One of the constant refrains of conservatives is “tradition.” (In the hands of Catholics, that even turns into “Tradition” sometimes). But either way, it is regularly a bone of contention between conservatives and liberals, or what might be more precise for this discussion, between conservatives and progressives. Many of the regular battles are over whether we should keep a practice that is current and has been practiced for many years, or whether we should change it. For example, the debate over whether we should have women in the army fighting in combat situations. Often enough, (because liberals are often better practiced in the arts of rhetoric) the debate is cast in terms that make it look like a matter of preference: you guys prefer the old way, we prefer to try a new way. But the old way isn’t written in stone, people can change it if they want. Women who want to fight shouldn’t be obstructed by some old bias that makes them out to be less than men, nor by some silly rule that enshrines men’s preferences and ignores women’s equal rights.
The goal conservatives take on is to make the case for customs, traditions, and “the old way” that isn’t based just on preference, but on something a lot more solid, substantive, determinative than that. Fortunately, such cases can be made. But there are two ways to approach that. One way is to defend the specific custom at issue, point out all the definite goods that attach to that custom, and argue the matter in piecemeal. This is good and necessary. Yet it cannot the whole effort, and it won’t be very successful without a separate kind of argument – the wholesale defense of custom in general.
Certain conservatives, like Richard Weaver, put it near the heart of their thesis that tradition isn’t merely one option up for consideration. It is, rather, an essential, core human good, and thus to damage it or destroy it is to damage humans and their fulfillment. Humans are social beings, always forming communities at many different levels. Because men are designed to be integrated, this aspect of their natures is not inherently at war with the rest of human nature – which implies that while there are necessarily tensions involved in settling individual needs and community needs together, there are forms of working out such tensions that can satisfy both when placed in their proper order. Humans are not monsters made to be frustrated in their very essences, but rather are beautiful, integrated wholes made to be fruitful in their entire range of capacities.
But “society” simply consists of a large group of persons who share many customs. It is impossible to be social without forming customs, and thus whenever many people work together for a considerable time they ALWAYS build up customs. (If you have ever participated in the start-up of a new community entity, you must have noticed how almost overnight new “traditions” spring forth that seem to rise with miracle grow.) Customs and traditions constitute mutually beneficial ways of handling the myriad things that need action or decision in a way that is (a) predictable, (b) understandable, (c) often successful (for the kind of situation), and (d) within non-offensive limits for those around you. These are all standards that need to be met by people living and doing side by side with each other. If you must, at every turn, sit and think out in great detail every time some speaks to you, such as “what does he mean by ‘how are you’, and what kind of answer should I give him, and what will he find offensive, and how many different ways can I handle those questions,” all the while knowing that ultimately the response is likely to be unpredictable, it would be IMPOSSIBLE to live in society. Custom is like the river that smooths over the rocks in its bed so that they can conform to each other and rest side by side with minimal friction.
(Custom is valuable not just as a preventive of evils, of social disturbances, it does more than that - it provides the positive field of play in which we can take enjoyment and delight in things that conform to custom, sometimes while touching its edges or shining a light on different possibilities. To take 2 simple examples: Words are conventions we have formed as to meanings of sounds. Word plays and double-entendres, however, are usages that make fun out of the conventional meanings while pointing out limits, the arbitrariness of convention, and alternative meanings. In other contexts, custom makes it possible to do acts of kindness and love that would otherwise be nearly impossible: when we receive a stranger into our home, and he conforms to our way of saying grace or eating a meal out of courtesy, he is showing a kindness to us that would be impossible if there were no such thing as custom. When in Rome…)
In a real sense, then, the “old way” of doing things is a bedrock essential of human life insofar as it is rooted in his social nature. And because of this double need – the human need both to have society, and that necessarily society hovers within a large complex of customs – people have a POSITIVE RIGHT to their customs. Customs are not merely nice to have, there are certain obligations we have toward them. Within some limits, and with some exceptions, we are actually obliged to order our lives by reference to custom, as well as by reference to other things, such as the exigencies of particular circumstances. For example, the good, worthy, noble and necessary custom of men and women remaining modestly attired does not defeat the exigency of a woman needing treatment by a male doctor and thus removing clothing for that situation – contra certain Muslims. Custom thus not being the only determining factor, it must be weighed and taken into account according an orderly understanding of the hierarchy of human goods. (Which leads to a major caveat I will explain further down the argument, please be patient.)
One of the things that motivates this posting, then, is finding that in certain respects we DON’T have an orderly understanding of the hierarchy of human goods and thus sometimes don’t take custom into account rightly, but worse yet we seem to have structured our laws and judicial system in such a way as to oppose such an orderly recognition about custom. What do I mean? I mean that neither law-making nor judicial rulings are expected (or even allowed) to use “but that’s how we have always done it” as presenting a rational claim on us. Such an argument is deemed empty. In judging cases, for example, when a law gets to the point of butting up against an old practice, the judge generally will consider the law itself, and he may consider the specific, detailed goods furnished by that custom (if the attorney presents them) but he never rules on those arguments by saying “custom rules because it’s how we have always done it”, at most he will rule in favor of custom because of the other special reasons advanced in its favor – and then only if the law is ambiguous.
Why is this a problem? Why shouldn’t we expect the judge to consider the law as more definitive? Well, there are 2 reasons (at least). First, because in addition to the 2 or 3 specific goods to which each custom is directly ordered, customs that have built up over time serve us in other ways: they are tied to dozens or hundreds of other customs, sometimes as mere accidental appendages but sometimes as foundations, supports, or otherwise significant co-operators on society. When you weaken one of these, then, you weaken dozens or hundreds of other customs. You damage wide swathes of society itself. And we won’t always be able to articulate the bulk of these connections. Sometimes we aren’t even aware of the most important ones – we are so used to them that we don’t even notice them as such, they are the background upon which we perceive other things. So the fact that we don’t think to propose them when the custom is attacked should not be taken to mean that we don’t actually have such connections that could be used to support the custom.
Secondly, more remotely: custom itself, generically, lends a weight to healthy progress in human life toward the good. Aristotle and St. Thomas show that human happiness can be expressed in terms of virtue – in terms of man choosing the right action for the right reason, habitually and with confident satisfaction in its suitability for human nature. But that “habitually” is important. While an athlete is still learning a new move, he must deliberate about it and choose it with effort, and during this training process he is not actually doing it with pleasure and with ease. But when he has practiced it a thousand times and it comes as second nature to him at the right moments, he does do the act with ease and satisfaction. The process of disciplining the body, subjecting it to difficult (and unpleasant) requirements, is not the final goal but a means. Likewise disciplining the mind and will with habitual action is ordered to a goal in which the good act is easy and pleasurable, not merely possible with strenuous effort.
And good customs feed into that process. Some customs are simply neutral in themselves, but others are positively noble, worthwhile, and beneficial. Customs are themselves habits of a certain sort, and thus prepare in us the groundwork for virtue, even the neutral ones help do that. Therefore, upsetting customs without adequately taking into account the way in which they set us up for virtue is to start us toward a path that may damage the possibility of achieving happiness. (This can be seen in cold, hard detail among people who have habits of vicious acts, such as overdrinking - and I am not specifically thinking of those with actual addictions. Their enjoyment of the vice makes them virtually closed to the sound, reasonable, and true arguments for how overdrinking damages their happiness: vice obstructs receptiveness to the truth.) People whose trained habits are those of moderation are instead well prepared to receive the truth, and embrace it more readily, and thus eventually become consciously and freely well-ordered in virtue: the truly free man.
As a consequence, changes that impinge on custom – even little changes and even about minor custom – have the power to erode general habituation toward the good. For this reason, St. Thomas says that when a lawmaker realizes that a new X law would be a better way of ordering the matter than the old rule, he is not free to make X the new law. Not yet. First he must ALSO take into account the way that changing the way people have been doing it may disturb a custom that lends them a generalized force of assistance toward habituation to virtue.
Sometimes, lawmakers DO actually take this into account, and decide to change the law anyway. For example, they may decide that the custom is actually a bad custom, because it enshrines morally bad acts, and thus does NOT incline us toward virtue, so they explicitly know that the law is going to upset the custom and their design of the law includes that outcome. (Abolition of slavery in England, for example.) In this case, obviously it is nonsensical for a judge to look at the law, and look at the opposing custom, and say “I am overturning the law because it upsets custom”. That would mean the judge is setting himself above the lawmaker, or even replacing the lawmaking function for his own prudential wisdom. I am not advocating anything like that. Not all customs are good, and society can indeed learn from its mistakes and correct them, at least some of the time. However, custom should not be changed by law accidentally, as Canon Law shows:
A later general law contrary to a general custom will nullify the latter, but a particular custom will not be abrogated by a general law, unless a clause to that effect be inserted. Even such a nullifying clause will not be sufficient for the abrogation of immemorial customs.
The opposite sort of case, though, does come about and we have seen that sort of thing happen. We have had a custom in place since before the founding of our nation, in which we do not intentionally and by design provide that women go into combat in war. Long, long after this practice had been in place for generations, we also prescribed it in law, making the law conform to the custom. However, in the midst of legislative inaction, in modifying an administrative policy so as to allow women to volunteer for combat positions, we have more or less accidentally set the stage in which a judge may DISCOVER that the 14th Amendment and the Selective Service laws could require drafting women into combat positions when we draft men. This is vastly different from lawmakers actually intending to overcome the custom because they judge it to be a bad custom, or even being willing to allow the custom to be damaged in order to serve a higher good. No, the lawmakers NEVER EVEN CONSIDERED that outcome when they passed the Selective Service law and the 14th Amendment, and never intended it positively or by permissively allowing for it. (Of course, Congress could re-visit the Selective Service law, but requiring that in order to allow custom to remain is in effect allowing legislative inertia to constitute a bias in the system for defeating custom by accidental intersections of happenstance. Which is the same thing as saying custom is negligible.) A similar outcome happened in the 9th Circuit under the decision for gay “marriage”: the judges discovered that laws passed over a hundred years ago managed (without anyone realizing it at the time, certainly not the legislators) to overturn a custom lasting more than 5,000 years. And now we are just discovering that the law must be held to destroy the custom, with nary even a consideration for whether custom itself harbors something as important as the law. This, a custom that impinges on not merely hundreds but thousands of other customary practices, and without exaggeration can be called a custom setting the very warp and woof of life together.
What I am saying, then, is that we have failed in our organization of legal and judicial roles, not to provide for the role of explicit protection of custom simply as such. Lawmakers feel like they can “stand up to” efforts to change things when they can point out really strong goods that the custom provides, in contrast to the lesser goods that a change would provide. They are hardly allowed to claim simply that the custom is an important custom and should remain in force. Judges are in a worse position, at least de facto, because of the legal positivism that has infected all of the schools of law: they don’t even admit to the existence of a body of moral and social force that exists apart from explicit law. Once they have ascertained what the law says, they have finished.
I don’t know what the exact solution is. Certainly in this present age I am not gung ho on offering judges vast new powers. (Though in the grand scheme of things, this particular ‘power’ would be one of preserving, so it is inherently limited by what already is.) And it is doubtful that any practical solution could be implemented, given our constipated and diseased political processes.
At least this much should be overtly recognized: law itself cannot possibly be the full and complete set of rules that bind us. This for at least 2 reasons. First, you cannot make laws about everything that we need rules for. Custom fills in a lot of the gaps. Secondly, LAWS THEMSELVES REQUIRE customs as a background or foundation. For instance, laws are stated in terms of specific words, but words are nothing more than conventions about meanings for arbitrary sounds. Also, laws always assume a number of things that are not stated in the laws, things that the laws are ABOUT because they are there before the law existed and whose nature is a given, not a prescribed legal arrangement. Laws about car emissions rest on the fact that certain kinds of pollution damage lungs: the law doesn’t PRESCRIBE or demand that the pollution have such effects. Likewise, laws about car usage assume that people have already certain habits in using cars. Much of the business of law is to regulate customary practice that pre-exists the law. Law is, therefore, a tool society employs for its purposes, but society is prior (logically and causally, not always temporally) to law and higher than law. Law exists for society’s good, not the other way around. And society is in part defined by the customs a body of people share. So law ought to be received as (at least to some extent) subject to custom.
You cannot make laws about all things, including the things that serve as the pre-foundation for law. In order to have the possibility to make law that isn’t simply the strong telling the weak “do what we say or we’ll beat you up”, some things have to be “givens” before the law is made. Some of those things that are givens are customs (others are natural law), and these must simply be received by the lawmaker as the framework upon which he builds other goods, not the object of his own work of lawmaking. Society is not an infinitely pliable fabric of infinitely moldable “units”, it has its own character before the lawmaker steps in to modify something. The only possible authority he could have to make a decision to change society’s basic underlying character would be authority that is in reality deeper and more authoritative than the society that erected him as lawmaker. The only two such sources of authority possible are divine law and natural law, both of which are prior to society. Therefore, no lawmaker could be free to revise basic customs of society without a clear determination that in this respect society actually is in opposition to either divine law or natural law. Yes, an Aztec ruler could have overturned the customs of human sacrifice. But no, American legislators are not free to decide to overturn the meaning of marriage.
Our American system is a little different from the British system. Here, our Constitution is a written document, there it is a body of custom. In our founding, we chose to set out an explicit form of Constitution, probably inevitably, because we were creating a new kind of entity, a union made voluntarily of formerly sovereign states. Although that document is understood to be the “fundamental law of the land”, what the founders meant by that phrase is “the fundamental WRITTEN law of the land”, not the sum total of what we are bound by - we should respect that there are additional facets of obligation separate from (and sometimes more obligatory than) explicit law, even that important body of law.