The Rule of the Clan and the Problem of Peremptory Authority
Mark Weiner’s fascinating and original contribution, as other comments have shown, has many possible implications, not all of them confined to the disciplines that most distinctly inform his work. He violates disciplinary borders with grace and purpose. There is every reason for him to write as a lawyer, sociologist, historian and undeclared political theorist, because he has persistently done so in earlier work. More particularly, Mark’s salutary analysis of the opposition between clan organization and the liberal state (or more exactly, the oscillation between robust liberal statehood and a drift towards the more agent-centric norms of the clan) that the question of the justification of peremptory political authority should be posed in a new way. I would like to comment on this.
Traditionally, the problem was thought to be that of explaining how members of a political community could be morally obligated to follow, or even morally justified in deferring to, community rules when making moral judgments. This is a problem, it was widely assumed, because a moral agent must think for herself. She cannot permissibly abide by the norms of another, even of a virtuous community or state, because that would be to treat the norm as a peremptory reason for choosing one course of action over another. Such deference would amount to letting another make the decision for the individual, and this would make deprive the choice of moral value, at best, or make it immoral. Hence, the dictates of an otherwise properly constituted community decision-maker could never be morally binding or even morally relevant. There could be no political or legal obligation.
If this way of posing about the problem of political authority is correct, the consent of the governed to be governed is morally impermissible. Some political philosophers have concluded that there can be no such thing as political or legal authority.
One possible flaw in the traditional argument concerns the content of a general type of human choice. Some courses of action that a person can autonomously (and otherwise morally) choose may require that person to defer to the coordinating decisions of another. This is so if the activity has many participants and cannot go forward without intermittent collective coordination, which may take the form of directives that override the individual participants’ otherwise well founded choices. Some games simply cannot be played without a referee to settle disputes quickly, so as not to interrupt the flow. Not all have this characteristic, nor is it likely that other more serious group activities all have it either. The fact that some do and some do not, however, is precisely what makes the rational and moral acceptability of coordinating authority, when this is a necessary ingredient in an otherwise permissible activity, morally significant. (See my “Associative Obligation and Law’s Authority,” 17 Ratio Juris 285 (2004).
Mark takes us through a wide range of examples, drawn from different levels of group endeavor, all of them involving solutions to the coordination problem, and exhibiting the many differences between state and clan. One of these differences is particularly interesting for the problem of political authority. Political authority, as we usually think of it, is plenary and, within the liberal state, purports to treat like situations alike. But more loosely organized activities, which I think include the activities of clans, could not, even if they wanted to, establish an even-handed treatment of all the people, and all situations, with which members of the clan deal. There is an inevitable discrimination between clan members and outsiders, based on lack of information and the limits of the clan’s sway over others.
The tension between clan organization and the liberal state, as Mark presents it, may simply dissolve the old problem about political authority. The pervasive existence of the clan appears to make it a background condition of all moral judgment. The courses of action a moral agent chooses from involve group activity as often as not, and much of it requires collective coordination. When the moral agent is caught somewhere between clan and state, her choices can only be made against the background of others’ decisions, and where coordination and cooperation are required, in deference to arbitrary collective norms. It may be rational and morally acceptable for her to give her allegiance to the state if it is more advantageous to her on the whole than the clan. But it is a commonplace that the state is often not as good for some as it is for its “base” of happy participants. Mark has heightened our awareness of this common predicament, which brings out the clannish inclinations of those who otherwise go along, more or less willingly, with the impositions and benefits of a state. I think it is fair to say that his account of the state and the clan makes it impossible to understand political authority in the traditional way.