Three Phenomena Encompassed by the Rule of the Clan

Rule of the ClanThanks very much to Deven and all the good folks at Concurring Opinions for this opportunity. I’m grateful to them for gathering such a wide-ranging group to talk about The Rule of the Clan, and to all the participants for taking part in our conversation.

Before we start, I’d like to underscore one of the main arguments of my book that may be of particular interest here. In short, it is that a strong liberal state makes individual freedom possible. Legal history and comparative law reveal that without the authority of an effective state, a host of communal groups rush in to fill the vacuum of power, instituting the rule of the clan. This diminishes the status of the autonomous individual—the core value of modernity and, more broadly, of the liberal Enlightenment. When states are weak, the individual becomes engulfed within the collective groups on which people must rely to advance their goals and vindicate their interests.

The rule of the clan encompasses three contemporary phenomena. Here is how I defined it recently in The Chronicle of Higher Education (the link is to a gated site):

First, and most prominently, I mean the legal structures and cultural values of societies organized primarily on the basis of kinship—societies in which extended family membership is vital for social and legal action and in which individuals have little choice but to maintain a strong clan identity. Today these societies include Afghanistan and Yemen, but they have existed across history and throughout the world.

Second, by the rule of the clan I mean the political arrangements of societies governed by what the U.N.’s 2004 Arab Human Development Report calls “clannism.” These societies possess the outward trappings of a modern state but are founded on informal patronage networks, especially those of kinship, and traditional ideals of patriarchal family authority—under which the state treats citizens not as autonomous actors but rather as troublesome dependents to be managed. Clannism often characterizes rentier societies struggling under the continuing legacy of colonial subordination.

Third, and most broadly, by the rule of the clan I mean the antiliberal social and legal organizations that tend to grow in the absence of state authority or when the state is weak. These groups include some dedicated to unlawful activity, such as petty criminal gangs, the Mafia, and international crime syndicates, which in their feuding patterns and cultural markers of solidarity look a great deal like clans and in many respects act like them.

I argue that in all its forms, the rule of the clan diminishes the status of the autonomous individual because the weakness of the state fosters a culture of group honor and shame. As I noted in Foreign Policy, this culture reinforces the autonomy of clans by establishing group codes of behavior, and it strengthens their internal coherence by providing an incentive for members to keep watch over one another. Group honor and shame form the cultural circuitry of radical constitutional decentralization.

The culture of the clan values groups over individuals, but it also provides individuals with profound social and psychological benefits. Clans offer equality and solidarity. This makes adhering to the rule of the clan rational for those who live within it. It also explains why the rule of the clan persists and endures, even in the cultural imaginary of modernity. The rule of the clan certainly is far more explicable in human terms than the modern liberal state.

In my book, I seek to highlight that the challenges liberals face are similar as they encounter the clan in all its forms, wherever they live. The underlying issue America confronts in preventing vigilantism, for instance—clannism—is akin that raised by the proliferation of private violence in Mexico and by the local, tribal resolution of disputes in Afghanistan.

In this respect, liberals across the world are part of a common cause to build and safeguard government institutions that protect individuals by advancing the public interest—not promoting the state per se, but nurturing a state that possesses democratic legitimacy and that is dedicated to substantive principles of the common good.

A Lacanian legal theorist (Schroeder), a libertarian economist and blogger (Kling), a scholar of Islamic law in Australia (Saeed), an Argentinean constitutionalist and law school dean (Grosman), a German expert on multi-culturalism (Marschelke), a scholar of administrative law and the regulatory state (Stack), a scholar of administrative law and social theory (Fenster), an Irish legal philosopher teaching in Malaysia by way of Iceland (Murphy), and an American scholar who, among other experiences, has lived with Afghan National Army forces while teaching U.S. soldiers in Afghanistan (Quiggle)—I tip my hat to each one of them and look forward to our discussion.

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12 Responses

  1. Orin Kerr says:

    Mark writes that in his view, “a strong liberal state makes individual freedom possible.”

    What do mean by “strong” and “liberal” in this statement? Such words have many meanings, and I’m not sure I understand the argument without knowing what version of those meanings you have in mind.

  2. Mark S. Weiner says:

    Hi Orin, thanks for your question. By “liberal,” I mean a government dedicated to advancing the freedom of the individual—not only by having constitutional limits placed on its own authority, but also by fostering substantive goods that enhance personal autonomy. By “strong,” I mean sufficiently powerful to vindicate this individualist ideal, either by providing those goods itself or by ensuring that they are provided on terms under which persons are treated as individuals rather than as members of ineluctable groups. Most important among these goods is the provision of justice itself, which is why in the book I examine the process through which the Anglo-Saxon state overcame the blood feud, regulating and ultimately displacing kin-based retribution as a response to wrong—and why I think the history of Germanic law provides an interesting window onto Afghanistan, Somalia, and other parts of the world with weak states today. In any event, my answer to your question is why Arnold Kling very interestingly wrote that I make a “libertarian case for a strong central state”—a characterization that really intrigued me, because I’ve never thought of myself in those terms (far from it). I take this view because I believe that when the state is absent, weak, or too limited, the result is not a world of maximal individual choice but rather one of extended families and what Henry Maine called a society of “Status.”

    (I can’t seem to put a hyperlink into my comment. In case it’s of interest, the Kling review is here: http://www.econlib.org/library/Columns/y2013/Klingclan.html.)

  3. Orin Kerr says:

    Mark,

    Thanks very much for the response. I’m hoping I can press you a bit on your definitions, as I’m still not entirely sure what you have in mind.

    You write: “By ‘liberal,’ I mean a government dedicated to advancing the freedom of the individual—not only by having constitutional limits placed on its own authority, but also by fostering substantive goods that enhance personal autonomy.”

    What does it mean to have “a government dedicated to advancing the freedom of the individual’? Do you mean “dedicated” in the sense of “having the goal,” or do you mean “succeeding at the goal”? And what kinds of “freedom of the individual” do you have in mind? Freedom has many different components and many different definitions. And what kind of “fostering” of “substantive goods” — and what kind of “substantive goods” — matter, and what kind of personal autonomy matters? And how do you determine what a government is dedicated to, given that supporters of a government will tell you one answer and opponents will tell you another?

    You also write: “By ‘strong,’ I mean sufficiently powerful to vindicate this individualist ideal, either by providing those goods itself or by ensuring that they are provided on terms under which persons are treated as individuals rather than as members of ineluctable groups.”

    What is the measure of government power? There is power in the sense of capacity to exert force, power in the sense of regular use of force, power in the sense of regulatory power, etc? And what does it mean to provide goods “as individuals” rather than “as members of ineluctable groups”? At least in the abstract, these categories are somewhat murky. If a person receives goods because he satisfies criterion A, that could be construed either as a conferral of goods because he is part of the group that satisfied A or an individual who just happened to satisfy A.

    Sorry to ask so many questions; please feel free to ignore them if you think I’m just missing the point. One thing that might help me understand would be some examples. What are examples of strong liberal states; weak liberal states; strong non-liberal states, borderline cases, etc.

  4. Frank Pasquale says:

    This is a terrific project, and I apologize for being too busy finishing my own book (and moving) to read RofC. But I plan to do so soon.

    I think the answers to Orin’s questions above are necessarily particular. If I’m intuiting the posts here and the reviews I’ve read correctly, what I’m sensing, Mark, is that you want to develop RofC as a sort of ideal-type, to warn people in other societies about the dangers of letting RofC tendencies develop.

    For example, I have heard both Egypt and Indonesia referred to as sultanistic, patrimonial, or clientelistic. Indonesia is probably the more clannish of the two, as order is not strictly kept by the state, but by paramilitaries (like the Pancasila Youth Movement, dominant in Sumatra).

    Now consider the position of a place like Italy, where, in many universities, many professorships are treated like an asset of a clan—and reserved for family members of various department chairs. Reformers charge that the system needs to be more merit based. The universities’ leaders respond; “where’s your respect for pluralism? We’re an independent part of society; respect our autonomy.” To take a more extreme example, look at Cover’s Nomos and Narrative, on Bob Jones University. I think that, to this day, there are religion and law scholars who think Bob Jones was wrongly decided, and the university should have been able to continue to discriminate while keeping its tax exemption.

    I think it’s scenarios like these that the RofC project is meant to help illuminate. Italy’s camorrah (as depicted in Saviano’s book Gomorrah) is also an extraordinary example of a clan allowed to get too much control over the state. Perhaps the lesson is: if you let a clan get control of garbage pickups, then, say, universities, etc. etc., it can easily get out of control and start to take over the very institutions that once merely tolerated it or ignored it in the name of promoting pluralism and respecting other cultures.

  5. Timothy Murphy says:

    Hello Mark, Orin and Frank. First of all: Mark, sincere congratulations on the book; it’s a wonderful achievement to have written something as timely and thought-provoking – and, I suspect, very influential – as “The Rule of the Clan”.

    I was struck by Frank’s comment above that he senses you are seeking to develop the idea of “clannism” as a sort of ideal type. This certainly seemed to me to be the case, and the book’s analysis is grounded in juxtaposing that ideal type with that of “liberal modernity”, something that comes into sharp relief at the beginning of Chapter 5 (“The Persistence of the Clan”) where the opposition between these two types (kinship, custom, collectivism, Status vs. state, law, individualism, Contract) is characterized as dialectical rather than binary. Ideal-typical analyses have pros and cons, as I’m sure we all know; I tend to think they are very helpful in precisely the kind of book that “The Rule of the Clan” is – as Deven commented in his introductory post, it’s a bold book, and that boldness is in part about big ideas being painted in big, broad brush strokes. In his comments above Orin focuses on the characterization in the book of the liberal state. I’d like to do the same, as I thought the characterization amounted at times to an over-romanticization. So I’ll leave my thoughts on clannism and the broader argument of the book until another day; here I’ll focus on some aspects of the book’s portrayal of liberalism.

    The book emphasizes that the liberal state is oriented toward the vindication of “the public interest at large”, “the general good”, the protection of a “common public identity”, the “shared values” of the liberal community, and in his introductory post Mark refers to the “common cause” of liberals in nurturing states “dedicated to substantive principles of the common good”. The key substantive goods in question turn out to be those that enhance individual autonomy. I think all of this overstates radically the consensus that may exist in liberal states and in liberal modernity more generally. Moreover, all ideological political and intellectual perspectives – including liberalism, totalitarianism, fascism, socialism, communitarianism, libertarianism, clannism, etc, etc – lay claim to advancing “the common good”; I think this fact indicates a common misunderstanding of what “the common good” denotes. No social outcome or particular configuration of the social order is an aim or goal common to all in any society. However, certain conditions are desired by all, namely the conditions in which life can be lived peacefully and individual or collective goals pursued. The common good is surely best thought of as a framework of peace and order; it is peaceful and civil society in which humans can, for the most part, live their lives in cooperative harmony. This might not seem to be such a big deal; however, imagine yourself in a strife-torn community, or one in the midst of a civil war – then this understanding of the common good has great force indeed.

    As regards the liberal enhancement of individual freedom and autonomy, freedom, as Orin remarks, has many different components and many different definitions. It seems to me that the book’s portrayal of the liberal approach to freedom overlooks the huge violations of freedom that are sanctioned by liberal states. Consider one of the disadvantages of clannism referred to in the book – namely the “high levels of internal social surveillance and control over personal behaviour” fostered by clan societies, a point supported by reference later to “the nightmare of Soviet state surveillance” as an instance of the world of “clan solidarity”. Suffice to say that recent and ongoing revelations, relating to the NSA in the US and also to state activity elsewhere, suggest that, as one commentator put it, the right to individual privacy, as we’ve known it during the twentieth century, no longer exists. That result has been delivered directly by liberal modernity, not clannism.

    And what of the power of clans in modern liberal states? Where exactly do the Kennedys of Massachusetts or the Bushes of Texas (to give but two examples) fit into the scheme of the modern liberal, Contract-based state? Or, going beyond kinship, what of cliques more generally – a word (“cliques”) that I believe appears nowhere in the book but features strongly in the lives of many individuals in liberal states.

    Finally (and incompletely, but this reply is possibly too long already), where does the nuclear family – the unavoidable Status element in the world of liberal Contract – fit into the liberal scheme? The book refers to the “revolutionary, individuating power of the nuclear family” but the point is not developed. Freud’s “Totem and Taboo” is invoked elsewhere but neither Freud’s nor other psychological or psychoanalytical work is referenced regarding the nuclear family. While it is acknowledged that the nuclear family can be problematic for individual freedom this is said to not be anything like on the scale of the clan. However, multifarious psychological and psychoanalytical traditions, as well as much world literature (another reference point in the book, but not about the nuclear family), suggests huge complexity here, including hugely negative influences regarding individual freedom and autonomy.

  6. Mukhtiar Muhammad says:

    Hello Mark,

    I have read the book and as you know from my first response the book is like a friend talking to the reader. The book is a essential read in the postmodern era explaining topics like Pashhtun code. I recommend the book to my fiends around the globe and especially to South Asian friends.

    To Pashtuns, read the part dealing with the Pashtun code.

    Mukhtiar Muhammad
    Assistant Prof. of English
    Khyber Pakhtunkhwa (KP),Pakistan

  7. Mark S. Weiner says:

    A response first to Frank. Thanks for your comments. When you’ve completed your own book, I propose an exchange: one paperback for another.

    As for your intuition that I “want to develop the rule of the clan as a sort of ideal-type, to warn people in other societies about the danger of letting rule of the clan tendencies develop,” that’s correct. The rule of the clan is a synecdoche for how humans tend to organize their communities. In this respect, I’m interested in looking abroad primarily as a way of encouraging readers to appreciate the challenges facing Americans at home. We’ve been talking about Afghanistan a bit on the blog, but but one could equally look to Egypt (which of course isn’t tribal but rather was long under the grip of “neopatriarchy,” in Hisham Sharabi’s terms, or what I call clannism) or to Italy (long a locus classicus for certain studies of Mediterranean honor culture)—or to Bob Jones!

    As for your lesson, I agree. And, more generally, the lesson relevant to our discussion is to support the democratic institutions of government (the state) and to work to ensure that they vindicate the public interest, because only through the vindication of the public interest—which can be done best, and largely, through public institutions—can individualism survive.

  8. Mark S. Weiner says:

    I want to thank Prof. Mukhtiar Muhammad deeply for his kind words from Pakistan. It means a great deal to me that you feel my book speaks to your own Pashtun culture. As a professor teaching in Khyber Pakhtunkhwa, you embody the type of professional whose work I specifically praise in my book as being especially worthy of international support and friendship—not simply for how those of us abroad can assist you in reaching your own aims, on your own terms, but also for how you can help us in clarifying and understanding our own needs and challenges, and for how we can make common cause. Thank you for your comment. To the extent that you have internet access, I hope you’ll feel most warmly welcome to join all parts of our discussion, recognizing the bonds of our kinship.

  9. Mark S. Weiner says:

    My thanks to Tim Murphy for his very interesting comment, taking me to task in the best of ways for what he argues is my overly romantic portrait of liberalism.

    Leaving aside for a moment the question of what the common good denotes, I want to say a word about the violation of the principle of individual autonomy within liberal states. I agree. I think liberal governments not only can legitimately have a range of understandings of precisely what individual autonomy denotes, but also that they frequently violate their core principles, in formal and informal ways. I certainly wouldn’t want to be taken for suggesting otherwise. I’m a longtime critic of such actions in the United States in relation to race (the subject of my first two books).

    Instead, one of the essential tasks of liberals living in developed countries is to ensure that their societies live up to their ideals—not only in relation to individual autonomy, but also democratic governance and a range of other issues—so that liberalism can be reasonably viewed abroad (including in societies struggling far more directly with clannism) as offering a compelling way to organize social and political life. No rational person would want to join a system that’s failing or one whose major key is hypocrisy. In addition, liberals need to be able to provide a measure of the goods the rule of the clan provides so well.

    Moreover, in my remarks about liberalism, I mean to intervene in how people think about the tradition itself—though not so much regarding the issue of individual autonomy, but rather regarding the role of government. In the book, I try to emphasize that liberalism should be understood as a project directed as much at building autonomy-enhancing state capacities as limiting government authority. I mention this because in this respect, too, what might be taken as an overly rosy picture is part of an effort to construct an ideal to which liberals should hold themselves.

    What does the public good entail? I think it includes a framework for peace and order, as you say. That’s foundational, and it’s why preserving the justice system of a liberal society, and making it free not simply from clannism but from hypocrisy, is critical—why it’s essential that people are able to vindicate their rights, in an ordered society, on their basis of their being individuals, rather than members of some collective group or another. But the public good entails more than this, even within a tradition whose meaning is, as you note, contested. Indeed, what the public good includes can legitimately evolve. Take the issue of health care in the United States. But no matter how the public good is conceived, it’s essential that the state ensure that people access it on individual terms, not based on who their cousins happen to be (I think of Frank’s comment about Italian universities), and that governments pursue policies that people would broadly support regardless of their particular position in society at any given moment, as part of an effort to raise all boats and to enhance the scope of personal freedom as its historical meaning and possibilities unfold.

  10. Seema Gul says:

    Dear Mark,

    First of all heartiest congrats on the production of such a remarkable work- The Rule of the clan.You know, when we discussed the book and its different parts in our college. many of my colleagues felt and expressed the need for such open “Dialogue” in the shape of such books and the author himself-the enlightened, good-natured person who takes through the zigzag of the clan system in a simple friendly style.

    I honestly invite my female colleagues of the Global Village to read it and taste the postmodern intellectual power and expression-Its really a feast for the mind and thought.

    Prof. Seema Gul
    Principal,
    Govt. Girls Degree College, Marghuz
    Khyber Pakhtunkhwa (KP), Pakistan

  11. Mark S. Weiner says:

    Hi Orin, thanks greatly for your comment. These are all totally reasonable questions, but I don’t develop answers within the terms of the book itself. Instead, I spend most of the book trying to understand how societies with weak or absent states construct legal order, and the big lesson I think we draw when we look at these societies concerns the foundational importance of the state to individual liberty: people dedicated to individual liberty ought to appreciate the centrality of government power to achieving their values. You might say that the book is a defense of the liberal state from the point of view of the anti-liberal rule of the clan. So I haven’t spent as much time thinking about the good questions you pose framed in this way.

    But what I can say is that the liberal government I imagine in the book is one “dedicated” to individual freedom in the sense that it has the goal of advancing it actively, and that the kinds of freedom I have in mind are not simply “negative” but “positive.” The personal autonomy I imagine is the ability both formally and as a practical matter to chart one’s life course and vindicate one’s basic interests in the absence of extended family membership or membership in clan-like groups—to choose a profession, to get married, to obtain a loan, to write a will, to bring a lawsuit, etc. As for power, I like your categorization. I mean the use of force, as well as regulatory power, but also the power to shape and build public goods of various kinds, from security to roads to health care.

    The last of your excellent questions is the most important to me. All persons can be categorized according to one criterion or another and so placed into groups (by age, for instance), and some of these groups have formal organizations or some kind of group consciousness. But there are groups to which one may belong by choice and which one can exit (I’m part of a union, say, but I can leave) or to which you belong temporarily (I’m a teenager, for instance, but not for long) and ones to which you belong and can’t exit (I’m a member of the Dhulbahante clan, and if I live in Somalia, that will always be significant). In my view, it’s the provision of goods to individuals as members of the latter type of group that’s so concerning, in part because it signals that such groups are irreducible, constitutive units of social and political life, but equally because it tends to reinforce status hierarchies within the group itself that limit individual freedom (e.g., Qaddafi’s patronage to tribal chiefs, in his revolutionary rejection of the state, reinforced hierarchies within tribal life).

    What are some examples? Here’s a strong liberal state: Germany. A weak one: Argentina. A strong non-liberal state: the USSR. A borderline case: Greece.

    Thanks for these questions. They push me a bit beyond where I’ve gone in the book, which is terrific.

  12. Mark S. Weiner says:

    Dear Prof. Gul,

    Thank you very deeply for your comments and support of my book. They mean a great deal to me. Please know that if any of your students or colleagues in the Government Girls Degree College in Marghuz would like to correspond with me directly about my work, I would be delighted. My email address can be found on my blog, http://www.worldsoflaw.com

    Thank you again. I am grateful for your words.

    Sincerely,

    Mark