Cardinal George of Chicago is one of the Catholic Church’s sharpest thinkers and clearest voices on the relationship of law and culture in the United States today. I am working my way through his new book, God in Action: How Faith in God Can Address the Challenges of the World, and will occasionally post excerpts.
When American law was mostly common law, as it was when Holmes addressed his Boston listeners, its relationship to culture was harmonious, because the law was almost wholly derivative from the culture. The common law was conceived of as the distillation of shared practice, of culturally common activities. The law was not any judge’s say-so or even the say-so of the judiciary as a body; judicial declarations counted, rather, as so much evidence of the law. The law remained the common practices of the people, discerned more or less adequately by judges but not made or determined by them.
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We live in an age of statutes, administrative rules, executive orders, treaties, and judicial decisions conceived differently—more creatively and more like legislation—than was the common law. Law characteristically is, for us, the purposive ordering of norms, first imagined, debated, and then given life, once and for all, on a certain date, down at city hall, up in the statehouse, or in a court in Washington, D.C. All these forms of law, these enactments, bind by dint of someone’s or some institution’s authority, not by dint of prior custom and practice. The modern relationship between law and culture is therefore fragile, more complex and problematic.