Skip to main content Accessibility help
×
Hostname: page-component-7c8c6479df-ph5wq Total loading time: 0 Render date: 2024-03-29T00:17:11.512Z Has data issue: false hasContentIssue false

1 - Custom's Past

Published online by Cambridge University Press:  05 February 2016

Emily Kadens
Affiliation:
Northwestern University School of Law
Curtis A. Bradley
Affiliation:
Duke University Law School
Get access

Summary

The chapters in this volume put on display the difficulties lawyers, judges, and lawmakers continue to have making sense of custom as a source of law. These debates, whether about the lack of a workable definition, the instability of norms, the democracy deficit, the lack of fidelity to the strictly descriptive – rather than normative – nature of custom, or the unpredictability of courts, are not new. Despite the efforts of lawyers over the centuries to “solve” the problem of custom, publicists’ arguments today look little different from those of the medieval jurists, and the decisions of the International Court of Justice rather resemble those of premodern courts. As David Bederman pointed out not long ago in his book, Custom as a Source of Law, the discussion of custom has not advanced very far in all this time, and the uncertainties have come no closer to being resolved.

This chapter argues that the modern publicists’ problems with custom grow out of the efforts of the medieval jurists to fit custom into the hierarchy of law. Trained in formal law, lawyers and judges expect all legally binding rules to have the characteristics of rules found in statute books and judicial opinions. This sort of lawyerly bias has its origin in the twelfth century, when the European tradition of formal legal study began. But custom had a prelegal existence, and in this “natural” state it did not fit the mold of enacted law. Natural custom was fluid, uncertain, equitable, and communitarian – features of a system of social regulation that lawyers no longer equate with law. Instead, for nearly 900 years, jurists and judges have been trying to force custom to look like what they have been trained to believe law is, and for nearly 900 years they have failed. Natural custom might, in certain circumstances, have functioned as law, but it did not function like law.

At the root of the lawyers’ failure to fit the square peg of custom into the round hole of law lay the insistence on a definition of custom that may describe no phenomenon that truly existed in the real world of communities governing themselves bottom-up without enacted law. The definition Western legal systems inherited from the Romans and bequeathed upon the rest of the world is a legal fiction.

Type
Chapter
Information
Custom's Future
International Law in a Changing World
, pp. 11 - 33
Publisher: Cambridge University Press
Print publication year: 2016

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

Save book to Kindle

To save this book to your Kindle, first ensure coreplatform@cambridge.org is added to your Approved Personal Document E-mail List under your Personal Document Settings on the Manage Your Content and Devices page of your Amazon account. Then enter the ‘name’ part of your Kindle email address below. Find out more about saving to your Kindle.

Note you can select to save to either the @free.kindle.com or @kindle.com variations. ‘@free.kindle.com’ emails are free but can only be saved to your device when it is connected to wi-fi. ‘@kindle.com’ emails can be delivered even when you are not connected to wi-fi, but note that service fees apply.

Find out more about the Kindle Personal Document Service.

  • Custom's Past
  • Edited by Curtis A. Bradley
  • Book: Custom's Future
  • Online publication: 05 February 2016
  • Chapter DOI: https://doi.org/10.1017/CBO9781316014264.002
Available formats
×

Save book to Dropbox

To save content items to your account, please confirm that you agree to abide by our usage policies. If this is the first time you use this feature, you will be asked to authorise Cambridge Core to connect with your account. Find out more about saving content to Dropbox.

  • Custom's Past
  • Edited by Curtis A. Bradley
  • Book: Custom's Future
  • Online publication: 05 February 2016
  • Chapter DOI: https://doi.org/10.1017/CBO9781316014264.002
Available formats
×

Save book to Google Drive

To save content items to your account, please confirm that you agree to abide by our usage policies. If this is the first time you use this feature, you will be asked to authorise Cambridge Core to connect with your account. Find out more about saving content to Google Drive.

  • Custom's Past
  • Edited by Curtis A. Bradley
  • Book: Custom's Future
  • Online publication: 05 February 2016
  • Chapter DOI: https://doi.org/10.1017/CBO9781316014264.002
Available formats
×