Mark S. Weiner

Archive for the ‘Rule of law’ Category

Donald Trump and the Rule of the Clan

In Rule of law, Rule of the Clan on November 13, 2016 at 5:50 pm

A number of readers have written in the wake of the American presidential election to ask how I would read Donald Trump’s victory in light of the arguments I make in The Rule of the Clan.

I’ve just returned from a weekend away to receive a kind new review of my book by Karen Schousboe, editor-in-chief of Medieval Histories, which is based in Denmark. Because she’s a sensitive and careful reader of my work, I’d like to let her review answer the question, but I’d also like to add some thoughts of my own from a related perspective: as someone who has devoted most of his professional life to the non-partisan teaching of American constitutional law and the principles of liberal constitutional democracy.

Over the course his campaign, Donald Trump consistently flouted basic principles of democratic constitutionalism. Trump violated these principles not incidentally or at the margins of the race, but rather through specific promises that were at the heart of his campaign, as well as in his repeated public behavior toward his rivals. Read the rest of this entry »

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.”

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

Overcoming Feud in the Oresteia

In India, Law and literature, Rule of law, Rule of the Clan on January 25, 2014 at 3:02 pm

This afternoon, a question posed to me about Aeschylus by an outstanding college student sent me to an essay by Michael Dirda titled “The Oresteia: Law & Order,” which appeared in Lapham’s Quarterly. The following lines struck me, and for readers familiar with some of the issues I discuss in The Rule of the Clan, I thought I’d post them here:

“In the broadest sense, Aeschylus’ plays trace a progress from a culture of bloody, multigenerational vendettas to a culture based on jury trials in a court of law. Because of impossibly contradictory yet divinely appointed sanctions—you must revenge the death of a family member, you must not murder a family member—there has finally emerged a solution that shifts the responsibility of punishment from the individual to the state. The Oresteia ends, in scholar George Thomson’s phrase, ‘with the ratification of a new social contract, which is just because it is democratic.’ Athens is transformed: the polis will now rely on the so-called Areopagite court for the proper redress of murder.

“The chief impetus behind this new social contract has been the judicious and reasonable Athena. She represents the middle ground—a compromise between feuding parties as well as feuding sexes—being neither wife nor mother and having been conceived without sexual intercourse. (She emerged full-grown from Zeus’ forehead.) Nonetheless, her actual explanation for why she acquits Orestes still arouses controversy and argument.”

I’ll be thinking of this description as I continue to read about recent events in South Sudan, and about the latest headline-making abuse of a khaap panchayat in rural West Bengal—and the ongoing effort of the Indian government to put an end to vigilantism (which I discuss in my book).

I’ll be thinking about it as well in the wake of the recent warning by Chief Justice Roberts that budget cuts have imperiled the ability of federal courts in the United States to deliver prompt justice—and could “pose a genuine threat to public safety.”

I’ll be thinking also about writer Jillian Abbott’s argument in an article published this week in the Irish Times: that without robust government, western democracies can become “a paradise for predators.”

On February 15, I’ll be speaking at the eighth annual Telos conference, “The Difficulty of Democracy: Diagnoses and Prognoses.” My talk is called “The Legal Foundations of Individualism,” which will be the subject of my next non-fiction book.

Charlotte the Spider, Supreme Court Justice

In Aesthetics, narrative, form, Animals, Corporations, Environment, Law and literature, Rule of law, Supreme Court, United Nations on June 15, 2013 at 1:58 pm

Very soon, my wife and I will be spending a few days in Maine. We’re going there for a wedding, and rather than spend money on a hotel, we’re going to camp. We’re looking forward to putting on our formal wear beneath the pine trees. And I’m looking forward to visiting the state again after a long absence. The last time I was in Maine, I was in college:

Isn’t that some lobster? I believe we cooked that lobster right where we stood, on the beach, in a tin bucket.

Our impending trip makes me feel especially close to E. B. White, whose views about world government I’ve been considering in a recent thread. They also put me in mind of Justice William O. Douglas of the U.S. Supreme Court. I don’t think that the two ever met—at least, there are no letters between them in the E. B. White Collection at Cornell or the Justice Douglas papers at the Library of Congress. But they share a great deal in common.

Most obviously, they share a love of Maine. White spent much of his life there, at his farm in North Brooklin, and some of his greatest essays, such as “Once More to the Lake,” evoke the beauties of its distinctive, unspoiled landscape. I especially like the collection The Points of My Compass, which also contains some of White’s writings on international law. As for Justice Douglas, as I noted in an October post, he was a nature writer of real skill—and one of his greatest sources of inspiration was Mount Katahdin. That’s the highest peak in Maine and, for hikers traveling north, the end of the 2,200-mile Appalachian Trail (which Justice Douglas also completed).

“Katahdin has been like a haunting melody since the day in the late twenties when I first saw it against a buttermilk sky,” he wrote in My Wilderness. “For some years I explored the dark woods and marshy lakes at its feet, and climbed its rough points. Then came a long period of absence. But the pull of Katahdin, like that of an old love, was always strong. The memories of it were especially bright every May, when the ice went out and the squaretails started jumping—every June, when the salmon-fly hatch was on. Fiddlehead ferns—partridgeberries—alpine azalea with tiny cerise flowers … all of these—and more—were Katahdin.”

Read the rest of this entry »

Stuart Little and International Law

In Animals, Environment, International law, Law and literature, Rule of law, United Nations on June 5, 2013 at 5:24 pm

For the past few weeks, I have been reading E. B. White. I began with Stuart Little, and this post is about what a brave, aspiring, flawed little mouse has to say about international law. It’s also about Justice William O. Douglas, talking animals, literary style, the composer Marvin Hamlisch, and the State of Maine. (Actually, given all those subjects, this will be a series of posts, which I’ll later collect together into a single text.)

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I should begin by letting on that a great deal has happened around my house recently, at least from one point of view, and it’s created a framework of preoccupation for my reading. It all started with the peas. Each spring, my wife and I plant a vegetable garden from seed, and this year the alternating rain and heat we’ve experienced in Connecticut has meant that things are shaping up nicely in the photosynthesis department. After an early sprout, our peas twisted rapidly up the dry branches we use as climbing poles, and now scores of delicate tendrils are waving in the breeze, seeking an upward purchase amidst a profusion of purple flowers and waxy yellow pods. In the meantime, our salad greens are leaning every which way in a carpet of teal, apple and lime; our long, crinkly kale is the most flavorful we’ve ever grown; our cucumbers seem ready to leap up from their mounds; and our tomatoes are beginning to give off a spicy aroma, at least if you push your nose in close and inhale.

We try to take things more slowly during the summer.

It was in this spirit that I’ve been reading the stories and essays of “White, Elwyn Brooks. 1899-1985. American writer, b. Mount Vernon, NY.” A copy of Strunk and White has been beside my desk ever since college (for foreign readers, that’s E. B. White and William Strunk, Jr.’s classic text on English prose, The Elements of Style)—but I hadn’t read Stuart Little since childhood. And I was surprised at what I found. Read the rest of this entry »

“Think”: Why We Need to Embrace Public Institutions

In Conversations, Rule of law on March 27, 2013 at 6:42 pm

I was interviewed today by Krys Boyd for her program “Think” on KERA, a National Public Radio affiliate for North Texas based in Dallas. Krys was an excellent and intelligent interviewer, and she clearly had read my book carefully. We had a lively, wide-ranging conversation for about an hour. You can download a podcast of the show here. A streaming version is available here. Or—just use this audio player:

I’ve spent a lot of time in Texas—in Austin, in the Rio Grande Valley, and in East Texas—and I love the state, so I was especially happy to appear on KERA. Plus there was an added treat. As soon as my interview ended, I learned that the next author to be interviewed, immediately up, was Anne Lamott! Her book Bird by Bird was really important to me when I read it back in 1995, and I happened to take it off the shelf and put it on my desk just two days ago.

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A Brief Pause

In Rule of law on October 9, 2012 at 7:04 am

Thanks so much to everyone who wrote and said such nice things about my first foray into the world of documentary video! I really appreciate your support. The video is now the most-viewed item I’ve posted, which is very encouraging. And the range of countries from which readers have logged into Worlds of Law generally is mind-bending: Australia, India, Pakistan, Argentina, Brazil, Venezuela, the United States, Canada, Britain, Ireland, Iceland, Germany, Sweden, Denmark, France, Austria, Switzerland, Croatia, Macedonia, Bulgaria, Spain, Italy, Israel, Jordan, Russia … the power of the web for self-publishing is jaw-dropping.

FYI, I’m in the process of purchasing some more serious equipment—the judicial bobbleheads video was made with a Flip camera and an old Mac, relatively primitive stuff—so that future videos (of which I hope there will be many) will have higher production values. I’ll be in Europe beginning in mid-November, and I’m looking forward to creating mini documentaries while on the road in the Netherlands, Luxembourg, Belgium, and Germany.

In the meantime, though, I’m going to be back again at the end of this week: I’m taking a micr0-pause from blogging to review the “second pass” proofs of my forthcoming book The Rule of the Clan. This is basically the final stage in the proofreading process for me as the book heads into production, and it takes a lot of care and attention to get right. (The only thing that will remain for me to check after the second pass is the index, which should be ready in early November, just before my trip to Europe.) So I’m going to be away for just a couple of more days—but with a great deal more to come.

So do check in again at the end of the week—or consider signing up for email announcements about new posts. It’s easy: just enter your email address where prompted in the center column below. You’ll then be alerted to new content through your inbox (and you’ll always have the option to unsubscribe). Convenient, safe, and a great way to ensure that you won’t miss the latest Worlds of Law post!

Burma and the Rule of Law

In Burma, Cross-cultural encounters & comparisons, Marxism, Rule of law, Southeast Asia on September 29, 2012 at 9:35 am

Last Thursday I had the pleasure of attending a talk about the rule of law by the Burmese opposition leader Aung San Suu Kyi, who has good reason to have opinions about the subject. Suu Kyi spent nearly fifteen years under house arrest for her pro-democracy activities against the socialist government that ruled her country (and ran it into the ground) from 1962 to 2011. Labeled “a destructive element” by the regime, she was awarded a Nobel Peace Prize in 1991.

Suu Kyi was in town on the invitation of one the undergraduate colleges at Yale, and a fellow of the college was able to snag me a ticket toward the front of the hall where she spoke (it’s nice to have such friends!). From there, it was easy to see that Suu Kyi is both a charming and an electrifying presence—though only some of the wattage comes through in this video of the lecture:

Read the rest of this entry »