Roger Scruton:
https://bit.ly/36fsCvr
R:
I thought Scruton was giving an account of the philosophical roots (or root, since he pretty much makes it one guy) of what now appears to us as more or less the natural way to be. If you offer custom as a rationale you lose the debate. Or authority, the reason you should do this, you tell your child, is because I say so.
He was also claiming that this has great drawbacks. Maybe he underestimates our ability to live a la Rousseau (though Rousseau seems to have had some problems with it) but I have no idea about that. My gut keeps saying, we now demand of all what only some can manage (self-regulation) so I am sympathetic to his view.
Me:
Listen, I’m not taking anything away from his essay. I think it’s great, bears rereading and thinking about.
But I don’t know why the balance between stability and tradition on one hand and change on the other is so complicated.
The argument against the overemphasis on custom as the repository of accumulated wisdom is the hobbling of change and innovation. The argument against the overemphasis on progressive change is precisely the jettisoning of the wisdom of accumulated bottom up experience over time evident in custom. Incremental change is what Scruton plumps for but what exactly is incremental begs the question in specific cases and its overemphasis is an interference when something more than incremental is necessary.
Society is massive and complex. Programmatic slow change can lead to reactionary stasis with its own reactionary reflexivity. Progressivism has its obvious menu of flaws, not the least throwing out babies with bath water.
So that’s exactly where Meiklejohn comes in.
Here is a nice description of the Liberal both believing and doubting by Alexander Meiklejohn, which provides a striking contrast to what might be called the Conservative cast of mind shown in the argument from caution (unintended consequences)and in the argument from tradition, both Scruton’s via Burke:
...Liberalism both believes and doubts, and “indicates a pattern of culture which criticizes itself. It has customs and standards of behaviour. But it also has the attitude of questioning its own dominant beliefs and standards. The liberal both believes and doubts and if an individual or a group will hold fast both to custom and intelligence, then its experience will inevitably be paradoxical and divided against itself. The being who seeks intelligence is a divided personality...
This is a succinct account of the very needed balance between tradition and reform. It’s no guarantee of perfection of course. In fact, the end of the quote speaks to the division—social and personal, uncertainty and anxiety that doubting and believing cause.
Further, that very tension relates to the tension in the dramas of literary works, their essence being their paradoxical nature, emotion and ideas pulling against each other.
Scruton argues the wisdom of the common law exemplifies the bottom up accumulation of wisdom manifest in custom and tradition as opposed to legislating from on high as exemplifying progressive top down social engineering:
...As F. A. von Hayek has shown in Law, Legislation, and Liberty (1982), the common law, for example, contains information that could not be contained in a legislative program--information about conflicts and their resolution, about the sense of justice in action, and about human expectations, which is dispersed through the record of the law and is never available when legislation is the sole legal authority. Hence, the attempt to remake the legal order, through a legislative code that embodies all permissible solutions, is profoundly irrational. Such a code will destroy the source of legal knowledge, which is the judgment of the impartial judge as he confronts the unforeseeable course of human conflict...
When I before raised a criticism of Scruton’s account of the wisdom of the common law and the irrationality of legislating from on high with a view to, from on high, addressing all problems, my criticism included that Scruton’s account is unreal, that nowhere known to either of us is there a purely legislative approach to law as opposed to cases on specific points, you said, “It’s a point of principle. In the real world it’s a mix.”
What’s the use of a point of principle that has no application to or existence in the real world. Even civil code jurisdictions, which in theory start top down from a code, a compendium of all laws, of necessity have cases that gloss the provisions of the code. And I’m unaware of common law justice being being superior to civil code justice, say comparing Quebec civil code law with the common law base of the rest of the provinces and territories in Canada or say UK justice and French justice.
My intuition is that the modernity and liberalism of a society will inform more than anything else the quality of justice that emanates from the rule of law in it and that the differences are on the margins.
Here, the example of our Criminal Code is apt. In a way, the codification of the common law of crime was a rejection of the inefficacy and even incoherence of the latter. Having the Criminal Code makes going back to an uncodified common of crime simply unthinkable.
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