Thinking Too Well of Traditions
March 8, 2023
[Editor’s note: this is the third of four blog posts featuring the volume “A Cosmopolitan Jurisprudence: Essays in Memory of Patrick Glenn”, edited by Helge Dedek, Cambridge University Press, ASCL Studies in Comparative Law, 2022]
Often the words we use are at the same time commonplace and weightless; we are comfortable using them and they loosely, often usefully, direct the flow of verbal traffic one way or another along paths we and others can understand. But they commit us to little. ‘Tradition’ is commonly mentioned in that way: something to do with things handed down from the past, but not much more.
Sometimes, however, when taken up by a stringent thinker, the same words get content and depth; at their deepest they come both to embody a theory, or at least a considered view, and contribute in specific, even unsubstitutable, ways to larger theorising. Think Marx on class, or Weber on bureaucracy. In Patrick Glenn’s prolific and wide-ranging contributions to comparative law, ‘tradition’ becomes such a concept.
Glenn was dissatisfied with the standard taxonomic characterisations of law into systems, cultures, families, nation-states, etc. He emphasises the indispensable, ineradicable, normative presence of the past in law, and thus rejects temporally and otherwise parochial ‘time-slice’ characterisations of ‘legal systems’ or ‘cultures’ and such, which suggest that they all might have started yesterday or that it wouldn’t matter if they hadn’t. He is hostile also to post-Western-Enlightenment slightings of the traditional sources of form and content in societies and legal orders, modern as much as those relegated to benighted, custom-dominated, ‘pre-legal’, ‘traditional’, pasts, or presents in ‘less developed,’ usually southern, climes.
For Glenn, the traditionality of law is key, and he is surely right. In almost every legal ‘system,’ the maintenance of a normatively present past is attended to with a diligence matched only in institutionalised religions. This is no accident. In law, traditional inheritances are the unreflected-upon context and medium of reflection, imagination and action. What these present-pasts are made up of – statutes, interpretations, court judgments, the opinions of scholars – differs greatly among legal orders. Overarchingly, particular forms of what Clifford Geertz calls ‘legal sensibility’ also endure within traditions and differ, sometimes dramatically, between them. The pervasiveness of such pasts, both real and imagined, their architectonic significance in the present of law, can scarcely be exaggerated.
Analytically (and legally and sociologically), then, Glenn’s is a profound and enriching insight, and he is profoundly attached to it. But as often happens with iconoclastic enthusiasts, at times his fondness for his subject overreaches. For he attributes virtues to traditions, ontologically as it were, that are not always there or theirs.
Glenn sets a lot of store by a quite specific narrowing of what counts as legal tradition: it is past informationand nothing more. That is important because information is available to anyone, does not exclude others as ‘systems’ and ‘cultures’ do, is open for appropriation all over time and place. As Glenn writes, information ‘does not control legal practice. It is tolerant of argument … while allowing peaceful resolution of disputes,’ ‘tradition conceived as information has no borders’ ‘the flow of information is ultimately uncontrollable; closure is never complete.’ He introduced the attractive metaphor for legal tradition of a ‘bran-tub’; reach in and choose your prize.
But tradition is always more than mere information. Members of traditions never simply choose between the bits of information that come down to them. In a real sense, as Gadamer has written, we ‘belong to elements of tradition that reach us.’ For, beyond the information they transmit, traditions, particularly institutionalised ones like law, are managed by traditionally authorized guardians concerned that some things be in, some out; some normative, others just simple information; some information, others just noise. And if I am a judge in a legal tradition, or a citizen in search of a result, I hope the law is not random information. I want to be able to know it when I need to. Where things work as they should, many legal practices are designed to make that possible. Of course it’s not a simple matter, and there is always room for interpretation, but if it’s a lucky dip we’re in bad shape legally. And when the law is not as I believe it should be (for reasons traditions say a lot about), I or someone is likely to be involved in trying to ‘massage’ (Glenn’s term) the material to have it interpreted one way or another, implemented one way or another, taken more or less seriously as a normative element in their life-world. If all this sort of work is not happening to the ‘information’ in a tradition, you don’t have a tradition; just information. For imposed ways of handling (including ‘massaging’) traditional information are not just unavoidable ‘corruptions’ of traditions, which Glenn acknowledges. They are constitutive parts of their nature.
Tradition, then, is never ‘simple’ information. Being normative it is always ‘information plus’ and the ‘plus’ does a lot of work. That being the case Glenn’s beguiling images of free-flowing rivers or randomly assembled and chosen bits of information in a bran tub, which might make plausible Glenn’s contrasts between inherently borderless traditions and hermetically sealed systems and cultures, is overdone and does not support the congenial characterization he draws from them.
Nothing in the nature of traditions tells you how they will behave; it is as little contrary to their nature to be hostile to other traditions, or to sects and heretics within the great traditions as it is to be tolerant of them. As Glenn himself notes, ‘Tolerance is not easy, which may be why there is a tradition of intolerance.’ (Glenn, Legal Traditions of the World, n.5, 53). Indeed there is; indeed there are. Many, and their lives have been long. I doubt that even the most skilled massaging of the concept of tradition is likely to end that any time soon.
None of this undercuts the significance of Glenn’s contribution. We should acknowledge that law is typically founded on and in traditions, simply because that is a fact, and an important one. We can also learn much from his learned, bold, wide-ranging and bold application of the concept and exploration of the phenomena. I fear, however that to acknowledge these virtues will do little to advance the accommodations among traditions that Glenn admirably favours. Nor does it necessarily block them. They still have to be promoted on independent grounds, not because to act conflictually or exclusively or arrogantly in relation to other legal traditions is in some way to betray (or corrupt), or for that matter to honour, the very nature of legal tradition itself.
Nothing in the nature of traditions tells you how they will behave; it is as little contrary to their nature to be hostile to other traditions, or to sects and heretics within the great traditions as it is to be tolerant of them. As Glenn himself notes, ‘Tolerance is not easy, which may be why there is a tradition of intolerance.’ Indeed there is; indeed there are many, and their lives have been long. I doubt that even the most skilled massaging of the concept of tradition is likely to end that any time soon.