Chapter 2 Tradition
In Pasternak’s novel Doctor Zhivago, set amidst the turmoil of the Russian Revolution, when the title character, Dr. Yuri Zhivago, arrives in a small Siberian town, after many months in the wild taiga as a conscript in, then a runaway from, the Red Army, he is desperate to find his family, who he fears, on the basis of certain rumors, might be dead. Yet he has an even higher priority:
It was getting darker, and he had still many things to do while it was light. One of the most urgent was to read the texts of the decrees posted in the street. It was no trifling matter in those days to be ignorant of the regulations; it might cost you your life. Without going into the flat or taking off his bag, he went down and crossed the street, to the wall thickly covered with various announcements.
There were newspaper articles, texts of speeches at meetings, and decrees. Yurii Andreevich glanced at the headings. “Requisitioning, assessment, and taxation of members of the propertied classes.” “Establishment of workers’ control.” “Factory and plant committees.” These were the regulations the new authorities had issued on entering the town in place of those that had been in force...
An American reader feels in this detail of Pasternak’s novel the sinister strangeness of the Soviet regime, and is grateful that in his country, not only is reading the latest regulations never such a high priority that one would do it before seeking one’s lost family, but one basically never does it at all. It would hardly occur to an American ever to read the texts of government decrees or regulations, unless he is a lawyer or engaged in some kind of specialized commercial activity. Probably many, perhaps most Americans go through their whole lives without reading twenty sentences of regulation, or legislation, or case law.
Yet if you think about it, this is odd. For it is not as if America has no laws. It has a lot of laws, and Americans are all expected to abide by them. How do people know what they are? How do they know what is allowed, and not allowed, and required? Well, there is a bit of explicit instruction: driver’s ed, high school government classes. Occasionally, one consults a trained lawyer about something. Contracts are backed by documents which one might read, and some street signs (“STOP”) are self-explanatory. To what extent some laws are intuitive, expressing and enforcing what instinct or conscience already knows, is a hard question.
But one very important way we know the laws is by tradition. Somebody told us sometime, but we don’t remember when, maybe teachers or parents, or maybe we first heard about it on the news or even in a novel, and anyway we are pretty sure it’s come up in a conversation with friends and they seemed to have the same assumptions we did about what the law was... in short, one way or another, we have found it out along the way, without ever particularly trying. Perhaps the word tradition sounds quaint, even comic. Perhaps it has gravitas, or too much gravitas, so that it sounds pretentious. Perhaps in democratic, egalitarian, innovative America, born in revolution, it sounds retrograde and vaguely oppressive. But make no mistake: tradition is the lifeblood of free societies. It is when the law is rooted in tradition, that is, in the habits and beliefs and attitudes of the people, that one can breathe easily and go about one’s own affairs, without bothering, maybe not even once in one’s whole life, to look up the latest regulations. It is when tradition is being overturned that one must neglect even one’s most pressing private concerns in haste to learn the latest decrees coming down from above.
The history of freedom is largely the history of certain traditions, especially (for present purposes) that of the English-speaking nations and the Anglo-American common law, and how a certain consensus about the proper role and powers of governments, and the rights of individuals that limit that government, formed and evolved, and embedded itself in public opinion in certain nations, and defended itself against external and internal threats, and spread itself through victory and emulation. The word “consensus,” however, is not quite satisfactory, for every generation had its adversarial parties and slogans and schools of thought, even if the adversaries often had much in common. A better word for this ecology of ideas and habits and attitudes, adapting and changing through the centuries but maintaining a certain continuity, is: tradition.
The history of freedom is certainly not the history of popular revolutions overthrowing oppressive traditional authorities. Such revolutions are almost always setbacks for freedom in the end. The French Revolution ended, as Burke foresaw in 1791, in a military dictatorship, which overran much of Europe. The Russian Revolution ended in totalitarianism, as did communist revolutions in China, Vietnam, and North Korea. The Meiji Restoration in Japan, another great revolution though less known in the West, modernized Japan only to end in the ruthless militarist regime that brutalized China and bombed Pearl Harbor. The Iranian revolution led to a catastrophic war with Iraq, and subjection to the ayatollahs. The Glorious Revolution of 1688 and the American Revolution of 1776 are, at least arguably, the exceptions that prove the rule, for in each case the king whom the revolution overthrew was innovating, seizing new powers not sactioned by tradition, and the revolutions rose in defense of traditional liberties. Nor is it obvious that England and America would be much less free had these revolutions never taken place.
Tradition means what is handed down, in Latin traditus, and may include stories, proverbs, rhymes, songs, methods and techniques and other practical knowledge, higher beliefs about theology and cosmology and the nature of the universe, high moral principles and mundane moral rules, festivals, symbols, likes and dislikes. Language is a tradition, and is useful for illustrating the properties of tradition generally. If law is characteristically traditional and backward-looking, and must be so to fulfill its function, language is even more so. It is taught to children as a set of unquestioned rules, with reason playing a decidedly subordinate role in language acquisition. That is, one may sometimes explain to a child why a grammatical rule makes sense, but if it makes no sense, or if one cannot see how it makes sense, one still insists that the child should learn and follow the rule. Perfect use of language begins with the imitation of its elders by a baby, on whom rational explanations can have little or no effect. It is typical for native speakers of a language to be unable to explain its grammar, even when their use of that grammar in speech is flawless. Of course, to say that native speakers use grammar correctly is almost a tautology, since the grammar of a language just is how native speakers speak it. The logic of a language is imperfect, but is often wise even in its imperfections, and its quirks sometimes encode deep insights into the natures of things. Language is full of dead metaphor, a kind of ossified or automatic poetry and philosophy, and one can sometimes learn something new by paying attention to the metaphors in everyday words or phrases that one has casually used for years. Such is tradition: accepted before it is understood, often inarticulate, wise in its occasional illogicalities, adapted to all learning styles, necessary if people are to understand and cooperate with each other.
A recognition of the traditional nature of language should alert us to how misleading is the dichotomy that is sometimes made between tradition and reason. Clearly, reason depends on language. Without using the languages bequeathed to us by tradition, we could not reason together at all. That said, it is common for specialized disciplines to be dissatisfied with natural language, with its vagueness, its random accretions, its ambiguities and biases and irrelevant associations, and to develop their own technical vocabularies. In some cases, they find it expedient to shift out of natural language and do much of their work in the more precise and abstract language of mathematics and formal logic. But jargon and formalization lead into error and needless obscurity as often as they lead towards clarity and truth, and many of the best scholars are adept at translating the arcana of specialists into popular language, while enriching them in the process. Moreover, if sciences and philosophies sometimes depart from tradition, they always establish traditions of their own. Young scholars are taught to venerate the leading lights of their fields, their writings and their discoveries, and to write their most serious work in a dry but efficient style to audiences in whom a knowledge of seminal contributions is presumed. In other words, those who aspire to be on the cutting edge of rational inquiry are, quite rightly, made into the acolytes, heirs, expositors and builders of a tradition.
Rene Descartes was the pioneering representative of a style of rationalistic philosophy that rejects tradition wholesale and begins afresh, from indubitable propositions such as “I think, therefore I am.” But even if we accept, for the sake of argument, that knowledge must be built up from indubitable foundations in this way, we run into a difficulty, namely that to acquire enough knowledge to live by in this way, if it is possible at all, would surely be too difficult a task to accomplish in one lifetime, even for a genius, let alone for ordinary people. We need an intellectual division of labor. We need to extend the labor of discussion and discovery over generations. We need to rely on others who know more about this or that than we do ourselves. In short, we need tradition. When Newton said that “if I have seen further than others, it is by standing on the shoulders of giants,” he spoke for all of the relatively enlightened people and societies in history, and for all the sciences.
If we do not usually think of science as a traditionalist and backward-looking arena of human endeavor, that may be partly because a certain myth of science prevails in our culture in spite of Thomas Kuhn, but it is partly because scientific theories are at least in some cases subject to continual testing by experiment and/or observation of nature, making it unnecessary, or at least less necessary, to regard tradition per se as having any epistemic weight. Experiment is to some extent an alternative to tradition. Instead of accepting customary beliefs and the word of old authorities, says the experimentalist, go find out for yourself! The qualification “to some extent” is needed because the interpretation of experimental results is generally conditioned, sometimes heavily, by tradition. But one’s own experiments and experience can supplement and sometimes contradict what is handed down from others.
The trouble with learning by experiment is that it is sometimes exorbitantly costly, or even immoral. Experiment works best when it is cheap, and yields quick results. For example, in cooking, the cost of mixing new ingredients in a new way is usually under $20, or $50 at most, plus a few hours of your time, a few bites suffice to tell whether the experiment is a success or not, and no one but yourself is injured by a failure. Tradition is still valuable in cuisine. Indeed, food is among the most important and distinctive aspects of many national cultures. One reason for that might be called the co-evolution of cooking and eating. That is, learning to like foods and learning to cook are both parts of growing up, and a traditionalist chef who makes the foods his audience has already learned to like may please more people than the experimentalist chef whose novel creations, however tasty they are objectively (if that means anything), may not be well suited to the palates of those who will be eating it. Also, there are so many possible ways to combine ingredients, and so few of these are really exquisite, that to find them involves a vast and difficult search through the space of possible recipes. Humanity has been conducting this search for centuries, and a good book of recipes that collects some of the results is likely to offer better dishes than anything one could invent on one’s own, unless one possesses exceptional culinary skill, which is unlikely to be attained except by first studying the best that has been done before. Still, there is no need sternly and solemnly to warn young people never to experiment in the kitchen. An avid experimentalist, at the worst, will waste a lot of time and a little money and eat a lot of bad meals.
By contrast, in matters of sexuality and family life, experimentation will usually be very, if not disastrously costly to oneself and others. Promiscuous sex often leads to unwanted pregnancy and sometimes to disease, but even when such tangible consequences are avoided, sex creates powerful emotional attachments and profoundly alters personalities. A really avid experimentalist in sex could hardly help but ruin his or her whole life and damage many others, if he did not end up in jail for child molestation or rape. Humans’ attitudes towards sex are intensely contradictory: it at once fascinates and repels us. It is widely assumed to be the most enjoyable experience people can have in life, yet it is also seen as disgusting, gross, or shameful, as shown by the taboos against introducing detailed descriptions of sexual intercourse into private conversation. This ambivalence reflects the tremendous power of sex both for good and evil, for making people happy and for poisoning human life, inducing depression and misery, and driving people to despair and suicide. The trouble with sexual experimentation is that (a) in sexual matters, someone else’s interests are always in play as well as one’s own, bringing in moral factors that are not involved in eating; and (b) the role of strong, instinctive sexual attachments rooted in biology in binding together human families and communities makes the effects of sex peculiarly lasting and irrevocable. If one “learns the hard way” that one would prefer to have been a virgin at marriage, well, it’s too late to act on that knowledge. That is why, in matters like sex, all societies, in various ways and degrees, rightly warn young people not to experiment for themselves, but to learn from the fortunate and unfortunate experiences of others, and especially, to follow tradition.
As a comprehensive epistemology, tradition is not satisfactory. Someone who wishes to defer to tradition all the time must first decide the question: Which tradition? Mankind has many traditions, often agreeing, sometimes mutually influencing, but sometimes contradicting each other, or misunderstanding each other. To which tradition is one to defer? How is one to choose among them, since one cannot make that choice on the basis of tradition without creating an infinite regress (i.e., “which tradition should I use to choose which tradition to use to choose which tradition to use to...”)? An obvious choice is to defer to “one’s own” tradition. This may lead to relativism, the view that what is true and right “for me,” based on my tradition, is also true and right “for you,” based on your tradition, that I am neither more nor less justified in doing what my tradition tells me is right, than you are in doing what your tradition tells you is right. Of course, relativism is not really compatible with any tradition, for all traditions make real truth-claims rather than limiting themselves to relativistic shadow-boxing, nor is relativism rationally tenable in itself. Suppose one were to assert a Relativism Doctrine, that every truth is true only relative to a particular culture or person. The question arises: what about the Relativism Doctrine itself? Is it true only relative to certain cultures or persons? If so, upon those who deny it it makes no claim: they are quite right in asserting it to be false. Or is it true in general, true for everyone? But that is to say that the only absolute truth is that there is no absolute truth, which is self-refuting. If the Relativism Doctrine were relatively true, it would be meaningless, while if it were absolutely true, it is false. The way out of the conundrum is to see that relativism is completely false, and relativism is mentioned here only as a reductio ad absurdum of a too-traditionalist epistemology. Moreover, traditions never prescribe all of a person’s actions and beliefs. They must be interpreted and applied, in combination with reason and experience.
And it is almost a tautology to say that the great new ideas that mankind has come up with have involved contradicting some tradition, as Copernicus contradicted the tradition of Ptolemy, and Einstein contradicted the traditional belief in ether. If tradition knew them, they wouldn’t be new! Tradition is a broad church, with room at the margins for casual opinions and idle tales. When science answers a question, tradition probably has a cloud of rumors and guesses to which it previously lent an aura of respectability, and the new scientific truth must begin life by battling traditional errors. More generally, human progress in history, and there has been some, tends to be against something as well as for something, e.g., for freedom, against slavery. That which progress overcomes will be traditional. Yet it is a more important and profound truth that science and progress depend and build on some traditions even as they overturn others.
It is time to draw this study of tradition to a point by applying what we have learned to our question about the proper scope of legal self-binding.
First, tradition has epistemic value as society’s repository of knowledge about what works and does not work. It is not an infallible guide, but nor should it be discarded lightly. There is often a great deal of non-obvious wisdom embedded in it, even when good, clear explanations have not or perhaps could not be written. When tradition is suddenly overturned, as in great political revolutions, the result is disaster. Tradition can rarely be improved upon except by those who first master it through, among other things, submitting during a long period of tutelage to its authoritative prescriptions. If society has traditionally permitted some forms of self-binding and not others, it probably has good reasons for that.
Second, tradition is an indispensable medium for people to understand each other, and this is especially necessary when people make important, legally binding promises. It can be very difficult for a person to understand in advance just what a particular long-term promise entails. What will it mean to pay back $90,000 in student loans, or to spend eight years as an enlisted soldier in the Army? How will it affect where one can live, one’s job options, one’s chances to start a family? For debt and enlistment in the Army, the duties entailed by a promise, if not its likely impact on their lives, are clear enough, but in the case of marriage, the content of the promise is much more problematic. What exactly are husbands and wives obliged to do, and not do, for one another’s sake? What does it mean to be a good husband, or a good wife? How does one know if one is prepared to do it?
For large life decisions like these, people typically cannot rely on their own experience as a guide, since such choices may only be made once in a lifetime, nor can they simply reason it out, because there are too many unknowns. Their best bet is usually to look at the lives of those among their elders who have been faced with similar choices, and see what they did, and what the consequences were. In some cases, they may rely on culturally embedded sources of advice, such as great authors or philosophers, or the Bible. They may lean heavily on the advice of parents. In short, they will use tradition as a guide. In the case of marriage, the set of literary, religious, and traditional sources which they can turn to for counsel is extremely rich. Most people will always have a large array of working models of marriage, starting with their parents and extending to all manner of relatives and friends, to look to. Tradition can help people to make wiser long-term decisions than they could have made on their own.
We should be wary about allowing people to bind themselves in new ways, both because there is likely a good reason why a form of self-binding was not legally recognized in the past, and because the lack of models to follow and experience to draw on handicaps people in deciding whether a new form of self-binding is a good idea for them, or how to live up to their promises if they do decide to make the commitment. Clearly, whatever force tradition has in the question of marriage policy favors continuing legal recognition of heterosexual marriage, but calls into question the wisdom of extending the institution to situations which have never before been under its remit.