Posted on by Marc O. DeGirolami · 2 Comments

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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Bennett, Traditional African Religions in South African Law

Traditional African ReligionsThis past November, Juta – Academic published Traditional African Religions in South African Law by Tom Bennett (University of Cape Town). The publisher’s description follows.

Traditional African beliefs, together with African cultural traditions, are enjoying a new-found respect in South Africa, due in large part to the advent of the country’s democratic constitution.  In fact, a large majority of the South African population adheres to some form of traditional belief, often in combination with observance of other religions.  Even so, the traditional faiths are poorly understood and, in spite of constitutional guarantees, receive far from equal treatment, a situation quite at odds with the country’s commitment to equality and religious and cultural diversity.

While there are numerous works on the subject of religion in Africa, there are no works on traditional African religions and their legal implications.  The issue is nevertheless of serious political and legal concern in South Africa, since it raises diverse questions involving freedom of religion, the equal treatment of religions, traditional healing, witchcraft, animal sacrifice, circumcision, marriage and burial.

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Rao, “Animal Rights and Animal Laws in the Bible: The Daily Practice of Reverence for Life”

This month, Edwin Meller Press published Animal Rights and Animal Laws in the Bible: The Daily Practice of Reverence for Life by Chilkuri Vasantha Rao (Andhra Christian Theological College). The publisher’s abstract follows.

What characterizes the proper ethical treatment of animals as outlined in the Old Testament? Animals play an important role in the Old Testament, and in particular the Pentateuch. Ritual sacrifices were a part of the ancient traditions, and there are rules written into the laws that pertain to this practice as well as the religious approach to animals and nature. In the oft quoted passage from Genesis the call is to not only be fruitful and multiply, but to reign over the earth and subdue it along with the animals that God created. The author explores the fallout of an anthropocentric way of approaching nature that he claims is a misreading of Genesis. Taken out of context this can seem as though ethics is arbitrary in the pursuit of such dominion, but in reality the Pentateuch shows a rather rigid set of laws revealing the careful treatment of animals as sacred beings necessary for the flourishing of human life on earth.

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Hughes, “Religion, Law, and the Present Water Crisis”

Hughes_DD_Hardcover:AUS dd.qxd.qxdThis past December, Peter Lang Publishing published Religion, Law, and the Present Water Crisis by Richard A. Hughes (Lycoming College). The publisher’s description follows.

Religion, Law, and the Present Water Crisis documents current and impending global water shortages and opposes policies of commodification and privatization of water ownership by multinational water corporations. On the basis of the religions of the world, Richard A. Hughes appeals to pure, running water as a symbol of the sacred. Furthermore, he argues that all bodies of freshwater are commons and that they should be protected by the public trust doctrine. In addition, he contends that there is a right to water and that this right is independent, free-standing, and the prerequisite of other human rights, applying to all states and occupied territories. The increasing acidification of the oceans makes it mandatory to protect them under the reserved water right doctrine and to designate them as national parks of the seas.

More generally, this book presents a synthesis of water studies and encompasses the religions of the world, theologies of baptism, American water law doctrines, public trust doctrine with special attention to Islamic water law, and international water law treaties. Clean water is a necessity of life. Therefore, it is compelling to recognize the urgency of water scarcity and the need to guarantee the purity of and accessibility to water for all people.