Jurisprudential and Religious Tradition

From Chapter 4 of Edward Shils’s Tradition:

Muteness of sentiment and unthinking acceptance of a model visible in the conduct of others, the recognition of convenience and the acceptance of results at an expected level of satisfactoriness, are sometimes infused with a level of piety toward the past. The pastness of a model of action or belief may be an object of reverence. Not givenness, and not convenience, but its sheer pastness may commend the performance of an action or the acceptance of a belief. Deference divested of reverence is contained in the principle of the jurisprudence of the common law which commands respect for precedent. The fact of pastness is acknowledged as normative. A decision under the common law ordinarily entails no attachment to a particular epoch or a particular deed or a particular generation in the past, it is the pastness of the precedent as such. Its normative necessity is self-evident: that is the way it was, that is the way it ought to be. There is no sentiment of reverence formed about the way it was. Attachment to a particular past epoch infused with charismatic quality by sacred revelation or a sacred person and sacred events which is characteristic of the Christian attitude toward the age of the Gospels is a different sort of thing in sentiment and in the scope of significance from the attitude toward the judicial precedent. Both attachments have in common, however, the normativeness of the past pattern.

Interesting observations, which make me wonder precisely in what position constitutional stare decisis might be situated in terms of sentiments of “attachment to a particular epoch or a particular deed or a particular generation in the past.”

My Visit to the Hertog Foundation

I spent a wonderful afternoon yesterday discussing religious freedom at the Hertog Foundation, as part of one of its excellent summer course series (which includes Classical Political Philosophy, Traditions of Freedom, American Political Thought, The Modern Conservative Movement, The Iranian Challenge, and others). Here is an interesting profile of Roger Hertog.

The course, Landmark Supreme Court Cases, was taught by Adam White and ran for a week, each day generally focusing on a different substantive area of constitutional law. My session focused on Employment Division v. Smith and the religion clauses. Previous sessions focused on other areas, with guests including Randy Barnett, Alan Gura, James Burnham, and Christopher Scalia.

The students, who were a mix of undergraduates and graduates, were engaged, smart, and prepared. The conversation developed in the direction of thinking about the legal definition of religion. Lots of fun, and no easy task. I enjoyed being there.