Cultural traditions are the outcome of interactions among various persons in diverse situations over time. Edmund Burke (1729-1797) understood tradition as the intergenerational transmission of values and beliefs; yet Burke also acknowledged that culture taken over via tradition might or might not be in conflict with humanity’s wider instinctual nature. In other words, he understood that one’s second nature—which consists of institutionalized and habituated beliefs and values—might or might not be in conflict with one’s first nature—which consists of one’s deepest affectual predispositions (Canavan 1981, 660-62). Accordingly, Burke overcame that prejudice in Enlightenment thought which presupposed instinct and tradition to be inherently in conflict and which led several scholars to fail to respect that cultural traditions might exist in the service of instinct itself. The richness of diverse culinary traditions and the subtlety and severity of forms of courting and romance … a good meal and a few pages from the Kama Sutra … reflect that instinct and tradition are not necessarily in conflict.
Judge-made law is a representative example of traditional order. Rather than legislating a dictate or mandate that enframes society within an overarching plan, each judge within the ideal-typical system of judge-made law addresses the specific case at hand. Moreover, they address this case in the light of an elaborate system of previous and relevant cases by applying these cases to formulate a concrete verdict or judgment. However, in the ideal form of judge-made law, each judge ultimately bases her verdicts on the principle of liber(aliz)ation in the light of previous and relevant cases. Accordingly, each judge critically applies the knowledge and preferences expressed in previously legitimate cases into her own decisions and judgments. In this manner, each judge differentiates, cultivates, and preserves an elaborate network of precedents where these precedents are relevant to her case at hand. Because judges who have presided over previous cases will have applied insight expressed in still earlier cases, each judge who subsequently draws upon previous cases will have drawn tacitly upon the wisdom expressed in still earlier cases as well, etc. In this manner, a system of precedents emerges which is in general agreement with the principle of liber(aliz)ation, and which is the result of several and various judges rather than the dictate or mandate of any single legislator. In the transitional form of judge-made law, each judge also applies previous and relevant cases according to the principle of liber(aliz)ation. However, she decides over and against previous cases when they are in conflict with the principle of liber(aliz)ation. As one can see, judge-made law is a distinctly social process, and therefore the system of case law or judge-made law requires the capacity of several and various persons rather than the ability of merely a single mind.
As a representative traditional order, judge-made law is analogous to tradition in general. In the ideal type of transitional tradition, each agent engages in a continuous dialogue with the institutionalized knowledge and preferences that she has absorbed or taken on from her predecessors by means of cultural tradition. One cannot legitimately criticize the new only because it is the new nor criticize the old merely because it is the old; rather, one must cautiously address traditional knowledge and preferences because they might or might not be in conflict with the principle of collective individuation, and one must cautiously address non-traditional preferences and knowledge because they might or might not be in conflict with the principle of collective individuation. However, simply because cultural knowledge and preferences can at times be addressed by conscious decisions does not imply that they have been, should be, or even can be fully mastered by them. Active preferences and consensus formation can influence and even change formerly tacit constraints—whether personal, bodily, cultural, or societal—but they can never completely replace them.
From the standpoint of the principle of collective individuation, cultures should not be approached as though they were something to be engineered from the outside according to an overarching plan, and therefore traditions should not be approached as though they could be reconstructed through a Maoist “Great Leap” (Johnson 1992, 550-52). Such approaches illegitimately disturb the gradual process of cultural transmission by violently imposing one system of beliefs and values at the expense of another; in other words, they illegitimately subvert legitimate manifestations of tradition. Instead, preservation, propagation, and transition should be manifested endogenously by every adult agent according to the selectivity, relevance, and attention that her mutual happiness entails. This means that cultural beliefs and values should be addressed by agents within the situation or “case” at hand—which might be a specific instance of consensus formation in language. An agent could be like Václav Havel’s dissident-greengrocer (39), who refrains from putting up slogans and stops voting at elections, because he concludes that they are a sham; it could also be a conscientious agent who, as a conservative, upholds established traditions of “living in truth” (44, 94-95).
Because every agent has the phylogenetic capacity to absorb or take on pre-existing complexes of beliefs and values, within the ideal form of cultural tradition, every agent who seeks to uphold the principle of collective individuation critically cultivates, applies, and preserves cultural traditions which facilitate collective individuation—that is, those diverse networks of knowledge and preferences which exist in agreement with the principle of collective individuation and which can legitimately constitute each agent’s second nature—and each agent thereby respects those cultural traditions that have evolved in the service of life itself.