Academic journal article Emory Law Journal

The Bederman Lecture on Law and Jurisprudence: Public Law and Custom

Academic journal article Emory Law Journal

The Bederman Lecture on Law and Jurisprudence: Public Law and Custom

Article excerpt

Law professors love puzzles. Give us a legal doctrine that does not make sense, or appears counterintuitive, or does not appear to comport with some methodological assumption, and we can spend months (if not years) plumbing its depths and producing reams of paper in exploring its contours. The good news today is that my exegesis shall be limited to the length of this lecture. Let me first set out the character of the puzzle and see if I cannot solve it in the time allotted.


Today's puzzle can be simply stated: can public law rules be made or modified by custom?

At the outset, let us define some terms. By "custom," I mean legal rules which are "unofficial" and "unenacted" inasmuch as they do not receive their sanction from a statute adopted by a duly constituted legislature or from a decision handed down by a judge of a court of competent jurisdiction. Custom is simply the practices and usages of distinctive communities. One peculiarity of the modern law school curriculum is that we do not give much reflection to the sources of law in contemporary legal culture, and law students reflexively assume that all law must be derived from a legislature passing statutes or judges deciding cases. In short, we implicitly train law students from virtually their very first day of studies that law is a top-down social construct, consistent with John Austin's vision of authoritative commands.1 Custom, by contrast, is a bottom-up dynamic, where legal rules are being made by the actual participants in the relevant legal community.

"Public law" is the domain of legal relations dictated by the state. It stands in contrast with what we call "private law," the ordering of affairs between individuals in contract, tort, and property-the bedrock of the first-year law school curriculum. The core of public law is often viewed as administrative, criminal, and constitutional law. But the boundaries between public and private law are increasingly being blurred. As the terms of more and more private relations are being dictated by government action-say, a statute that imposes a limit on how much interest can be charged on a loan or a regulatory scheme that governs communications between banks and individual credit-card holders-the domain of purely private law may be shrinking. I doubt that proposition, but that is an issue for another day-and another lecture. In any event, public law norms are those sets of rules at the heart of any polity. And while not all public law norms are "rule[s] of recognition," in the sense that the eminent legal scholar H.L.A. Hart employed,2 the dictates of public law would seem to have a higher stature-or, at a minimum, a different character-than those of private law relationships between individuals.

Many prominent legal theorists have asserted that even if custom should be recognized as a source of legal obligation, there are limits to its domain, and one of these is that customary norms cannot remake public law. James Coolidge Carter3 and T.F.T. Plucknett4 both contended that custom cannot change public law. Plucknett's assertion was made as part of his great survey of the English common law; Carter's discussion was in relation to what he viewed as an ideal legal system. So, the notion that custom can have no effect on public law rules has been stated as both a matter of description in legal history and a preferred norm in the design of legal systems. There are many skeptics of custom as a source of law. Within this group, most are adamant that public law is just too important to be influenced by customary lawmaking processes.

Both the descriptive and normative claims of those that would refute a role for custom in public law are quite wrong, and the goal of this lecture is to tell you why and how. Indeed, I will accomplish this jurisprudential feat without reference at all to the role of custom in public international law-that set of norms governing behavior between actors in the international community. …

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