan” derives, is more commonly used to denote the modern nuclear family – but can also have the broader meaning. (There is some debate about these issues around the Irish Constitution of 1937, which expresses in part Roman Catholic views of family rights and in which the Irish-language version takes precedence over the English). The Irish word for children is leanaí.
Finally, Mark, one query regarding the modern context: in this symposium I’ve cited twice the book’s reference to the “revolutionary, individuating power of the nuclear family” (p.160) – I’m fascinated by that remark and I’d be interested in hearing more from you on how that works.