The Return to Tradition in the Law 

Editors’ Note: A version of this essay was delivered on November 15, 2025, at the University of Notre Dame’s de Nicola Center for Ethics and Culture’s Fall Conference, “Living Tradition: That Which I Have Received.” 

There is a hunger for tradition in the law and in our culture more generally. We see it in the law with the Supreme Court’s embrace of history and tradition in constitutional interpretation, and with legal scholars’ increasing interest in unwritten, general law, which is much more traditional in character than explicitly posited legal norms.  

But we see it beyond law, especially among young people. The long-running decline in religiosity among young people has reversed, showing a moderate uptick for the first time in decades. And the kind of religion that appeals to them is more traditional. At this conference two years ago, I remember speaking to a participant in his fifties who went to Mass in the crypt of the Basilica and was surprised and scandalized to see so many young people receiving holy communion on their knees. I explained to him that in these untraditional times, when religiosity is an option, people choosing it want the strong stuff. 

There is promise in this return; I send my youngest son to a classical Catholic school with daily Mass for a reason. But, as with so many possibly good things, there is also peril. There is, of course, the perennial danger of antiquarianism and living in an imagined past. The young fogey is a stock character and a figure of mockery for a reason. More worrisome is the embrace of tradition as a mere angry rejection of what the culture has on offer, even if that offering surely merits rejection. If “retvrn” is spelled with a v and lived online via a medieval knight social media avatar that owns the libs, there is a strange combination of nostalgia and violence: a mosh-pit version of Morris dancing. We do not want tradition to be a skinsuit for nihilism, a funhouse-mirror version of left-anarchists wearing Guy Fawkes masks and singing the old songs of the Spanish civil war. 

And the very forces that make us long for tradition also make it harder to find true tradition and its goods. In a recent bracing and pessimistic book, The Crisis of Culture, French political scientist Olivier Roy argues that the disorientation we face today is not from the rapid change of culture, but the end of the possibility of culture completely. And by culture he means shared, implicit understandings with respect to mores and ways of life, an accepted canon of works and knowledge to pass on, and a shared social imaginary. He contends that with globalization, the triumph of subcultures and mass culture, and postmodern doubt about metanarratives, including religious ones, we are in a situation of what he calls deculturation without acculturation. Unlike some religious believers or communitarians, he is skeptical about our ability to go back. 

One does not have to be as pessimistic as Roy to recognize the challenge of our scattering times. And our challenge is not made easier by some attempts to push back against antitraditional forces. As the Oxford music professor Lola Salem has argued in her recent essay “Renewing Culture for the Right,” you cannot critique, dunk, or meme your way back into a social habitus worth living in. You need to propose something real, solid, authentic, compelling, and beautiful.  

Which is where law finally comes in. It may sound bizarre to link law and legal traditions with beauty. And I, for one, have limited tolerance for romantic tributes to the “majesty of the law.” But I would like to assert that law, and legal teaching and scholarship when done right, remain a stubborn cultural redoubt where one can find shared implicit understandings, a canon, and a shared social imaginary. Consider the first year of law school: across the country you will find a required curriculum, canonical cases, and a common vocabulary and set of concepts. First-year students will not have those implicit understandings and that shared imaginary the first time they sit down in their seats, but by the end of the semester, and the end of the year, they will indeed be acculturated, and that is what makes the first year of legal education both exciting and at times disorienting. 

I will also argue that this tradition can be beautiful, and even elegant, for a certain kind of mind. Take a torts class. If well taught (and I strive to teach my version of it well), students will see more than a farrago of accidents, invocations of reasonableness, or memorization of rules. They will appreciate how reasonableness serves different functions in different contexts, see how the disparate elements of individual torts hang together, trace implicit patterns of moral commitment across different torts, and be initiated into mysteries and arguments about whether and how doctrinal anomalies fit in, should be excised, modified, or be allowed to hang on as vestigial remainders that are inevitable for any nonrationalistic practice.  

And when it’s done even better, they will appreciate how there can be arguments within the practice of tort law about what makes the practice excellent, how it can be reformed within those terms, and to recognize forms of argument and theories that are inimical to the practice. I remember once hearing about a math teacher who wept when he first appreciated the fundamental theorem of calculus. I’ve never come close to that in a torts class, but there is, I think, something beautiful about stepping back after the Palsgraf case and seeing it as a finely carved Rosetta Stone or skeleton key for understanding the traditional structure of tort law (in the majority opinion) and its modern interpretive rival (in the dissent).  

The enterprise becomes even more satisfying, at least for me, when you can see how that doctrinal structure (which is subject to some permissible contingent variation across jurisdictions and systems), can fit into a broader system of natural law that instantiates obligations of interpersonal justice in the imperfect conditions of human law and life. Contrary to some Kantian private law theorists, there is no Platonic form of tort law in its particulars, but there is a rough, deep structure that labors to order our affairs in a vale of tears. It is justice in work clothes and, like all garments, it is subject to some particularity and variation depending on the wearer. But that tailoring, mending, and patchwork over time are what make a pair of clothes mine, rather than yours. 

What I’ve said for tort law done well can be said for other legal subjects. You could say that about constitutional law, criminal law, and the like. If tradition is the intentional handing-on of something from the past that has a living claim on us today, law and law teaching, when done well, do that in spades. There are many ways to do it poorly, including with a kind of rigidity that denies that tradition can develop over time as it incrementally incorporates moral wisdom and addresses new problems. But that vice is not the most prominent ill, at least in elite legal culture. Challenges to healthy traditionalism in law often come from the other pole of our antinomy.  

Oliver Wendell Holmes sought to retheorize law on reductive, Darwinian terms. Legal realism in its crudest form sought to expose legal doctrine as raw policy preferences masquerading as mystery. And critical legal studies, while rejecting the picture of legal tradition I’ve sketched above, saw it the most accurately in some respects, even if one does not think unsavory class, racial, or gender politics poison our law to its roots. The scholars of the Critical Legal Studies movement diagnosed, correctly, that teaching law along such traditional lines indeed has an implicit politics and metapolitics. That there are value judgments not just beneath particular doctrinal rules, but in the way we attend to, defend, or develop those rules. For a person who rejects those implicit politics, or for those who reject reform in favor of revolution or deep destabilization, law and law school can in fact be alienating. 

Yet, despite the best efforts of more than one hundred years of would-be academic revolutionizing, much of the old science remains in place. You would not believe that if you were to read the articles in the top law reviews or peruse the table of contents of the most recent issues of the Journal of Legal Education, but those periodicals are also littered with recriminations and laments about the tenacity with which the old ways of teaching and thinking about law hang on. We teach a lot of the same cases, with a new smattering of policy analysis and critique, but in the hands of most teachers those innovations tend to hover around the edges like a Greek chorus bemoaning a play that eternally recurs. 

Even the California Supreme Court, the most nontraditional of courts, cannot resist the pull of tradition in its efforts to change. For example, in the Tarasoff case, the court sought to impose a new duty on psychiatrists to warn third parties who they have reason to believe were endangered by their patients. In good, skeptical legal realist fashion, they led with a block of dicta rejecting traditional analysis of negligence duties and intoned how conclusions of duty are the mere residue of policy balancing among seven (count them, seven) factors. In the end, however, they undertook little explicit policy balancing, but more humbly stretched a duty to warn that already existed under the old doctrinal science and cited other cases that had done so as well.  

In sum, despite the efforts of realists and critics, the practice persists and even revives, as evidenced by the rediscovery of tradition and unwritten law in public law and the close attention to doctrinal categories in the new private law movement. One could wonder why law and law teaching remain so resistant to the forces of anticulture. Part of it is the brute fact that law students need to pass the bar and attend to the needs of clients whose problems will be resolved in the thicket of practices and rules that legal institutions still maintain. One cannot say the same for, say, anthropology or, sadly in some places that are not Notre Dame, theology. Ironically, then, it might be that law’s professional-school status helps it maintain more of its intellectual center of gravity against the academy’s centrifugal forces of dissolution. Two cheers for the bar exam and vocationalism, if not for the ABA and hornbook manualism. 

But that might only push the question back a step: if lawyers and judges gave up on this traditional cast of thinking, it would not behoove schools or law students to follow suit. Why do they instead persist, at least to some extent? Part of it, I think, is the very nature of the discipline of law, where authority, stability, consistency, coherence, and role morality are simply built into the character of the practice and distinguish it from politics and ethics (even though never fully separated). Law is a particular subdivision of practical reasoning where first-order questions of justice and the common good are filtered through and conditioned by such second-order, stabilizing considerations. Those who think law should be unburdened by the dead hand of the past do not, in an important sense, understand the enterprise. 

This does not, of course, mean that the law and the practices we have are immune from criticism, though such imperfections call for reform rather than revolution. (Again, this is the implicit politics of law the critics were correct to diagnose but wrong to decisively reject.) Nor does it mean that tradition in law is safe from the world around it. There are judges writing click-baity opinions, scornful bloggers, scoffing podcasters, and hot-take tweeters—and students primed to listen. There are large language models seeking to mass produce a simulacrum of that craft. Après le Restatement of Torts, le déluge, perhaps. But if feats like the medieval preservation and subsequent revival of Roman law show us anything, it is that the steady, often thankless work of patient scholarship and steady teaching can provide sound footing on dry land. 

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