The concept of “customary law” often is used to refer to a particular kind of legal rule—one that is oral rather than written, for instance. Such a conception contains a kernel of truth—customary rules are distinctive—but the focus is too narrow. In this essay I want to look at the totality of legal phenomena in a society—rules, processes, institutions, personnel, and ideology—exploring how they are interrelated and how they relate to other social phenomena. For this purpose I want to construct four configurations of law in society, none of which can be found in its pure form anywhere. Such an ideal type is a heuristic device that, if successful, reveals the dynamic tendencies of a particular configuration and the connections among its parts.
The first configuration, which I will call custom, is found in the pre-capitalist societies of the third world prior to colonial domination. Obviously we never can know what those societies actually looked like, since oral history inevitably introduces nostalgic distortions, and the earliest European travellers and traders were changing die societies even as they were describing them (and of course expressed their own ethnocentric biases). Furthermore, to employ the category “precapitalist” is to invite a number of analytic difficulties: it defines these societies negatively (they are not yet capitalist); and it lumps together societies that differ greatly in economy (e.g., agricultural and pastoral), polity (e.g., chiefly and chiefless), and social structure (e.g., the presence or absence of corporate lineages).