The Cult of Custom in the Late 20th Century

Abstract

Legislation involves the deliberate and explicit establishment of community policy through prescribed procedures, usually in specialized institutions. It is common to advanced legal and political systems which are generally distinguished from lesser developed systems by an appreciation and cultivation of division and specialization of labor. Custom, in contrast, concerns the implicit creation of norms through the behavior of a few politically relevant actors who are frequently unaware that law is being, or has been, made. Custom is supposedly indistinguishable from the aggregate flow of community behavior and thus has traditionally been associated with primitive societies lacking institutional articulation. While those who wish to use law as a means of affirmatively shaping future social arrangements have viewed custom as an anachronism and an atavism, a coalition of historians, those conservatives who just like old things and some scholars who appreciate so-called "free market arrangements" have extolled custom for what they believe are its inherent efficiency and democracy.