Introduction: Lessons from the History of Custom

By Kadens, Emily | Texas International Law Journal, Summer 2013 | Go to article overview

Introduction: Lessons from the History of Custom

Kadens, Emily, Texas International Law Journal

The articles in this symposium issue demonstrate the problems and potential in the use of custom in modern legal systems. Marie Kim describes South Korea's struggles to fit custom, both age-old and possibly recently invented, into a modern constitutional structure. Professors Modéer and 0rebech detail the different directions Eastern and Western Scandinavian countries have taken, with Sweden showing more tolerance for custom in its property law and treatment of the Sàmi and Norway adhering to a code-based system that only begrudgingly allows custom to sneak in at the margins. One of those margins in Europe, as Pascale Fournier and Pascal McDougall's Article demonstrates, is the family law customs of Jewish and Muslim minorities in Germany, an issue that will likely prove a continuing challenge to the civil law systems of Europe. Professor Kostritsky undertakes an extensive survey of the various ways in which law and economics adherents use and try to define norms, a form of custom that has emerged from the shadows to prove that custom has not completely disappeared even in our heavily regulated and legalized society. By contrast, Henry Smith suggests that the age of custom is largely over in American law, at least in the field of property, because custom can only function within relatively small communities and cannot provide generalizable rules of law. Finally, Professor Schauer offers Hartian insight into the perennially difficult question of how to define custom, a problem with which jurists have been struggling since at least the twelfth century.

Despite the current flood of interest in bottom-up lawmaking that these articles represent, custom is preeminently pre-modern law-law before the common use of legislation, before the sovereign nation-state.1 And if the medieval jurists peered over our shoulders they would, I suspect, conclude that lawyers today do not quite understand how custom works.

This should come as no real surprise. The jurists of the medieval and early modern periods lived in a world saturated with customs that formed many, even most, of the legally-enforceable rules of decision governing their lives and their society.2 They had to try to understand it. We live in a world in which custom is something of a novelty and in which we instinctively hold positivist notions about the sources and nature of law. Wrapping our modern minds around pre-modern custom would require putting aside notions of law that have had two or three hundred years to take hold. But if we were to try, we might find that the medieval jurists have something valuable to teach us about custom and how we currently use the concept.

First, and perhaps most importantly, studying the writings of the Roman and canon law jurists of Europe between the twelfth and seventeenth centuries would reassure us that our confusion about custom is not new. Both then and now, legal scholars have begun with a definition of custom that derives ultimately from the Romans and contains two parts: an objective requirement that an act be done repeatedly over time, and a subjective requirement that the people engaging in the act do so out of a sense of legal obligation, what has since the nineteenth century been called the opinio juris/

Looking at the way the jurists treated this definition of custom, we might realize that, despite sharing the same definition with them, we do not have quite the same respect for it. Because they defined custom as a form of law, the jurists understood that not every behavior, no matter how longstanding or binding, deserved to be denominated a custom. As a consequence, they created elaborate distinctions dividing custom (repeat behavior binding the whole relevant community due to the "people's will or their tacit consent")4 from other categories." They drew the first distinction between mere longstanding practices (usus or mos) and custom. The former lacked the requisite opinio juris. Custom required both usus and the sense of being bound. …

The rest of this article is only available to active members of Questia

Sign up now for a free, 1-day trial and receive full access to:

  • Questia's entire collection
  • Automatic bibliography creation
  • More helpful research tools like notes, citations, and highlights
  • Ad-free environment

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Cite this article

Cited article

Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)


1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25,

Cited article

Introduction: Lessons from the History of Custom


Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Full screen

matching results for page

Cited passage

Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25,

Cited passage

Welcome to the new Questia Reader

The Questia Reader has been updated to provide you with an even better online reading experience.  It is now 100% Responsive, which means you can read our books and articles on any sized device you wish.  All of your favorite tools like notes, highlights, and citations are still here, but the way you select text has been updated to be easier to use, especially on touchscreen devices.  Here's how:

1. Click or tap the first word you want to select.
2. Click or tap the last word you want to select.

OK, got it!

Thanks for trying Questia!

Please continue trying out our research tools, but please note, full functionality is available only to our active members.

Your work will be lost once you leave this Web page.

For full access in an ad-free environment, sign up now for a FREE, 1-day trial.

Already a member? Log in now.