How does tradition operate over time?
Point of origination
Capture of information
Subsequent use or application of information
Capture of the application, which is in turn added to the information base
Distinctions between three
different types of ‘lost’ traditions
Dead: information is irretrievably lost
impossible to revive tradition
Submerged/suspended: information is retrievable but does not live despite being availablebecause no resonance with any modern human group
Canada Supreme Court has held that the going “underground” of Metis people for more
than a century did not prevent their re-emergence and affirmation of rights to hunt and fish.
Contra HCA ruling that Yorta Yorta people had ceased to exist as a people through non-adherence to Yorta Yorta tradition
rights flowing from such unwritten law expireddefinitively with the loss of identity.
Consistent with positivist thought
Conceiving law in terms of tradition, however, means that revival is always possible
What is legal tradition? [pg 10]
A legal tradition contains
that has been captured over a long time.
Process of capture, access and application is well exemplified by the common law process of deciding a case and using it to decide (or applying it to) new cases. In civil law, the codes and
reforms made to them also exemplify the process of a tradition’s development.
Example: Trespass to land in the common law. Existed before the age of state law, but is sowell-established that no legislator can add any useful gloss on it and no judge would dare sayit is not part of the law.
Essential question is not “what is law” but, rather, “what do we take as law, normatively and
for good reason, in thi
s particular society at this particular time for this particular case?”
How, and to what extent, is legal tradition
? [pg 13]
Two ways in which legal traditions provide a more inclusive concept of law:
Allowing us to think of non-state law as law
E.g. Canada’s aboriginal or chthonic law (aboriginal legal tradition accepted as law by SCC in
Calder v British Columbia
rejected government’s claim that aboriginal claims were “sogeneral and undefined” that it is “not realistic” to think of them
as specific claims capable of remedy. Author argues that there is now more justice in Canada due to the resultant
expansion of Canada’s legal world.
Reconciling state and religious law, especially in the field of family law. SCC in
Bruker v Markovitz
enforced a contract for the execution of a Jewish divorce.