Thanks very much, Jeanne, for your post, “Hegel, Smith, Subjectivity and Intersubjectivity”, which takes up some of the points made in my response to your earlier post, “The Clan, Law and Individuation”, and thanks to you, Mark, for your comments on that response and also on my remarks about the book’s treatment of liberalism.
Jeanne, you remark that as a Hegelian you are puzzled by the notion of “subjective” rights, and you say also that you think “virtually every modern jurist” accepts the Hohfeldian idea that rights and duties are jural in nature, that they “run to specific individuals or groups of persons and are enforced by society in general”. “Subjective” is of course a very tricky word; by “subjective” rights I mean rights associated with the individual human being, the subject, typically by virtue of the subject’s existence. In contrast to the Hohfeldian consensus that you perceive, I think many modern human rights theorists maintain that all persons are entitled to certain forms of treatment independent of their communal bonds, social roles, historical period, and cultural traditions; in contemporary debates, the underlying question as to whether rights can be proved actually to exist is usually developed as a series of questions concerning the foundation of human rights, and most common is an attempt to ground human rights in some form of political, moral, or legal theory based on the rational nature of the human being. Frederic Kellogg remarks that the concept of a priori natural rights involves the notion that certain definable fundamental goods or opportunities are “morally wed to individuals or groups”; Finnis’s theory of rights as derivatives of a set of “basic goods” combined with methodological principles; Dworkin’s assumption of “a natural right of all men and women to equality of concern and respect, a right they possess not by virtue of birth or characteristic or merit or excellence but simply as human beings with the capacity to make plans and give justice” – these are all examples of what I consider to be “subjective” rights theory. (One further point: you note that my reference to rights as claims (i.e. as a resolution of conflicting claims) is “incorrect to a Hegelian”, but I understand that approach as, at the very least, quasi-Hohfeldian.)
In my previous response I sought to emphasize the classical view that rights are jural relations arising from the fact of humans living in community; they are a function of communal life, not of individuality – of society rather than of subjectivity. You say that your formulation of subjectivity as created through interpersonal relations among at least two subjects that must be objectively recognized and enforced by others appears to bear some resemblance to this approach, but the Hegelian view, if I understand it correctly, that subjectivity is created primarily (perhaps exclusively) through jural relations in a modern state, seems to me to be misplaced.
Mark cites with approval your observation that “[a]though Hegel thinks that [the jural relations of abstract right] are the most logically primitive (which is why he discusses them before he discusses family relations), this does not mean that they are empirically prior. Indeed, his point is that they were empirically late to develop (which is why subjectivity and citizenship are modern inventions)”. My objection to this is that “the jural relations of abstract right” (which is roughly equivalent, you note, to modern private law) and “family relations” necessarily originate simultaneously – specifically they originate spontaneously when a community comes into being.
To explain my position I’d like to say something about the origin of human community. This is not something addressed directly in the book but I do think, as I said in my previous response to Jeanne, that Mark thinks of human community as a spontaneous ordering of the natural sociability of humans (he does not adopt a social-contract perspective). That said, I think the book slips sometimes into suggesting that community or society is an organization. I’m thinking here in Hayekian terms and on that basis would query Mark’s statement that the clan is a natural form of social and legal organization that “people, reflexively turn to … in want of an alternative” (RoC, p.7). One important reference (p.23) is to the Scottish Highland clan system as “a product” of the twelfth century, when feudal institutional structures “were wedded to Celtic family groups that had, over centuries, come to control various tracts of land” – but to what extent was this really a choice, in the sense of an option that was “turned to”, reflexively or otherwise?
Let’s go back further (and in a way that makes clear my references to the “classical” view are references to the Aristotelian-Roman-Thomist tradition of law and justice): Neither Aristotle nor St Thomas say explicitly that humans have always lived in community simply because they take for granted that humans cannot live otherwise. In the Nicomachean Ethics Aristotle asks if the happy man can be happy alone, or if he needs friends, and he responds that the latter is the case (“It would be strange to make the happy man solitary. For none would choose to be solitary in order to have all good things; for man is social, and born apt to live with others”); and that man is a social animal is asserted frequently by St Thomas in the Summa Contra Gentiles, in the Summa Theologiae, and in his commentaries on Aristotle’s Nicomachean Ethics and Politics. Both Aristotle and St Thomas rely on what they take to be a universal fact: no one chooses the solitary life. Even if a choice were possible, humans would choose community, because outside community they would not be happy. But only in a community in which peace prevails can happiness be achieved; and it is this order that is the object of choice. That humans live communally is given; the order of concord or peace (the common good) is chosen on a continuous or constant basis; it is an order that is maintained by those within it acting well, and undermined by those within it acting badly.
On this view, in which community is natural or intrinsic to humanity, the family unit, whether nuclear or “patchwork”, is evidently the basic building block of the community. An extended family or kinship-based clan society can only come later. In his post, “What Overcame the Clan in England?”, Arnold Kling suggests that in a clan-based system land can be owned collectively and allocated according to traditions as administered by the clan leaders, whereas in a nuclear-family system, families need to be able to obtain their own land, which requires a system for exchanging land and leads to concerns with property rights. But surely a clan system can precede a family system only where a “family system” is defined in modern terms, which is a partial definition only. Mark responded to Arnold in part by saying that one of the notable features of ancient and medieval Germanic culture was the longstanding importance of the nuclear rather than the extended family. Was not this nuclear family the basis for the development of the clan? (Incidentally, Mark in his book notes that the Gaelic word “clann”, from which “clan” derives, means children – perhaps there are regional variations (I suspect not) but in the Irish language (Gaeilge) the word “clann” denotes the family, usually the nuclear family.)
When humans live together in pre-clan communities built around family structures they are brought up to do a whole host of things in particular ways. These “ways of doing things” include, for example, the customs, practices, well-known and accepted procedures and mutual expectations that establish the jural relationships particular to any community. These jural relationships represent the sense of justice and the law – including the sets of rights or entitlements – of the community; and necessarily included is the law that the Romans termed the ius gentium that I discussed in my previous response to Jeanne. Again, the ius gentium – the set of laws that are common to humankind – is a response to the basic exigencies of human life that, as a matter of fact, are common to humankind. No human society can survive in which random and indiscriminate killing is approved or practised; and no human society can survive if whatever is in any way owned may be taken against the owner’s will by another at that other’s whim. The adage pacta sunt servanda (“promises ought to be kept”) represents another example of this type of natural justice. (Conventional justice is that which may be settled legally or by agreement. The fundamentals of contract law express what is naturally just, but many of its details are community- or jurisdiction-specific and conventional (for example, whether an agreement, in order to be a valid contract, must be written or not). The same can be said for the rule a library lays down as to when a borrowed book must be returned: it is natural that the book be returned, but conventional loan periods vary from book to book and from library to library.)
Returning to Hegel (who had, I think, a rather less plausible account of the origins of human community than the Aristotelian-Thomist account), the question arises as to how these original jural relationships on the one hand, and the pre-clan family-based societies on the other hand, related to each other. Hegel’s view was that family relations were empirically very much prior to the jural relations of abstract right. How could this be? How could even a pre-clan, family-based community exist without the private law ius gentium? In Mark’s comments on my response to Jeanne’s post on “The Clan, Law and Individuation” he emphasizes that legal claims in clan societies are co-terminus with the shape of their kin relations, and also that in early, pre-clan or clan, communities, the rights-based private law regimes of property and contract (e.g. rule-governed trade relations) function typically with kin relationships either formally or implicitly as a precondition. This seems not to accord with the Hegelian view of private law, but it seems also to tie the ius gentium to kinship in kinship-based societies. However, consider laws concerning murder (not private law, I know, but a relevant example nonetheless), property and contract. As I’ve said, no human society can survive in which random and indiscriminate killing is approved or practised; if whatever is in any way owned may be taken against the owner’s will by another at that other’s whim; or if “promises” may be either promises or lies (a crucial point for trade relations, among other things). I don’t think these laws could be waived or altered in any society on the basis of kin relationships (either formally or implicitly) because kin relationships, whether pre-clan or clan, are what constitute the community, and the community, to survive, needs these laws. And clan societies are communities, after all, in which the community takes precedence over the individual.
A final word, on individuation: The book refers to the “revolutionary, individuating power of the nuclear family” (p.160) as one of the many beneficial individuating aspects of the modern liberal state but no such individuation is deemed really possible in pre-clan or clan cultures. Much depends, obviously, on what we mean by individuation, but it seems to me that the psychological and social diversity within even the tightest knit clan group may be too easily understated. Jeanne’s review essay interprets the book, reasonably fairly, I think, as suggesting that within the clan, “man, and even more strikingly, woman, is neither free nor an individual. She is subordinate to her function within the group – in the case of woman, reproduction…. A woman has no individualism because her body is the receptacle of the family’s lineage and honor.” This is strong stuff and ignores the postmodern feminist insight that there is surely no meaningful category of “women” in any type of community; moreover it seems to me to be not respectful of the many different women who express their individual selves in multifarious ways in clan and other kinship cultures.