Mark S. Weiner

Posts Tagged ‘Customary Law’

Beginning

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

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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.

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