Mark S. Weiner

Archive for the ‘Rule of the Clan’ Category


In Individualism, Rule of the Clan on February 17, 2014 at 12:52 pm


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.

Read the rest of this entry »

Regeln om klanen

In Individualism, Rule of the Clan, Sweden on February 11, 2014 at 8:10 am

PippiTVOr 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.

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.

The Stability Institute on The Rule of the Clan

In Rule of the Clan on October 18, 2013 at 7:53 am

While I’ve been away over the past few weeks, much longer than I had expected, I’ve been looking ahead to some exciting future projects, including my next work of non-fiction—a follow-up to and mirror image of The Rule of the Clan—and some new videos. More on those in coming months. In the meantime, this very gratifying video review of The Rule of the Clan was just posted by The Stability Institute:

Rule of the Clan Radio Interviews

In Conversations, Rule of the Clan on August 24, 2013 at 5:17 pm

The Rule of the Clan

I’ve really enjoyed speaking on the radio about The Rule of the Clan over the past few months. The interviewers have been really sharp and insightful, and it’s been great to have the chance to talk with readers well outside university circles.

I’ve posted links to the interviews as they were broadcast, but I’ve just learned how to embed audio files from external sites into WordPress (better late than never!). And so for ease of use, I’ll make them available again here, all in one place. To listen, just click on one of the audio players below.

The Brian Lehrer Show on WNYC (New York)—12 minutes:

The American Bar Association (Chicago)—15 minutes:

“Think,” with Krys Boyd, on KERA (Dallas)—50 minutes:

Central Standard, with Susan Wilson, on KCUR (Kansas City)—one hour:

Unfortunately, my hour-long interview with The Kathleen Dunn Show on Wisconsin Public Radio can’t be embedded into WordPress. If you’d like to listen, click here for the audio file. And if you’d like to watch a lecture I gave at BYU in 2012 about the book’s national security implications, click here.

I’ve also held an online interview Deven Desai of the blog Concurring Opinions: here.

From Wikipedia Digital Commons

A Lively, Learned Symposium

In Conversations, Guest Posts, Rule of the Clan on July 24, 2013 at 5:04 pm

The symposium about The Rule of the Clan on Concurring Opinions continues—and continues to be highly engaging, with many intelligent, learned posts from the respondents and interesting comments from readers, spanning subjects as diverse as the war in Afghanistan, Hegel’s Philosophy of Right, and “The Godfather.”

You can find the full symposium thus far, with posts in reverse chronological order, here. The provided link will continue to update until the symposium comes to a close this Friday.

The Rule of the Clan

Symposium on Concurring Opinions

In Conversations, Rule of the Clan on July 1, 2013 at 10:47 pm

From July 22-26, the blog Concurring Opinions will host an on-line symposium about The Rule of the Clan, moderated by Deven Desai. All readers are warmly invited to take part in what I’m sure will be a stimulating, wide-ranging discussion. I’m grateful already to my valued friends and readers in Khyber Pakhtunkhwa in Pakistan for their interest contributing—if you’re able, I’ll be delighted to have you be a part of our conversation.

The dedicated commentators of the symposium come from a wide variety of intellectual backgrounds—and they’re terrific. They are:

Prof. Mark Fenster, Levin College of Law, University of Florida, author of Conspiracy Theories: Secrecy and Power in American Culture.

Dean Lucas Grosman, University of San Andrés School of Law, Argentina, author of Escasez e Igualdad: Los Derechos Sociales en la Constitución.

Dr. Arnold Kling, Adjunct Scholar, Cato Institute, blogger at askblog, author of Unchecked and Unbalanced: How the Discrepancy Between Knowledge and Power Caused the Financial Crisis and Threatens Democracy. Dr. Kling is also the author of “State, Clan, and Liberty,” a review of The Rule of the Clan for The Liberty Fund’s Library of Economics and Liberty.

Dr. Jan-Christoph Marschelke, Managing Director, Global Systems and Intercultural Competence Program (GSiK), University of Würzburg, Germany, author of Jeremy Bentham — Philosophie und Recht.

Prof. Tim Murphy, Universiti Utara Malaysia (University of North Malaysia), formerly professor at the University of Akureyri, Iceland, author of Law and Justice in Community (with Garrett Barden).

Prof. Abdullah Saeed, Sultan of Oman Professor of Arab and Islamic Studies, University of Melbourne, Australia, author of Islamic Thought: An Introduction.

Dr. Doyle R. Quiggle, Jr., author of “Ibn Tufayl’s Hayy Ibn Yaqdan in New England: A Spanish-Islamic Tale in Cotton Mather’s Christian Philosopher?” Dr. Quiggle has taught oratory, rhetoric and classics to U.S. soldiers in both Djibouti and Afghanistan.

Prof. Jeanne Schroeder, Cardozo School of Law, author of The Triumph of Venus: The Erotics of the Market. Prof. Schroeder is also the author of “Family Feud,” a review of The Rule of the Clan soon to be under consideration for publication.

Prof. Kevin Stack, Associate Dean for Research, Vanderbilt School of Law, author of The Regulatory State (with Lisa Schultz Bressman and Edward L. Rubin).

Hegel and Lacan Meet The Rule of the Clan

In France, Psychoanalysis, Rule of the Clan on June 5, 2013 at 7:18 pm

Prof. Jeanne L. Schroeder of Cardozo Law School has written a fine, thoughtful, extended (and complimentary) review of The Rule of the Clan in which she reads my book through the framework of Hegelian philosophy and the psychoanalytic theory of French post-structuralist Jacques Lacan. She concludes: “In his defense of the classical liberal ideal of individual rights and equality, Weiner implicitly rejects one of liberalism’s founding propositions: a vision of the free individual in the state of nature. Weiner’s thesis is more consistent with the speculative tradition of Continental theory than with American liberalism.”

The link provided is to an abstract of Prof. Schroeder’s review on the Social Science Research Network (SSRN), where you can download her full, twenty-seven-page text. I understand that Prof. Schoeder will be sending her essay to law reviews in the upcoming submission cycle. I’m exceptionally gratified by the review, and very moved that my book inspired such deep intellectual engagement by a colleague.

In the meantime, this must be a good week for Francophilia, because “The Call of the Clan,” my recent essay for Foreign Policy, has just been published in French translation for as “De l’union européenne à l’Afghanistan … L’appel du clan,” in a translation by Peggy Sastre. Merci beaucoup, amis et compatriotes!



The New York Times Reviews The Rule of Clan

In Rule of the Clan on May 24, 2013 at 12:57 pm

I’m delighted that Cara Parks of The New York Times has reviewed The Rule of the Clan in this week’s Sunday Book Review. It’s a pleasure to be read so generously and attentively, to have my own aspirations for the book captured in a review—and to have a reason tonight to buy a bottle of champagne.