Ah, it's nice to get back on this years-old discussion 
Cadence, I'm not sure if you were already around when we did what was perhaps the first round of 'purging' tradition in the CDS.
At the very beginning of the CDS, our founding fathers and mothers probably read the same texts that you read, and figured out that it's hard to encode in law 'everything', so there should be some room for 'tradition' as well. So our Constitution at that time had a slight twist to it (long since gone), which was that the SC, acting as the 'Philosophic Branch', should be able to formulate their decisions — regarding the approval or vetoing of laws — based on 'tradition'. The actual wording was that the SC should use the 'founding documents' as reference (this was basically a manifesto for the CDS's foundation, written by Ulrika, and long gone...), as well as 'common sense', and knowledge gained by having acquired a deep understanding of what is supposed to be better for the community. I cannot recall the exact words, and you should be able to look it up if you wish, but the whole point was to allow the SC have to some leeway, stepping outside strictly legalist/constitutionalist interpretations, but allowing them to make pronouncements based on perceived tradition.
The main reason for this was to try to secure democracy for the CDS. As we all know, democracy's main weakness (some might say it's the only one!) is that anti-democratic leaders can campaign, get elected, and abolish democracy. We all know how this constantly happened in our history of the past century or so. Never mind WWII; just think about how Putin is slightly subverting Russian democratic institutions so that they become more and more centralized in his person. Also note that Putin is not presenting himself as a tyrant who wishes to grab all power for himself; his justification is that certain democratic procedures allowed rampant corruption with local power-grabbers to pervert the whole system (during the Yeltsin days). So he made what he saw as required changes to prevent that and get some order in the Russian Federal government. But by doing so — claiming he's acting for a 'better' Russia, with less corruption and power-monging — he is stepping further and further away from a truly democratic government.
Well, I just give this example — I'm sure we have many more, even if perhaps at some other levels. The 'Patriot Act', where Americans are deprived of personal freedoms, overriding their Constitution, using the pretext of the 'War Against Terrorism', is one pretty good example. In the EU, using the 'pretext' of the ongoing financial crisis, member states get their labour laws suspended, and lose sovereignty as EU-mandated laws override national Constitutions. In my own country, the Constitutional Court is currently acting as a counter-force against EU-imposed law, pretty much stopping Government acting out any drastic changes to reduce public debt — because, except for raising taxes, all other EU-imposed suggestions are anti-constitutional. So, yes, our Government has no choice left but to continue to raise taxes over and over again.
This is just to explain that the 'war' against 'what is better for the community' (common sense, tradition...) and 'what is legal/constitutional' is not just a problem of the CDS. It happens on real democracies, too.
This prompted the original group to try to achieve some balance between tradition/common sense and law, by allowing the SC a wide margin of choice. Now, at the time when the SC was just Aliasi and myself, and we (literally) flipped a coin to see who would act as Dean — this issue of tradition/law came up pretty quickly. RAs at that time were quite happy to get rid of tradition and just make laws that would abolish that tradition. I'm not exactly proud of admitting it, but, within the powers that the SC had at the time, I tried very hard to prevent those laws to be approved. They wouldn't necessarily be vetoed, but rather submitted back to the RA with the suggestion that they should be rewritten to account for our traditions.
I'm sure that I might have angered many people by doing that. Perhaps not unlike Putin, I felt that the RAs at those times were slipping too much away from truly democratic ideals, and I felt as my duty to bring them back. But that meant overriding the laws passed by an assembly of elected representatives — and, as such, my own intentions, no matter how 'good' they were, were really undemocratic.
The discussion heated up, and, at the end, the RA decided that the SC could not have such wide powers. Because 'tradition' is highly subjective — what I view as traditional in the CDS is most certainly not accepted by any other citizen, and vice-versa — the RA, very correctly, decided that the SC should not veto laws or ask them to be rewritten based on subjective notions of what 'tradition' is supposed to be. Instead, the SC was limited to merely make pronouncements if laws are unconstitutional. But all the 'baggage' of history, our glorious past, our principles, our philosophy, and all the tradition were scratched from the Constitution.
Well, I learned an important lesson back then. And I'm actually fond (as I wrote on my manifesto for the 21st term!) of being persuaded to accept different opinions, so long as they're well-argued. I was totally convinced that the RA did, indeed, act correctly. From being a traditionalist I learned to become a legalist instead; and I have not regretted that change of mind. Today, I'm quite fond, as you know, to defend the legalist views, and that's what I'm doing now. Why? Because, looking at history, I'm not so sure that going the Putin way — of placing tradition, common sense, fighting corruption using non-democratic means — is 'better' than using a strictly democratic way of accomplishing the same thing. Put into other words: if we have a RA that acts 'undemocratic', and the citizens are unhappy about that, then we can elect a different RA next time, and change the laws. This might not be so 'efficient' as pronouncing a law 'going against tradition' (which is what I did in my time as Dean of the SC), but democracy is not about 'efficiency' (we all know that dictatorships are far more efficient than democracy!...). It's about getting people to vote on what they want.
So... this is pretty much where we stand at. Technically, we have abolished 'tradition' from our Constitution, and that means that only the law applies. Obviously, there might be gaps here and there. For example, there is no written law that 'forces' us to have an Oktoberfest every year — that's strictly tradition. If a Chancellor announces one term that they will skip Oktoberfest, they won't be doing anything 'illegal' (= against the laws). What would probably happen in that case is that the citizens would feel that the Oktoberfest is culturally relevant for our community, and petition the RA to pass a law that embodies the requirement of doing an Oktoberfest every year (like the CDS' 'national holiday' — something that every democracy has!). In that case, a tradition would become codified as law. And, in fact, we have done many such things in the past, and I hope that we continue to do that example.
The reverse side of the coin is that members of Government swear an oath to follow the Constitution and the Laws of the CDS — not its traditions. As such, every time we do something 'according to tradition', but which has no law to support it, members of Government are expected to act according to the law and not to an unwritten tradition. This is pretty much what many people voted for in the last elections: that we stop following tradition and start respecting the law instead. As Bromo points out so well, this naturally clashes with the view of others who are still stuck on a tradition-based CDS.
Now, I'm not a Libertarian so I have no qualms of being much more strict about 'uncodified traditions' — and yes, I now wish to have all traditions, which make sense to keep and preserve, to be codified in law instead. When they're codified in law, they are less ambiguous; they're objective; they're not subject to personal whims or preferences. They're also egalitarian: while a tradition can easily discriminate some groups and favour others, a law cannot do that (or it will be promptly vetoed by the SC!). This means that we actually have good mechanisms to control how laws are passed, validated, and applied; and we can judge people's behaviour as members of Government according to how well they apply the law; but we have no similar, democratic, fair, egalitarian methods to validate tradition.
While I can certainly agree with you, Cadence, that 'tradition can flow and adapt much better to people's desires' — which is certainly factually correct — it also introduces non-democratic, non-egalitarian, and unfair practices. It's very hard to avoid those from happening. I can certainly speak from my own experience at the SC: when we pronounced bills as 'being against tradition' and vetoed them, the objectivity of those decisions were publicly contested. And, to be honest to myself — and to you all — I have to humbly agree that everybody was right on that point, and that I was wrong. By claiming to be supporting tradition, for the common good of everybody as I saw it, I was clouding my own judgement and becoming more and more biased. Just like Putin, I pretty much vetoed laws that I didn't agree with, no matter what the citizens wanted — and that ought to be the determining factor in this case.
So... to summarise... the issue is that the CDS, back in my time as Dean of the SC, learned an important lesson. If we wish to keep our community democratic, fair, and egalitarian, then it means relying less and less on personal whims, on personal views of what is traditional and what is not, and, instead, focus solely on what laws we have to regulate our society. This is pretty much what I mean with: 'Respect tradition; obey the law'. In my mind, all traditions should come under the sieve of RA discussion and approval, and be held closely under the magnifying glass of the SC, to make sure that they can be implemented as laws, without losing fairness and equality towards all citizens. The process of 'codifying tradition' means that the community adapts to change — which is good — by incorporating common practices; but it also means that the democratic process of creating a new bill will validate that 'tradition' and reject it if it goes against our democratic principles. By contrast, any tradition that already incorporates those principles can easily become a new law. And, of course, as time goes by, laws can be repelled, modified, changed, and adapted, according to how the community adopts new traditions and rejects older ones.
The point here is to get rid of subjectivity (well, of course laws are ambiguous too... human language is always ambiguous... but the extra formality of our laws attempt to reduce ambiguity to acceptable levels) and embrace democratic and humanitarian principles on our traditions — by forcing them to be 'filtered' through the process of turning them into bills.
So, yes, I'm afraid I have to fully accept Bromo's argument. But mind you, like yourself, I had to be persuaded that this was the right and preferred way of doing things The appeal of running a democratic community by tradition only is very, very strong. But unfortunately it means it soon stops being a democracy. That's what Bromo is talking about. And, these days, I have to fully agree with him — as said, I've been through that phase of the CDS and saw what it lead to. Now we are, once more, facing the same issues — because we have neglected ourselves for a while, and let 'tradition' swamp the basic, daily procedures in the CDS, and forgot all about our laws and constitution.
Well, we're working to get back to the Rule of Law in the CDS As Bromo also mentioned, this might take a little time. We spent too many terms moving away from the Rule of Law, and it's only natural that people now have a resistance to get back to it... and it might take us more than one or two terms. But the end result will be a much more fairer community, back to a democratic way of handling issues, back to objectivity, and without 'interest groups' stepping outside the law to acquire benefits and privileges for themselves. That's what I personally wish to accomplish. How long will it take? Perhaps more than one term. That's fine. The worse thing would be to cross our hands, give up, and say, 'who cares about the laws anyway? Democracy is boring!'
I'm definitely not going to give up on democracy!
