Mark S. Weiner

Odds & Ends

In Conversations, Rule of the Clan on April 10, 2014 at 1:45 pm

5 Nuts

Five odds and ends today:

1) My discussion “The Legal Foundations of Individualism,” which I presented as a talk at the annual Telos conference in January, is now available on TELOSscope. As I explain at the start of the piece: “I’ll be addressing two questions about democracy raised by our conference description: first, ‘the reasons for its rarity and volatility’; and, second, ‘the factors that are essential for its stability.’ For each question, I’ll try to provide a concise, mildly provocative answer from my perspective as a writer and scholar about constitutional law and comparative legal history.”

Regarding the first question, “why is democracy so rare and volatile,” I write: “I think one answer we could give to this question is that democracy is volatile because the modern self is a legal achievement. There is nothing outside of law, including individual subjectivity.”

2) ICYMI (in case you missed it): the forum last month about The Rule of the Clan on Cato Unbound was really interesting—and great fun. I was very fortunate to have three thoughtful commentators from different parts of the political spectrum engage with my work: libertarian blogger Arnold Kling, American Conservative editor Daniel McCarthy, and Yale Law School professor John Fabian Witt. There were also many lively comments from readers. The editor of Cato Unbound, Jason Kuznicki of the Cato Institute, posted his own very interesting response on the website Ordinary Times, speaking to some debates within libertarian theory.

3) There were a number of responses to the Cato Unbound forum in various corners of the blogsphere, including an especially interesting discussion on The Sweep, which published another post today that comes into dialogue with my work.

4) My lead essay on Cato Unbound is now available in Spanish on La Tercera Cultura. There seem to be a number of interesting comments en español. To the translator and editors: abrazos!

5) This coming week I’ll be speaking at the Clarke Forum for Contemporary Issues at Dickinson College. My fellow panelists will be Prof. Carol Horning of the U.S. Army War College, Prof. Erik Love of the Sociology Department at Dickinson, and Prof. Andrew Wolff of the Dickinson Political Science Department. Earlier that day I’ll be speaking to one of Prof. Horning’s classes on international development at the Peacekeeping and Stability Operations Institute.

6) Totally apropos of nothing I’ve discussed above: I’m looking forward to spending the weekend at a course on wilderness first aid sponsored by the Appalachian Mountain Club. If any of my readers have taken one of SOLO’s wilderness first responder courses, do let me know. See you on the trails!

P1060839 copy

 

Love’s Empire

In Europe, Law and film, Law and literature, Rule of law, State development on March 19, 2014 at 9:02 am

Screen shot 2014-03-19 at 1.21.15 PMIn the latest issue of Telos, I review two books by Paul Kahn of Yale Law School, Political Theology: Four New Chapters on the Concept of Sovereignty and Finding Ourselves at the Movies: Philosophy for a New Generation. In both books, Kahn reads contemporary American law and politics through a framework influenced by the writings of Carl Schmitt. The theme of the issue is “After Faith” (for readers not based in a university, I’m afraid the issue is behind a pay wall).

In the review, I write that Kahn’s books “crisply document and provide a provocative theoretical account of an important feature of America’s distinctiveness: its social imaginary of ‘the political,’ particularly the conceptual, cultural, and affective place the social imaginary affords to law. In Kahn’s view, law in America is different. Most notably, law is imaginatively inextricable from the willingness of American citizens to engage in sacrificial acts of political violence. The reason for this potent union, he explains, is theological. The American nation-state—born of revolution and deriving its legitimacy from a trans-generational popular sovereign (‘we, the people’)—provides a source of ultimate meaning for its citizens analogous to religious belief. In Kahn’s analysis, that is, both the American experience of judicial review and the nation’s openness to the use of existential violence stem from a common source: the fact that ‘our political practices remain embedded in forms of belief and practice that touch upon the sacred.’”

Written last October, my review, titled “Love’s Empire,” begins with a reference to Vladimir Putin’s critique of the notion of American exceptionalism in his New York Times editorial of September 11, 2013. It concludes this way:

“Kahn’s compelling description of the American social imaginary thus would seem to raise more insistently Schmitt’s question about the capacity of societies governed by liberal normativity to survive. This question seems especially significant in the context of contemporary pessimism about trans-Atlanticism. For the past seventy years, the security of those European nations that most embody the de-politicized bourgeois liberalism that Schmitt deplored was underwritten, ironically, by a nation that Kahn convincingly describes as living entirely within the exception. Whether an increasingly centralized European Union or some future system of international law can provide similar security and stability while preserving essential domains of human freedom—including by resisting elite managerialism at home and the blandishments of authoritarians from abroad—remains an open question.”

Islamic Law and the State

In Islam, State development on March 14, 2014 at 3:27 pm

Today I had the chance to read a fascinating essay titled “The Political Failure of Islamic Law,” by Bernard Haykel, a professor at Princeton (who admits from the start that his title is “deliberately provocative and somewhat misleading”). The essay is based on a lecture he gave at Yale Law School, and it’s the most recent edition in the law school’s Occasional Papers series.

Haykel argues that the modern Sunni Reform movement and its Islamist followers have “failed to achieve the political vision of a powerful and confident Islamic order” because of their statist vision.

The Reformer’s program, writes Haykel, “represents a double rupture from the past: first, the Reformers deliberately chose to sweep away the teachings of the established schools of law; second, they opted for the state rather than society as the means by which to impose their program.”

Notably, among the consequences of the writings of Reformist scholar Muhammad Rashid Rida (1865-1935) were a rejection of “the epistemology of traditional legal rulings, most of which had been built by a process of analogical reasoning”—much, one might say, like the rules of the English common law—and the replacement of premodern legal principles with “concepts of public welfare (maslaha) and the ‘purposes of law’ (maqasid al-sharia‘a).”

“Very few are the voices of opposition to this state-centered vision,” concludes Haykel. “One of them is the Lebanese intellectual and scholar Ridwan al-Sayyid. Al-Sayyid … argues that for centuries Islamic beliefs and practices were determined by the community (jamaa) and not by the state. The meaning of Islam was explicated by the societies in which the jurists lived and developed their views. And because it was a societal and collective enterprise, it was open to a multiplicity of views and to a degree of tolerance for difference. For al-Sayyid, the great danger today lies in giving the state, with narrow-minded Islamists at its helm, the exclusive right to determine the content and contours of Islamic law.”

Do Haykel’s arguments point to another untapped connection between the Islamic and Anglo-American legal and political traditions?

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