Because societies are complex, organized, and relational, it’s natural to see them as constantly changing, just like every other aspect of reality. Every person involved in a society continually influences it through participation in cultural life, including engagement with its legal systems. Although change—whether positive or negative—is inevitable, stable societies are often sustained by traditions. Think of the laws of nature; we see them as signs of the regular patterns in how material reality operates. Similarly, when we talk about the character of individuals, we assume they tend to act in certain ways based on who they are. Societies, too, have their own unique traits—what we call traditions—that include norms of behavior shaping how individuals and social groups act and interact.
Some years ago, my wife and I hosted a family from a different part of the world. They lived in our home for several weeks. At some point, the husband asked me a series of questions about our family and what he perceived as characteristic of our society. He noticed that I worked six days a week, often left the house at seven, and didn’t return until after seven at night. He noticed that most of the children’s activities were scheduled and that we were reluctant to modify that schedule. He noticed that we valued a certain standard of living and the acquisition of certain kinds of assets. He was from a different culture and didn’t understand ours. What seemed to us to be living out the American dream and working hard seemed to him kind of dysfunctional. In his society, things didn’t operate that way. That’s the role of traditions in a society.
While we often focus on change and growth, it’s important to remember the value of traditions in our society and legal systems. The word ‘tradition’ comes from the Latin ‘traditio,’ meaning a handing over or delivery, from the verb ‘tradere,’ which means “to hand over, deliver, or transmit.” In our world, each moment naturally hands over reality to the next, creating a continuous flow of new experiences. Humans hand down a way of life, functional or dysfunctional, to the next generation. Cultural institutions in a society do the same; they hand down to a new generation a society that is different in some ways from the one they received.
What is handed down is a fundamental way of thinking and acting. When we talk about a “religious tradition,” we’re referring to a way of worship, a lifestyle, and a mindset, in addition to the specific principles a religious group follows. So, when we say ‘tradition,’ we usually mean both certain practices and a certain way of thinking that define a community over time.
The phrase ‘the American legal tradition’ reminds us that law, much like other parts of our society, has its own rich traditions. One of the goals of legal education is to introduce future lawyers to these important traditions. Almost every first-year law student gets to explore the American constitutional tradition. This course, often titled “Constitutional Law 101” or something similar, is designed to share with students the core thinking and guiding principles behind our fundamental laws, helping them understand the foundation of our legal system.
Many people think of traditions as unchanging, but that’s not quite accurate. A more helpful way to see it is that tradition simply exists, and this ‘being’ is preserved by a community as the community evolves alongside a constantly changing world. This important point helps distinguish traditional ways of interpreting the law from what’s often called a “living constitutional” approach. In practice, this mindset can sometimes lead judges to see themselves as highly educated neo-legislators, interpreting the Constitution in ways they believe best address today’s needs.
This isn’t a traditional approach. The essence of traditional interpretation is preserving the tradition while allowing it to adapt to new circumstances. In other words, what the legal system does, including the area we call “constitutional interpretation,” is to adapt and apply the current state of the law, within the tradition of American law, to a particular concrete problem embodied in a particular case with its unique facts. The constitutional foundation remains fixed, which is the essence of what is called “originalism.”[1] Solving a concrete problem (deciding a particular case) involves continuity, fidelity to the permanent embodied in the language of the Constitution, and the faithful application of the law to the new concrete circumstances raised by the case. The participants are part of a long history of the law.
Law is a continuous process of interpretation, in which interpreters evaluate judges’ decisions, offer critiques, suggest improvements, and the system evolves accordingly. All human reasoning relies on the essentials of a sign, an interpreter, and an interpretation of experience, which together form a social theory of how truth arises from human efforts and is confirmed by communities. While science is often viewed as a prime example of a community seeking truth, law is another vital community pursuing the same within its own field.
For instance, in various parts of America today, students are studying constitutional law at different levels—college, law school, or graduate programs. Meanwhile, the United States Supreme Court continues to issue decisions that shape and sometimes reshape that law. The law isn’t fixed; it’s always evolving, guided by each decision made by judges, juries, or other legal authorities. In this way, the law functions as a living tradition, constantly flowing forward as it adapts to new circumstances and pressures.
Isolation, Community, and Tradition
People naturally tend to focus on themselves. Each of us views the world through our own lens—shaped by our unique life experiences, lessons, and growth. This ever-evolving sense of self can make us feel a bit isolated because no one else experiences the world exactly as we do. More than that, we don’t have the same access to others’ hopes, dreams, and knowledge as we do to our own. Even with those we are close to, our communication can sometimes get mixed up because of the natural gap between what we intend to say and what others understand us to mean.
How do human beings overcome this natural solitude and the danger of misunderstanding and misinterpretation? The answer lies in the constant need for interpretation, correction, and reinterpretation, all of which are social enterprises. This is true not only in intellectual life but in every area of life. Human beings need the sympathetic correction of others to perceive the world clearly. Sympathetic correction and reinterpretation require communities of interpretation whenever complex subject matter, such as law, is involved. The answer also includes a certain degree of humility about our own views, even when they have been enacted into law. It is the nature of human beings and human communities to make mistakes and errors of judgment. The legal community is no more immune to this human weakness than any other community.
Pragmatic philosophers often look to science as a paradigmatic example of a truth-seeking community. At any given moment, there are aspects of reality scientists believe they understand well, others they are still exploring, and some areas where lively debates persist within the scientific community. Over time, someone uncovers new facts or develops a new theory and shares their findings with fellow scientists. Others join in by testing, confirming, or critiquing these ideas. Through ongoing research, thoughtful interpretation, and open discussion, a consensus gradually forms around the most accurate understanding. This cycle of discovery, debate, and refinement has been unfolding for centuries, leading to continuous growth and improvement in our knowledge of the world. That’s how scientific understanding develops and deepens over time. The sum total of all this investigation and research constitutes what we call “the scientific tradition.”
Every human endeavor has a tradition, including law. Tradition binds us to a community that is deeper, longer, and more intricate than our current lives. Tradition acts as a warning against our prejudices and assumptions about the world and about the validity of our current ideas. Tradition puts us in a conversation with generations of people who went before us and who faced both different and often strikingly similar problems. Tradition is a protection against shallowness–which is the curse of contemporary society. Tradition in law connects us with cultures and societies from which our own culture emerged, and who faced problems we face though in different contexts.
Prehensive Flow of Tradition
We’ve already described the general way a tradition develops as a dialogue among signs, interpreters, and interpretations of experience. In constitutional law, these interpretations are sometimes called “opinions.” In trial courts, they’re often called “decisions.” Some people are inclined to think that there can be no final rational basis for a court’s judgments. In this, I think they’re wrong. This is also where the work of process thinkers helps us.
Alfred North Whitehead, in one of his most important discoveries, discusses what he calls “prehension.” The word literally means to grasp. At its core, in the flow of reality, the present is where the past extends into the future and embraces a single possibility. For example, in the case of fundamental particles, the double-slit experiment provides a fascinating illustration. Thanks to quantum mechanics, we now understand that this experiment reveals a puzzling aspect of reality: light behaves as both a particle and a wave. Even more interesting, this duality can’t be observed simultaneously. When an observer tries to measure which slit the light is traveling through, the light suddenly behaves as particles, and the interference pattern disappears. It is as if the wave senses the observer and decides to become one or the other. In some sense, subatomic reality reaches out and changes as a result of the observation. This act of reaching out, becoming a particle, and rejecting “waveness” is a fundamental act of prehension.
Naturally, at the level of fundamental particles, there’s no conscious decision-maker, which is why Whitehead uses the term “prehension” rather than “apprehension” or “decision.” There’s no conscious decision. This is not, however, true in complex societies made up of human beings, such as the legal community. In this case, conscious actors decide to accept certain parts of the tradition into the new reality and to reject other parts. It so happens that, over the history of the interpretation of the law, the community can change its mind based on new information.
At any given point in time, a court researches and embodies relevant case law (the past), finds some of that law applicable and persuasive for the resolution of a particular case, and then extends the past into the future by rejecting some possible prior law (what process thinkers call a “negative prehension”), accepting some current law (a “positive prehension”), and issuing a decision that is an extension of the past (or part of it) into the future, which immediately becomes part of the settled past of the law. In the language I’ve adopted, the decision becomes fixed.
Recently, I’ve been exploring a series of important cases, from Griswold v. Connecticut to Dobbs v. Jackson Women’s Health, in which the U.S. Supreme Court overturned Roe v. Wade and Planned Parenthood of Southeastern Pa. v. Casey.[2] These cases show how the Court has evolved in its approach, sometimes changing existing laws, creating new interpretations, and then revisiting them over time—all in an effort to find a balanced and just legal resolution of a problem.
I use these examples to illustrate how courts continually interpret and re-interpret decisions, shaping the current landscape of the law. Every decision judges make involves accepting some options and rejecting others, which in turn creates new legal situations to be addressed in future cases. Importantly, a rejected legal idea isn’t gone forever; it can resurface and be incorporated into the law again as circumstances change.
In a way, one might say that the entire legal system is an extended conversation over time in which participants respond to changing cultural circumstances and the facts of a particular case, all within a shared tradition of inquiry in which they are common participants. This tradition of inquiry helps prevent mistakes, but it cannot eliminate them entirely. Any student of constitutional law can see that from the founding of our country to the present, there are many instances in which the Supreme Court has decided unwisely or wrongly. In some cases, it took a century to overcome what had been decided. This is another reason why a degree of humility and incrementalism is important in constitutional decision-making.
Conclusion
This week, I’ve highlighted how tradition plays a vital role in any process-oriented view of the law. Sometimes, process thinkers are seen as advocates of bold social change, but process thought doesn’t encourage a radical approach to law (or any other form of social change). In the end, I believe that a process approach helps courts remain true to their traditions while carefully and gradually (and hopefully wisely and lovingly) adapting the law to new situations.
Copyright 2026. G. Christopher Scruggs. All Rights Reserved
[1] “Originalism” is a way of thinking about constitutional interpretation. The movement stems from two related notions: “original intent” and “original meaning.” “Original intent” seeks to understand what the Constitution’s creators intended to achieve when they wrote it. By contrast, “original meaning” looks at how the average person would have understood the words, rather than focusing exclusively on the Founders’ thoughts. Both approaches suggest that the Constitution has a specific meaning that can be found in its text and applied to concrete cases. This approach is often contrasted with the idea of a “Living Constitution,” which holds that the Constitution should change and adapt over time based on the preferences of those who control the process of interpretation. This footnote is an oversimplification, and I hope to address originalism and its alternatives in future blog posts.
[2] Griswold v. Connecticut 381 U.S. 479 (1965); Thomas E. Dobbs, State Health Officer of the Mississippi Department of Health, et al. v.Jackson Women’s Health Organization, et al. , 597 U.S. ___ (2022); Roe v. Wade 410 U. S. 113 (1973): Planned Parenthood of Southeastern Pa. v. Casey,505 U. S. 833 (1992).