The Philosophy of Customary Law

Custom and customary law have long been neglected topics in jurisprudential debate, except in the special case of customary international law. This book attempts to bring greater theoretical clarity to the often murky topic of custom by showing that custom must be analyzed into two more logically basic concepts: convention and habit. Customs are conventional habits and habitual conventions. Once we have a clearer understanding of custom we can better grasp the many roles that custom plays in a legal system. We explore the nature and significance of custom and customary law in four classic theories of Aristotle, Francisco Suárez, Jeremy Bentham, and James C. Carter. Although many modern philosophers of law have described custom as merely a minor source of law, we shall see that it is more accurate to say that formal law is merely one source of the legal customs that govern us. Many laws grow out of custom and laws succeed when they create enduring legal customs.