Professor Martin Krygier’s description and argument for “Law as Tradition” began with a claim about law’s pastness, but the bare fact of pastness cannot be the end of the story, because much of the past does not figure in any tradition at all. The second feature of law as tradition that Krygier discusses is law’s “authoritative presence,” and it involves the normative force of the past on the present — when the past, real or imagined, is thought to be of continuing significance to the present (hence the double sense of “presence” in Krygier’s phrase — as meaning both existence and present-ness). For this reason, law’s traditionality is reflected not only in the pastness of its present, but in the presence of its past — “the extent to which only the presently authoritative past is treated as significant and only to the extent of this present authority.” (248) This “presentism” is often heard as the complaint of the historian, but it functions to distinguish the work of the historian from the work of the lawyer:
In seeking to explain ‘Why the History of English Law is not Written’, Maitland suggested that one reason was the lawyer’s peculiar attitude to the legal past:
what is really required of the practising lawyer is not, save in the rarest cases, a knowledge of medieval law as it was in the middle ages, but rather a knowledge of medieval law as interpreted by modern courts to suit modern facts.
Applied to legal history itself, this attitude to the legal past has frequently led to history-as-genealogy or, as the American historian Daniel Boorstin has written, the considerations of legal history as ’an alchemy for distilling legal principles’ . . . . A similar complaint has recently been made by Douglas Hay [in an essay on criminal prosecutions in England and "their historians"]. When it comes to thinking about the past, one characteristic of ’thinking like a lawyer’, Hay argues, is what historians call ‘presentism’; ’the fallacy of working from present concerns to past origins, is anathema to historians, but necessarily half the lawyer’s method’. What appears to historians as bad history is simply typical of the behaviour of participants within a tradition. Whig interpretations may be unsuccessful history, but they are often very successful law.
When participants in a recorded tradition consult its records, they are rarely concerned to reconstruct the past wie es eigentlich gewesen ist [as it is in actuality]. All developed legal systems, for example, produce rules of statutory interpretation which prescribe and circumscribe the resources on which a lawyer may draw to interpret statutory provisions. A point little remarked upon by lawyers is that these are not rules for which an historian seeking to analyze the origins and purposes of a statute would have much use. Even if he could make sense of the notion of the ‘intention of the legislature’, for example, no historian seeking it (or them) on a particular matter would feel bound to limit himself to the sources or kinds of inference allowed to a judge by whatever rules of statutory interpretation prevail in a particular jurisdiction. Nor should he believe he had found the intentions he was looking for if he did so. An historian, qua historian, is an outsider to the internally authoritative traditions of law, even though he may need to be an empathic outsider. A lawyer is bound to invoke legal rules of interpretation, not because he is an inferior historian, but because, qua lawyer, he is not an historian at all. He is a participant in a legal tradition, for whom statutes are primarily important not as sources of clues to events in the otherwise hidden past, but as authoritative materials from which meanings must be extracted by authorized means, to enable responses to present problems to be fashioned; or at least to be publicly justified to other cognoscenti of the tradition.
Law as Tradition: The Inescapability of Tradition
The third feature of law as tradition discussed by Professor Martin Krygier in his article, “Law as Tradition,” besides its pastness and its presence, is its transmission or handing down (“traditus” is often translated as that which is ‘handed’ down, and I have sometimes wondered whether there is a related but somewhat more distant etymological root: ‘tra’ means across, and ‘dita’ means ‘fingers’ in Italian, making ‘tradita’ transliterate to ‘across fingers.’ But probably the root of ‘dita’ is from the Latin, ‘dare’ — to give — making the transliteration, ‘giving across’). ”Traditions,” writes Krygier, “depend on real or imagined continuities between past and present. These continuities may be formalized and institutionalized as they are in the institutions of law and religion, though they need not be.” (251) Cultures which have well developed sacred and secular institutions entrust the task of transmission to various sorts of experts (“kings, priests, judges, scholars”), who are arranged in a hierarchy of tradition-interpreting and transmitting authority.
Krygier makes a nice move at this point. He writes that the conventional dichotomy between “tradition” and “change” is false because “the very traditionality of law ensures that it must change. Although authoritative interpreters might police the present to see that it does not stray too far from their interpretation of the past, it is impossible for traditions to survive unchanged.” Change can occur deliberately (as when, for example, a new revelation or a new legislation is then incorporated into the tradition) or, in the case of written traditions, simply as a feature of the interpretive instability in the reading of a text (not the wild indeterminacy of text, just its lack of fixity). In written traditions, “the past becomes available for controversy . . . . Written traditions are continually subject to modification. Their transmission necessarily involves interpretation of writings. This ensures change.” (252) That is because, in a tradition, texts do not stand alone but must be interpreted so as to be consistent and coherent with the tradition itself. Krygier is not describing only, or even primarily, the interpretive tradition of the common law:
[G]iven the impossibility of univocal interpretation of most complex texts, there is a sense in which legislation forces interpreters to rely more rather than less heavily on tradition than does the common law. For a relevant statute, still more a code, forces itself on an interpreter. Its words cannot be sloughed aside as dicta or dissent; they have to be interpreted. Since their meanings often will be plural, and since later lawyers nevertheless have to give meaning to them, they are bound to repair to interpretations which have become settled and accepted and/or to canons of statutory interpretation which, as we have seen, are highly traditional. (254)
This is an interesting point, and one might extend it to constitutional interpretation. Here’s a passage from Edward Shils’s wonderful book, Tradition, quoted by Krygier, which seems pertinent to constitutional interpretation today:
It might be the intention of the recipient to adhere ‘strictly’ to the stipulation of what he has received but ‘strictness’ itself opens questions which are not already answered and which must be answered. If it is a moral or a legal code, or a philosophical system, the very attempt by a powerful mind to understand it better will entail the discernment of hitherto unseen problems which will require new formulations; these will entail varying degrees of modification. Attempts to make them applicable to particular cases will also enforce modification. Such modifications of the received occur even when the tradition is regarded as sacrosanct and the innovator might in good conscience insist that he is adhering to the traditions as received. (Shils, 45)
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Posted in Commentary, Marc O. DeGirolami
Tagged Legal Traditions, Religious Traditions, Tradition