State, Clan, and Liberty

… the belief that individual freedom exists only when the state is frail misunderstands the source of liberty. The state can be more or less effective in the pursuit of its goals—it can be stupid or smart—and it can be used for illiberal, totalitarian ends. But ultimately a healthy state dedicated to the public interest makes individual freedom possible.2

Weiner looks at the problem of social order from the perspective of legal history and anthropology. He finds a pattern of order that he calls the rule of the clan, which does not require a strong central state. However, he shows that rule of the clan relies on a set of rules and social norms which are inconsistent with libertarian values of peace, open commerce, and individual autonomy. He argues that the atrophy of the state would lead to an undesirable resurgence of the rule of the clan.

… in the absence of the state, or when states are weak, the individual becomes engulfed within the collective groups on which people must rely to advance their goals and vindicate their interests…. And for most of human history, the primary such group has been the extended family, the clan.

The clan is a natural form of social and legal organization—it is far more explicable in human terms than the modern liberal state—and people quickly, reflexively turn to it in want of an alternative… we humans naturally build legal structures based on real or fictive kin ties or social networks that behave much like ancient clans.3

According to Weiner, rule of the clan entails three phenomena:

First, and most prominently… extended family membership is vital for social and legal action and in which individuals have little choice but to maintain a strong clan identity…

Second… founded on informal patronage networks, especially those of kinship, and traditional ideals of patriarchal family authority. In nations pervaded by clannism, government is coopted for purely factional purposes and the state, conceived on the model of the patriarchal family, treats citizens not as autonomous actors but rather as troublesome dependents to be managed…

Third… 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 petty criminal gangs, the Mafia, and international crime syndicates, which look a great deal like clans and in many respects act like them.4

Weiner grounds his analysis in the tradition of legal historian Henry Maine, who distinguished between the Society of Status and the Society of Contract. In the former, law is oriented toward the extended family as a group. In the latter, law is oriented toward the individual.

The Society of Status is an example of an honor culture. Weiner writes,

In honor cultures, a person’s social worth, including his or her self-worth, is inextricably bound to the perceived honor of his or her extended family and each of its members. By the same token, members of the family are held collectively liable for wrongs of any member… members of a kin group are deeply dependent on each other for their general social standing.

This value system supports a decentralized constitutional structure for two reasons. First, it fosters the ability of kin groups to enforce their own internal rules—it exerts powerful pressure to conform. Second, it helps diverse kin groups within a single region to coexist in some measure of harmony.5

A problem with this form of social order is that disputes that arise between members of different clans can escalate. Ideally, clan elders will agree to a settlement. If not, they may agree to use a mediator. However, if neither of those approaches works, then, Weiner writes:

… the principles of clan society demand vengeance. A well-placed act of vengeance generally renews intergroup peace… because when retribution is proportional to the original offense, it reestablishes equilibrium in the economy of group honor…

But sometimes, whether by accident or design, retribution is not proportionate to the original offense… In such cases, the reciprocal exchange of violence between clan groups can swiftly escalate, and, in the absence of central authority more powerful than the clans themselves, it can spin out of control. This is the logic of feud, and it is the Achilles heel of clan-based government.6

Weiner contends that this logic explains the “unhappy fate” of medieval Iceland. In discussions of libertarianism on the Web, I have seen many people cite medieval Iceland, as well as other clan societies described by Weiner, as demonstrating that order is possible without a central government. Weiner agrees. Weiner also writes about the Nuer of South Sudan:

… while the Nuer lack a central political power—the society is, in technical terms, acephelous, or without a head—they do not lack political order. The absence of a state does not create a Hobbesian war of all against all… They exist in a condition that Evans-Pritchard describes as ‘ordered anarchy.

… In modern terms, each chief is like the director of a regional office of alternative dispute resolution. 7

Later, Weiner writes:

The Nuer are democrats, with all members of the tribe participating in common affairs. They are committed to egalitarian ideals, with no man acknowledging the superiority or inferiority of another.8

Returning to the topic of feud and violence in clan societies, Weiner gives the example of the Palestinian territories. He writes:

In Gaza under the rule of the clan, incidents such as a crash between a car and a donkey cart, or an argument about whether a vendor can change the equivalent of a five-dollar bill, lead to protracted feuds in which scores of people die. In 2006 alone, human rights observers in Gaza traced 214 acts of revenge, resulting in 90 deaths and 336 injuries, to clan feuds.9

Thus, although rule of the clan provides order, it is not necessarily a peaceful order.

Another contrast between liberal states and clan-based societies concerns shame and guilt:

People in Western societies are of course capable of feeling shame. But the far more common and powerful equivalent of that emotion in the West is guilt…

In shame cultures, it is not a person’s behavior that creates shame. It is instead the fact that the person’s community has witnessed or learned of the behavior. Shame is a response to harsh external judgment…

Guilt, on the other hand, is solitary. It stems not from a disapproving community but from a bad conscience, and it can be suffered entirely in secret.10

This difference between shame and guilt affects the way people treat strangers. In many clan societies, a household is expected to be a generous host to strangers, offering the household’s best food and sleeping quarters. Not to do so would bring shame upon the household and on the entire clan. However, in a commercial transaction with such a stranger, there is no sense of guilt from failing to live up to one’s bargain or from cheating the stranger.

In the West, the value system is reversed. We feel no obligation to show ultra-generous hospitality to strangers who come to our neighborhood. However, we would feel guilty about cheating a stranger in a commercial transaction.

Our complex economic system requires that strangers deal honestly with one another when they exchange goods and services. Such a system functions more naturally in a Society of Contract than in a Society of Status. In the former, commercial obligations are inherently binding, regardless of the identity of the party with which one deals. In the latter, there is little sense of obligation in dealing with members of a different kinship group.

What we think of as the rule of law does not exist in clan-based society. Weiner contends:

in traditional societies the overriding purpose of law is to maintain the group’s identity and solidarity… Rather than striving to give each person his or her due, law seeks to preserve the coherence of the community. It establishes a powerful set of internal norms, and it creates a strong sense of differentiation between the group and outsiders.11

When the purpose is to maintain group identity, a law that prescribes a ritual (for example, for prayer or cleansing or sacrifice) is every bit as meaningful as a law that governs property. Weiner notes that in parts of India where traditionalism runs deep, people tend to obey local clan councils rather than the official court system.

Weiner also devotes a chapter to the institution of feud:

When modern legal tools aren’t available, the most effective legal mechanism for maintaining order is a tool that was invented millennia ago: a culture of group honor, collective kin responsibility, and feud.

The structure of feud is identical in all the societies that practice it. While there are, of course, local variations, feud’s basic form is the same in stateless societies, societies with an incomplete state, and societies where the state is weak… you will find substantially the same story told over and again: lost honor, targeted killing, the formation of kin alliance, reciprocal killing, peacemakers, blood money, harmony.12

Order based on feud is illiberal and anti-individualist, Weiner argues:

The goal of feud, indeed the goal of all the traditional mechanisms of customary dispute resolution in clan society, is to reestablish interfamilial harmony and community solidarity.

… The heart of the feuding process beats with the principle that individuals have no legal identity independent of their kin. Harms they suffer are recognized as injuries to the group. Actions taken in response to those harms are pursued by the group on its own behalf. Solutions are defined in collective terms.13

But Weiner also suggests that clan values have enduring appeal:

Societies of Contract enable citizens to forge their own professional lives and personal identities, but societies of Status provide their members with deep social and psychological security. Societies of Contract foster the economic growth that comes from individual competition, but societies of Status advance the principle of social justice. Societies of Contract liberate citizens from the dead hand of tradition, while societies of Status initiate kinsmen into a profound communion across generations. At bottom, liberal societies offer citizens personal freedom, whereas the rule of the clan provides its members with a powerful feeling of community and solidarity.

… From a legal perspective, societies of Status are not a distant Other. Instead, they are what liberal societies would quickly become, in a process of evolutionary reversion, if we lost our political will to maintain an effective state dedicated to public purposes.14

How should Weiner’s thesis be evaluated from a libertarian perspective? A terse summary of his arguments would be as follows.

1. A decentralized order is possible. Indeed, it is natural for human societies to achieve such an order, rather than degenerate into the Hobbesian war of all against all.

2. The natural decentralized order is, however, highly illiberal. It requires a set of social norms that bind the individual to the clan. Under the rule of the clan, peace is broken by feuds, commerce is crippled by the inability to put trade with strangers on a contractual basis, and individual autonomy is sacrificed for group solidarity.

3. In the absence of a strong central state, the rule of the clan is the inevitable result. In order to graduate from the society of Status to the society of Contract, you must have a strong central state.

For me, Weiner was most insightful and persuasive in presenting his arguments for point (2). That is, his anthropological descriptions of various clan societies made a credible case that their illiberal aspects are a source of their political stability.

On the other hand, while I found point (3) to be plausible, I did not find it fully persuasive. That is, it could be the case that if government were reduced along libertarian lines, a clan-based society would emerge. However, it strikes me as an exaggeration to suggest that the rule of the clan is the only alternative to a strong central government.

To those of us who might ask just how activist a central government must be in order to preserve the society of Contract, Weiner would offer no specific answer. Weiner never directly engages with Friedrich Hayek, James Buchanan, David Friedman, or others who have thought about political orders and arrived at more libertarian conclusions. None of these authors believes that a society of Contract requires the sort of activist central government that Weiner favors. In The Machinery of Freedom,15 Friedman envisions a society of Contract without a central government at all.

I will concede to Weiner that many populations, today as well as in the history that preceded liberal democracy, are and have been subject to the rule of the clan. I believe that he is correct in highlighting the ways in which this is likely to hamper the ability of citizens of Western societies to understand, communicate with, and relate peacefully to those cultures that retain considerable clan-based norms. Because of this, I strongly recommend The Rule of the Clan to readers of all political persuasions.

However, if I were Weiner, I would stop there. The claim that only a strong, activist central government can maintain the society of Contract and keep us from reverting to the rule of the clan requires more evidence and analytical support.