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  • Print publication year: 2006
  • Online publication date: December 2009

7 - The place of customary law in democratic societies



By means of the idea of rights men have defined the nature of license and tyranny. Guided by its light, we can each of us be independent without arrogance and obedient without servility.

Alexis de Tocqueville

The necessary notification, visibility, vital firmness of mind, unity and harmony are built into the basic customary law instrument through pluralistic recognition and adherence. Customary law-making – as an instrument to command voluntary obedience – is neither inimical to democratic thinking nor immature in relation to systems of parliamentary democracy. As Frederick A. Pollock said, the “only essential conditions for the existence of law are the existence of a political community, and the recognition by its members of settled rules binding upon them in that capacity.”

Alexis de Tocqueville defended areas of rights that belonged entirely to the “popular will” and that no parliament could overrule. The French historian Paul Janet makes this evident:

What the Liberal school called the despotism of democracy was demagogic violence, the brutal and savage government of the masses. But de Tocqueville had in mind another kind of despotism, not that of militant democracy … No, he envisaged democracy at rest, successively leveling down and abasing all individuals, putting its fingers into all kinds of interests, imposing uniform and petty rules on every one, treating men as abstractions, subjecting society to a mechanical movement, and ending by responding itself in the absolute power of one man.