Wednesday, October 26, 2016
For those on MOJ and beyond thinking about tradition and the law, I can't commend to you enough Mary Ann Glendon's fine collection of her own essays, Traditions in Turmoil, published in 2006.
From the Author's Preface: "Nearly all of these essays  were written when demographic turbulence was at its height...[when] legal, social, and religious [traditions] were in a state akin to which students of complex adaptive systems call 'the edge of chaos.'" And then: "The edge of chaos is a scary place, but it is also charged with potency." More:
As a living tradition moves forward, it is laden with the accumulated accidents and inventions of the men and women who have gone before--a cargo of useful ideas and practices that await development, and a jumble of outworn artifacts that might well be left behind. Future generations will judge whether our own period of stewardship has burdened or enriched their inheritance, whether we have advanced or hindered the conditions for human flourishing.
The clarifying lens from within which Glendon writes many of the book's essays, that I hope will be brought to bear on the new and important work at the Tradition Project, is that provided by Jesuit philosopher, Bernard Lonergan. Glendon ends the book's Preface with this:
It seems to me that no one has better suggested the spirit in which citizens, scholars, and members of a pilgrim Church should confront the challenges of traditions in turmoil than the philosopher Bernard J. F. Lonergan: "There is bound to be formed a solid right that is determined to live in a world that no longer exists. There is bound to be formed a scattered left, captivated by now this, now that new possibility. But what will count is a perhaps not numerous center; big enough to be at home in both the old and new; and painstaking enough to work out one at a time the traditions to be made." That is the spirit in which I have tried to work, and I hope it is reflected in these essays.
Professor Glendon read Lonergan with the great Father Flanagan at Boston College when she first began teaching at BC Law in the 1980s. The experience deeply influenced Glendon's own uncanny and inspiring ability to distinguish carefully points of progress--"insight"--from within times of decline, and to hold both in her learned and fertile mind simultaneously.
The first essay of the collection, "Tradition and Creativity in Culture and Law," was the 1992 Erasmus Lecture, published in the November issue of First Things that year. And it's a great place to start. A sneak peak:
The idea that tradition is antithetical to creativity of the human sort is what I propose to examine and challenge along with its usual underlying assumptions that tradition is necessarily static, and that the essence of creativity is originality. To anyone with a scientific bent, my project will seem to be an exercise in the obvious. For in the history of science, as Stephen Toulmin, Thomas Kuhn, and others have made clear, nearly every great advance has been made by persons (typically, groups of persons) who simultaneously possess two qualities: a thorough grounding in the normal science of their times, and the boldness to make a break with the reigning paradigm within which that normal science takes place. My concern, however, is the progress of antitraditionalism in the human sciences, where what counts as an advance, or creativity, is more contestable, and where many eminent thinkers now devote much of their energy to attacking the traditions that have nourished their various disciplines.
I shall confine my attention here to the field with which I am most familiar, namely the law, though this may vex the spirit of Erasmus, who seems to have had a rather low opinion of lawyers, calling them “among the silliest and most ignorant of men.” Erasmus might have been amazed, however, if he could have known the degree to which lawyers themselves, and especially teachers of lawyers, would one day come to exhibit disdain for their own craft, and to disavow openly the ideals of their traditions. I say tradition s , for, where Americans are concerned, there are three of them involved: the common law tradition that we inherited from England, the tradition of American constitutionalism, and the craft tradition of the profession.
Do read the whole thing. But a jump to the Lonerganian conclusion:
[T]he fact remains, as Aristotle pointed out long ago, that dialectical reasoning is the only form of reasoning that is of much use in “the realm of human affairs,” where premises are uncertain, but where, though we can’t be sure of being right, it is crucial to keep trying to reach better rather than worse outcomes. It is time for lawyers and philosophers alike to recognize that common law reasoning is an operating model of that dialectical process, and that its modest capacity to guard against, and correct for, bias and arbitrariness is no small thing. Over time, the recurrent, cumulative, and potentially self-correcting processes of experiencing, understanding, and judging enable us to overcome some of our own errors and biases, the errors and biases of our culture, and the errors and biases embedded in the data we receive from those who have gone before us. As Benjamin N. Cardozo once put it, “In the endless process of testing and retesting, there is a constant rejection of the dross.”
And so, by a long and circuitous route, I come back to the proposition with which I began: that human creativity is inescapably dependent on what has gone before. This is not a very remarkable proposition. Perhaps what ought to seem remarkable is only the extent to which so many practitioners of the human sciences seem to want to ignore it.