Response to Mark – Topic: “Legal identification, identification with law, identification with liberal law etc.”

Mark, thanks for your response! I think it´s been going an interesting way.

1. Which concept of law or which legal sphere?

In my two posts I tried to follow the question, how to identify with the idea of liberalism (and rule of law) as you roughly sketched it in your book. (While some other particpants challenge this scetch in very interesting ways, I chose to take it for granted in order to see what follows from it). The problem of this liberalism seems that at first glance (or as we know it) it seems to lack the qualities of the clan collective (e.g. solidarity, security, orientation). In both posts I tried it from a legal point of view.

a) Exit “Why do we follow rules
In my first post I started with the question “Why do we follow the law” noticing two things:

– we quickly reach the limit of the legal system when we ask where the authority of the legislator comes from (which may be a possible reason for obdience)
– from the perspective of concurring rule systems (clan vs. institutionalized legal system) again we leave this strict legal concept when we ask more broadly: what makes us follow rules?

As far as I understood, Tim Murphy makes a similar point when he argues that “any community of people is a jural”. If we work with a concept of law which encompasses custom we can hardly focus on legality as a criterion to sever the legal rules of liberal society from the rule of the clan. This means that we have to look for the special quality of this liberalism elsewhere. Or change the concept of law.

b) Exit “Intrinsic legal qualities to identify with”
In my second post I was picking up your interesting question whether a “”sensuous” or “poetic” quality” in the law could provide identification with it. Within the little space a blog gives, I tried to sketch why I think this would probably be incompatible with the ideas of legality within the framework of liberalism (as in ROC). So I proposed that politics must take over and you answered you´d see the “task for […] literature and the arts” (didn´t Richard Rorty argue in a similar way in Contingency, Irony, and Solidarity?).

2. Identification: A task for politics or for literature and arts?

I have doubts about it (maybe pretty German doubts). Because it sounds to me like: Politics can´t do anything, we´ve got to leave it up to those who´d like to feed us with artefacts about it (which need to be sold on markets in order to be heard, anyway). The story that liberalism has to tell has quite something to do with making an offer: “We don´t provide you the keypoints of your personal narrative. We provide a broad framework to let you tell your story yourself.”. So the question is which parts of the framework have to be adjusted in order to make this offer convincing? To take a contentious example contrasting stereotype U.S. and German positions: If the state doesn´t provide a framework for reliable health care but only some companies (can) do then why trust in the state? But this kind of framework is, of course, not a task for literature and the arts.

Anyway, this probably asks for a differentiation of the concept of identification. One could argue that a network of insurances has little of the qualities of clan care.

Is it maybe difficult to identify with liberalism because it doesn´t ask to identify? I think it does want us to identify but not encompassingly (not like parents who might be interested in every single aspect of the child´s life). Instead, it seems to ask to identify with any persons as being confronted with a set of certain situations (e.g. not having sufficient access to legal recourse; not having been hired because of discriminating reasons). Categorizing rather into “fellow-citizens” (which points to classic problems like: what about the paperless, fugitives, asylum seekers? Human rights discourse: human beings).

So the question would be: How much must this state do (or omit) for the people of a society (not: community) to make this “thin” but sufficient (minimum) identification with its institutions and the other members of it possible?

(By the way – your question about German film makers with Turkish roots: Yes, e.g. Fatih Akin , famous is “Head on”, which very much treats ROC-themes.)

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1 Response

  1. Mark S. Weiner says:

    Jan, thanks so much for this continuing conversation. Regarding the issue of what the state must “do (or omit) for the people of a society (not: community) to make this ‘thin’ but sufficient (minimum) identification with its institutions and the other members of it possible,” I wonder what you think of my response to Lucas Grosman’s comment about honor? And I wonder whether on the question of human dignity (a constitutional concept that meets some of the values of the rule of the clan through a liberal legal conceptualization), we could split the difference between literature and politics, the concept being developed imaginatively and realized practically through both?