Order without Judges: Customary Adjudication
Blocher, Joseph, Duke Law Journal
Scholarship on custom and law has largely focused on the creation and enforcement of informal rules, demonstrating and in some cases endorsing the existence of "order without law." But creating and enforcing rules are only two of the three functions of governance, corresponding roughly with what in other contexts are called the legislative and executive branches. The third function--adjudication--has not played such a prominent role in the scholarly literature on informal governance. As one leading scholar puts it: "Custom has no constitution or judges." But if customs can be created and enforced by nonstate actors, why should scholars assume that formal (that is, noncustomary) courts are the only institutions that do or should adjudicate those customs?
This Essay seeks to describe and emphasize the role of customary adjudication, the third branch of customary governance. In doing so, it has three main goals: first, to argue that customary governance can be understood in terms of the same three functions familiar to students of formal governance; second, to deliver a preliminary and tentative account of the third of these branches; and finally, to suggest that existing scholarship on custom and law has given comparatively little attention to the functions and forms of customary adjudication. If successful, those contributions should set the stage for future descriptive and normative work.
TABLE OF CONTENTS Introduction I. The Traditional Two-Branch Account of Customary Governance A. A Tripartite Framework for Customary Governance B. Creating Custom C. Enforcing Custom II. The Under-Recognized Third Branch: A Preliminary Account of Customary Adjudication Conclusion
Custom-and-law scholarship has traditionally explored two major elements of informal governance: first, how custom arises, (1) and second, how custom is enforced. (2) These elements are analogous to the legislative and executive functions of formal government. Like laws, custom and social norms (3) arise and function as rules governing individual action, though they are not promulgated by any official body. This is the legislative element of customary governance. Like laws, social norms also carry sanctions for violators, including ostracism and snubs, though these penalties are not administered by state officials. This is the executive element of customary governance.
These traditional accounts of custom and law have not given nearly as much attention to the role of customary adjudication. As one prominent scholar puts it: "Custom has no constitution or judges." (4) Indeed, the existing literature focuses disproportionately on the existence and content of norms as well as the sanctions that follow from their violation, (5) rather than on adjudicatory functions such as the selection of applicable norms, resolution of disputed facts, application of the selected norms to the facts, and recommendation of sanctions--the things that courts do in a formal legal system. To the degree that scholars have focused on adjudication, they have generally asked whether formal adjudicators--judges, that is--should take account of custom when deciding cases. (6)
There is something oddly asymmetric, however, about treating the informal system as capable of creating and enforcing norms, but ignoring its role in resolving disputes over their application. If informal governance is robust enough to perform the former two functions, there is no prima facie reason why it should not also be able to perform the third. (7) But even as the custom-and-law literature has quite properly encouraged scholars to be less "legal-centric," (8) it has itself remained generally court-centric.
This asymmetry is problematic for many reasons. If the literature is to be descriptively accurate, it must capture the adjudicatory function, just as any basic account of American government must acknowledge the role of the courts. …