Balkinization  

Tuesday, July 23, 2013

Excellent Symposium on Mark S. Weiner's "The Rule of the Clan"

Frank Pasquale

Balkinization readers may be interested in the excellent symposium organized by Deven Desai at Concurring Opinions on Mark S. Weiner's book, The Rule of the Clan. The book raises some fundamental issues about legal theory, as Weiner explains:

The rule of the clan encompasses three contemporary phenomena: First, and most prominently, I mean the legal structures and cultural values of societies organized primarily on the basis of kinship—societies in which extended family membership is vital for social and legal action and in which individuals have little choice but to maintain a strong clan identity. Today these societies include Afghanistan and Yemen, but they have existed across history and throughout the world.
Second, by the rule of the clan I mean the political arrangements of societies governed by what the U.N.’s 2004 Arab Human Development Report calls “clannism.” These societies possess the outward trappings of a modern state but are founded on informal patronage networks, especially those of kinship, and traditional ideals of patriarchal family authority—under which the state treats citizens not as autonomous actors but rather as troublesome dependents to be managed. Clannism often characterizes rentier societies struggling under the continuing legacy of colonial subordination.
Third, and most broadly, by the rule of the clan I mean the antiliberal social and legal organizations that tend to grow in the absence of state authority or when the state is weak. These groups include some dedicated to unlawful activity, such as petty criminal gangs, the Mafia, and international crime syndicates, which in their feuding patterns and cultural markers of solidarity look a great deal like clans and in many respects act like them.
I argue that in all its forms, the rule of the clan diminishes the status of the autonomous individual because the weakness of the state fosters a culture of group honor and shame.

Michael Lind has argued that "libertarians are wrong about how to organize a society because they embrace a philosophy that has never been tried." Weiner's book may make a libertarian case for a strong central state, since that allows individual liberty to flourish in ways that would not be possible when, predictably, clans fill the vacuum left by weak central authority. Whether clannism is antithetical to, or an inevitable part of, libertarian institutions is a difficult question.

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