Thursday, January 17, 2013
The third feature of law as tradition discussed by Professor Martin Krygier in his article, "Law as Tradition," besides its pastness and its presence, is its transmission or handing down ("traditus" is often translated as that which is 'handed' down, and I have sometimes wondered whether there is a related but somewhat more distant etymological root: 'tra' means across, and 'dita' means 'fingers' in Italian, making 'tradita' transliterate to 'across fingers.' But probably the root of 'dita' is from the Latin, 'dare' -- to give -- making the transliteration, 'giving across'). "Traditions," writes Krygier, "depend on real or imagined continuities between past and present. These continuities may be formalized and institutionalized as they are in the institutions of law and religion, though they need not be." (251) Cultures which have well developed sacred and secular institutions entrust the task of transmission to various sorts of experts ("kings, priests, judges, scholars"), who are arranged in a hierarchy of tradition-interpreting and transmitting authority.
Krygier makes a nice move at this point. He writes that the conventional dichotomy between "tradition" and "change" is false because "the very traditionality of law ensures that it must change. Although authoritative interpreters might police the present to see that it does not stray too far from their interpretation of the past, it is impossible for traditions to survive unchanged." Change can occur deliberately (as when, for example, a new revelation or a new legislation is then incorporated into the tradition) or, in the case of written traditions, simply as a feature of the interpretive instability in the reading of a text (not the wild indeterminacy of text, just its lack of fixity). In written traditions, "the past becomes available for controversy . . . . Written traditions are continually subject to modification. Their transmission necessarily involves interpretation of writings. This ensures change." (252) That is because, in a tradition, texts do not stand alone but must be interpreted so as to be consistent and coherent with the tradition itself. Krygier is not describing only, or even primarily, the interpretive tradition of the common law:
[G]iven the impossibility of univocal interpretation of most complex texts, there is a sense in which legislation forces interpreters to rely more rather than less heavily on tradition than does the common law. For a relevant statute, still more a code, forces itself on an interpreter. Its words cannot be sloughed aside as dicta or dissent; they have to be interpreted. Since their meanings often will be plural, and since later lawyers nevertheless have to give meaning to them, they are bound to repair to interpretations which have become settled and accepted and/or to canons of statutory interpretation which, as we have seen, are highly traditional. (254)
This is a pretty neat point, and one might extend it to constitutional interpretation. Here's a passage from Edward Shils's wonderful book, Tradition, quoted by Krygier, which seems pertinent to constitutional interpretation today:
It might be the intention of the recipient to adhere 'strictly' to the stipulation of what he has received but 'strictness' itself opens questions which are not already answered and which must be answered. If it is a moral or a legal code, or a philosophical system, the very attempt by a powerful mind to understand it better will entail the discernment of hitherto unseen problems which will require new formulations; these will entail varying degrees of modification. Attempts to make them applicable to particular cases will also enforce modification. Such modifications of the received occur even when the tradition is regarded as sacrosanct and the innovator might in good conscience insist that he is adhering to the traditions as received. (Shils, 45)