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.