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.