Individual Liberty and the Power to Exclude

My friends at the libertarian Niskanen Center kindly gave me a forum to meditate on the President’s recent executive order about immigration. The post is here. The think tank has been publishing terrific critiques of the administration from a libertarian and center-right perspective, though it’s contributors are wonderfully hard to classify, forging a new political and ideological space—do keep an eye on these folks!

John Stuart Mill and the Rule of the Clan in Sweden

Two items were published this week that brought me away from thinking about documentary film and back to The Rule of the Clan.

The first was a blog post titled “Why Libertarians Should Champion Social Liberty,” by Jerry Taylor of the Niskanen Center. Taylor advances a position that at first glance seems to run counter to core libertarian principles: he argues that “freedom is advanced by [government] preventing private racial discrimination.” This view is anathema to many libertarians, Taylors notes, who believe that government action to prevent private discrimination is “flatly immoral no matter how well-intentioned or worthwhile the consequences might be.”

But Taylor suggests that this is a misunderstanding of the libertarian tradition—one of whose patron saints, John Stuart Mill, had this to say in the first chapter of On Liberty:

Like other tyrannies, the tyranny of the majority was at first, and is still vulgarly, held in dread, chiefly as operating through the acts of the public authorities. But reflecting persons perceived that when society is itself the tyrant—society collectively, over the separate individuals who compose it—its means of tyrannizing are not restricted to the acts which it may do by the hands of its political functionaries. Society can and does execute its own mandates: and if it issues wrong mandates instead of right, or any mandates at all in things with which it ought not to meddle, it practises a social tyranny more formidable than many kinds of political oppression, since, though not usually upheld by such extreme penalties, it leaves fewer means of escape, penetrating much more deeply into the details of life, and enslaving the soul itself.

Protection, therefore, against the tyranny of the magistrate is not enough: there needs protection also against the tyranny of the prevailing opinion and feeling; against the tendency of society to impose, by other means than civil penalties, its own ideas and practices as rules of conduct on those who dissent from them; to fetter the development, and, if possible, prevent the formation, of any individuality not in harmony with its ways, and compel all characters to fashion themselves upon the model of its own. There is a limit to the legitimate interference of collective opinion with individual independence: and to find that limit, and maintain it against encroachment, is as indispensable to a good condition of human affairs, as protection against political despotism.

Taylor then goes on to suggest—here’s the kicker—that “Mill’s heir on this matter might well be Mark Weiner.”

… Pause …

It Don’t Mean a Thing if It Ain’t …

“What can the jazz process tell us about life?” That’s the overriding theme of Trading Fours on Blog Talk Radio, hosted by Drs. Jackie Modeste and Wesley J. Watkins, IV.

I had a lively conversation about The Rule of the Clan on the show today, and in keeping with the spirit of Trading Fours—and trading fours—our discussion ranged widely. You can hear the full one-hour show through this media player (or by clicking on the link in the first paragraph):

In the course of our conversation, the three of us had a lively exchange about jazz and democracy I thought worth sharing. Among other things, it seemed like an American version of the discussion I had with Prof. Stefan Kirste about the relation between law and musical aesthetics:

Here’s an excerpt from the conversation, which in the audio file begins at about 33:00:

Me: What liberal government has to sell has to be better than what’s on offer from other social theories.

Jackie: Right.

Me: And if liberal government is working, if it’s corrupt along any lines, certainly those of nepotism, if it’s ineffective, then liberal government deserves to lose. But I don’t think it should. And that’s why I think it’s important to defend central government, to defend modern liberal ideals of robust government capable of vindicating the public interest and thereby liberating individual energy.

Jackie: OK, yes. Yes! So what I’m thinking about is when we—

Me: Jackie, sorry to interrupt you. Something that Wes said … maybe we could play with this a little bit. I’m trying to draw connections to the jazz concerns that you have here on the show. Maybe government is like a band leader. And so if you’re thinking about Duke Ellington, right, and the kind of music that he was able to enable, if you don’t have a good band leader, then someone is going to steal that show and the swing is going to be undermined. I’m not sure if … is that the case in jazz?

Jackie: Wes, do you want to talk about that?

Beginning

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.

Regeln om klanen

Or should that be Lag av klanen? However you say it, The Rule of the Clan has received some attention recently from scholars in Sweden, and I’m really happy about it. Last week Peter Santesson published an article titled “More Independent People” in Axess Magasin, a very thoughtful Swedish journal devoted to public discussion of the liberal arts and social sciences. For the article in Swedish (“Mer självständiga människor”—which just looks so much more exciting), see here. I’m assuming that even in Swedish Santesson’s title refers to the novel Independent People by the Icelandic author Halldór Laxness. That’s marvelous, because I began writing the book in Akureyri, Iceland.

Santesson discusses my book in the course of meditating on the tension he sees in public discourse today between individualism as “personal expression” (the “desire to be unique and achieve self-realization”) and individualism as “autonomy” (the ability to be “independent and able to stand on one’s own feet”). In Santesson’s view: “Autonomy’s value is not often talked about. Individuality as personal expression is, however, highly topical. One wants to be Pippi Longstocking, but is no longer talking about gold money.”

Santesson’s lively and stimulating article seems to have inspired a post on the blog of Swedish writer Dick Erixon. And I’m told by the Swedish journalist Per Brinkemo that the book was helpful to him in thinking about his forthcoming work Between Clan And State: Somalis in Sweden, which will be published in April—and which promises to be excellent.

Tack, vänner! Jag önskar att jag talade språk, men allt jag har är Google.