The Burkean Paradox
posted by Nate Oman
Edmund Burke was a big defender of the worth of received institutions and prejudices. If I understand his argument correctly it goes something like this:
Society has lots of traditions, practices, and prejudices that are difficult to justify with clearly stated rationales. Sometimes we do something just because that is the way it has always been done. The fact that we don’t have a clear idea about why we have a particular practice does not mean, however, that we should feel free to change it and rationalize it at will. The fact that something has survived from time immemorial means that it may well be the incarnation of collective wisdom that exceeds our rational understanding. After all, reason is limited and we might be wrong. Accordingly, we ought to afford tradition great respect, tampering with it in favor of rational redesign only when absolutely forced.
I find this line of reasoning — call it the Burkean Argument — paradoxically powerful and utterly unpersuasive. It seems powerful to me because the two central premises of the argument seem to me to be quite clearly true. Reason is a necessarily limited instrument, and there is no denying that our deepest convictions about things could be wrong. Likewise, it seems to me that the importance of social institutions quite frequently exceeds our conscious or common-sense understanding of them. Indeed, most social science is premised on the notion that the proper understanding of human institutions exceeds our common-sense understanding of them. If this was not the case, then social science would have nothing to tell us that we didn’t already know.
The problem with the Burkean Argument is that it also strikes me as equally true that some social institutions and practices are just old. We do them because that is the way that we have done them, but they are ultimately meaningless and stupid. The problem with the Burkean Argument is that it provides us with no way of telling which institutions represent the accumulated wisdom of the ages and which institutions are just old. From the point of view of the Burkean Argument the fact that we can’t see a reason for something is not evidence that it is just old. The accumulated wisdom of the ages necessarily exceeds our attempts at argument and theorization. At the same time, the absence of a clear reason for a practice is also not evidence that it represents the accumulated wisdom of the ages. It may just be old. I don’t really see any way out of this paradox. Hence, I think that the Burkean Argument is both valid and useless.
Accordingly, it seems that we are justified in either ignoring all appeals to the Burkean Argument and blithely going forward based on our own understanding. Alternatively, we can adopt a curmudgeonly conservatism, standing athwart the path of History shouting “Stop!” Down one path lies Robbespiere, and down the other lies the defense of rotten boroughs and segregation. Take your pick.
February 8, 2007 at 5:24 pm
Posted in: History of Law, Legal Theory
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Responses (7)
Patrick S. O'Donnell - February 8, 2007 at 6:03 pm
There’s a third alternative, in part outlined by David L. Norton in Democracy and Moral Development: A Politics of Virtue (1991), and that is to provide a theory of tradition(s) and community(ies) that grants their indispensable importance but uses rational and moral criteria to specify the nature of their worth and serves to correct those aspects or dimensions that have gone awry for one reason or another. Norton himself provides an intriguing blend of ‘communitarian’ perspectives and ‘ethical individualism’ within a larger context of eudaimonist or virtue ethics. It endeavors to avoid the pitfalls of a ‘rootless cosmopolitanism’ or New Age dilettantism associated with most species of classical Liberalism (or the affluent societies where Liberalism is the dominant ideology) on the one hand, while on the other hand using criteria derived from the ethical individualism of virtue ethics to steer clear of the communitarian tendency to smother the morally autonomous individual with Burkean-like veneration of community and tradition.
Incidentally, individuals as diverse as Mahatma Gandhi and Confucius (references provided to relevant works on request) provide interesting models of how to go about a rational examination of one’s tradition(s) (both of them clearly recognized the limits of reason) in a manner that grants their utility in the socialization and education of individuals, but recognizes the myriad problems that follow in the wake of something on the order of ‘tradition for tradition’s sake.’
Rick Garnett - February 8, 2007 at 7:26 pm
Nate, I wonder if you are a bit too quick getting to “useless.” You point out, fairly enough, that the Burkean disposition (more a dispotition than an argument, right?) doesn’t provide a divining rod for distinguishing sharply the accumulated, if under-theorized, wisdom of the ages from the “just old.” But, I guess it is not clear to me that we should move as quickly as you seem to from “just old” to “ultimately meaningless and stupid.” It seems to me that probably there are not *that* many longstanding, traditional, deeply ingrained (if undertheorized) social institutions and practices that (a) Burke would regard as deserving of the kind of deference invoked in the Burkean Argument, and that are also (b) “ultimately meaningless and stupid.” I can certainly imagine some longstanding institutions and practices, in some societies and contexts, being depraved and immoral, but that would be — wouldn’t it? — because those societies are depraved and immoral. But “meaningless”? I guess I’m skeptical.
Orin Kerr - February 8, 2007 at 9:19 pm
Nate,
Try recasting the Burkean Argument as a presumption rather than an absolute. Longstanding institutions and practices tend to embody wisdom, the thinking should be, and we should not change them unless the case can be affirmatively made that change is necessary. This doesn’t mean we should never embrace change; rather, we should embrace change when we can overcome the presumption that longstanding institutions and practices are worth retaining.
Patrick S. O'Donnell - February 8, 2007 at 9:24 pm
Orin,
That is how I once wrote about the doctrine of stare decisis in a short piece for an Australian periodical. The conclusion: ‘And whatever the vagaries of analogical reasoning or the prospects for vulgar Burkean-like veneration of the past, the (relaxed) doctrine of precedent accords strong presumptive weight to whatever knowledge or wisdom may have worked itself into past decisions. So, it is not precedent per se that is binding, but the persuasive or substantive reasoning – ratio decidendi – that animates it, that adds up to a case on point.’
See: http://www.quadrant.org.au/php/article_view.php?article_id=868
Matt - February 8, 2007 at 11:17 pm
One thing that’s very annoying w/ many versions of the Burkean argumet is the claim that we don’t know much about how norms are formed and maintained. When this is joined to the conclusion that we therefore should not mess with a particular norm it’s of course a complete non sequitor, but even the first part isn’t clearly true. There is a lot of very interesting and, I think, insightful information on norm formation and maintenence, work that’s almost never cited by those making Burkean arguments. Good places to start for those who are interested can be found in the works of Chris Sanchirico and Cristina Biccchieri, among others.
Patrick S. O'Donnell - February 9, 2007 at 1:28 am
We should make a distinction between traditions, traditionalism (as Elster does), social norms and conventions. I agree with Matt that there’s excellent work available on social norms and Bicchieri’s book, The Grammar of Society, represents the latest and most ambitious work in this regard. In addition, I would add articles and books by Kaushik Basu, Geoffrey Brennan and Philip Pettit, Robert Cooter, Melvin Eisenberg, Robert Ellickson, Jon Elster, Russell Hardin, Cass Sunstein, and Edna Ullman-Margalit. The study of social norms is a nice corrective to much that is neglected in the rational choice literature.
Patrick S. O'Donnell - February 9, 2007 at 8:06 am
I left out Eric Posner above. He takes a rational choice approach to social norms.
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