In Defence of Custom (III)

An essay on the importance of pre-legal practice.

This is the third and final excerpt from a research chapter. The first argued 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 second section argued 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 this third section closes by arguing for a return to a trans-temporal approach to structuring a political community.

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Section One

Section Two

Section Three – Remedies and Proposals

It is not easy to resolve these problems. Indeed, the problems are in themselves a form of custom, having become such a common and consistent attitude; but it is an attitude derived from ideological formulae, not true experience or history. As a result, my suggestions in this brief closing section will be primarily ones of a change of heart and mind, not necessarily one of governance; there are policy changes we can make, for instance to the use of natural resources, or to inheritance laws. But these are somewhat accidental. The public hunger must be there, otherwise the laws will be the very tyranny I reject.

Fundamentally, the issue at stake is the decline of the trans-temporal vision of community. I am not the first commentator to make this observation, though it has fallen under different terms through history: the permissive society; the decline of deference; and, in the early- to mid-nineteenth century, the tyranny of the majority. Joseph Femia, Albert Hirschman and Corey Robin may call us reactionaries (Femia, 2001; Hirschman, 1991; Robin, 2016); I call us restorationists. Reaction has always put us in the mindset of responding to the Progressive project, which puts us immediately at a disadvantage because we are meeting our ideological opponents on their ground. Instead, we must offer a principled alternative: that can only come from the very thing I have defended throughout this chapter; the motivating purpose of custom and tradition.