Mark S. Weiner

Liberal Society and the Dialectic of the Clan

In Law and literature, Method, Rule of law, Rule of the Clan, State development on February 1, 2014 at 8:33 am

Bicycles in Rotterdam The Erasmus Law Review has published a special issue on legal pluralism edited by Sanne Taekema of Erasmus Law School in Rotterdam and Wibo van Rossum of the University of Utrecht. I contributed an essay in which I reflect on the intellectual context in which I wrote The Rule of the Clan and try to recuperate a culturalist approach to the study of the rule of law.

The introduction to the issue can be found here. My essay, “Imagining the Rule of Law in Nineteenth-Century Britain: Liberal Society and the Dialectic of the Clan,” can be found here. The links are to the website of international publisher Eleven Journals.

Here’s how my contribution begins:

“In this essay, I provide a historical and theoretical framework for understanding the imaginative relation between the liberal rule of law and the kin-based form of socio-legal organization I call ‘the rule of the clan’ – a classic example of law created ‘from below.’ Specifically, I believe that a culturalist disciplinary perspective reveals that the modern liberal state and its more centralized rule of law always stand in an ironic, dialectical relation to the rule of the clan as a legal form. Liberal society, that is, nurtures itself through an anti-liberal utopian imaginary.

“This article provides an intellectual history backdrop for theorizing that dialectical relationship by examining two contrasting ways in which nineteenth-century British intellectuals imagined the rule of law. Following the work of Charles Taylor and, more specifically in the legal field, Paul Kahn, my goal is to depict a social imaginary of modern liberalism that has been neglected within contemporary liberal theory – and, in doing so, provide a way to appreciate the cultural foundations of liberal legality. The article considers the stories that nineteenth-century British intellectuals told about the relation between the rule of law and the rule of the clan as a way to think about the rule of law today. It thus tacks between three different shores: the world of legal pluralism (the rule of the clan), the world of nineteenth-century British analysis of the rule of the clan and the contemporary relation between culture and modern liberal society.”

I associate the “culturalist approach” to the rule of law with a group of nineteenth-century intellectuals I describe this way: “Writing before the full professionalization of the disciplines, these men forwarded a vibrant if unsystematic form of analysis that sought to describe in precise, anthropological detail the cultural foundations of the new liberal nations they were seeking to wrest into being, and they were attentive to the aesthetic qualities of liberalism and its legal traditions.”

In Britain, the group includes the novelist Walter Scott. Internationally, it includes Domingo Sarmiento in Argentina, Jón Sigurðsson in Iceland, and István Széchenyi in Hungary.

Erasmus University

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