Tag Archives: Tradition

Garnett on the Legislative Prayer Case

My friend Rick Garnett has an extremely sensible post about the legislative prayer case, Town of Greece v. Galloway, which will be heard this term by the Supreme Court. A bit from Rick’s analysis:

[J]udges evaluate, and sometimes disallow, policies that majorities considered, argued about, and embraced.  Because, again, majority rule is the usual way we go about political decisionmaking, this evaluation and – especially! – disallowing is a big deal, and it’s important that the work of judicial review be done right.  Whether or not it is depends, I suggest, on (at least) three related variables:  First, identifying, as correctly as possible, the judicially enforceable meaning of the constitutional text in question; secondthe prudent design and development of workable doctrines that courts can use to decide real-world cases; and third, affording the appropriate deference, if any, to those actors whose decisions are being reviewed and who, presumably, decided that those decisions were constitutionally sound . . . .

[T]he Court can aspire to do well with respect to…doctrine and deference.  The court of appeals, its opinion states, saw “no test-related substitute for the exercise of legal judgment” and it characterized the case as a “fact-intensive” one “which def[ies] exact legal formulas[.]”  In the end, though, it couched its decision in “endorsement test” terms, and reported that “several considerations, including the prayer-giver selection process, the content of the prayers, and the contextual actions (and inactions) of prayer-givers and town officials,” supported the conclusion that “the town’s prayer practice must be viewed as an endorsement of a particular religious viewpoint.”  But neither throwing aside doctrines and tests in favor of “legal judgment” nor engaging in unstructured speculation, however “contextual,” regarding imagined reactions, impressions, and beliefs that “can give only limited guidance to municipalities that wish to maintain a legislative prayer practice” is a sensible or appropriately deferential way for a reviewing court to play its role.  A relatively clear, historically rooted standard, the tool employed in the Marsh case, works better, and is the more consistent justification for judicial review.

Of course, not all permissible practices are best practices or even good ideas.  Even if the court of appeals reached the wrong conclusion, in an unsatisfying way, about what the Constitution allows, its suggestion to towns that they “pause and think carefully before adopting legislative prayer” is sound advice.  Although it is true that many of us – and, in many places, most of us – believe that it is both appropriate and right to seek God’s help with the important business of living together and well in political communities, it is also true that ours is a religiously pluralist society that is becoming more so.  In such a society, as the American Jesuit scholar, John Courtney Murray, wrote, “[men and women] of all religions and of no religions must live together in conditions of justice, peace, and civic friendship.”  The line that separates policies that build up this friendship from those that tear it down is important, even if judicial review is not always the best way to find it.

Rick’s post is part of an on-line symposium at SCOTUSblog discussing various features of the case; the other posts may be found here.

For what it’s worth, I think the most interesting thing about the case does not concern legislative prayer itself, but the fate of the endorsement test, though this is not an issue that the Court would need to reach if it finds itself in a minimalist mood.

Josef Pieper’s Allegory of the Black Bread

Josef Pieper was a German philosopher of the post-war period who worked inPieper the Thomistic philosophical tradition. Perhaps his best known and most widely read essay (Pieper often wrote relatively short and accessible essays rather than longer-form books) is Leisure, The Basis of Culture (1948), in which Pieper argued that the disposition toward leisure allows us more fully to take part in and enjoy the world. Leisure in Pieper’s account did not mean any cessation of work or “down-time” in which one could be idle for the instrumental purpose of doing more effective work later. Instead, leisure was a condition of the mind that allowed a person a certain silence in which he could perceive and then celebrate the splendors of creation.

I am now reading Pieper’s essay, Tradition: Concept and Claim (originally Tradition Concept and Claimpublished in 1970, but developed from a lecture given in 1957). In it, Pieper discusses the idea of tradition in a distinctively sacred key. For Pieper, by far the most important variety of tradition is “sacred” tradition, because the reasons to value tradition have not so much to do with a tradition’s being handed down as with the source of the tradition. Those that handed down the tradition as an initial matter were closest to the divine source of the tradition, and it is for that reason that the tradition has value.

Pieper’s is a bracing account of tradition because it differs so completely from the ways in which tradition generally is conceived and discussed today, in law and elsewhere, including by supporters of the influence and importance of tradition in these spheres. He allows that there are “secular” traditions but these are not really at all the traditions in which he is interested; secular traditions are instrumentally valuable (they enable life to “run along with less friction”) but not intrinsically valuable.

An interesting problem arises for Pieper when there is an admixture of sacredBlack Bread and secular traditions–or, more precisely, when people employ a variety of secular traditions in order better to preserve, uphold, and transmit the sacred tradition. In responding to the problem, Pieper offers an allegory–the allegory of the black bread:

In my grandparents’ day, it was a settled custom in peasant households that the father had to slice the bread for suppertime. If he was beginning to cut a new loaf, he made the sign of the cross over it with the knife. It was done, as I saw many times as a child, almost casually, even furtively, but it was never omitted. Things have changed since then. We no longer bake those enormous loaves of black bread, which really needed a grown man to master them. Now we have machines to slice the bread, and most of the time the bread comes from the store or factory already sliced. In a word, this beautiful tradition too has passed away. It does not take much imagination to see how many themes are present here for a truly pessimistic cultural critique (“machines replacing humans,” “urbanization,” “the collapse of the family,” and so forth).

Nevertheless, we can ask whether this kind of change is simply deplorable. Is it legitimate to speak in a more or less precise sense of a “loss of tradition” here? The answer to this question is made more complicated by the fact that here the purely technical process was clearly linked with elements of the sacred tradition. It seems to me that we could really talk about a “loss of tradition” and a “break with tradition” if the change affected the family’s order, and most of all what was meant by the holy sign of the cross; that is, such language is appropriate when that which is lost stands in more or less direct connection with the traditum, which alone must be unconditionally preserved. It is common for the essence of what must be preserved to become overgrown by and entangled with the concrete forms of historical life, and a change in the outer may very well threaten the pure preservation of the essence, so that anyone who carelessly discards or makes light of the “outer” traditions commits a dangerous act. A student of ethnology once told me that in a group that was driven out of its homeland, religious commitment might possibly grow looser to the same degree that the group moves away from baking its rolls in a certain way. Of course, the question remains open what is the cause here and what the effect, and whether we are not dealing with an extremely complex total process.

Tradition: Concept and Claim, 40.

Shils on Text as Tradition

In preparation (maybe pre-preparation is more accurate) for a new large project, I am re-reading and enjoying the sociologist Edward Shils’s short masterpiece, Tradition. In an early part of the book, he says the following about “texts” which I thought relevant to several issues in law (particularly, but not only, constitutional law):

From the standpoint which I take here both declaration and interpretation are traditions. The physical artifacts–manuscripts–are traditions. The sacred text itself is a tradition. The “tradition” is accumulated understanding of the text; the text would be only a physical object without interpretation. The sacredness of the text sets it apart, but it would make no sense without an interpretation; yet the interpretation which makes it what it is, is regarded as different from the text. The works of literary figures like Homer, Virgil, Shakespeare, and Dante are placed in a somewhat similar situation; large bodies of interpretation form around them. The manuscripts and printed books in which the text is recorded, the text and the interpretations of it are all tradita.

Varieties of Progressive Civil Religion

Here’s a very interesting short piece by Professor David Fontana (GW), which responds to Professor Fred Gedicks’s (BYU) longer article, American Civil Religion: An Idea Whose Time is Past.  Both papers are worth your attention.  What interests me is the taxonomy of progressive American civil religion that these papers go some distance to fleshing out (Steve Shiffrin’s book about the religious left is also useful).  It is sometimes assumed that all progressives are opposed to civil religion, while all conservatives support it; progressives are supposed to be for the naked public square, while conservatives prefer greater public modesty.  There is a little truth in this caricature, but the picture is more complicated.  Civil religion is neither the possession of the left nor the right.  Instead, the fight seems to be about the variety of civil religion that the country ought to embrace.  And as to that question, it seems that not only do conservatives disagree with progressives but progressives differ among themselves.  Fred’s piece, for example, is largely skeptical about civil religion but in the end calls for a “thinner,” “Rawlsian,” “procedural” version that, he claims, “can function to bind us together as a people and a nation.”  And though he does not believe “religion” can perform this function, the election of Obama made him “proud to be an American” and provided something like this “thinner” variety of civil religion (or civil civilianism).  By contrast, Fontana writes:

The issue with the American civil religion, though, is that it had come to be seen as so ideological and exclusionary that it alienated many mainstream and liberal voters. While advocacy of an American civil religion could have motivated those true believers, typically those on the political right that Gedicks discusses, a politically conservative civil religion that had “appropriated the symbols and practices of American civil religion and infused them with sectarian meaning” turned off many voters. An American liberal civil religion held out more promise as an inspiring American nationalism, but with a tolerant edge. Enter Obama onto the national political stage, perhaps “the most theologically serious politician in modern American political history,” whose speeches have been just as full with religious imagery and rhetoric as they have been with civil imagery and rhetoric. Obama’s speeches were full of references to civil ideas, or as Gedicks defines them, Rawlsian ideas, as well as to religious ideas . . . .

In other words, then, perhaps the American civil religion is not dead, but has been brought to life by our new President. Since Bellah’s concept of the civil religion was about the idea as a political tool as much as about a sociological concept, it has come to life again because it has been used by a group—and a political phenom—better able to use it in the political sphere. Indeed, just as maybe only Nixon could go to China, maybe only Obama can reinvigorate civil religion.

The claim that Obama is “the most theologically serious politician in modern American political history” is supported by a citation to Professor Charlton Copeland’s piece, “God-Talk in the Age of Obama: Theology and Religious Political Engagement.”  I’m not sure how one would measure such things; read Copeland’s paper to find out how he claims to do it.

But the interesting thing about both pieces is the durability of civil religion, the hardiness of this plant and its capacity to take root in what one might think would be the inhospitable, stony soil of the progressive heart.  For Fred, the terrain is truly rough and desiccated.  For Fontana, it’s a little richer, but only a little.

And that points toward another interesting feature of progressive civil religion.  What binds Fred’s and Fontana’s accounts is that for both writers, civil religion is feeble.  It lacks deep roots.  For Fred, civil religion is “thin” while for Fontana it has a shelf-life of roughly two and a half more years.  I am reminded of the following passage concerning the modern orientation toward tradition in the sociologist Edward Shils’s excellent book of the same name:

Tradition is like a plant which repeatedly puts down roots whenever it is left in one place for a short time, yet is frequently torn up and flung from one place to another, so that the nutriment of its branches and leaves is cut off and the plant becomes pale and enfeebled.  Traditions may be unavoidable but they are not always very strong.  Tendencies to seek and find traditions may be ubiquitous in human society and the tendencies to seek and find might always find a tradition to attach themselves to.  The tendency to seek a religious tradition may be present in all societies but if they are unaided by the availability of traditions and proponents of tradition, substantive traditions may become etiolated and very weak.  (315)

For progressive civil religion, that may be the point.

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)

Law as Tradition: Law’s Presence

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: Law’s Pastness

This is perhaps not directly connected to religion, but — indirectly — the connection could not be much closer.

One of the happy byproducts of a recent exchange with my friend John Inazu was his reference to an essay by Martin Krygier from nearly thirty years ago, Law as Tradition, 5 Law & Philosophy 237 (1986).  Because the essay is not publicly available, and at the risk of provoking the copyright goddess, I thought to post a few portions of it in this and subsequent posts.  The essay is well worth reading in full.  Krygier identifies and discusses three special features of law as tradition: law’s pastness, law’s authoritative presence, and law’s transmission or continuity from past to present.

Here’s the sense of Professor Krygier’s discussion of law’s pastness.  As in every tradition, law records, preserves, and ‘hands down’ across the generations a composite of opinions and values.  But unlike in other traditions, in law the maintenance and transmission of the past is itself institutionalized.  And that institutionalization gives the past a particular kind of power, though the power is of course far from absolute (in part this is because the tradition itself is variegated and not univocal).

Judging, he writes,

that activity so favoured with jurisprudential attention and writings, is an archetypally traditional and tradition-referring practice. For however innovative judges are, their modes of justifying decisions, and therefore the sorts of arguments which must be addressed to them, in fact or hypothetically, differ systematically from those of other decision-makers such as, say, engineers or entrepreneurs, or workers in less self-consciously authority-filled traditions, such as novelists, artists or scientists, who themselves are in no way free from the traditions of their calling. Judging is a specific and characteristic mode of making and justifying practical decisions: a judicial decision is one which is justified publicly by reference to authorized institutional tradition. In those hard cases that lawyers and legal theorists so enjoy to contemplate, the need publicly to justify one’s decision in terms of interpretations of the legal past which seem plausible to experts, remains important long after simple rule-application has ceased to be possible. Doing this involves neither application of a clear unequivocal rule, as in the perhaps mythical easy cases, nor invention ex nihilo, but inescapably (though not only) inter-pretation of authorized institutional tradition. (245)

Kwall on Jewish Tradition as Intellectual Property

Roberta Rosenthal Kwall (DePaul University College of Law) has posted Is the Jewish Tradition Intellectual Property?  The abstract follows.

Whether works of authorship should be protected from unauthorized changes and, if so, in what manner, are questions of endless fascination to intellectual property scholars. Jewish law is not typically considered a “work of authorship” although in many ways it can be so viewed. This article is concerned with exploring the Jewish tradition as intellectual or cultural property. It focuses on the human dimension of creativity embodied in the Jewish tradition, and how that dimension is manifested in the rabbinic interpretation of Jewish law. The resulting tradition — as it is embodied in both the Jewish texts and lived by the people — has afforded the Jewish people their unique identity throughout the ages. Simply put, the Jewish tradition is a very unique form of cultural property. This analytical framework has significant implications for how to negotiate the balance between preservation and development of the tradition.

Ali on Women’s Rights in Pakistan

Shaheen S. Ali has posted Overlapping Discursive Terrains of Culture, Law and Women’s Rights: An Exploratory Study on Legal Pluralism at Play in Pakistan. The abstract follows.

This paper argues that plural regulatory frameworks (‘laws’ broadly defined) including religion, culture, customs, tradition as well as ‘formal’ law (national and international) informing women’s human rights, collude to create and perpetuate gender hierarchies. Whilst ‘informal’ norms of culture, custom and tradition expressly advance this position, gender neutral laws adopted by the state and her institutions are suspect, as these too, operate within a male socio-legal and political environment. Using the example of Pakistan, the paper attempts to present the contours of an analytical framework for mounting a challenge to plural legal systems from the perspective of women’s lived experiences and realities of their being.