Law and Tradition: A Tradition Project Blog Series

Over at the Library of Law and Liberty, I am guest blogging for the month of TP Banner
January and writing a series of posts that I’m calling collectively “Law and Tradition,” a set of reflections on the relationship of tradition and traditional legal methods and approaches to judicial decision making. My hope is that these posts will offer an introductory set of questions, thoughts, and provocations that can serve as a prologue for further study and reflection for our Center’s Tradition Project (more details about this shortly).

Here is my first post, Tradition and the Constitutional Curator. A bit from the beginning:

It is uncommon today for people to argue for the retrieval of the beliefs and institutions of prior periods once they have been set aside. Even those few who do are not usually sanguine about the odds of retrieval. Particularly in intellectual circles, it takes a certain degree of rash temerity to make such arguments—and to risk the label of traditionalism or even reaction—in light of the overwhelming intellectual prejudices in favor of progress. Even the view that things ought to be maintained as they are, or as they have been until the very recent past, is generally discounted as benighted. Things ought to be changed—tinkered with or even substituted, but always improved.

In law, the normative force of traditionality is supremely out of vogue. It is generally believed to offer almost no resistance to arguments proceeding on the assumptions of the prevailing intellectual movements—those inclined toward efficiency, autonomy, equality, identity, rationality, and technocracy, for example. But the moral and cultural power of a past practice, arrangement, or belief, just in virtue of its endurance and past-ness, has dwindled to the vanishing point.

Can these statements be defended at a time when, in constitutional law, originalism has achieved an unprecedented degree of legitimacy? It is true that interest in history seems to be as high as it ever has been in constitutional law and scholarship. Yet here it may be helpful to distinguish between the desire to contemplate an ancient text in search of an abstract value or principle which can be applied in pure form to contemporary circumstances, and the commitment to tend and maintain the institutions of the past as an enduring continuity and a sustained reflection of a society’s legal customs and dispositions. The tradition-minded constitutionalist will be interested not only, and not primarily, in the fixed meaning of words at the period of their writing, but also, and much more, in the coherence and continuity of those meanings with the patterns, dispositions, and customs long before and after the writing. And he will want to apply the insight that Edward Shils once articulated about moral character to constitutional character: “Stable, well-formed characters are not their own creation, however large the part of deliberate self-discipline in their conduct. Their stability is the unshaken dominion of the pattern acquired in the past.”

“Inside the Islamic Republic”(ed. Monshipouri)

In January, the Oxford University Press releases “Inside the Islamic Republic: Social Change in Post-Khomeini Iran,” edited by Mahmood Monshipouri (San Francisco State University).  The publisher’s description follows:

The post-Khomeini era has profoundly changed the socio-political landscape of Iran. Since 1989, the internal dynamics of change in Iran,9780190264840 rooted in a panoply of socioeconomic, cultural, institutional, demographic, and behavioural factors, have led to a noticeable transition in both societal and governmental structures of power, as well as the way in which many Iranians have come to deal with the changing conditions of their society. This is all exacerbated by the global trend of communication and information expansion, as Iran has increasingly become the site of the burgeoning demands for women’s rights, individual freedoms, and festering tensions and conflicts over cultural politics. These realities, among other things, have rendered Iran a country of unprecedented-and at time paradoxical-changes.

Fox, “The Unfree Exercise of Religion”

In February, the Cambridge University Press will release “The Unfree Exercise of Religion: A World Survey of Discrimination Against Religious Minorities,” by Jonathan Fox (Bar Ilan University).  The publisher’s description follows:

Religious discrimination is the norm in many countries around the world, and the rate is rising. Nearly every country which discriminates9781107133068 does so unequally, singling out some religious minorities for more discrimination than others. Religious tradition does not explain this complex issue. For example, Muslim majority states include both the most discriminatory and tolerant states in the world, as is also the case with Christian majority states. Religious ideologies, nationalism, regime, culture, security issues, and political issues are also all part of the answer. In The Unfree Exercise of Religion Jonathan Fox examines how we understand concepts like religious discrimination and religious freedom, and why countries discriminate. He makes a study of religious discrimination against 597 religious minorities in 177 countries between 1990 and 2008. While 29 types of discrimination are discussed in this book, the most common include restrictions in places of worship, proselytizing, and religious education.

  • Examines how we think about concepts like religious discrimination and religious freedom, which are often used but rarely examined and defined, helping readers think more systematically about these topics
  • Discusses evidence that religious discrimination is the norm rather than the exception and is on the rise, even in democracies
  • Seeks to help undermine incorrect stereotypes and assumptions on the topic of religious discrimination

“Religion, Law and Democracy” (eds. Lind et al)

In February, the Nordic University Press will release “Religion, Law and Democracy: New Challenges for Society and Research” edited by Anna-Sara Lind (University of Uppsala), Mia Lövenheim (University of Uppsala), and Ulf Zackariasson (University of Uppsala).  The publisher’s description follows:

How are Western, mostly secular, societies handling religion in its increasingly pluralistic and complex forms? What different forms9789188168238 of interactions between and negotiations of religion and religious beliefs can we see in contemporary society? What are the primary contenders in these interactions and negotiations? The authors of Religion, Law and Democracy give ample examples of a variety of interaction processes between different expressions of religion and different spheres of society, such as the media, the judicial systems and state administration and policy. The authors primarily approach these questions from a North European but also to some extent a global perspective. A common denominator is a dynamic perspective on the relation between religious organizations, society and the individual actors – in other words how all of these levels are interconnected and transformed in these processes.