Is there a non-fungible value inherent in local associations and is law capable of recognising and acknowledging it?
"The Non-Fungible Value of Local Associations and its Invisibility to Law" centres on the idea that local associations provide a value that cannot easily be provided in another way.
It was written as part of a collection edited by Neil Walker and Marco Goldoni focussing on and celebrating the work of Paul Kahn, Robert W. Winner Professor of Law and the Humanities at Yale Law School, and focused on Kahn’s most recent book, Democracy in Our America. Published in 2023, this book is a reflection on the nature of volunteerism and the value of local associations, written partly as a reflection on contemporary politics in light of Tocqueville’s classic text, Democracy in America.
Two strong themes emerge in Democracy in Our America. One is the remarkable value provided by volunteers who freely give their time and energy to participate in politics at local level, to whom Kahn’s book is dedicated. The other is “the vital connection” between the vibrant associational life of a community at local level and the quality of its democracy at all levels, a point that is encapsulated by Tocqueville in this famous passage:
“In democratic countries the science of association is the mother science; the progress of all the others depends on the progress of that one. Among the laws that rule human societies there is one that seems more precise and clearer than all the others. In order that men remain civilised or become so, the art of associating must be developed and perfected among them in the same ratio as equality of conditions increases.” - Tocqueville
Kahn’s reflections make abundantly clear that local self‑government is not national politics on a smaller scale or national politics done at local level. It is an earthier, a more human, a more immediately and intensely relational politics, and it is mostly about assuming responsibility ourselves rather than choosing others to whom we can abdicate that responsibility.
If the national level is organized around the principle of representation, the local level is organized around the practice of participation.
In “The Non‑Fungible Value of Local Associations and its Invisibility to Law”, I use Kahn’s experience‑based reflection on the realities of local self‑government to argue that there is a non-fungible value to local associations. Three non‑fungible dimensions are identified: the dimension of care, the dimension of character and the dimension of forum vibrancy.
By using the term “non‑fungible value”, I seek to draw attention to the benefits of local associations that are not easily replaceable or interchangeable, that cannot easily be substituted by something of equal importance. In particular, it is difficult for the state to replace the associations in these ways.
At the same time, however, it is difficult for law to value these non-fungible dimensions of local associations. Another of Kahn’s works, The Cultural Study of Law, considers what the practice of the rule of law looks like and suggests that law is blind to other possible ways of framing and analyzing events.
Building on this perspective and reflecting on the lived experiences of associational life that Kahn discusses in his most recent book, I reflect on how the practice of the rule of law often fails to have a sightline to the value that is intrinsic to the local associations that vivify local communities.