28 Pages Posted: 4 Jun 2013
Date Written: June 2, 2013
In The Rule of the Clan, legal historian Mark Weiner confronts the paradox that freedom requires law. He takes aim at one common assumption of libertarian political theory: a strong state is a threat to individual freedom. He warns that nostalgia for earlier, simpler societies is a deluded fantasy.
Weiner examination of traditional societies throughout the world and across history show that they share a single broad organizational structure that belies their facial diversity: the clan. Within the clan, man, and even more strikingly, woman, is neither free nor an individual. She is subordinate to her function within the group – in the case of woman, reproduction. In the clan, there are no individual rights protected by law, only the honor of the extended family to be avenged by feud. Adopting the terminology of “founding father of legal history and legal anthropology, Henry Sumner Maine”, Weiner argues that individual rights only come into being with the development of the state when Status relations are superceded by Contract.
Surprisingly, 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.
Suggested Citation: Suggested Citation
Schroeder, Jeanne L., Family Feud: Mark Weiner, The Rule of the Clan (June 2, 2013). Cardozo Legal Studies Research Paper No. 399. Available at SSRN: https://ssrn.com/abstract=2273311