Law as tradition

This essay argues that to understand much that is most central to and characteristic of the nature and behaviour of law, one needs to supplement the time-free conceptual staples of modern jurosprudence with an understanding of the nature and behaviour of traditions in social life. The article is concerned with three elements of such an understanding. First, it suggests that traditionality is to be found in almost all legal systems, not as a peripheral but as a central feature of them. Second, it questions the post-Enlightenment antinomy between tradition and change. Third, it argues that in at least two important senses of tradition, the traditionality of law is inescapable.This article is part of a project on law and tradition, research for which has been aided by a grant from the Australian Research Grants Committee. It was written while I was a visitor at the Cente for the Study of Law and Society, University of California, Berkeley, and revised while I visited the Centre for Criminology and the Social and Philosophical Study of Law, University of Edinburgh. I am grateful to the members of both centres for generously providing me with extremely congenial and stimulating conditions for work. Versions of the paper were presented to seminars at these centres, to the 12st World Congress on Philosophy of Law and Social Philosophy, held in Athens in August, 1985, and to seminars at the universities of Warsaw, Lodz and Glasgow. I am grateful to participants in these seminars, especially Nel MacCormick, Philip Selznick, Wojciech Lamentowicz, Daniel Sinclair and Jerzy Szacki, and to Edward Shils for useful discussions and criticism.