Custom's Past

Abstract

This chapter argues that the modern publicists’ problems with custom grow out of the efforts of the medieval jurists to fi t 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 fi t 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.