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.