“The Unforgettable Fire: Tradition and the Shape of Law”

That’s the title of an essay I have at Law and Liberty’s monthly Forum on the relationship of law and tradition. The essay is aTradition Project bit of a trumpet flourish for the Tradition Project, the first part of which will be occurring in October of this year, keynoted by Michael McConnell and with subsequent workshops on the meaning of tradition, the American religious tradition, the American political tradition, tradition and the common law, and tradition and constitutional law.

I’m delighted and honored that Professors David Bernstein, Sandy Levinson, and James Stoner will write up responses to my essay, to be published serially in the next few weeks. I’ll get a chance to reply after that to what I know will be challenging and insightful pieces. Here’s a bit of the beginning of mine:

What is the relationship of law and tradition? Tradition, either as a proposition of independent legal value or a register in which to discuss and explain the persistence of our legal arrangements, has very little traction today. In law, as in many other areas of contemporary American life, tradition as a normatively powerful idea is wildly unfashionable—even disreputable.

When tradition’s influence on law is considered, responses ordinarily fall somewhere along a predictably confined range—from dismissal and disdain to something like revulsion. A fairly recent Slate article on Khloé Kardashian’s checkered and rather perplexing spiritual practices concisely sums up the general view: “What’s more American than taking a tradition, tossing out what you don’t like, and remaking it in your own image?”

Deep calls unto deep: writing more than a century earlier, Oliver Wendell Holmes, Jr. seems to have been of like mind when he thundered that “it is revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV.”[1] These words by one of the most influential of American jurists suggest that there has long been—perhaps there has always been—something of a reluctance (to put it gently) in the American legal intellectual to admit the connection of law and tradition. Arguments that depend upon tradition are widely thought to offer nothing against, or even in conversation with, the predominant intellectual legal frameworks—those inclined toward progress, efficiency, and technology, for example.

And yet the repudiation of tradition as a modality through which to think about and evaluate law is much more deeply ingrained today than in prior periods. One is unlikely, for example, to hear from any contemporary American Bar Association functionary or legal academic anything like what one once heard from ABA founder and Yale Law School Professor Edward J. Phelps. Phelps gave a speech in 1879 on the legacy of Chief Justice John Marshall and constitutional law in which he observed:

“It is idle to say that our sky is free from clouds. It is useless to deny that wise and thoughtful men entertain grave doubts about the future. The period of experiment has not yet passed, or rather has been again renewed. The stability of our system of government is not yet assured. The demagogue and the caucus still threaten the Nation’s life. But we shall not despair. . . .  Let us join hands in a fraternal and unbroken clasp, to maintain the grand and noble traditions of our inheritance, and to stand fast by the ark of our covenant.”[2]

Reliance on the justificatory support of tradition is in fact of long lineage in Anglo-American law. “Erravimus cum patribus”: such was Lord Coke’s response when summoned before the Privy Council to answer various frivolous charges in his ongoing disputes with King James I over his conduct as Chief Justice of the King’s Bench. If there was error, “we have erred with the fathers.” There was a time when this was thought answer enough.

Indeed, American law—and English law before it—historically has depended upon tradition as a vital source of stability and justification. Usages, dispositions, and moral views that endured from one generation to the next were presumed valid and true. There was an implicit judgment of value in these continuities: the wisdom contained in tradition would not have endured, people believed, if it did not advance basic human well-being. True, traditions could change or fall out of use and people did not defer to the past mindlessly. But the past had definite claims; one could not cast it aside as though it had nothing to offer to, or require from, the present.

What complicates the story of tradition’s contemporary decline is that in some ways, tradition as a source of meaning, justification, and even identity in law persists. The common law method, for example, in which law develops gradually and internally from precedent, depends upon traditional instincts and traditional processes. Lawyers and judges cannot ignore the cases that have come before; they must fashion arguments in ways that cohere with earlier judgments. They must incorporate the past into the present. They must respect the American legal tradition—do right by it as they resolve cases.

Afaf, “Gendered Politics and Law in Jordan”

In August, Springer will release “Gendered Politics and Law in Jordan: Guardianship over Women,” by Afaf Jabiri (University of London).  The publisher’s description follows:

This book analyzes how the state constructs and reproduces gender identities in the context and geopolitics of Jordan. Guardianship over women is examined as not only 9783319326429the basis of women’s legal and social subordination, but also a key factor in the construction and reproduction of a gender hierarchy system. Afaf Jabiri probes how a masculine state gives power and legitimacy through guardianship to institutions—including family, religion, and tribe—in managing, producing, and constructing gender identity. Does the masculine institution succeed in imposing a dominant form of femininity? Or are there ways by which women escape and resist the social and legal construction of femininity? Based on over 60 case studies of contemporary women in Jordan, the book additionally examines how the resultant strategies and tactics developed by women in Jordan are influenced by and affect their status within the guardianship system.

Ghamari-Tabrizi, “Foucault in Iran”

In August, the University of Minnesota Press will release “Foucault in Iran” by Behrooz Ghamari-Tabrizi (University of Illinois, Urbana-Champaign). The publisher’s description follows:

Focault in IranWere the thirteen essays Michel Foucault wrote in 1978–1979 endorsing the Iranian Revolution an aberration of his earlier work or an inevitable pitfall of his stance on Enlightenment rationality, as critics have long alleged? Behrooz Ghamari-Tabrizi argues that the critics are wrong. He declares that Foucault recognized that Iranians were at a threshold and were considering if it were possible to think of dignity, justice, and liberty outside the cognitive maps and principles of the European Enlightenment.

Foucault in Iran centers not only on the significance of the great thinker’s writings on the revolution but also on the profound mark the event left on his later lectures on ethics, spirituality, and fearless speech. Contemporary events since 9/11, the War on Terror, and the Arab Uprisings have made Foucault’s essays on the Iranian Revolution more relevant than ever. Ghamari-Tabrizi illustrates how Foucault saw in the revolution an instance of his antiteleological philosophy: here was an event that did not fit into the normative progressive discourses of history. What attracted him to the Iranian Revolution was precisely its ambiguity.

Theoretically sophisticated and empirically rich, this interdisciplinary work will spark a lively debate in its insistence that what informed Foucault’s writing was not an effort to understand Islamism but, rather, his conviction that Enlightenment rationality has not closed the gate of unknown possibilities for human societies.