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Gratitude for Legal Traditions

The prospects for law and tradition are difficult to discern. This is in no small measure because the most frequent predictions about tradition’s future have little time for any traditions other than those of science and technology. And these generally are not presented as traditions but instead as repudiations of tradition—as simply rational responses to changing circumstances in the service of progress and present need. The prophets of the traditionless society never go quite so far as to strike out the traditions of science from their predictions.

Recently, my friends John McGinnis and Mark Movsesian engaged in an interesting exchange on the subject of tradition and contemporary politics and society. John argued that technology creates a culture and a politics relentlessly oriented to the future and deracinated from the past. Mark responded that traditions and traditional institutions survive, even today, because they speak to basic human nature and “most of us need the stability the past provides, the guidance of received wisdom.”

Each man makes his points. It is certainly true that substantive traditions—particularly substantive religious traditions—have been severely shaken by various contemporary tremors. They have been attacked directly and they have been weakened from within. And yet they have not been destroyed. Perhaps they cannot be destroyed so long as human beings are born to human beings. So long as parental care is necessary for the raising of children. So long as people seek to find meaning in an infinitely mysterious universe. So long as they depend upon rules, categories, and institutions which they cannot create ab ovo and for that occasion alone whenever changing circumstances demand it. So long as the autonomous acts of autonomous actors cannot achieve all of the ends that render life worth living. Just so long will people seek and find traditions, cling to them, and be grateful to them. Though they may become dissatisfied with them, human beings need traditions to live.

As to law and tradition, my aims have been more modest. I have tried in these few posts this month at Law and Liberty to show that there is a distinctive traditionalist method of legal interpretation. It is manifested in cases such as Burnham v. Superior Court, Town of Greece v. Galloway, and NLRB v. Noel Canning, but there are many other examples. It is strongly disposed toward maintaining continuity with longstanding legal, political, and cultural practices and settlements. As to constitutional interpretation, it often derives meaning from practices, not principles. The more longstanding the practices and settlements, the less likely they should be challenged, and the more difficult they are to overturn when challenged. Justice Thomas reflected something like the contrary of this approach when, in Eastern Enterprises v. Apfel, he could write in a breezy concurrence that though the meaning of the Ex Post Facto Clause had been settled since the 1798 case of Calder v. Bull, he would be interested in overturning it because “I have never been convinced of the soundness” of that interpretation.

The influence and power of tradition is especially noticeable in law. In law there is always collective organization. Where there is collective organization there will be authority. And where there is authority, that authority will inevitably become entangled with and intertwined in the richness of legal traditions.

We should be grateful for these traditions. Or if gratitude is too much to ask, we should be patient with them—both because those who have lived in accordance with them are not fundamentally different from us and because to reject them is not to guarantee that they will be well replaced.

These and other related subjects will be the focus of the Tradition Project, a multi-year research initiative that will explore the value of tradition in modern life. By and by, I hope to apprise readers of Law and Liberty of its progress.

Reader Discussion

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on February 10, 2016 at 15:01:13 pm

Nice series of essays. Revisit us with updates.

thanks

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gabe
on February 10, 2016 at 17:04:07 pm

" John argued that technology creates a culture and a politics relentlessly oriented to the future and deracinated from the past "

A fair assessment of McGinnis' views (at least from his postings on this blog).

I think that McGinnis mistakes the *instrument* for the cause. Yes, technology does tend to a future biased outlook and away from tradition. But it does not, in itself, explain the 'futurization" of politics.
For that you require "REASON / RATIONALISM" which is what actually engenders the "ab ovo" approach to political life and practice. Technology is but a favored stepchild of REASON and one that both reflects its strength and appeal while simultaneously exposing its frailties in those areas in which it ought not to be applied.
But I think that McGinnis does recognize the value and role of tradition - he is, after all, an originalist!

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gabe
on February 10, 2016 at 20:34:17 pm

Professor DeGirolami, please consider our organization, an innovator respecting civic morality, among "readers of Law and Liberty." Also, from the beginning, please consider our work in your "multi-year research initiative that will explore the value of tradition in modern life." Our work is titled "A Civic People of the United States," and the background and theory is developed on our website and collaborations at civic meetings at libraries.

We assert that the object of opinion-based ethics, from the conservative viewpoint, is and has always been founded on physics-based ethics, slow as its progress may seem. Physics is energy, mass and space-time from which everything emerged, including tradition.

Physics disproves some religious dogma but does not negate the god hypothesis. Science is merely the study of physics, and technology is one of its products.

Civic morality is another product of physics: Humankind discovers what emerges from physics, does the noble work to understand how to benefit, and then acts accordingly, creating physics-based ethics. Knowing extant physics-based ethics positions innovators to responsibly move the frontiers of civic morality. In this way, tradition does and always has protected ethics. For example, it seems ethical for gay partners to enjoy civil recognition in equality and dignity. The world celebrates mutual appreciation and commitment for life.

However, it does not seem ethical for any adult contract to subjugate the equality and dignity of a child to stay with the man and woman who conceived the child, whether naturally or not. Thus, opinion-based law moved too fast away from tradition, and physics represents the facts in ways religion, opinion's progeny, cannot. A child's heritage is neither negotiable nor alienable.

"Civic" refers to human connections because people live during the same years in the same land, whereas "social" refers to associations by preference, class, or imposition. Thus, in a country, there is an overall society of people who collaborate for civic morality. Other societies, including criminals, oppose civic morality for various reasons and complete the totality We the People of the United States.

Discovering civic morality as physics-based ethics is a voluntary practice which offers personal liberty with civic well-being. In civic well-being, persons pursue private interests privately while both earning their living and collaborating for civic morality. Collaborating for civic justice is a lifetime practice, excluding the person's infancy and oldest age. For civic justice, physics-based ethics must deliberately supplant opinion-based law.

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Phil Beaver

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.