New liberal fiction needed?
Mark, I´ll continue exactly at the question you posed concerning the sensuous or poetic qualities of the law (1.). After this just a short remark on the cultural artefacts, the named films and series (2.).
1. The new liberal fiction?
Already when I wrote my first post I thought that it points into a direction where things can quickly get difficult, at least from a liberal, rule-of-law-perspective. My answer to your question would definitely be “no”. Because one central quality of law from the just mentioned perspective would be, of course, that it´s unsensuous, analytical, neutral. But maybe this quality is a disadvantage when it comes to telling stories one can identify with. Probably identifying with it is only possible if you´re already convinced of its neutral role and function beforehand. Which would mean to presuppose what you want to reach. Now, this is a pretty contentious point (as the concepts of identity and identification are), but: How to identify with a structure that en grosse treats me like most of “the others” (equally)?
This is why I alluded to cases in which some states concede the application of religious rules in family law (which may in cases even include the corresponding jurisdiction). Of course, this is probably the most far reaching concession a legal system can make. It is a form of recognition of the collective/social group whose rules are made applicable. In these cases the restriction to this concession will regularly be that the norms may not infringe basic constitutional principles. Which means we are at the point where we started: How to convince of the values of these constitutional principles? And the concession is a very technical one, just what the legal system can do. Still it may have a symbolic effect fostering the acceptance of the constitution.
Probably – but this question might be posed to Arnold Kling – this is a form of decentralization, which liberitarians may have in mind. As I said, this is rather a question, because I´m not sure if I get the idea behind it right. I get it this way: If a central state concedes enough legal spaces for self-regulation and -adminstration (as for states, regions, cities, districts etc.) it will support the acceptance of its overall framework (although this kind of support is not so much the aim – which would be to grant freedom – but the effect). Is that somewhat correct?
To come back to the first question: If we assume that
– law should not be sensuous and poetic (because that would endanger its neutrality)
– but that such qualities are needed in order to make identification possible
must we leave this task to politics? This is a very basic question, I think, which we might put like this: how much may law be politicized? I´d say we cannot say “not at all” because this is just not possible. But where to draw the line between law as an instrument of politics (incl. symbolic law) and law as a system controlling politics?
So can this legimizing story (or metaphor) be the kind of fiction which Arnold Kling wrote about (contract)? The problem only is who may tell such a story in a convincing way? I may add that Bentham reacted to the idea of the original contract in a similar way Arnold Kling did. Saying that we are given to understand even by the authors who use this concept that it is fictitious, something like that never happens/-ed. He calls it a “sandy foundation” for a state/society .
So, are we looking for a new and better liberal fiction here? With a similar effect like Christianity and Islam provided of which Mark says that they had an overcoming effect on clannism (p. 133)? Socialist utopia? Does it need to be a fiction?
2. Clubbish and clannish cultural artefacts
Mark, I´m impressed how you picked up my anecdotic remark on my incapacity to enjoy sitcoms without drawing more or less wild analogies to professional stuff which I´m trying to get my brain off in such moments.
Sitcoms -> club -> nourishing. “Game of thrones” (e.g.) -> clan -> romanticized portrait. (Though I´m not sure if this is right given the fact that almost every clan presented in it is somehow rotten, as far as I remember but I maybe wrong…). You pointed the differences out in Ch. I.2., saying that the club – unlike the clan – is no more “an autonomous military and legal force” (p. 25 s.). So the question seems to be: When does a club start to become a legal force? What is meant by legal force, anyway?