Magna Carta’s Votaries, Skeptics, and Traditionalists

I have this new post on the subject of law and tradition at the Library of Law and Liberty, the fourth in my Tradition ProjectTP Banner series. In it I discuss a recent essay by Professor Martin Krygier, whose reflections on law and tradition I have noted in several previous posts here. A bit from the post:

Lawyers speak and think within a particular idiom, and that idiom is transmitted across long periods of time. What is called “thinking like a lawyer” is in reality learning the idiom of law within a particular legal tradition. As Krygier argues that idiom is specially—perhaps uniquely—dependent upon the past:

Law is one of the most self-consciously traditional of practices, and lawyers have a distinctive preoccupation with the legal pasts. They are always mining the past for authorities they can deploy in the present; that is something engineers, for example, don’t do in the same way – their tradition has a thinner presently active past than does law—and it is characteristic of the profession. They are not expected to recommend a result simply because it would be a great idea, they recommend it because they claim it flows from the existing law, some of it—particularly in the common law—very long-existing law. That law has authority, and it also contains ideas, arguments, resources for thought. Lawyers are expected to take the legal past seriously.

All of this relates directly to the meaning of Magna Carta. That meaning is both changing and profoundly connected to the past. One of the most common mistakes about traditionalism in law (and elsewhere) is the view that it is static. But a language, or an idiom, is not static. As Alistair MacIntyre has put it, “A living tradition then is an historically extended, socially embodied argument, and an argument precisely in part about the goods which constitute that tradition. Within a tradition the pursuit of goods extends through generations, sometimes through many generations.”

The traditionalist view of Magna Carta, in Krygier’s view, can accommodate both these features of historical continuity and change in a way that neither the votary nor the skeptic can. In this way, the traditionalist view is particularly well suited to law which, unlike history, is not principally interested in establishing what happened so much as drawing “on the present-past of law to deal with present legal problems.”

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