Notes on tradition and law

5 04 2010

Writer for the tradititionalist Remnant Newspaper, Brian McCall, makes the following interesting points in a recent article:

Unlike modern liberal conceptions of law dominated by floods of detailed legislative and administrative texts, the Traditional understanding of law is much richer. Gratian, the 12th century father of Canon Law, began his great textbook on Canon Law by defining law with the following general summary: “The human race is ruled by two things, namely, Natural Law and long-standing custom.” Law is comprised of two pillars, the precepts established by God which can be known by the use of right reason (Natural Law) and time honored customary norms. Notice what is missing from this definition: statue, ordinances—the very life blood of modern Liberal legal code-based systems.

The omission is not due to Gratian’s ignorance of such legal forms of rules. Just a few pages later he lists statutes and ordinances within a more detailed list of specific types of laws or leges. Yet, these ordinances are circumscribed and thus limited by the two opening categories of law, Natural Law and custom. The Traditional understanding of the role of statutes was that they merely confirmed in writing what was already known either by the use of right reason or the observance of long standing customs. Legislators did not see themselves as making laws de novo but rather of discovering, clarifying and recording with precision the contents of laws which pre-existed in the Natural Law or long standing custom. The traditional role of a legislator was jus dicere or “to speak the law.” Such a phrase implies the role is one of making known—or speaking—the law rather than creating it.


The author writes this all in connection with the promulgation of the 1917 Code of Canon Law. Unlike other traditionalists, he does not have a view that the “revolution” in the Church began at Vatican II, but its ground was prepared much earlier. A fascinating read throughout, and I recommend that the reader study the entire essay.

Within the modern Church, the two prongs that drive everything are concepts of development and authority, which both exist to justify the actions of power. Such a justification can only take place once a reign of novelty has been established, as McCall points out:

In the modern liberal system, authority is linked to novelty. The newer the law, the more authority it carries. Thus, the 1983 Code of Canon Law has greater authority over provisions in the 1917 Code because it has been enacted more recently.

The author rightly points out how, in older conceptions of law, the opposite was the case: a law was respected both because it was in accordance with human reason and because it was old. He even cites Popes and Fathers of the Church who said that any inveterate law that does not conflict Faith or reason must be observed. How far we have come from such thinking!

Of course, I am not one to be a reactionary for reaction’s sake. However, I tend to wonder what is the point of believing once one has tossed the stability of time out the window. If truth must bend to the exigencies of time in order to be incarnate in every single epoch, one is left wondering if there is any truth at all? Don’t like this law, this doctrine, this discipline that has been passed down to us by our fathers? Wait a little while, it will change, without us having to concede that it was indeed a change. Perhaps I will do nothing and continue to be my crypto-modernist self. But that doubt still remains.


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4 responses

7 04 2010
Agostino

Manuel, the quote reminds me of something similar said by St. Paul, though he was coming from a very different angle (Romans 4:15): “For where there is no law, neither is there transgression.”

6 04 2010
Manuel

An old Roman saying comes to mind: “The more laws the more criminals.” Something like that, maybe by Cicero.

6 04 2010
Rob

Maybe the solution to your dilemma is easier than you think, Arthur. For conservatives, it is ancient long-lasting customs that are self-evidently an integral part of the Law; for liberals, on the other hand, it’s new quick-fading customs which form (also self-evidently, as far as they’re concerned) a component of the Law.

5 04 2010
Alice C. Linsley

Thanks for posting this, Arturo. Good stuff!

The evidence from many disciplines concerning the origins of Law and Ethics is that it was first formulated based on observation of objective binary distinctions in nature such as east-west, night-day, male-female, and life-death. In other words, Law and Ethics nod to the order of creation and are not intended to attempt to change the order of creation. Attempts to depart from observable obective tradition inevitably distort our view of reality. Legislators who imagine themselves to be gods hope to redefine natural boundaries.

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