Tradition and the state

Amish communities have little need for noise ordinances. A town full of Orthodox Jews does not need to worry much about passing laws concerning public indecency.

It is when tradition ceases to handle such matters that the state is asked to step in and settle interpersonal conflicts.


5 comments:

  1. I am having difficulty seeing a relevant distinction that makes one "state" and the other "non-state". Seems like the same mistake libertarians and paleos make about law and culture.

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    1. Nothing? I was sure that would get a response about "the state" or something.

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  2. Samson, is that a serious question? One meaningful distinction is that the state has a territorial monopoly on the legal use of force (except the limited license it grants, of its own prerogative, to self defense and security agencies) and it can lawfully fine, imprison and even kill those who violate the norms it promulgates. Amish and Jewish communities in the U.S. lack these features. The distinction between tradition/culture and law should be obvious. Thomas Sowell insightfully observed that Hasidic Jewish diamond dealers have lower transaction costs because they have a high-trust internal culture and do not need to rely on courts to arbitrate disputes, as they have access to more informal and flexible (as well as inexpensive) modes of dispute resolution when conflicts do arise.

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    1. First off, I don't agree with Weber's definition of "the state". Second, it is a very serious question. Formal legal courts and customary law are two forms of the same thing.

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  3. Samson, whether you "agree" with it or not, Weber's definition is a useful one because it is so commonly employed, including by our own President. Definitions cannot be true or false; only useful or less so. See Wittgenstein.

    In any event, the point remains that the State (however conceived of) may legally imprison, fine or kill you for breaking the law. By contrast, a town of Orthodox Jews cannot legally kill you for breaking the Sabbath, even though the prescribed penalty for that sin is indeed death (with caveats and nuance, but the point remains). If you can't perceive that as being a meaningful difference, I'm not sure what would even count as a meaningful difference in your view. As a lawyer and former orthodox Jew, this might seem marginally more obvious to me, but it's not a subtle or difficult point to grasp.

    Also, customary law is not "the same thing" as "formal legal courts." This is a confused statement; customary law is a fairly small subset of law that may be enforced by courts in certain circumstances. But this is a total red herring; Gene was talking about the difference between tradition and law. His point was a good one, and one made historically by figures as diverse as James Madison and Lao Tzu.

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