In Defence of Custom (I)

An essay on the importance of pre-legal practice.

This is the first excerpt from a research chapter arguing that, in political theory, there are two prevalent approaches to the study of the identity of a people in time: a trans-temporal approach, emphasising continuity over change (what we might call ‘custom’); and a timeless approach, which emphasis the sovereignty of the political community as it is currently constituted. The chapter argues that the triumph of the latter over the former has led to a situation in which immediate concerns are privileged over the true interest of a political community, and closes by arguing for a return to a trans-temporal approach to structuring a political community.

---

Society is indeed a contract… It is a partnership in all science; a partnership in all art; a partnership in every virtue, and in all perfection. As the ends of such a partnership cannot be obtained in many generations, it becomes a partnership not only between those who are living, but between those who are living, those who are dead, and those who are to be born.

Edmund Burke, Reflections on the Revolution in France

It is my firm belief that the vision of a community has been all but eradicated from the British political imaginary.

No doubt there will be some who disagree fervently with what I have to say, but these disagreements will come, I think, from misunderstandings over what I mean by both ‘community’, and ‘British political imaginary’. Clearly, community in some form does exist, and it does so in the political reality of our day-to-day lives: we go to Church; to the pub; the local playing fields; but the capacity to think of the British political community as existing, either in some current form, or (and often, as a consequence) into the future we inevitably have stretched out before us, has disappeared. The implications of this are far-reaching, and perhaps apocalyptic; at least, to the conservative.

To the libertine, to the socialist, to the populist – these are things worth celebrating, as the shackles of history are finally thrown off and the programmatic political vision can be fully implemented; but, and I have never found a convincing answer to this question, who will it be implemented by, for, and on? For, the liberal vision of community has always assumed that ‘people’ must devise rules for living together, and clever reasons as to why, and how; but it has never managed to explain which people this ‘people’ is. In other words, the liberal question is so divorced from actual history as it exists and has existed, that the arguments become so vacuous as to make no compelling case for obliging the people who do live together, to continue doing so.

At the advent of the democratic age, which by all rights began with the Revolution in France of 1789, there emerged a titanic battle between two visions of a political community: the first, which I defend here, and I call the trans-temporal vision, was that articulated by Edmund Burke, which ‘has been the uniform claim of our constitution to claim and assert our liberties, as an entailed inheritance derived to us from our forefathers, and to be transmitted to our posterity’ (Burke, 2004: 119). The second, which I call the timeless vision, was that articulated by a great many thinkers, but whose man-in-the-ring against Burke was Thomas Paine; Paine wrote at the beginning of Common Sense, ‘let us suppose a small number of persons settled in some sequestered part of the earth, unconnected with the rest, they will then represent the first peopling of any country, or of the world. In this state of natural liberty, society will be their first thought’ (Paine, 2008: 5-6, emphasis added). This timeless vision is that I mention above; so divorced from history, in both its constituent elements (place and time), that it bears no real relevance to politics as it has actually been practiced.

Each of these two visions persisted, and at times one would emerge victorious over the other – but, like Hegel’s master and slave, neither would eradicate the other, because they knew full well that they could only exist one with the other. The trans-temporal vision required the burning questions of the day be answered, that the society it sought to protect persist; the timeless vision required that the bonds of history be recalled, that those burning questions could be answered together – indeed, Paine’s arguments in the opening pages of Common Sense are deserving of that epithet, that a man alone cannot satiate his own desires (Paine, 2008: 6).

Anyone familiar with political theory will know that Paine was not the first to make this claim; as far back as the Greeks, the argument was made that no man can live alone – hence Aristotle’s famous claim that man is, by his very nature, a political animal. But, what has broadly been ignored, is that Burke was also placing himself in a long tradition, extending not so much from the Greeks but from the Romans and the late-antiquarians who, like Burke, saw society as existing through time, not merely ‘in’ it.

In this research essay, I shall argue that this neglected vision of society had been the dominant vision for most of history. In Section One (this post), I draw on a wide range of sources to show that the trans-temporal vision was not Burke’s creation (as he consciously knew), and has precedent in the thought of St. Thomas Aquinas and Baldus de Ubaldis, but that ultimately this vision has disappeared; Section Two aims to show that the disappearance of this vision has had far-reaching consequences, and the timeless vision contains within itself a logic that will destroy its own foundations; finally, Section Three will argue that, if we wish to persist as a political entity, we must rediscover the trans-temporal vision, and suggests methods for doing so.