Lugato on Tradition in Customary International Law

It’s not a law-and-religion piece, exactly, but I’d like to draw attention to a fantastic essay by our Tradition Project partner, Professor Monica Lugato of LUMSA, on the role of tradition in customary international law. This is a complicated subject, and Monica handles it masterfully. I highly recommend it. The essay appears in a new collection, Human Society and International Law: Reflections on the Present and Future of International Law, published last summer by Wolters Kluwer and edited by Carlo Focarelli at Roma Tre. Here’s the publisher’s description:

Where is international law headed for? Should it rather head elsewhere, and why? These are the questions that the ten contributors to this first Special Volume in the Series Convivenza umana e diritto internazionale – Human Society and International Law have been asked to address, each one within their main area of expertise. The ten topics elected by the authors – all members of the Editorial Board of the new Series – make the three parts of this Volume, respectively on the making of international law (with chapters on the sources of international law; the principle of acquiescence; the codification of the right to development; and the legal status and transformative potential of the SDGs); the implementation of international law (with chapters on international custom and the traditionality of international law; the localising of international law; and the constitutional im- port of the SDGs); and the analysis of international law (with chapters on populism and the integrity of international law; the past, present and future of international law’s teaching; and the demands placed on legal analysis by the present climate crisis). As the questions posed to the contributors and the Volume’s subtitle suggest, this work was designed to encourage a reflection, by prominent scholars, on the dynamics of international law across a sample of key topics, mindful of the legal framework as a whole, and its trajectories over time. The underlying assumption – and wish – is that the Volume’s attempt to encourage an overall vision of the discipline, its most recent trends, and its theoretical framework (including of change) will inspire new theses and book proposals for the Series.


As Forum readers know, tradition has been a focus of ours here at the Center. So it’s with interest that we saw a new book from Oxford on the subject, Traditionalism: The Radical Project for Restoring Sacred Order, by historian Mark Aarhus (Aarhus). It looks very interesting, indeed. But the description on the Oxford website is a bit puzzling in one respect. As examples of the major proponents of traditionalism it gives René Guénon, Julius Evola, and Frithjof Schuon, along with Steve Bannon. Burke? Oakeshott? Kirk? At least in the English-speaking world, those names are a lot more prominent. Maybe the book discusses them, too. Anyway, here’s the description:

From a leading expert comes an intellectual history and analysis of Traditionalism, one of the least known and most influential philosophies that continues to impact politics today

Traditionalism is a shadowy philosophy that has influenced much of the twentieth century and beyond: from the far-right to the environmental movement, from Sufi shaykhs and their followers to Trump advisor and right-wing provocateur Steve Bannon. It is a worldview that rejects modernity and instead turns to mystical truth and tradition as its guide.

Mark Sedgwick, one of the world’s leading scholars of Traditionalism, presents a major new analysis, pulling back the curtain on the foundations of Traditionalist philosophy, its major proponents–René Guénon, Julius Evola, and Frithjof Schuon–and their thought. One of Traditionalism’s fundamental pillars is perennialism, the idea that beneath all the different forms of religion there lies one single timeless and esoteric tradition. A second is the view that everything is getting worse, rather than better, over time, leading to the Traditionalist critique of modernity. Sedgwick details Traditionalism’s unique ideas about self-realization, religion, politics, and many other spheres.

Traditionalism provides an expansive guide to this important school of thought–one that is little-known and even less understood–and shows how pervasive these ideas have become.

Tradition and Strict Scrutiny

Over at the Volokh site, I have a post on last week’s decision in Ramirez v. Collier, in which the Supreme Court ruled in favor of a death-row inmate who argued that prison officials violated RLUIPA by refusing to allow him to have a clergy present at his execution. RLUIPA requires prison restrictions to meet strict scrutiny: the state must justify restrictions on religion by showing that it has chosen the least restrictive means of satisfying a compelling interest.

Strict scrutiny, which applies in many areas of constitutional law, in practice operates as a balancing test. Critics (including me) have pointed out that the test is inherently indeterminate, depending largely on the intuitions of the particular judges hearing a case. In a separate concurrence in Ramirez, Justice Kavanaugh argues that tradition can help make the test less subjective:

In Ramirez, for example, prison officials had concluded that the marginal benefit of excluding pastors from the execution chamber outweighed the burden on inmates’ RLUIPA rights. Chief Justice Roberts and the majority evidently disagreed. But how were they to know? “It is difficult for a court applying” strict scrutiny, Kavanaugh wrote, “to know where to draw the line—that is, how much additional risk of great harm is too much for a court to order the State to bear.” If the justices’ intuitive judgments are all that make the difference, that hardly seems legitimate.

Here, according to Kavanaugh, is where tradition can help. For centuries in American practice, clergy have been present at executions. And that practice continues today. The presence of clergy, in other words, is a living tradition. “Although the compelling interest and least restrictive means standards are necessarily imprecise,” Kavanaugh wrote, “history and state practice can at least help structure the inquiry and focus the Court’s assessment of the State’s arguments.” Kavanaugh wrote separately to emphasize this aspect of the Court’s reasoning.

Here’s a link to my post.

Tosato on Biblical Interpretation

Here is an interesting new book from the Pontifical Gregorian University’s press, The Catholic Statute of Biblical Interpretation by Fr. Angelo Tosato, newly translated into English by our friend and frequent academic collaborator, Prof. Monica Lugato of LUMSA. Fr. Tosato, who died in 1999, was a professor at the Lateran and the Gregorian Universities, specializing in Biblical interpretation. But the book is accessible to non-experts as well. Among the topics it covers are the concept of the Bible as a set of divinely inspired texts mediated through human authorship, and the distinction between what Tosato calls “the bishops’ judicial interpretation” of the Bible, which may be authoritative for Catholics at any given time, and the “authentic” interpretation, which is known fully only to God. Because a space inevitably exists between the judicial and authentic interpretation, Tosato argues, the former is always subject to rethinking–guided, of course, by Holy Tradition.

Here is the description of the book from the publisher:

A «rigorous and exhaustive study on the official Catholic doctrine in the realm of Biblical interpretation», this work is «defended by heavily equipped garrisons of quotations in Latin, Greek, and Hebrew, and fortified by walls of Church documents» and based upon a «a profound knowledge of juridical questions and problems». The Author begins by clarifying the definition of the Bible for the Catholic faith, then explores its nature, origin, purpose and functions in relation to its different addressees, finally analysing the prerequisites, criteria, and forms of accurate biblical interpretation. «One detail may draw the reader’s attention. Angelo Tosato asserts, with solid reasons, that the juridical authority of the Magisterium is limited to the actualised interpretation of biblical texts for our world, and has not to deal with the proper exegetical and scientific task of recovering the original meaning of these texts. The Magisterium’s decisions, moreover, can be modified, corrected, and rectified, as every human decision». But this is just one of the many components of the Catholic Statute of biblical interpretation, a Statute that seeks to reveal «the vast and gorgeous panoramas of a truthful interpretation of our Scriptures».

Tocqueville on Independence Day in Albany, 1831

It was a ceremony that made [Tocqueville and Beaumont] want to smile. The trade associations and the militia marched past with an entirely spontaneous gravity and order, then the procession surged into a church where everyone sang verses to the tune of the Marseillaise accompanied by a single flute. The speech made by a lawyer foundered in rhetorical commonplaces. But the reading of the Declaration of Independence gave rise to a unanimous feeling that Tocqueville describes in the following way: “It was as though an electric current moved through the hearts of everyone there. It was in no way a theatrical performance. In this reading of the promises of independence that have been kept so well, in this turning of an entire nation toward the memories of its birth, in this union of the present generation with one that is no longer and with which, for a moment, it shared all those generous feelings, there was something profoundly felt and truly great.”

From Andre Jardin, Tocqueville: A Biography (Lydia Davis trans. 1988)

My Father Left Me Ireland

9780525538653For the past few years, our Center has hosted the Tradition Project, a research project on the continuing importance of received wisdom in law, politics, and culture. Our participants have heard more than once how Marc and I disagreed on what to name the project. I thought we should call it the Traditions Project, because of the many different cultural and political traditions that exist and give meaning to people’s lives. But Marc thought it should be the Tradition Project, to highlight the existence of the Western tradition, and eventually persuaded me to go along. Still, it seems to me that, especially in America, the plurality of sometimes consonant and sometimes dissonant traditions makes it more appropriate to conceive of the subject in the plural.

A forthcoming book by Michael Brendan Dougherty, My Father Left Me Ireland: An American Son’s Search for Home (Sentinel) explores how cultural traditions from other countries continue to influence Americans today–in the author’s case, the Irish tradition. The book has received great advance reviews and looks like it will interest people who think, as I do, that in America, anyway, traditions are best understood in the plural. Here’s the description from the publisher’s website:

National Review senior writer Michael Brendan Dougherty delivers a meditation on belonging, fatherhood, and nationalism, through a series of letters to his estranged Irish father.

The child of an Irish man and an Irish-American woman who split up soon after he was born, Michael Brendan Dougherty grew up with an acute sense of absence. He was raised in New Jersey by his hard-working single mother, who gave him a passion for Ireland, the land of her roots and the home of Michael’s father. She put him to bed using little phrases in the Irish language, sang traditional songs, and filled their home with a romantic vision of a homeland over the horizon.

Every few years, his father returned from Dublin for a visit, but those encounters were never long enough. Devastated by his father’s departures, Michael eventually consoled himself by believing that fatherhood was best understood as a check in the mail. Wearied by the Irish kitsch of the 1990s, he began to reject his mother’s Irish nationalism as a romantic myth.

Years later, when Michael found out that he would soon be a father himself, he could no longer afford to be jaded; he would need to tell his daughter who she is and where she comes from. He immediately re-immersed himself in the biographies of firebrands like Patrick Pearse and studied the Irish language. And he decided to reconnect with the man who had left him behind, and the nation just over the horizon. He began writing letters to his father about what he remembered, missed, and longed for. Those letters would become this book.

Along the way, Michael realized that his longings were shared by many Americans of every ethnicity and background. So many of us these days lack a clear sense of our cultural origins or even a vocabulary for expressing this lack–so we avoid talking about our roots altogether. As a result, the traditional sense of pride has started to feel foreign and dangerous; we’ve become great consumers of cultural kitsch, but useless conservators of our true history.

In these deeply felt and fascinating letters, Dougherty goes beyond his family’s story to share a fascinating meditation on the meaning of identity in America.

A Collection of Essays on Law, Religion, and Tradition

9783319967486Here at the Center, we’re very interested in the relationship among law, religion, and tradition. In fact, exploring that relationship is the mission of the Tradition Project, which we started three years ago. So it’s good to see others writing in the area as well. A new collection of essays from Springer, Law, Religion and Tradition (Giles et al., eds) looks very interesting. One of the book’s editors is Tradition Project member Andrea Pin. Here’s the description from the Springer website:

This book explores different theories of law, religion, and tradition, from both a secular and a religious perspective. It reflects on how tradition and change can affect religious and secular legal reasoning, identifying the patterns of legal evolution within religious and secular traditions. It is often taken for granted that, even in law, change corresponds and correlates to progress – that things ought to be changed and they will necessarily get better. There is no doubt that legal changes over the centuries have made it possible to enhance the protection of individual rights and to somewhat contain the possibility of tyranny and despotism. But progress is not everything in law: stability and certainty lie at the core of the rule of law. Similarly, religions and religious laws could not survive without traditions; and yet, they still evolve, and their evolution is often intermingled with secular law. The book asks (and in some ways answers) the questions: What is the role of tradition within religions and religious laws? What is the impact of religious traditions on secular laws, and vice-versa? How are the elements of tradition to be identified? Are they the same within the secular and the religious realm? Do secular law and religious law follow comparable patterns of change? Do their levels of resilience differ significantly? How does the history of religion and law affect changes within religious traditions and legal systems? The overall focus of the book addresses the extent to which tradition plays a role in shaping and re-shaping secular and religious laws, as well as their mutual boundaries.

Mitchell, “The Limits of Liberalism”

9780268104290Everywhere today, thinkers are evaluating the continued viability of the liberal project. Some argue that liberalism has run its course, the victim of its own success; others, that liberalism still has something great to offer, if we can salvage it; and others, that the crisis in liberalism is exaggerated and that liberalism is still the only political game in town. A new book from Notre Dame Press, The Limits of Liberalism: Tradition, Individualism, and the Crisis of Freedom, by government professor Mark T. Mitchell (Patrick Henry College), seems to fall in the first camp. Mitchell argues that liberalism’s rejection of tradition has created a false conception of the self, which has led to a false conception of liberty. He argues for a reconstruction of tradition as an antidote to liberalism’s failings. Looks very interesting, especially for those of us involved in the Tradition Project. Here’s the description from the Notre Dame website:

In The Limits of Liberalism, Mark T. Mitchell argues that a rejection of tradition is both philosophically incoherent and politically harmful. This false conception of tradition helps to facilitate both liberal cosmopolitanism and identity politics. The incoherencies are revealed through an investigation of the works of Michael Oakeshott, Alasdair MacIntyre, and Michael Polanyi.

Mitchell demonstrates that the rejection of tradition as an epistemic necessity has produced a false conception of the human person—the liberal self—which in turn has produced a false conception of freedom. This book identifies why most modern thinkers have denied the essential role of tradition and explains how tradition can be restored to its proper place.

Oakeshott, MacIntyre, and Polanyi all, in various ways, emphasize the necessity of tradition, and although these thinkers approach tradition in different ways, Mitchell finds useful elements within each to build an argument for a reconstructed view of tradition and, as a result, a reconstructed view of freedom. Mitchell argues that only by finding an alternative to the liberal self can we escape the incoherencies and pathologies inherent therein.

This book will appeal to undergraduates, graduate students, professional scholars, and educated laypersons in the history of ideas and late modern culture.

Rogan, “The Moral Economists”

9780691173009_0I don’t know too much about the subject, but the description of this new book on the history of economics from Princeton University Press caught my attention. The Moral Economists: R.H. Tawney, Karl Polanyi, E.P. Thompson, and the Critique of Capitalism, by Cambridge historian Tim Rogan, recounts the criticisms of a set of twentieth-century British scholars who argued that capitalism is morally and spiritually lacking. These scholars sought a middle ground between an empty individualism and an authoritarian socialism and looked to tradition and custom — the book description puts those words in scare quote — as guides.

It looks to be an interesting intellectual history. This isn’t meant as a criticism of the book, which I haven’t read, but an even older body of thought, one that long predates the 20th Century, also seeks to apply moral values to economics and to chart a middle path between individualism and authoritarianism, and values tradition and custom to boot: Christian teaching on law and society. It’s odd that economists continue to ignore that source of insights and try to reinvent the wheel with each new generation. But maybe we’ll come up with something better. [UPDATE: Reader Samuel Moyn writes that Rogan does indeed address Christianity in the book. I was going by the description, which doesn’t mention Christianity at all. Now the book looks even more interesting!]

Here’s the description of the book from the Princeton website:

A fresh look at how three important twentieth-century British thinkers viewed capitalism through a moral rather than material lens

What’s wrong with capitalism? Answers to that question today focus on material inequality. Led by economists and conducted in utilitarian terms, the critique of capitalism in the twenty-first century is primarily concerned with disparities in income and wealth. It was not always so. The Moral Economists reconstructs another critical tradition, developed across the twentieth century in Britain, in which material deprivation was less important than moral or spiritual desolation.

Tim Rogan focuses on three of the twentieth century’s most influential critics of capitalism—R. H. Tawney, Karl Polanyi, and E. P. Thompson. Making arguments about the relationships between economics and ethics in modernity, their works commanded wide readerships, shaped research agendas, and influenced public opinion. Rejecting the social philosophy of laissez-faire but fearing authoritarianism, these writers sought out forms of social solidarity closer than individualism admitted but freer than collectivism allowed. They discovered such solidarities while teaching economics, history, and literature to workers in the north of England and elsewhere. They wrote histories of capitalism to make these solidarities articulate. They used makeshift languages of “tradition” and “custom” to describe them until Thompson patented the idea of the “moral economy.” Their program began as a way of theorizing everything economics left out, but in challenging utilitarian orthodoxy in economics from the outside, they anticipated the work of later innovators inside economics.

Examining the moral cornerstones of a twentieth-century critique of capitalism, The Moral Economists explains why this critique fell into disuse, and how it might be reformulated for the twenty-first century.


Tradition and Going Topless

Earlier this week, I had a post at the Liberty Law site on a recent Seventh Circuit decision in the GoTopless case, a challenge to Chicago’s public nudity ordinance, which forbids women, but not men, to remove their tops in public. The majority maintained that the city’s interest in promoting traditional norms justified the ban, but the dissent disagreed, arguing, among other things, that the city was simply promoting outdated cultural stereotypes.

Here’s an excerpt from my post on the case:

Judge Sykes’s opinion suggests that, even after cases like Obergefell, Lawrence, and Casey, tradition continues to have an important place in constitutional law. It’s true those decisions held that traditional moral norms cannot serve as a legitimate basis for law, at least not where they infringe on personal identity or the individual’s search for meaning. But it’s also true, as the late Justice Scalia and others repeatedly pointed out in response, that the Court cannot possibly have meant what it said. Too much law relies on traditional morality as a justification; to deny that tradition can legitimate law would throw our legal system into chaos. Judges will need to find some way to distinguish between those cases where traditional norms can serve to justify state action and those where they cannot. Judge Sykes’s opinion, which suggests that traditional norms can still govern questions of “public order,” is perhaps a start.

Second, Judge Rovner’s dissent suggesting that the law should follow biology rather than culture is misleading. Of course rules regarding public nudity are a cultural phenomenon. Culture is, among other things, a reflection on human biology; different cultures have different perceptions. In some cultures women appear topless in public; in others they do not. Allowing women to appear topless in public is not to substitute biology for culture, but rather to replace one culture with another—a culture that sees public nudity as appropriate for one that does not. Perhaps that is a good idea, but it has little to do with the objective facts of biology.

You can read the whole post here.