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)
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.
→ Leave a comment
Posted in Commentary, Marc O. DeGirolami
Tagged Civil Religion, Religion and Politics, Religion in America, Tradition