Tuesday, January 27, 2009

Institutional Idiocy

David Brooks has a wistful paean in today's New York Times extolling traditional institutions' affect upon our lives.  He ends by praising traditional institutions for often saving us from our weaknesses and giving meaning to our lives.  Putting aside for a moment the question of whether I want to be saved from my weaknesses or if I give a rat's ass about vacuous concepts like life's meaning, I can go both ways on his nostalgia for traditional institutions.

As a member of the bar, I find much that is useful in the traditions of my profession that I embrace.  For instance, I'm a big believer in our adversarial system of justice, where opposing parties duke it out in front of allegedly neutral fact finders.  I like the skeptical bent of our common law evidentiary system with its distrust of all things outside the scope of a witness's personal knowledge.  These traditions take a lifetime to master and profoundly change you as you learn them.  But one also has to remember that all traditions were new at one point, which means at some time they were an innovation supplanting another preexisting tradition.  And there are plenty of idiotic institutional traditions that should be obliterated but survive because they have powerful lobbies  of persons who have mastered their arcane byways and profit from knowing something that most find impenetrable.

Much of Anglo-American property law is a good example of this.  Why the basis of our modern property laws should consist of French & Nordic feudal law imported into England during the Norman conquest is beyond me.  Really, where else in modern life do you still refer to another person as your Lord, as you do whenever you refer to your landlord?  To a large degree our property law in this country is based on an agrarian world view that viewed land, as opposed to the buildings on it, as what was important. Without boring you with the details, the clash between the feudal agrarian world view and the modern world view causes the courts to make so many ridiculous contortions trying to reconcile the two world views that we'd all be better off if most of traditional property law was abolished and replaced by much more straightforward and modern contract law.  (I am not the first person to suggest this.)  But this won't happen anytime soon because that would put all those who've made their living learning the arcane byways of feudal property law out of a job.  
Which leads me to what I think is the problem with embracing tradition too tightly.  As often as tradition is rewarding and enriching, it also rewards and enriches entrenched interests who smother innovation with the outworn utilities of a bygone era.  Thus I would argue that it is better to engage and innovate within your tradition, sometimes even casting aside your tradition and starting anew, than to reanimate what is dead and of little use to anyone but the few who wring their profits from selling old wares.