Category: Symposium (The Rule of the Clan)


Mark Weiner, author of The Rule of the Clan, Wins Grawemeyer Award

I am thrilled to share that Mark Weiner has won the Grawemeyer Award for Ideas Improving World Order for the ideas in his book, The Rule of Clan. As some of you know, Concurring Opinions hosted a symposium on Mark Weiner’s book, The Rule of the Clan. It was a heady exchange and much fun too. Mark is a dear friend and colleague. To see his work recognized in this way is most gratifying. The history of the award is rather interesting too. H. Charles Grawemeyer trained as a chemical engineer, had success as an industrialist, and endowed the award “to honor powerful ideas in five fields in performing arts, the humanities, and the social sciences.Winners in the World Order category include Mikhail Gorbachev, Samuel Huntington, John Braithwaite and Peter Drahos, and Erica Chenoweth among many others. So again, congratulations to Mark who is continuing his slacker ways with new work while at the University of Salzburg, Austria, this spring as a Fulbright Scholar. I expect another great set of ideas and work is in Mark’s and our future.


More Rule of the Clan Over at Cato

Those of you who enjoyed our symposium on The Rule of the Clan should check the latest on Mark Weiner’s excellent book over at Cato. The event called The State, the Clan, and Individual Liberty. Mark’s initial essay is up. Essays by Arnold Kling, March 12; Daniel McCarthy, March 14; and John Fabian Witt, March 17 will follow. It promises to be another round of heady discussion about core questions on how we order our society.

Here Mark’s opening to get you started:

Many conservatives argue as a basic tenet of their political thought that individual liberty thrives when the state is limited and weak. “As government expands, liberty contracts,” explained President Ronald Reagan in his farewell address, calling the principle “as neat and predictable as a law of physics.” This view is especially pronounced among libertarians, and for libertarians of an anarchist perspective, the opposition between the individual and the state is fundamental and irreconcilable.

I believe this view is significantly mistaken. From the perspective of comparative law and legal history, it represents a dangerous illusion characteristic of citizens who already enjoy the benefits of modern liberal government. Although the state can be an instrument of tyranny, robust government capable of vindicating the public interest is vital for individual autonomy.


The Rule of Clan More To Say and That’s A Good Sign

To all who participated by posting, commenting, or just reading, I offer many thanks. I have enjoyed this symposium immensely. Mark’s book continues to provoke, and now there are many more views to consider and explore. I think the range of engagement shows that regardless of whether one agrees or disagrees with the book, Mark has presented powerful ideas in a way that speaks to many disciplines. I wanted to say more and found so much more to digest that I couldn’t. That too is a good sign. The symposium sated me and created new hungers. I encourage folks to find more about the Rule of the Clan at his site for the book. For those who wish to follow his work in general his blog, Worlds of Law, is great place to do so. Again many thanks to all and especially to Mark for the book.


Thanks to the Entire Clan

I’ve been gratified and moved throughout this symposium to see people I deeply admire and respect take up my ideas and run with them. For me, it’s been a powerful experience of intellectual community in the digital age. And so as our symposium draws to a close, I want to take a moment to extend my thanks. I’ll be responding to Mark’s and Sudha’s recent posts and to other posts that may come in later tonight in the comments section.

First, thanks to Deven Desai for organizing the symposium and keeping it running so smoothly, and to the good folks at Concurring Opinions for hosting our discussion.

Next, thanks to the dedicated, international clan of participants who read my book and provided such learned, lively, and diverse commentary about it. I can hardly believe the range of topics we’ve covered. To Mark Fenster, Lucas Grosman, Arnold Kling, Jan-Christoph Marschelke, Tim Murphy, Jeanne Schroeder, Sudha Setty, Stephen Utz, and Doyle Quiggle, I raise a glass from here in Connecticut.

Finally, thanks to those readers who posted in the comments sections, and to everyone who followed along with our discussion. If you’d like to take up any points with me directly, please feel warmly welcome to get in touch.

Best wishes to everyone for a relaxing weekend, wherever you are in the world—and thanks once more for such an interesting, enjoyable exchange of ideas. Wow!


The Rule of the Clan: National Security, “Us” and “Them”

Thanks to Mark and Deven for letting me participate in this fascinating symposium on The Rule of the Clan.  I know I’m late in the week, but I appreciate the opportunity to offer some thoughts on clan impulses and national security.  Mark’s observations on the need for U.S. intelligence and law enforcement agencies to better understand clan allegiances, traditions and naming conventions in those regions that pose the thorniest national security challenges to the United States bring to the fore an important and underappreciated aspect of being able to optimize security operations and foreign policy strategy.

Mark also points out that deep-seated clan allegiances allow for individuals to find comfort and refuge in times of need or perceived danger; for example, the note about members of the Irish Republican Army finding support and taking shelter in Irish-American communities in New York or Boston upon fear of prosecution.  Yet these same observations apply not only to these various communities within the United States or the countries in the Middle East, North Africa and South Asia that Mark identifies.  In some respects the same notion of clan allegiance and the “othering” of those not affiliated with the clan defines dynamics of U.S. national security more broadly.

Many scholars and activists have identified the othering of Muslims and Arabs in the post-9/11 context allowing for certain aspects of U.S. national security policy to develop—this has occurred in many areas, including immigration, detention, interrogation practices, profiling, and our foreign policy stance more generally.  Of course, the counterargument is that Muslims and Arabs are, by and large, the perpetrators of terrorist acts against the United States.  But setting aside whether this allegation is true, it is clear that Muslims and Arabs not at all associated with terrorism have borne the brunt of whatever national security abuses have occurred in the last 11+ years.

Based on this othering, I have argued elsewhere that we can use Professor Derrick Bell’s interest convergence theory, developed in the context of critical race theory, in the national security context.  Bell’s interest convergence theory argues that the protection of outsider groups often is not based on a moral imperative to grant equal rights (in Bell’s case, arguing about the gains made by African Americans in the mid-20th century civil rights movement), but rather on the desire of the in-group to achieve other gains (such as the early Cold War imperative to influence global geopolitics by desegregating the United States and then holding the United States up as an exemplar of human rights as a contrast to the Soviet Union).  To contextualize this argument in national security matters and Mark Weiner’s work, I think we can better understand the parameters of various counterterrorism policies by consider the interests of the in-group.

For example, the limits of the U.S. targeted killing program by largely defined by in-group interests (here, the government and politically powerful demographic factions), not about the moral question of whether using such a program is wrong, or even about international law that might bar some uses of the targeted killing programs, particularly in countries with which the United States is not at war.  Thus, we see that the program has developed such that U.S. citizenship is not a bar to being targeted and killed by a drone, particularly if the target is not on U.S. soil and not considered to be one of “us.”  Indeed, when Senator Rand Paul’s vaunted filibuster in Spring 2013 led to a grudging acknowledgement by Attorney General Eric Holder that the executive branch did not have the power to use drones to target and kill U.S. citizens on U.S. soil if they are not engaged in combat (a pretty narrowly defined limit that protects a particular in-group), it was considered a victory for the libertarian interests that Paul was promoting.   Concerns about non-citizens on U.S. soil, or non-citizens and U.S. citizens in other countries that are not active theaters of war, were simply outside of the scope of libertarian ire at the time—those issues were not concerns because they were about “them,” not “us.”  And yet Senator Paul’s efforts are the only ones that have been successful thus far in getting the executive branch to admit hard limits on its authority vis-à-vis the drone program.

The same type of analysis could be used to map the debate over the NSA surveillance programs or any other controversial counterterrorism programs.  So I come back to asking Mark: to what extent do you think these types of U.S. political dynamics reflect the aspect of clannish behavior that you identify as leading a society to protect its own and discount the value of others (and “others”)?  Might the conception of clan be seen to undergird U.S. national security policies such that the traditions of liberal democracy (such as equal protection and due process) are undermined because of claimed necessity?  Is such undermining accepted by large swaths of the populace because the abuses—if they are perceived to exist—only affect “them,” and not “us”?


the clan story, and what to learn from it

Rule of the Clan offers a narrative and set of warnings. The historical narrative tells us of the shift from clan to state in modern states — a necessary but incomplete shift, for good and bad reasons. Mark’s first warning is of the threat that the clan can re-emerge from within the modern state, and he sees signs of it in the threatened “erosion of the state’s capacities,” which would leave “the individual . . . submerged within corporatist groups that take the place of modern law.” His other warning concerns how modern states encounter and interact with those states that remain under the clan’s rule, by recognizing their own limitations to promote reform from without while encouraging the adoption of modern institutions, and especially of a centralized state under the liberal rule of law.

Mark offers a rightly complex and well-rendered narrative. He shows how the clan form remains in some places alongside and against the modern; he also describes how the clan remains as what the British cultural studies pioneer Raymond Williams characterized as a residual element of longing in the midst of liberal modernity. His is thankfully not a simple evolutionary story.

The warnings Mark presents are unobjectionable, especially given the care and sensitivity with which he puts them forward. I’ve already revealed my take on the first in my earlier post — absent external catastrophe, I don’t see the clan reemerging as such. So I don’t view Mark’s warning as much different from that of the typical center-left cosmopolitan confronting political opponents from the libertarian and social right-wing. Which is to say that I share his general concern, but I’m not convinced that I need to view it in terms of the modern/ clan duality.

The second warning seems right, and as I think Doyle’s posts demonstrate, it’s here that Mark’s book can have the most sanguine impact. One might think that taking care with how we moderns encounter and interact with the clan would be common-sensical, but as shown in the long history of colonial rule (some of which Mark recounts), Cold War foreign policy and state-sponsored or -encouraged resource extraction, and our disastrous occupation of Iraq (even during the era of the Counterinsurgency Field Manual), the modern doesn’t really understand or play well with the clan. Mark’s book might help instill this common sense, especially if it’s read by those for whom it might matter — diplomats, military leaders, civilian administrators, boots on the ground, and pundits. It’s equally important that individuals, NGOs, and corporations attempting to work with or in states under some degree of the ROC consider these issues.

It will also obviously have great influence, and perhaps much greater influence, if it’s read by those attempting reform from within — because, as Mark notes, it is those internal reformers who are likely to affect long-lasting, institutional change.



The Kantian subject, freedom, retroactivity

Thanks for the comments Tim, etc. Let me clarify a few points. First, Hegel is Kant’s greatest critic because he is his most faithful reader. He absolutely does not reject the Kantian radically free individual (despite the fact that Hegel does reject Kant’s basic distinction between the noumena and the phenomena). He adopts it hook, line and sinker which is why he uses it as the basis of his Philosophy of Right. Hegel believes that it is a logically necessary aspect of personhood, albeit not a complete one. When I say that it is a concept that must “go under” I refer to Hegel’s logical method which is inadequately translated into English as “sublation” – which means both negation and preservation. When an early stage in the logic is superceded by a later one, it is not obliterated. It must always be retained as a necessary building block of the latter idea. Ths metaphor I usually give is that the earlier stage is like a foundation of a building. Before the building is built, it is merely a hole in the ground. After the building is built, we retroactively recognize its function as a foundation. Moreover the foundation can not eliminated after the building is built, or the entire edifice will come crashing down.

To move away from this metaphor, this process should also not be seen as a complete reconciliation or harmonization of the earlier and later logical stages.  As in Lacan, internal conflict and contradiction is an essential part of every aspect of the universe – even, or especially, God. Human beings are simultaneously both truly atomistic individuals and truly intersubjective legal subjects even though these aspects of personality are often in conflict. Moreover, the person is more than this. What I am calling the Hegelian subject is rather a pathetic creature because abstract right is the most minimal mode of intersubjective relationship – the subject is essentially a lawyer, for Pete’s sake. This is why this aspect of personality must also be sublated by more complex notions of personhood mutually constituted by more complex forms of “right” such as morality and Sittlicheit (inadequately translated as “ethical life”).

Second, Hegel’s is not an empirical account of human history or personal development. It is a retroactive, “logical” account. That is, while writing the Philosophy of Right, Hegel was located in early-nineteenth century Germany and was contemplating the great changes that have occurred in Europe in the last century or so and seem to be culminating in the adoption, in every western nation, of some form of liberal constitutional state. He is asking, what theory of human nature would explain this massive changes? Consequently, empirical history does not neatly follow the logical stages he posits. Of course, aspects of abstract right existed in earlier societies, since it is “logically” necessary to pesonhood. However, – and this is a major theme of Mark’s book and I think a pretty well understood one –  earlier stages in history have been primarily characterized by status relations not by abstract right. It was only in the early modern that abstract right (i.e. primarily private property and contract) started to supercede status relations as the primary organizing principle of society and this happened at the same time as the modern constitutional state and the modern subject came into being. Hegel’s argument is that this is not a coincidence since the three are necessarily related.

One last aspect to this: although Hegel’s account is “logical” and not empirical and Hegel is ordinarily thought of as an idealist, he is not a neo-Platonist, but a thorough-going materialist. The one aspect of Kant which he absolutely rejects, as I mentioned, is the noumena-phenomena distinction, or any other concept of transcendence. Nothing is possible unless and until it is already actual. A logical concept cannot be true unless one observe its manifestation in the material world. This is why his understanding of logical necessity is always retroactive, and never predictive. He is always writing about what must have happened.  To give a graphic illustration that I have used before, I retroactively understand from the fact that I am typing this that it was absolutely necessary for my parents to have had sexual relations one day in the Fall of 1953. But from my parent’s perspective in the Fall of 1953, what could conceivably (poor pun, I know) been more contingent?

Consequently, in my reading Fukuyama gets Hegel’s concept of the “end of history” wrong. As Hegel I think makes clear in his famous preface to the Philosophy of Right, he believes that he is writing at the beginning of the end of an era (i.e. the development of early capitalism and the modern state), which is why he although he is in a position to  comment on “a shape of life [that] has grown old and . . . cannot be rejuvenated, but only recognized.” “As the thought of the world, it appears only at a time when actuality has gone through its formative process and attained its completed state.” Which is why philosophy always comes too late to give advice (advice being the bailiwick or pragmatism, which Hegel does not characterize as philosophy, but as philosophy’s necessary supplement). As the Hegel thinks that the entire universe, including God, is in unstable contradiction, the only thing constant is change, and the only necessity is contingency, all we can predict about the future is that it will be unpredictably different. We can posit that, it Hegel is correct that we have seen the appearance of abstract right, morality and Sittlicheit in the past, then they will all  eventually be sublated – they will be superceded, but preserved, as will the subject, the citizen and the State. What will that look like? Who knows.

To return to the top of this comment, one of the reasons for this is that Hegel does not reject Kant’s idea of the radically free autonomous individual, he buys it hook, line and sinker. Kantian freedom is the capacity for pure spontaneity, the ability to create ab nihilo. If our future were logically necessitated and predictable, we would not be free.

Just one more comment on Tim’s comment about “subjective” rights. I am afraid that your point illustrates why I think that many (if not most legal) academics think that, despite the use of the same term, international and human rights “law” is not “law”.  From a legal perspective a “right” which is not recognized and enforced is, by definition, not yet a “right”, although it might be a moral or political assertion that such a right should exist. I am afraid that I lean towards the view of Costas Douzinas that human rights “law” is at this stage is a rather incoherent mishmash of natural law and positivism at its weakest – even though I am often intuitively sympathetic to its goals.

This is a matter of semantics, but not merely so. I believe that international and human rights are not legal in nature, but should be thought of in terms of political theory and moral philosophy – which is not to say inferior but very different. The overlapping vocabulary of legal and human rights obfuscates rather than helps analysis. (We see this the two founding documents of the U.S. The Declaration of Independence reflects natural law and speaks of all men being “endowed with unalienable rights”. But the Declaration is not American law. The Constitution is, which is usually considered a positive law document creating (and recognizing) specific legal rights.

Tim seems to be saying that (or, more accurately, suggesting that some would say) persons in clan societies qua persons have natural human rights that the international community should recognize. Mark is arguing, however, that within status-based societies like clans, they in fact do not have full individual legal rights which can only be established through positive law. I agree. To put this is my terminology if one defines a subject as that which is recognized as being capable of bearing rights in duties, then in traditional societies, the family, not the individual, is the subject. Individual rights only exist in the state that recognizes the individual as the subject.

Consequently, Mark defends the state because he thinks that individuals rights are a good thing. Once again, I agree. But, not because I believe in natural human rights. I don’t. Rather, because I am persuaded that legal rights are necessary for the actualization of freedom. As such, from a Hegelian perspective, rights are not natural, they are completely unnatural. They are artificial in the affirmative sense of human creations: works of art, our highest achievement.

It’s been fun. Unfortunately, I have an appointment this afternoon and have to sign off and run.


Rights, Families, Clans, and the Origins of Human Community

Thanks very much to Jeanne (“(W)oman does not exist”) and Mark (“An American Historian Hesitatingly Queries an Irish Philosopher”) for their responses to my post (“Subjectivity, Rights, Families, and Clans”). Mark, you summarize part of my position as being “that jural relations of abstract right necessarily originate at the same time as family relations—at the same moment a community comes into being—and that the constitutive family unit of this community is the nuclear rather than the extended family”. I’m pretty happy with that (as a very shorthand description) except for two things: first, I’m not entirely comfortable with the expression, “abstract right”, and secondly, there seems to be some ambiguity about the term, “nuclear family”.

Jeanne has said that Hegel’s Philosophy of Right rejects Kant’s notion of the absolutely free individual, having no affirmative characteristics, because the freedom of such an individual, being completely negative, is only abstract and potential. To be actual, it must become positive and concrete, and this can only happen through interpersonal relations: for Hegel, Jeanne notes, “the most logically ‘primitive’ form of intersubjectivity is the jural relations of what he calls ‘abstract right’ which is roughly equivalent to what Americans call private law. By submitting to private law we give up some of our radically negative freedom to achieve a more meaningful positive freedom through our relationships with others.” So the Hegelian view, on the face of it, seems to be grounded in the idea of atomistic individuals developing interpersonal, jural relations giving rise to private law rights. However, as an empirical matter, Hegelianism holds that family and clan relations precede abstract rights, which appear to be associated with the modern state only; in Jeanne’s words, “The person starts in the bosom of the family and law allows the person to become separate and individuated. That is, in order to be a subject, and eventually a citizen, one cannot merely be a member of a clan with collective rights. Or more importantly, one must recognize others not as member of clan, but separate, individuals.”

I disagree with the Hegelian account in part because of its association of “law” with the modern state, and because I think private law entitlements – which I prefer to “abstract right” or even “private law rights” – must exist for human community to exist. While Hegelianism rejects the Kantian abstraction of the “absolutely free individual” it doesn’t seem to throw off fully the shackles of contractarianism and acknowledge the practical requirements of any form of interpersonal relations. It’s worth remarking that Kant considered it impossible for the original, “natural” condition of atomized individuals to have been a fact and, persuaded of the need for the notion to make sense of society, referred to it as “merely an idea of reason”. With this, it is reasonable to suppose, many social contract theorists agree yet the domination of the modern imagination by the contract approach has had profound consequences for modern social and political theory generally. It has led to an emphasis on the idea of human society as an organization, and this has led in turn to a focus on how society should be organized and what means should be used to organize it.

I think the idea that contract is in any way whatsoever the origin of human society is in fact inaccurate and misleading. Kant, in other words, was wrong to think social contract theory is needed, even only as an idea, to make sense of society. And as regards Hegel, when people live in community, as they must, instead of the person starting “in the bosom of the family” and being allowed by “law” to become separate and individuated, familial-communal life itself requires law in the form of a network of entitlements, including individual entitlements. James Carter wrote, “Law, Custom, Conduct, Life – different names for almost the same thing – are so inseparably blended together that one cannot even be thought of without the other” – this to my mind brings out well the fact of some individuation “in the bosom of the family” because families themselves (their conduct, their customary ways of doing things) involve networks of entitlements.

I would therefore rephrase your summary of my position, Mark, to say that “jural relations of entitlement necessarily originate at the same time as family relations—at the same moment a community comes into being”. I would add that these relations include also entitlements concerning legislation and, by extension, some form of “state”, which brings public law into the picture. In a very small primitive society legislation may be limited to war: the war-leader commands only in that sphere; he controls the time and activities of his temporary subjects only for the duration of the war; and he organizes them during the war so that the goal of defeating the enemy may be achieved. In such a society, the actual presence of the state is, so to speak, intermittent and its scope extremely restricted. It is, however, potentially present and there seems to be no evidence of its total absence from any social order. I take references to “stateless” societies as contrasts with societies in which the state is a constant and actual, rather than an intermittent and potential, presence, and in which the scope of its power is relatively much greater.

The second issue I raise regarding your summary of my position, Mark, concerns the idea of the “nuclear family”. I used the terms “nuclear” and “patchwork” to describe possible early family forms – I don’t mean exclusively the way “nuclear family” is used typically in modern speech. But what word(s) can we use for types of families that came before “extended” families? Whatever the answer to that is, surely it was some smaller family unit that was constitutive of pre-clan communities, that came before extended families? Something, after all, must have been “extended”. In my view there is a huge (chrono)logical problem with any account of the origins of community that begins the idea of extended families or kinship groups, or with notions such as “collective ownership of tribal land”. This seems to by-pass even the atomism of social contract theory. How, as an empirical matter, did such collective ownership come about? How, as an empirical matter, did the joint or extended families referred to by Maine come about? How, as an empirical matter, did clans emerge?

Regarding the Irish-language term for family, you are correct in saying that teaghlach, which is connected to the root of “house” (teach), is a term to denote the family, traditionally the extended family; clann, from which “clan” derives, is more commonly used to denote the modern nuclear family – but can also have the broader meaning. (There is some debate about these issues around the Irish Constitution of 1937, which expresses in part Roman Catholic views of family rights and in which the Irish-language version takes precedence over the English). The Irish word for children is leanaí.

Finally, Mark, one query regarding the modern context: in this symposium I’ve cited twice the book’s reference to the “revolutionary, individuating power of the nuclear family” (p.160) – I’m fascinated by that remark and I’d be interested in hearing more from you on how that works.


Against Honor

In response to my post on the right to honor, Mark introduces a distinction between group honor and individual honor. He identifies the former with clannism, and emphasizes the liberal virtues of the latter. The distinction is a sound one, but let me press the point. The question is how central the right to honor is, even if individualistically formulated, in a given constitutional system. I find it very difficult to believe that any system where honor is a central value shall perform very well in the liberal ranking, since that would imply that when other rights (typically, freedom of speech) are in conflict with honor, it is the latter that will prevail. So if The New York Times affected Sullivan’s honor by conveying an inaccurate picture of how the police dealt with the Civil Rights protesters, an honor-based system will not hesitate to condemn the newspaper. To borrow from my country’s case law, in Argentina a conservative supreme court established in the 90s that to assert on TV that the Virgin Mary was not quite a virgin, as a writer did during a TV show, entailed a violation of constitutional law –inter alia, of the right to honor of the plaintiff, a Christian who cherished the Virgin and felt insulted. These are just anecdotes (and I can think of many others along the same lines), but the point is more general: when the right to honor is central, courts will decide cases favoring it over other rights, and this will entail the restriction of, typically, freedom of speech. I have no doubts that such a system is less committed to liberalism than the alternative one, and this seems irrespective of the collective- individual divide.

Dignity is a related but distinguishable concept. I must say that, honestly, I find this concept difficult to grasp, and I am not sure I follow Stephan’s explanation. A right to have all other rights sounds a bit puzzling to me. It is also an ambiguous concept. When the German Constitutional Court decided that a law allowing the Ministry of Defense to shoot down aircrafts in a  9-11 scenario was against the Constitution, dignity played a central role. Here, dignity is related to the Kantian idea that persons are not means but ends in themselves. I find that decision hard to endorse, but that is beside the point. I just want to note that in such case dignity functions as a general prohibition against a certain type of consequentialist analysis, while in other contexts it is equated to honor, reputation, etc. Thus, for example, when it is claimed that insulting a person affects his or her dignity, which is the case I had in mind.

Honor is related to status, to ranks, to having one’s position in society properly acknowledged. Bergthora tells Hallgerd to move from the table and give her space to someone of higher ranking. Hallgerd feels insulted (The Rule, p. 123). I can imagine similar quarrels taking place in the most liberal of societies. I do not think, however, that it would be such a heightened sensitivity to social status that would make that society liberal.



Protecting Dignity: A Perspective from the Rule of the Clan

Lucas Grosman raises the interesting issue of the right to honor. While he flags the diminishment of that right relative to its protection in pre-modern socio-legal systems (I think of the antebellum south), he also notes that honor is explicitly protected in some European and Latin American constitutions, as well as in international human rights covenants (e.g., Article 12 of the UDHR).

For reasons I note below, I think such protections are important on principle. But it’s also worth highlighting what they generally aren’t, namely protections of collective or family honor. If someone subjects me to intentional infliction of emotional distress, even by citing my ancestry in a derogatory fashion, my cousin sitting comfortably at home can have no claim. For a right for individuals to be free from such harm that’s justified partly on collective terms, one could turn to India—a nation in many respects in the midst of the socio-legal transformations we’ve been discussing—for instance to the recent case of Arumugam Servai v. State of Tamil Nadu (2011). There, the Supreme Court condemns the use of derogatory language against scheduled castes not only because it harms the particular individuals subjected to the insult and because it leads people to fight (pace Beauharnais v. Illinois), but also because all “communities” should be treated with respect in a diverse society.

But thinking in explicitly individualist terms, protecting honor can be conceived as part of a more general protection of human dignity. And in my view, one of the reasons the concept of dignity ought to form the core of modern constitutionalism is that it secures on liberal terms one of the goods the rule of the clan provides so well. In this sense, the constitutional concept of human dignity is part of the intellectual and imaginative transformation Jan Marschelke and I have been discussing—a key to securing governments that protect liberal autonomy by looking back to concepts drawn from pre-modern forms of order.

Some weeks ago, I made a short video about the concept of human dignity in German constitutionalism, which I’ll include below with the hope that it’s relevant to this exchange with Lucas. I certainly had The Rule of the Clan in mind when I made it. Also, we’ve exchanged many words in this symposium—why not exchange some visuals?