Customary law

Lore & Background

A central issue regarding the recognition of custom is determining the appropriate methodology to know what practices and norms actually constitute customary law. Some scholars, like John Comaroff and Simon Roberts, have characterized customary law norms in their own terms, while John Hund critiques their approach and prefers the contributions of H. L. A. Hart. Hund argues that Hart's The Concept of Law solves the conceptual problem of identifying, defining, and understanding how customary law principles regulate social behavior and resolve disputes. Comaroff and Roberts' work 'Rules and Processes' detailed the body of norms constituting Tswana law, defining 'mekgwa le melao ya Setswana' as norms pronounced by a chief (melao) and norms becoming customary law through traditional usage (mekgwa). They noted the undifferentiated nature of the normative repertoire and the coexistence of overtly incompatible norms, allowing flexibility in dispute settlement. Outcomes of specific cases can change the normative repertoire, and the legitimacy of a chief directly determines the legitimacy of his decisions. Hund finds Comaroff and Roberts' flexibility thesis uncompelling and seeks to disprove what he calls 'rule scepticism'. He draws from Hart's analysis distinguishing social rules (with internal and external aspects) from habits (with only external aspects). Hund identifies two forms of rule scepticism: first, that because customary law content derives from practice, there are no objective rules; second, that rules are not arrived at deductively but are driven by personal or political motives. Hund argues these misconceptions fail to acknowledge the importance of the internal element.

Reader's Guide

Customary law's significance lies in its role as a foundational source of legal norms in both local communities and international law. The debate between scholars like Comaroff and Roberts versus Hund highlights fundamental questions about how law is identified and applied. Comaroff and Roberts emphasize the flexibility and contextual nature of norms, viewing the normative repertoire as constantly in formation and transformation, with disputants using norms as strategic resources. In contrast, Hund insists on the necessity of rule-governed behavior, using Hart's framework to distinguish binding social rules from mere habits through internal and external aspects. This tension reflects broader jurisprudential questions about whether law is primarily a system of rules or a more fluid social practice. The legacy of these discussions informs contemporary understanding of how customary law operates in diverse settings, from Tswana dispute resolution to international prohibitions on piracy and slavery. The concept remains vital for analyzing legal systems where formal legislation is limited or where community practices carry binding force.

Did You Know?

• Customary law exists where a certain legal practice is observed and relevant actors consider it to be an opinion of law or necessity (opinio juris).
• Comaroff and Roberts described the Tswana normative repertoire as 'undifferentiated' and noted the coexistence of overtly incompatible norms.
• Hund argues that Hart's analysis of social rules, which have internal and external aspects, solves the conceptual problem of identifying customary law.
• In Tswana dispute resolution, norms are not ordinarily explicitly referenced; instead, a complainant establishes a 'paradigm of argument' that the defendant may accept or reject.

Definition, Scope, and the Two Pillars of Customary Law

Customary law, sometimes called consuetudinary or unofficial law, rests on two foundational pillars: a legal practice that is consistently observed within a community, and the genuine belief among relevant actors that this practice reflects a legal obligation or necessity, a concept known as opinio juris. At its most local, customary law codifies the long-standing behavioral standards of a particular community in a given place. Yet the concept stretches far beyond a single village or region. In international law, certain norms have achieved near-universal acceptance as proper bases for conduct, such as prohibitions against piracy and slavery, which are framed under the principle of hostis humani generis. In many cases, these customary rules gain additional authority through supportive court rulings and case law that have accumulated over time, lending weight to the rule and tracing how judicial interpretation has shifted or evolved. A party can invoke customary law as a defense, arguing that a particular course of action represents what has always been done and accepted as legally binding.

Theoretical Tensions: How Do We Identify Customary Law?

A persistent difficulty in the study of customary law is determining the right methodology for identifying which practices and norms genuinely qualify as law. Classic Western frameworks of jurisprudence do not map neatly onto the conceptual terrain of customary legal systems, prompting some scholars to develop their own analytical vocabulary. John Comaroff and Simon Roberts, for instance, chose to describe customary law norms on their own terms rather than forcing them into Western rule-based categories. This approach, however, has drawn criticism. John Hund challenged their framework, arguing instead that H. L. A. Hart's The Concept of Law offers a more coherent solution to the problem of identifying, defining, and explaining how customary law principles regulate social behavior and resolve disputes. Hund's position reflects a broader concern with what he terms rule scepticism, the idea that customary law operates as a flexible repertoire from which parties and adjudicators freely select norms during negotiation. The debate underscores that customary law resists easy categorization and that its very nature remains contested among legal scholars.

The Undifferentiated Repertoire and the Dynamics of Dispute

Comaroff and Roberts, in their study of Tswana law, highlighted what they called the undifferentiated nature of the normative repertoire. Rather than sorting the vast array of community norms into neat legal categories, the Tswana allow overtly incompatible norms to coexist. This apparent inconsistency, far from being a flaw, functions as a strategic resource: disputants can invoke different norms to advance their own position, and adjudicators retain considerable flexibility in reaching resolutions. When two norms conflict, the resolution often involves tacitly elevating one from the literal to the symbolic realm, allowing both to theoretically occupy different planes of reality. The process is deeply contextual, and norms are never treated in isolation but remain open to negotiation. In actual disputes, the complainant speaks first and establishes what Comaroff and Roberts term a paradigm of argument, a coherent framing of events tied to implicit or explicit normative referents. The defendant may accept this paradigm or introduce their own. Notably, norms are rarely stated explicitly; instead, the way a party presents facts and constructs their case implicitly signals which norms are at play.

Legitimacy, Chiefly Authority, and the Living Norm

In the Tswana system described by Comaroff and Roberts, the legitimacy of a chief is inseparable from the legitimacy of every decision he renders. When formulating new legislative pronouncements, the chief does not act alone: he first consults his advisors, then the council of headmen, and finally the public assembly debates and may accept or reject the proposed law. A chief retains the power to proclaim legislation even over the assembly's objection, but doing so is rare, and any law proclaimed against the will of the people is unlikely to be effectively enforced, since its practical force depends on the chief's standing and the norm's alignment with lived social practices. Crucially, the normative repertoire is never static. The outcomes of individual disputes have the power to reshape the body of norms, which exists in a continuous state of formation and transformation. Changes are justified not as radical innovation but as recognition of de facto shifts already observable in community life. This dynamic quality means that customary law is, at its core, a living and evolving system rather than a fixed code.