April 28, 2005

De Facto vs. De Jure

Over at liberteaser, someone seems to have a criticism of my entry on tradition, laws and the filibuster. I'm not entirely sure what the refutation was, because it went into something about tradition and innovation being compatible. It appears to be either an excuse to talk or an excuse to disagree. Considering the reference to "big government" when I don't recall mentioning such a thing, I'd assume the latter.

Perhaps I didn't make myself clear, but I intended to make plain in the original post that America has a great deal of tradition. Everywhere has a lot of tradition, because people traffick in tradition (people being habit-forming). Since America is also incredibly innovative, we would naturally have a fair amount of both tradition and innovation.

However I think any amateur political scientist could compare the US and the UK and acknowledge that the UK has a great deal more emphasis on tradition than on written law, measured against the US. Maybe this works for them most of the time, but I think we have a greater need for law here in part because we expect to do things when they're not illegal. The British get along better avoiding activities that are lawful in part because of tradition.

I think the Burkean-style "tradition is collected knowledge" style arguments I'd counter with a vague reference to Paine's The Rights of Man. I'm not really interested in the Burkean-style arguments about tradition because they always struck me as both obvious and stupid, but more to the point they're not the point of my original entry.

My point was simply that a lot of people are pointing out historical anecdotes about the use of the filibuster in judicial nominations; if they wanted it to be a binding, extant rule then it needs to be by statute, not simply repetition. I'm not sure how you can really disagree, absent a tendency towards disagreeability for its own sake, that a written Senate rule is more binding than an unwritten Senate rule.


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