This weekend, I began work on my next non-fiction book by giving a talk at an excellent conference hosted by the Telos-Paul Piccone Institute. The title of the conference was “The Difficulty of Democracy: Diagnoses and Prognoses.” I gave the following remarks as part of an evening discussion about “The Individual and the Collective,” which included fellow panelists Ulrike Kistner, Timothy Luke, and Frances Fox Piven (though because of much stimulating back-and-forth, I actually delivered my remarks the following morning). This is what I said:
As the final speaker after a fascinating day of talks, I’ll keep my comments brief. 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.
So why is democracy so rare and volatile? 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. Instead, the modern self that lies at the center of liberal democratic practice developed only after a long historical process of dialectical negation and synthesis. In that process, a handful of societies, beginning in western Europe, transcended what in my most recent book I call the “rule of the clan.”
The rule of the clan is a form of governance that unites a radically decentralized constitutional structure with a culture of group honor and shame. In doing so, it makes the extended family the constitutive unit of society, politics and law. Under the rule of the clan, an individual’s legal rights and obligations depend significantly on his or her place within the kin group—his or her “status” within the extended family, to use the language of the nineteenth-century legal historian Henry Maine. As a result, personal autonomy is radically circumscribed, as exemplified by constricted life possibilities for women.
Modern individualism could develop only once central governments were capable of vindicating the public interest over the power of extended families—only once they could supplant the rule of the clan with a form of socio-legal order animated by what Maine called the principle of contract. Modern selfhood requires the existence of public institutions that protect persons as individuals, not as cousins. Thus if we look to the laws of Alfred the Great in Anglo-Saxon England, we see that the public-regarding notion of the King’s peace grew alongside the monarch’s extension of special protection to persons without kin, most notably monks and traveling merchants.
From this historical perspective, individuals didn’t create the state; the state created individuals. In loosely Hegelian terms, the growth of modern subjectivity depended on the development of a neutral state dedicated to principles of universal as opposed to particular altruism. This view naturally cuts against theories of social contract. It also points to some of the challenges democracy faces to its emergence and stability.
In traditional societies, it’s difficult to develop the conditions for modern democratic politics because the rule of the clan offers a variety of important benefits that people are understandably reluctant to give up, especially strong values of solidarity and social justice. More relevant to this conference, the rule of the clan also always stands ready to undermine modern democracies and their individualist socio-legal aspirations from within. This threat stems from three sources.
First, the biological fact of childbirth makes extended kinship a natural basis for socio-legal organization. One could say that the clan’s socio-legal pull is as powerful as our sexual drives. Second, the threat of reversion to some form of status-based society stems from the radically unrealized principles of liberal government, both its particular failures and its more general tendency to subsume questions of social justice into issues of economic growth. It arises from the failures of liberalism to live up to its own aspirations and to address the psychological and social needs that clan societies meet more directly.
Third, and I think most important, the threat of the rule of the clan to modern democracy stems from the tendency of democratic publics to overlook the profound role that state development played in making modern subjectivity possible. This failure of historical imagination makes many citizens sanguine that the “opposite” of the state is the market, a world of fully free individual choice, whereas in fact it is the constricted world of particular, kin-based altruism. In modern, complex societies, the traditional clan groups that always stand ready to reassert their own socio-legal order over that of a democratic public are also joined by many other, historically recent self-regarding groups that likewise seek socio-legal authority based on status principles, for instance racial identity associations and major corporations.
So why is democracy volatile? Because the self is a legal achievement, and the modern state that enabled that self to develop, and the modern democratic state that takes individual autonomy as one of its political ends, is always under active socio-legal pressure from the status-oriented groups it historically negates.
And so how to prevent reversion? How to secure the historical gains of democracy and foster its stability as a form of government? Again taking the perspective of comparative legal history, I believe one way to answer this question is to consider the socio-legal development of the modern self. This history will be the subject of my next book, which has the working title of The Legal Foundations of Individualism, and which I’m taking the occasion of this conference to begin. The book will be a follow-up and companion to The Rule of the Clan by being its mirror image.
Rather than describing the linked constitutional and cultural structure of kin-based particular altruism, I hope to discuss for an audience well beyond the university the range of fundamental legal ideas, doctrines and institutions that make modern subjectivity possible—the legal structure of universal altruism.
What are these fundamental legal principles? How did these ideas develop? What group-oriented legal norms did they replace? How do they work on the ground to advance individual autonomy, while also establishing legal structures for new forms of group affiliation? How did many of them spread across the world, or develop independently within diverse legal systems? If some of their tenets have yet to be adopted globally, what resistance have they encountered and why? What threats exist to their continued vitality? The legal principles I’ll be discussing range widely from individualization in criminal punishment to the letter of credit, which enables trading beyond a circumscribed kin group or geographic region; from fee simple absolute property holding to laws enhancing individual autonomy in inheritance and divorce.
I think two things can emerge from this discussion, the second perhaps unexpected given what I’ve said up to this point. First, it can highlight important institutional and cultural requirements for modern political development. It can foster democracy by drawing detailed attention to the self’s legal contingency.
Second, I think that examining the legal foundations of individualism can help answer a major theoretical question faced most squarely by indigenous liberal democratic reformers in traditional societies and by democrats in more politically developed nations seeking to assist them as allies in a common global cause. This question is how local, informal, customary systems of governance can be most effectively and ethically linked with central, formal, bureaucratic state legal institutions, and how the different ways this alignment can be accomplished might shape our understanding of the liberal rule of law.
If we can answer this question, understanding in theoretical terms the socio-legal link between the individual and the collective (to refer to the title of our panel), then I think we gain important clarity on how to help sustain democracy as a historical project of human liberation.
For readers interested in a discussion of the relation between local, customary institutions and central government in Afghanistan, see Whit Mason’s outstanding collection of essays The Rule of Law in Afghanistan: Missing in Inaction.