Ctls-Penner Custom May 2018 dr2

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Why is understanding customary law so difficult?

J E Penner1

Very Rough Draft: Do not cite, etc.

I – A Too Long Introduction

This paper is a first go at figuring out the nature of custom. If it is not complete
rubbish it will form part of a forthcoming book on legal analysis. Understanding
custom, and customary law, is relevant for the study of legal analysis because, as
presently advised, I think that much of the common law (including equity) is a kind of
customary law.

Two preliminary points. First, ‘custom’ has two separate but related meanings. There
are normative customs and non-normative customs. Normative customs impose
obligations. So it is an obligation of etiquette or politeness (a kind of moral
obligation) to shake hands with someone (or at least not refuse to shake hands with
someone) when greeting them, ceteris paribus. But we also refer to non-normative
customs, which Hart identified simply as regular patterns of social behaviour
involving no obligations. So one might say that it is customary for some class of
people to go to the cinema on the weekend. Or to spend a gap year between school
and university. In this paper I am only interested in normative customs, in particular
moral customs, of which (valid) legal customs are a subset.2 In other words, I am
interested in customs which are rules, rather than habits or (as explained immediately
below) patterns of behaviour which arise because people can be expected to act on
generally accepted reasons for acting in a particular way, such as making sure to close
the windows when a rainstorm approaches.

Secondly, I write as an exclusive legal positivist who embraces Raz’s Normal


Justification Thesis. From this perspective, all law, including customary law, is there
to guide us so that we are in a better position to comply with our moral obligations
than we would be in the absence of the law. On this account all (valid) law is
facilitative, including duty-imposing rules of law. By complying with our legal duties
we conform better to what morality requires of us than we would do if we tried to
apply moral reasoning to various situations directly. In this way, the law also has a co-
ordinating function – if we comply with the rules of law, we all know where we stand
with each other as regards our moral relations. This also shows how legal rules are a
subset of moral rules. Valid legal rules are incorporated into morality, as moral rules
we must follow, because we are morally required to comply with morality as best we
can, and when the law helps us to achieve that moral aim we have a moral obligation
to follow it.

Understanding the common law as customary law is difficult for two reasons.

1
Kwa Geok Choo Professor of Property Law, National University of Singapore, funding
SUG – funding number.
2
Postema 2012, 719-723, points out a host of further distinctions between one use of custom
and another, but only this distinction is relevant to my purposes.
2

The first difficulty, which relates to the idea of custom more generally, might be
called the ‘bindingness issue’ (BI). This can be illustrated by a famous example
provided by Geoffrey Warnock in The Object of Morality:

Consider the situation of the spectator of a cricket match, ignorant of the


game, and trying to work out what rules the players are following. He will find
for instance that, when six balls have been bowled from one end, the players
regularly move round and six balls are then bowled from the other end;
deviations from this, he will observe, are adversely criticized. He will
probably find also that, when a fast bowler is replaced by a slow one, some
persons who were previously stationed quite close to the batsman are moved
further away, some, probably, a lot further away; and he will find that, if this
is not done, there is adverse criticism. But if he concludes that, in so acting,
the players are following rules, he will of course be right in the first case, and
wrong in the second. There is no rule that a slow bowler should not operate
with exactly the same field setting as a fast one; this is indeed scarcely ever
done, and it would nearly always be regarded as wrong to do it, but that is
because, quite independently of any rules, it is something which there is nearly
always good reason not to do.

Warnock’s use of this example was to criticize Hart’s ‘practice’ theory of rules, but its
relevance for our purposes lies in the following thought: ‘True, the practice of
changing the field setting when a fast bowler is replaced by a slow bowler does not
reveal a rule of the game of cricket. Nevertheless it prompts a different question –
does the team captain have an obligation, or do the players on one team owe
themselves an obligation, as a matter of cricket strategy, to change their field setting
in these circumstances? That is, is this practice reflective of an obligatory norm at a
different level from the rules of the game?’

It seems to me that this is a reasonable question to ask, and it raises BI. Such a norm
would be a kind of norm of morality – not a particularly vital aspect of morality, for
the morality of games-playing is not, one might argue, particularly consequential –
but a moral norm in the sense that not only does departure from it prompt adverse
criticism, but adverse criticism which is framed in terms of the person not having
done his duty, in this case to his teammates. Departing from such a norm, to use
Postema’s terminology, is not merely a case of deviation, but one of deviance.3

The charm of the example lies in the way that it takes the rules of cricket obviously to
be norms, but the field-changing decision obviously not to be normative, because the
latter is framed as the decision merely to respond appropriately to reasons, generally
accepted within the cricketing community, for acting in a certain way. In general, we
decide how to act on the balance of reasons. We often decide in a context where our
decision is not governed by moral reasons or moral norms. Moral reasons, or reasons
of morality, do not engage many sorts of act. Outside of special contexts, there are no
moral reasons to choose vanilla ice cream over chocolate. This is so even if there are
recognised norms of other kinds – for example a norm which says you should vary
your ice cream choices in order to broaden the range of your palate – which do apply

3
Postema 2009, 17.
3

to the act in question. Outside of special contexts (e.g. I am under contract to you as
your accountant) it is not a moral error to fail to comply with the rules of arithmetic.
Nor, outside of special contexts (I am drafting a complex contract for you), is it a
moral wrong to write ungrammatically. Nor is it a moral error to make an aesthetic
misjudgment. It may be a fashion outrage to wear a striped shirt with plaid trousers,
but outside a special context (I am going to a job interview at Vogue and I need the
money to support my family) it is not a moral wrong to do so. The reason why is
simple. In such cases, there are no moral reasons which apply to make one way of
acting preferable to another. Since morality gives no reasons either way, it provides
no guidance, i.e. no standards by which the act can be judged. Therefore there are no
moral norms that apply. The act in question is simply not regulated by morality. But
that does not mean that the decision, say, to wear a striped shirt with plaid trousers is
immune from criticism.

The bindingness issue that arises in response to the cricket example is not whether the
field-setting practice is a rule of cricket – we know it is not. It is whether the field-
setting practice is just the generally accepted thing to do in the circumstance, or
whether doing so is normative – not normative as a rule of cricket – but normative in
the sense of reflecting a moral norm owed to one’s teammates. I think it can be argued
that it is. But if so, it is clearly a customary moral norm. It was not legislated by
anyone. The first cricket captain who instructed his fielders to move their positions
had no power to create any moral norm. Rather, when he did so, he revealed or
invented or discovered a team manoeuvre, it was such an obviously appealing thing
that it could be recognised not only as a good thing to do, but a wrong thing not to do.
So this first look at BI suggests the following: where, in particular contexts,
responding to the right reasons raises issues of correct behavior in relation to others,
behaviour those others can expect of us, and that this behaviour is, as a matter of
morality significant enough to be regarded as categorical, then that correct behaviour
is regarded as falling under a moral norm. What do I mean by ‘categorical’?

Following Raz and Gardner, reasons underpin rights and duties in a straightforward
way: X has against Y a right to α if the value of α gives rise to a reason for action
which is ‘categorical’ in the sense that it prevails over Y’s otherwise innocuous plans
to achieve her ends.4 Y cannot push X out of the way, thus interfering with X’s right
to bodily security, in order to hasten herself on her way. Very roughly, X’s interest in
bodily security is of a strength and stringency such that it imposes a categorical
(which is not to say absolute) duty on Y not to infringe it.

The central issue that BI raises, then, is how non-legislated norms arise, again not
mere habits or patterns of behaviour explained by people’s responding in the same
way to generally accepted reason, but genuine norms reflecting categorical reasons.
And that issue is typically framed by asking how we should understand such norms to
‘evolve’. The idea of evolution here is supposed to be the answer to the question how
non-legislated norms arise. But is the ‘evolutionary theory’ of customary norms
correct? The evolutionary theory suggests that there cannot be an ‘instant’ custom.
Customs, on this view, slowly come into being as some ‘transition’ is made, from the
case where φing is just regarded as an appropriate thing to do in the circumstances,

4
Gardner 2012, 56, fn 7: ‘A categorical requirement is one that applies irrespective of the
prevailing personal goals of the person to whom it applies.’
4

appropriate in the sense of being a sensible response to the reasons at play in the
context, to the case where φing is morally obligatory.

I shall argue below that the idea that customs ‘evolve’ in this way is misguided. In
doing so I shall draw upon the idea of a ‘meme’.

The second reason the topic is a difficult one is what might be called the ‘judge-made
law’ issue. There are actually two issues here, though they are closely related. The
first is how we understand judge-make law. As we shall see, some, notably AWB
Simpson, seem to think judge-made law is ipso facto customary law. As Gardner
shows, this is incorrect.

The second issue concerns the distinction between what is called custom in pays and
custom in foro. Custom in pays, which literally means custom ‘in the country’,
concerns customs ‘of the people’ as it were, though it can refer to a particular class of
people, such as the customary norms of merchants. Custom in foro is the custom of
judges, or judicial custom. The standard example of the latter since Hart wrote is the
rule of recognition, the customary rule of law under which judges treat particular acts
as instances of law-making. Another example would be the judicial custom of stare
decisis, which arose in England between the late 18th and early 19th centuries. The
difficult question that arises when we observe the distinction is whether customary
common law is entirely custom in pays, entirely custom in foro, or a mixture of both.
John Gardner argues that customary common law is overwhelming custom in foro.
Taking some cues from Simpson, I shall complicate this picture somewhat. In my
view, the in pays/in foro distinction is not a sharp one when applied to the common
law.

II – The Bindingness Issue (BI)

In this section I shall take Postema 2012 as my foil. I shall set out what Postema says
about custom, say what I agree with, and then say what I disagree with. My main
disagreement with Postema is that, in virtue of some of his theoretical commitments,
he over-complicates a theory of custom which is largely on the right track.

Postema begins his essay by critiquing what he calls the ‘additive’ theory of custom.
In his own words:5

An analysis that breaks custom into an external element – regularities of


behavior (usus) – and an internal element – convictions of custom followers
that behavior conforming to the regularities is legally required (opinio juris) –
has been nearly irresistible to theorists of law and of custom generally. What
is more natural than to think that custom is a matter of consistent patterns of
behavior observable from the outside plus some interior state like belief,
attitude, or conviction, which turns patterns of behavior into norms for
behavior? Yet, this additive conception of custom, despite its dominance, is
deeply flawed, if not incoherent. Many of its problems are frequently
rehearsed and recognized, and then almost immediately ignored. The

5
Postema 2012, 708 (italics original).
5

jurisprudence of custom has long been in the grip of a kind of additive


addiction, fed by the irresistible naturalness of its approach and the absence of
any plausible alternative.

What is wrong with the additive conception? Postema argues that it (1) misdescribes
the normativity of customs, and that it fails to realise two essential aspects of custom,
(2) that customs frame ‘reciprocally oriented conduct’, and (3) that custom depends
upon ‘discursive interaction’. I agree with Postema about (1) and (2), but I think he
gets (3) wrong.

Beginning with (1), Postema argues that the additive conception,6

regards legally binding customary practice as the combination of two discrete


sets of empirical facts: facts about behavior and facts about attitudes (beliefs,
feelings, desires, approvings, intendings, and the like). Regularities of
behavior, thought to be observable and recognizable apart from considering
the attitudes (that is, viewed from the outside), are said to be transformed
when those who engage in those regularities have the right kind of attitude or
mental state, namely, regarding themselves as bound by the rule constituted by
that behavioral regularity, or approving of that rule, or some other similar
attitude.

This is wrong because it misconceives the nature of norms. The behaviour that a norm
requires cannot be pulled apart from the understanding by the norm-follower of what
the rule requires. I shall not go over Postema’s detailed argument to establish this
point.7 Postema largely draws upon ideas such as Hart’s ‘internal point of view’. But
the point was clearly demonstrated by Wittgenstein.8 To the extent that customs are
rules or norms, their followers are committed, when applying them, to use them as
standards for their behaviour. So a mere regularity in behaviour cannot be turned into
a rule by adding some mental element. Postema puts the point well when he says:9

[S]trictly speaking, there is no such thing as the custom's rule – the regularity
of behavior – viewed on its own. It is a commonplace view of contemporary
philosophy that the problem is not that no rule or pattern can be constructed
from a collection of bits of behavior, but rather that an indefinite number of
such patterns are logically projectable from the same collection. But if there is
an indefinite number of such projectable patterns, then there is no rule. For a
rule is a discrete pattern with some claim to normative status for those
engaged in the practice that distinguishes behavior in accord with it from other
modes of behaving, treating them as wrong, or mistaken, or violations. No
pattern that exists simply as one among an indefinite number can make that
claim. Projectable patterns are not (yet) rules.

6
Postema 2012, 714-15.
7
It seems to me he makes the point succinctly at 115, but then goes on to complicate it in
what follows.
8
Wittgenstein 1958, [143]-[242]; Baker & Hacker 1984.
9
Postema 2012, 715.
6

Another way of putting this point is that a habit is not a rule-manqué. One cannot turn
a habit into a rule by adding some mental element. If the habitual behaviour comes to
be reproduced by the application of a rule – it comes to be a rule that one must go to
the cinema on the weekend – then an entirely different form of behaviour now
operates, ie the behaviour is that which comes about by complying with a rule not, as
it were, for the reason that you generally enjoy seeing films, even if the behaviour
appears to the ‘external’ observer to be identical. So I agree with Postema about (1).

With respect to (2): In so far as we are dealing with norms that essentially involve
human interactions (unlike, say, the norms of arithmetic), necessarily they are going
to involve ‘reciprocally oriented conduct’. Moral norms and legal norms do just that.
They concern how we interact with others.

Finally, as to (3). If you understand a rule, you are able to explain your behaviour as
complying with the rule to a creature having the cognitive ability to acquire the rule
themself, or explain to such a creature how you failed to apply the rule in this case,
say you didn’t do a sum correctly. As Wittgenstein pointed out, explaining a rule,
demonstrating an application of a rule to another, teaching a rule, in various differing
circumstances, are a criterion of, not evidence for, your understanding a rule, having
got it under your belt as a competent-rule follower. It seems to me that Postema
mistakenly embroiders on this point, recruiting Dworkin’s ‘interpretive practice’
thesis (always a mistake), to claim that customs are wedded to some kind of
discursive practice in which people have critical arguments about the point or purpose
or moral nature of a rule. That strikes me as wrong-headed. Note, I am not saying that
we cannot evaluate any norm on any basis that strikes our fancy. We can discuss
whether the fist-bump is cooler than the handshake. But this ability to question and
discuss is not peculiar to norms, or especially to customary norms. We can make a
discursive practice of anything that matters to us in any way. It is true that because the
customs we are talking about, moral and legal customs, are moral customs, it is
perfectly natural to think about what aspects of morality they respond to, whether they
are indeed morally right, and so on. But that is because they are moral customs, not
because they are customs per se.

But there is a deeper problem. As Gardner points out,10

Customary law is, of course, communicated. It is disseminated by example,


and dissemination by example is a form of communication. However,
customary law, unlike legislated law, is not made by any acts of
communicating it. It is made by acts of conforming to it. It is created and
changed, not by what people say is to be done, but what they actually do.

Customs are about what we do, not what we say. So rather than being a kind of law to
which a surrounding discourse is specially relevant, the situation is rather the reverse.
In so far as a rule is customary, any discourse in relation to it is by definition
irrelevant to its content.

Is, however, such a discourse relevant to its uptake or continuing reception? I doubt it.
Dworkin may be suggesting, and Postema may agree, that customary norms or laws

10
Gardner 2012, 67 (original italics).
7

are especially sensitive to critical scrutiny, but I don’t see a reason for thinking that to
be true. Legislated law would seem to be just as sensitive. Perhaps the idea is that,
being customary, compliance with a customary norm is more likely to vary with
criticism of it than compliance with a legislated rule. But I see no reason to believe
this either. To the extent Postema is in some way in agreement with Dworkin on this
he seems to be embracing an idea of the stoic Dio Chrysostom, which he explains as
follows:11

We are committed by the additive conception to regard disputes over


customary rules as impossible, but customary rules, especially customary legal
rules, are not like that; indeed, if we are to believe Dio Chrysostom, customs
typically invite critical scrutiny and, as one might expect, dispute over that
criticism.

In any case, in light of these considerations Postema comes up with a very


complicated way of explaining when customs are morally or legally binding. Here’s a
taste:12

We can ask what makes this or that alleged customary rule a law, that is, what
makes it legally significant or binding. … The account of customary norms
articulated above provides a sophisticated answer to this question. Note, first,
that on this account, whether any alleged rule is binding or practically
significant as a custom is settled by determining whether it has a place or role
in some ongoing, practically oriented, discursive normative practice. What
qualifies a norm as a normatively significant custom, we saw earlier, is its
integration into a discursive, deed-based system of norms. We also saw that
whether a given norm is so integrated is a matter determined not by
observation or interrogation of participants' beliefs or attitudes, but
discursively, by argument. So, the question of whether some alleged custom is
binding is always answered relative to some practice, arguing that it has a
proper place in its system of norms. A fortiori, the question whether a custom
is legally binding is answered not in general but relative to some particular
legal system or other.

Thus, on the normative practice account, what qualifies a given custom as


legally significant or binding in some legal system is whether that custom is
incorporated into the larger set of norms of that legal system, or, more likely,
whether it is integrated into a custom regime which in turn is incorporated into
the legal system. How, then, does one know whether some activity in which
states seem to engage with some regularity is governed by a binding norm of
customary international law, as opposed to being a matter of comity, mere
politeness, mere convergence of behavior-serving self-interest, or sheer habit?
The answer is that this fact is not to be determined by exploring the beliefs or
attitudes of states or their officials, but rather to look at the way the conduct is
"read" in the transnational public domain. In particular, it is determined by
how the agents tend to characterize their actions, the terms in which they seek
to vindicate them, how these attempts are taken up by other participants in the

11
Postema 2012, 718.
12
Postema 2012, 735-736 (footnote omitted, italics original).
8

practice, how the actions are affirmed, resisted, criticized, and the like. We can
determine this fact, to some degree, "from the outside" by looking at the kinds
of interpretations and arguments that are given for and against the act, how
those arguments are related to other descriptions and arguments, and the like.
The normative practice account insists, however, that ultimately the legal
status of any alleged norm is determined by the place it actually has in the
practice system, and that is a matter for discursive argument, not external
observation (even if it is observation of the arguments of others). Claims about
the legally binding status of some alleged custom are only discharged
discursively, that is, by substantive argument.

I don’t think this picture can be correct, because this complex requirement for a
custom to be binding rules out, as far as I can tell, the possibility of an ‘instant
custom’. Although at one point in the paper Postema himself suggests that there is a
possibility of ‘instant’ custom,13 he seems not to consider that suggestion by the time
he formulates this test.

So let us interrogate the idea of an ‘instant’ custom. Take the gesture known as the
‘high-five’. I do not know with whom this originated nor, I suspect, does anyone, but
in a very short space of time it became (for the young and the cool) a standard way of
marking achievement in many different contexts.

The idea of a meme, I think, helps us here. Pulling a random definition from the web,
a meme is ‘an element of a culture or system of behaviour passed from one individual
to another by imitation or other non-genetic means.’ The original idea was Richard
Dawkins’s.14 But the idea is that a meme is something that, given the kind of creatures
we are, appeals to us in some way so that we accept it as a norm of behaviour (or
thought) more or less unreflectively. It just seems like a great idea.

I rather think that most customs are memes, or meme-like. The first person who
invents or discovers them and passes them on starts a chain reaction. Consider, for
another example, the minute of silence to commemorate a tragedy. Somehow this just
seems fitting. One takes a break from the hurly-burly of the world to remember (or
pray, if one is prayer-minded – one of the nice things about the minute of silence is
that it is not itself theistic). It is a nice idea, and therefore fit to become a custom.

Of course the notion of ‘instant’ here does not mean instantaneous in time. What it
means is that it spreads like wildfire amongst a receptive population. If it is a meme of
‘coolness’, if you are cool you will get it, and if you are not cool you won’t. In this
respect the ‘high-five’ is a meme. The temporal aspect of ‘spreading like wildfire’
will depend upon historical circumstances reflecting ease or difficulty of
communication, transportation, and so on. The important point is not about
temporality, but about reception, which is that the uptake is not deliberative, and
therefore the uptake can spread fast, far and wide. What do I mean by ‘deliberative’?
All rule-following behaviour is, of course, deliberative in the sense that it is we who
follow our rules or customs, more or less consciously, but always as agents. We
needn’t do so reflectively. When you speak grammatically you are generally not

13
Postema 2012, 727. Unfortunately he provides no example.
14
https://en.wikipedia.org/wiki/Meme
9

consciously attending to the rules of grammar. What I intend by ‘not deliberative’


here is the idea that apparent, workable solutions to problems, or apparent workable
improvements on something we were doing before, do not require any deliberation to
assess their appeal. It is not as if the uptake occurs in two moments – the custom
presents itself, and then we ‘deliberate’ over whether to adopt it. Taking up a custom
is not a process in which we are each of us our own legislature of one considering our
own private member’s bill. The uptake of a custom is also non-legislative in another
sense. A custom does not appeal to us because of its source, who
invented/discovered/realized it or the other circumstances of its invention, etc.

Call this the ‘popular appeal’ theory of custom. This way of thinking about customs
explains why customs may have a limited uptake in any particular population. I may
see the point of the high-five for people who see themselves as cool in a certain way,
but I am not going to adopt the custom for myself if I do not think of myself as
amongst their number. So perhaps I don’t like doing the high-five, and don’t do it
upon the occasions in which it is called for. The extent to which a custom will spread
will be determined by whether its appeal is universal, or sectional. In the absence of
any uptake in the relevant population, it follows that the idea has insufficient appeal,
and no custom will be established.

Because morality is universal – nobody gets not to be within the ranks of those
subject to morality – moral customs, leaving aside the standard epistemic and
motivational limitations, should appeal, and should be complied with, by everyone.

What this theory of custom suggests is that, even in the moral realm, the recognition
or ‘uptake’ of custom is much less complicated than Postema makes it out to be. The
minute of silence is a custom of borderline etiquette/morality, but I don’t think things
are generally different as regards moral or legal customs. Remembering that legal
customs are a kind of moral custom, I shall give other examples in the next section of
legal customs, thus moral customs, which are meme-like in this way.

The upshot for our thoughts about BI is the following: in order to understand custom,
we do not need to appeal any mysterious ‘mental’ add-on, which is the foundation of
the ‘additive conception’ of custom, to understand why custom binds. Nor do we need
Postema’s complicated test. Custom binds because the idea discovered/invented by
someone has immediate appeal because it advances our ability to do something.
Arithmetic appeals to anyone who is interested, to use the words of Hacker, in ‘the
transformation of empirical propositions concerning magnitudes and quantifiable
attributes of things and in the transformation of descriptions of spatial relations
between things, and so forth’,15 eg counting the sheep in one’s flock to make sure they
have all come home safely. So the custom of arithmetic, starting with counting,
spreads. Someone who comes up with a way of distinguishing murder from
manslaughter in an effective way will appeal to anyone, which should be everyone,
who wants to make sense of this morally relevant distinction, who wants to make it
operational, as it were. These ideas spread without legislation because legislation is
unnecessary for their uptake – there is no need to legislate a good16 idea. Such ideas

15
Hacker 2007, 12.
16
Or rather, an appealing, meme-generating, idea. Obviously, not all appealing ideas are good
ideas, especially morally speaking.
10

are moral, that is, categorically obligatory, because they concern the subject matter of
morality. To take them up is to regard them as morally binding.

Now, let me plunge into waters in which I am sure I am out of my depth, the bracing
waters of public international law. It seems to me, admittedly as an outsider, that
international lawyers don’t really believe in customary international law, despite what
they say, or rather they don’t believe that ‘customary’ international law is really a
matter of custom. What they really believe in is an idea of informal legislation. States
think they bind themselves, set laws for themselves. It seems to me they model
international law (the practice of states) not really on genuine uptake of good ideas,
which I have argued is the essence of customary norms, but as a kind of informal
legislation, in which each state has the role akin to a member of Parliament. Each
member judges for itself whether a new rule, in light of all sorts of considerations, is a
rule with which it thinks it and others must comply. It is deliberative through and
through. The adoption by states of a particular norm, in their practice, is really just a
kind of voting in favour of that norm. But since there are no clear rules in this
legislative game, there is a lot of uncertainty, hence a lot of controversy over the
status of ‘customary’ international law. Here, I think, Postema’s critique of the
‘additive’ conception bites. As far as I can see, the ‘additive conception’ does apply to
‘customary’ international law just because this area of discourse is not really about
custom. Postema’s test may properly re-configure the controversies surrounding
‘customary’ international law more realistically, so as better to suit that discourse just
because it is a kind of legislative discourse, ie the kind that typifies legislative
debate.17

One sop: I do think there is one customary norm of public international law that arose
following the Westphalian settlement: Pacta sunt servanda. This, of course, is just the
transposition of a basic principle of individual relational morality to states in so far as
states conceive of themselves as a kind of person, a legal personality. This
transposition appealed to them, to a man (or, rather, to each and every state). So the
law of treaties is genuine customary law. That is not to say, of course, that all rules of
the law of treaties are customary rules. I shall return to this sort of point below when I
discuss the private law concepts of trusts and contracts.

This brief discussion of ‘customary’ international law is not gratuitous, much less, I
hope, captious. I raise it in part because if ‘customary’ international law is a kind of
customary law at all, it is meant to be custom in pays. The idea of custom in pays is
problematic, as we shall see below.

III – Custom and Judge-Made Law

17
Cf Gardner 2012, 65 (italics original) : ‘Can there be legislation without any concerted
action, either natural or artificial? Of course there can, for in the Great Dictatorship, the Great
Dictator legislates all by himself. The live question is only whether there can be legislation
involving multiple human beings [JEP, or states] without concerted action, either natural or
artificial, on the part of those human beings [JEP: again, or states]. The answer is that there
cannot.’ The lesson I draw from this is that so far as public international law treats its
customary law as ‘informal’ legislation, it will never make sense of the idea of customary
international law, ie non-legislated international law. See also Gardner 2012, 66.
11

AWB Simpson argued that the common law was a kind of customary law. It seems to
me that he made a number of good points, which I shall get to in a moment. The
difficulty with Simpson’s view is that he seemed to understand that there were only
two types, or two basic types, of law – legislated law and non-legislated law. The
latter he framed as customary law. But as Gardner has pointed out, this picture is too
simple. There are three basic types of law: legislated law, customary law, and case
law. The tricky part of understanding the common law is determining how it reflects
elements of both of the latter two. The particular features of case law that Gardner
identifies and are relevant here are the following:18

(1) Case law can be made intentionally, as when a court expressly overrules a
previous line of cases, but may also be made non-intentionally, when a
court’s ruling creates a new rule (to include when it modifies an old rule19)
or abolishes an old rule simply because the ruling itself does so, whatever
the court’s reasoning that led to it.20
(2) Case law is not expressly made. ‘Express’ here has a particular meaning. It
means that the law-maker makes law by setting out a canonical
formulation of a new rule, to which future rule appliers must attend, as is
the case with legislation. In the case of case law, it is the content of the
ruling that matters, not any expression by the court of the rule so created
in its judgment that establishes what the law is. Of course all students of
the common law know that judges often do cite formulations of a rule by a
previous court as if it were a canonical text (often with pretty unthinking
results) but no later court is bound to do so.

By contrast, customary law is, like case law, not expressly made, but unlike case law
is always unintentionally made.21 Customary law is law that people follow because
they regard themselves as having an obligation to follow it, but though their practice
establishes, through their multiple compliances with the customary law, its existence,
its existence is not regarded by them as made by those compliances. I agree that
customary law is not intentionally made, but we have to be very careful about our use
of the word ‘made’ here. Gardner, says:22

Customary law is not made by any one agent. … The making of customary
law requires multiple actions by multiple agents.

In one sense a custom is not made by anyone. Whether it is a custom or not turns on
its non-deliberative willing reception. A custom only exists where multiple acts of
compliance with it is found amongst multiple agents, but compliance per se is not the
making of the thing complied with. Of course the custom, in terms of its content, the
behaviour it requires, is made in the sense that it is invented or discovered by an
individual or individuals. So the point here is not to say that customs are not the
creation of human agents. The point is rather that their spread, their becoming a

18
Gardner 2012, 74-82.
19
The distinction between creating a rule and modifying a rule turns on the individuation of
rules of law, which will not detain us here.
20
This does not mean that a court’s reasoning is irrelevant to the law thus created. See
Gardner 2012, 78-79; Penner 2010, 657-670.
21
Gardner 2012, 70-72.
22
Gardner, 2012, 72-73 (original italics, my underlining).
12

custom, is not an agential process beyond the fact that, as individual agents, they
practice the behaviour the custom requires, and in doing so establish the custom. The
error that we want to avoid here and, to be clear, I am not attributing this error to
Gardner, is the idea that this process amounts to some sort of collective if unwitting
form of legislation. This is also not to deny that sometimes people follow customs
because they are customs or follow a practice on its way to becoming a custom,
because they want to do what other people do. But this is not necessary for a custom
to be established.

As regards the common law, Gardner depicts it as a particular form of law that
manifests aspects of both case law and customary law. With respect to the common
law, Gardner says:23

Common law, one may glean, is law that comes into being in a different way
from legislated law. But how does it come into being? Is it case law or
customary law? The founding myths of The Common Law as a legal tradition
tend to present it as a system of custom in pays. It is law that rises up from the
general population, as opposed to statute law which descends upon the
population from the King. This founding myth is in many ways ridiculous.
The law in question was mostly the work of the King’s judges. But even if this
were not the case in the twelfth century, it is now surely the case. The
common law doctrines in use now are the creatures of judicial use. Yet this
leaves open the question: what kind of judicial use? Is it judicial use in one
case at a time, constituting case law? Or is it concurrent and convergent
judicial use, constituting customary law in foro?

With respect in particular to customary law in pays, he says, besides the passage just
quoted:

In the complex legal systems that law school professors are used to dealing
with, there is little customary law that is made in pays24.

I think almost all of this is along the right lines, but I also think this account presents
one significant difficulty. Gardner assumes, I think, that his reader shares a more or
less clear distinction between custom in pays and custom in foro. Unfortunately
Gardner does not give an example of the former, except the complicated case of
custom in international law, 25 and I find it difficult on his account to detect what
would count as an example of a legal custom in pays in a municipal legal system. He
does say the following about a court’s or a legislature’s reference to a custom which
does not make it a legal custom:26

Legislated law may be influenced by custom. It may also refer to custom,


giving it legal recognition, for example by saying that the statutory standard to
be applied in judging the conduct of an electrician is the standard of conduct
that is customary in the electrical trade. This is not customary law. The

23
Gardner 2012, 83.
24
Gardner 2012, 66.
25
The complications of which he realizes: Gardner 2012, 66. See footnote --, above.
26
Gardner 2012, 65-66.
13

customary norm in this case is not, even after its legal recognition, a legal
norm. It is merely a legally recognized norm. It is the same situation as obtains
when English law refers to some norm of French law in settling some family
law problem arising out of a marriage conducted in France. This does not
make the norm of French law into a norm of English law. Likewise, a
legislative reference to a customary norm does not make the norm into
customary law. Customary law, rather, is made up of customary norms that are
ipso facto legally binding, that are part of the law without further ado.

But this does not give us much guidance as to what sort of custom, originating outside
the practice of judges, would count as a legal custom in pays, that is a norm that is
‘ipso facto legally binding … part of the law without further ado’. As a good
positivist who believes that just because something is a good idea to implement as a
law does not, ipso facto, make it a law, and furthermore that, in general, only legal
officials can make law, I find it difficult to make sense of the idea that there can even
be legal custom in pays unless subjects of the law are all legally empowered in some
sense by which their generally complying with a norm makes it a norm of law, one
that is ipso facto legally binding. The difficulty here lies in the fact that customs, not
being intentionally made, cannot be distinguished as moral as opposed to legal
(morally legal) customs by the intentions of their followers, since whether a custom is
legal or moral is a matter of how the custom is situated in the normative realm, not a
matter of what the custom requires, i.e. what is to be done according to the custom.
Those who comply with customs do not have to sort out for themselves whether they
are customs of law, morality, etiquette, grammar, and so on. It is the theorist of
custom who does that. And the problem for the theorist in this case is that there do not
seem to be any obvious grounds for determining that a custom in pays, amongst the
people, is a moral custom or a legally moral one. Assume people think that the power
to make binding agreements is a good power to have, and that if one enters one, one
must, ceteris paribus, comply with the obligations one creates by doing so.
Furthermore, there is wide uptake of the custom in the sense that people by and large
do comply with their agreed-to undertakings. How, by this custom of compliance, are
we to determine whether this custom is a moral one or a legally moral one, or rather,
how is this body of people, by the mere fact of their compliance, to determine this? I
don’t see how they can. The people who get to decide this are legislatures and judges,
and to the extent they adopt such a custom by making it the rationale for a statutory
provision or for the ruling in a case, the result is legislated law or case law,
respectively, as Gardner quite correctly says. But if that is so, then there cannot be
customary law in pays at all. The set, as it were, of customary laws in pays is empty.
Perhaps Gardner implicitly accepts this conclusion. If the foregoing is correct then so
should we all.

I do, however, think there is a solution to this problem, but it turns on modifying our
definition of custom in pays, and relating it to a particular custom in foro. Custom in
pays refers not to the customs of the general subjects of the law, but to the extra-curial
practice of lawyers, or lawyer and judges in the case of the lex mercatoria. The basic
thoughts which motivate this picture are two. The first is that the customs of lawyers
can only be legal, that is, legally moral customs, so the problem just set out of
identifying whether a custom in pays is legal or moral doesn’t arise. This is true even
if the custom is regarded as the custom of the subjects of the law, since the relevant
customs arise in response to the advice of lawyers.
14

The second underlying thought is that much of the law is developed by lawyers, not
judges. This is particularly so in any area of law which is shaped by the innovative
exercise of legal powers, such as the law of contract, the law of property, and the law
of trusts. These areas of law are ripe for legal innovation just because of their nature.
In general, for example, one can make a contractual provision imposing any kind of
obligation (barring illegal contracts, etc). The same is true of the law of trusts and the
powers that go to shape different property arrangements (such as leases, settlements,
and so on).

Simpson emphasises that in so far as the common law is a kind of customary law, it is
not just a matter of judicial customs, but customs of the legal profession:27

[T]he common law system is properly located as a system of customary law in


this sense, that is consists of a body of practices observed and ideas received
by a caste of lawyers, these ideas being then used by them as providing
guidance in what is conceived to be the rational determination of disputes
litigated before them, or by them on behalf of clients, and in other contexts.
These ideas and practices exist only in the sense that they are accepted and
acted upon within the legal profession, just as customary practices may be said
to exist within a group in the sense that they are observed, accepted as
appropriate forms of behaviour, and transmitted both by example and precept
as membership of the group changes.

It is well beyond the scope of this paper to establish this claim about custom in pays,
but let me say a few things which I hope are supportive of the view.

Consider the lex mercatoria. Often people emphase ‘mercatoria’, rather than ‘lex’,
speaking of the customs of merchants. But this misrepresents it. It was just a body of
law developed in particular merchant courts. As more commercial business came
before the King’s courts, provable rules of the merchant courts were treated, ipso
facto, as the law in the King’s courts. Why, after all, re-invent the wheel? As custom
in pays it was just the custom of a body of lawyers and judges who were out there in
the country, but all this means is that their customs developed outside the jurisdiction
of the King’s courts.

Consider also the case of English land law. It is a commonplace that much of the law
was devised by practitioners, especially conveyancers, whose various innovations
caught on and spread like wildfire. Of course these innovations had at one time or
another to be tested by the court – some indeed involved the court from the outset,
when for example, the first practitioner managed, for his client, to bar an entail by a
collusive action. But the idea is that within the body of the profession it was
understood that there was a judicial custom, a custom in foro – and remember, as a
custom it needed no official recognition in words, in principles or arguments – that

27
Simpson 1973, 94.
15

the practice of practitioners was itself a source of law in creating new kinds of
property interests.28

A similar thing can be said about the law of contract and the law of trusts. It seems to
me that there is a strong judicial customary presumption that contractual and trust
innovations are valid. To take one example, consider the lawyer’s innovation of the
liquidated damages clause. A good idea in a range of contracts, and an innovation that
spreads like wildfire. I shall return to this example below.

It is important to recognize the respect in which such customs are binding. Where a
legal innovation of practical use to clients spreads to practitioners, it becomes a
binding norm of professional practice to advise clients in suitable cases to make use
of the innovation. In modern terms, a lawyer who failed to advise his client about the
possibility of including a liquated damages clause in suitable cases would be guilty of
professional negligence.

On this view of custom in pays, custom in pays depends upon custom in foro. Custom
in pays exists when there is a custom in foro of applying the innovative customs of
legal practitioners ‘without further ado’. It still counts as custom in pays because the
custom itself arises in a class of subjects of the law who have the special status of
legal practitioners but whose innovations, but for the just stated custom in foro, would
not be legal customs. But the customs themselves do not derive from any law-making
initiatives of the legislature or courts. They arise ‘out there’, in the country.

Furthermore, if this view is right, there can, in these contexts, be no sharp distinction
between case law and customary law. When a custom is recognized, it will also have
a life of its own as case law simply because, when it is recognized, it will be so in the
course of a judge’s making a ruling, and that will be an independent ground of the
rule in question. Furthermore, as the liquidated damages clause illustrates, once the
basic innovation is recognised by a court, then it becomes, in part, the court’s
creature. Judges can, for example, create a new rule that renders invalid liquidated
damages clauses if they do not genuinely reflect appropriate levels of damages, but
impose penalties. I presume this sort of judicial moulding and shaping has also
occurred in the public international law of treaties.

One final point. These considerations also show why custom is the province of
power-facilitative areas of law like property, contract, trusts, treaties and so on, and
why there is no custom in pays of the law of torts.

IV – A Too Short Conclusion

I have the feeling that readers may find the foregoing a simplistic discussion of
custom, though I hope not a simple-minded one. But if what I have said is along the
right lines then, perhaps, after we remove a couple of conceptual stumbling blocks,
understanding custom is not so difficult after all.

28
‘Interests’ in the loose sense. By virtue of the numerus clausas (a judicial customary rule if
anything is) no ‘novel’ property interests can be created without Parliamentary legislation.
Though they can be created by judicial mistake: Tulk v Moxhay (the restrictive covenant).
16

References

(Wittgenstein 1958, Simpson 1973, Baker and Hacker 1984, Hacker 2007, Postema
2009, Penner 2010, Gardner 2012, Postema 2012)

Baker, G. P. and P. M. S. Hacker (1984). Scepticism, Rules & Nonsense. Oxford,


Basil Blackwell.
Gardner, J. (2012). Law as a Leap of Faith. Oxford, Oxford University Press.
Hacker, P. M. S. (2007). Human Nature: The Categorical Framework, Wiley-
Blackwell.
Penner, J. E. (2010). "An Untheory of the Law of Trusts, or Some Notes Towards
Understanding the Structure of Trusts Law Doctrine." Current Legal Problems 63:
653-675.
Postema, G. J. (2009). "Nature as First Custom: Hayek on the Evolution of Social
Rules." SSRN: 1-26.
Postema, G. J. (2012). "Custom, Normative Practice, and the Law." Duke Law
Journal 62: 707-738.
Simpson, A. W. B. (1973). The Common Law and Legal Theory. Oxford Essays in
Jurisprudence, Second Series. A. W. B. Simpson. Oxford, Clarendon Press: 77-97.
Wittgenstein, L. (1958). Philosophical Investigations. Oxford, Basil Blackwell.

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