RJ Snell, Marriage and the Law of Tradition

Marriage and the Law of Tradition

We are aware of that liberals oppose tradition with "reason." The author writes:

Perhaps Judge Vaughn Walker, whose ruling in Perry v. Schwarzenegger overturned California’s Proposition 8, imagined himself a contemporary Socrates when he declared that “Tradition alone … cannot form a rational basis for a law,” and “the ‘ancient lineage’ of a classification does not make it rational.”

Tradition alone fails to provide a rational basis for law—isn’t Judge Walker Socratic in his impulse and spirit? One could even think him Thomistic given Aquinas’s conclusion that “law is a rule and measure of acts” insofar as law is reasonable. Law does not find its legitimacy in what we happen to do—tradition—but in reason, just like Judge Walker declares.

Not quite.

Aquinas maintains a dialectic between reason and tradition in the human law, writing that because human law is “a dictate of reason, whereby human acts are directed,” human laws can be changed either to strengthen reason and make institutions “less frequently deficient in respect to the common weal,” or because of the “changed condition” in which human acts are made. That is, laws can be changed to be made more reasonable or because of changing circumstances. Aquinas teaches that human law can be altered if it is irrational or unjust: “in human affairs a thing is said to be just, from being right, according to the rule of reason,” whereas at the point where a human law “deflects from the law of nature, it is no longer a law but a perversion of law,” and can be changed.

If we stopped there, it might seem that Thomas agrees that tradition fails to provide a rational basis, yet he also insists that “the mere change of law is of itself prejudicial to the common good… [H]uman law should never be changed, unless in some way or other, the common weal be compensated according to the extent of the harm done.” Such compensation may be some “very great and very evident benefit” or a remedy of the clear injustice of the existing law. So while believing the human law to be changeable, Aquinas also insists that revisions of law are always harmful to the common good in that “custom avails much for the observance of laws,” while a change of law diminishes “the binding power of the law…in so far as custom is abolished.”

When Aquinas says that “custom avails much for the observance of laws,” he recognizes that frequent and unpredictable revisions tend to render habitual obedience of the law less probable since citizens have reason to think that an edict might soon change. Changes of law create disincentives to obey the law. But his claim is more than this prudential realization, for Aquinas also says that action “done contrary to general custom, even in slight matters, is looked upon as grave.”

H. L. A. Hart, in The Concept of Law, distinguishes between a habit and a rule. Deviation from usual habitual behavior “need not be a matter for any form of criticism,” whereas “rule deviations are generally regarded as lapses or faults open to criticism.” Further, it is the deviation from a rule which is itself “generally accepted as a good reason” for making the criticism. Third, members of a social group need not have any interest in the habitual behavior of others in the group, “still less need they strive to teach or intend to maintain it.” A rule, on the other hand, is taught and maintained “in the criticism of others and demands for conformity made upon others when deviation is actual or threatened.”

When Aquinas says that deviation from custom “is looked upon as grave,” he indicates that custom is something more like a rule than a habit, and rules are thought to provide good reasons both to criticize rule-breakers and to take action to teach and maintain the rules over time. Given the rule-like nature of custom, we ought not be surprised when Aquinas claims that the “binding power of the law is diminished, in so far as custom is abolished,” for he has previously described law as binding because reasonable, and custom is thought to provide good reasons to bind the behavior of others in the social group. In linking custom with the binding force of rational law, which I’ve compared to a rule, Aquinas is forcing us to ask if custom, like reason and the law, can be binding. That is, can tradition alone provide a rational basis for law?

 But then the author writes:

To be sure, Aquinas explicitly rejects the notion that custom can override the natural or divine laws. Custom and common sense can be nonsense and wicked—the antiquity of patriarchy, slavery, honor killings, and abortion in no way legitimizes those practices.

So how does he define patriarchy? And how does he demonstrate that it is opposed to the requirements of justice? Is he another Catholic liberal in the mode of John Finnis? Or does he merely assume this in order to be acceptable to modern Catholics and non-Catholics?