Anyone know any goods books on customary legal systems? (preferably primary sources by researchers) For many years now I've had the growing thought that natural law, and social contract theory aren't philisophically sound, but I've yet to look into the practical alternatives. (more than this I consider human rights and similar notions derived from them harmful) Before reading Machiavelli, other Renaissance writers, and Homer I used to think that there was no morality to be found, the solution here was discovered by looking backwards at the echos of the rich pre-Christian moral traditions built on notions of honor and personal interest rather than reason. I'm currently wondering if a similar fondation exists with respect to the law, simply obscured by christianity, and the enlightenment.
>>1
There is likely still room for logic and reason in morality despite what I've said here, but it doesn't seem to me that it can be the foundation. The Stoic tradition when stripped of its teleology seems not only a possibility for the integration of reason, but even seeing it as the highest good.
I've had the growing thought that natural law, and social contract theory aren't philisophically sound
why?
>>3
I question the relevance, existence, and understanding of human nature to the behavior of modern humans. There is also the typical consequentialist critique of deontology. Further social contract theory reasons from an existential to a universal quantifier i.e. one hypothetical to all possible cases for just governance.
>>4
This is poorly written, sorry about that.
"Whoever has the money, makes the law"
"Whoever complains, makes the law"
https://www.youtube.com/watch?v=oGzVIFjg5Xg
>>6
Why is everything on that platform so terrible.
Grug have best legal system. Here how it work:
Grug have club; Grug use club to clobber animal and eat animal.
Grug also use club to protect Grug's property from dark-skin grug who follow teachings of long-nose grug.
Grug no need laws or tech.
Grug Kaczynski did nothing wrong.
If you just search customary law nearly every book that shows up is about decolonizing law, or international law, neither of which interest me. The two general relevant texts I found were ``The Philosophy of Customary Law'' and ``The Nature of Customary Law'' both of which have a single poor review but I may look into in any case. (I only have access to the latter) It may be that the best approach is simply to read early medeival barbarian legal codes.
Unforuntately the codification of customary law by the state seems to negate much of what makes it customary law, and in fact in Europe this typically occured with the spread of Christianity along with writing and Latin influences more broadly. Our lens to European customary law is then colored by either mythical stories or by the early codification by Latin and Christian influenced governments, and more often than not both.
On the plus side I've found the name of something similar to what I was looking for. It's called legal positivism, a relatively recent adventure from the 18th and 19th centuries. So for the moment I'm going to read more about this. It builds its self interestingly in the analytic tradition rather than in philology, and it seems like it may be missing something, but it's a start.
>>9
No, in some ways this is actually even worse. Everything is terrible.
"Customary law" seems like a contradiction in terms. Custom is the way people live and the traditions they follow. Custom gets tested and reviewed with every conflict. The members of the community (or elders, or whoever customarily decides) have to get together and decide if so-and-so did the right thing in such and such a situation and then determine what would be a fair resolution. A fair resolution may involve trampling the offender into a bog, of course. The offense, the judgement, and the resolution all happen within the community. No one pulls out a book or list of decisions.
Law is a written set of rules that a state enforces on people. Sometimes there is a codified book of rules, and sometimes there is a book of previous decisions that other state law enforcers have made. Custom isn't relevant, unless the state enforcer decides to consider it relevant.
For most of their history, the Romans limited the scope of law to affairs that directly impacted the state. They left everything else to custom. Even murders within families were formally considered matters for the family to resolve. Parricide was an exception, since it upset the familial order that the state relied on.
>>11
I appreciate the sincere reply. I agree with your summary of customary law, and most of your points, but not your overall message due to a select few disagreements. I'll cover those now:
No one pulls out a book or list of decisions.
This is only true in a literal sense I think. For example in Scandinavia each þing (a council of free men) had a lawspeaker who was expected to have memorized both the case law of that particular þing and the customary law decided by that þing. They did however only serve in an advisory role to the assembly. (assuming I understand correctly) In principle the lawspeaker could even write down what they know and maintain the customary character so long as enforcement and development remained customary. That is to say retaining a loose case-by-case assessment at a community level, with bottom-up changes to law rather than rationalization.
Law is a written set of rules that a state enforces on people. Custom isn't relevant, unless the state enforcer decides to consider it relevant.
Au Contraire, written law isn't relevant, unless the state enforcer decides to consider it relevant. I'm undecided about the rest of your definition. Is a rule codified by the state but which is unenforced really not a law? Maybe. Is a rule codified, and enforced by a community on to itself without the state really not a law? Perhaps. Is the þing mentioned earlier a part of the state? etc.
For most of their history, the Romans limited the scope of law to affairs that directly impacted the state. They left everything else to custom.
Fascinating, I wonder if there were any attempts to preserve these customs for posterity.
"you shall eat the riches of the gentiles"
The thing sounds like a transitional thing (kek). For a little band in the forest, custom should be sufficient, since everyone is living the norms every day.
You only need a lawspeaker when disputes involve a lot of notables who don't necessarily see each other much and who also have a lot to lose (and fight over) if the judgement doesn't go their way. An authoritative and hopefully neutral source of oral tradition would give the thing's judgements moral heft. Next step is to write the precedents down, which I expect happened at some point. That may be a fruitful area of inquiry for you. When did Scandinavians start writing precedents down and when did the state administration start assuming the powers of the thing? Somewhere in there is where you move from custom to law.
The question of what is law vs what is custom ultimately comes down to semantics, but I would say that when agents of the state assume exclusive authority to make the judgement and apply the punishment - confiscation, violence, whatever - then it's law. Any similar actions that don't rely on the state, and it is custom.
So if your neighbour parks his truck on your lawn and you ask him to park his truck elsewhare, it's custom. If you call the cops and try to have him charged with trespassing, it's law. If he's intransigent and you have to gather your other neighbours together and everyone gets excited and you beat him to death with rakes, it's custom. If his wife calls the cops on you for murder, its law. If your neighbours chase her around with leaf blowers until she tells the cops he ran away and she made it all up and he's fine, it's custom.
You only need a lawspeaker when disputes involve a lot of notables who don't necessarily see each other much and who also have a lot to lose (and fight over) if the judgement doesn't go their way.
I don't think this is the case, they were an important part of the institution in all cases. Often the dispute would continue after court, or rather than going to court, but this applied to everyone.
Next step is to write the precedents down, which I expect happened at some point. That may be a fruitful area of inquiry for you. When did Scandinavians start writing precedents down and when did the state administration start assuming the powers of the thing? Somewhere in there is where you move from custom to law.
For most European countries it was as I mentioned here >>9 basically they codified the law, and ended custom when the kings converted to Christianity and with it gained literacy. This is the case for the English, for the Russians, in Sweden it was supposedly due to less direct Christian influences. I think the Germans too. For Iceland interestingly it happened when they were conquered by Norway. Denmark by contrast was apparently never Scandinavian.
I would say that when agents of the state assume exclusive authority to make the judgement and apply the punishment - confiscation, violence, whatever - then it's law. Any similar actions that don't rely on the state, and it is custom.
That's fine although keep in mind customary law has a definitive (even legal) definition and does exist but it doesn't help me find a sound basis for the law which was my original concern, something similar to what I found for morality.
That's fine although keep in mind customary law has a definitive (even legal) definition and does exist but it doesn't help me find a sound basis for the law which was my original concern, something similar to what I found for morality.
Ok. Well, I think you answered your own question in
>>9
Unforuntately the codification of customary law by the state seems to negate much of what makes it customary law,
I'd say that state codification negates all of it. Custom emerges from the community and is enforced by the community. The basis for it is the memory, habits, and way of life of the people that live it. Honour and personal interest would play a part as well. It will be different in each locality and time period.
Once the state writes down whatever it thinks custom dictates and starts to enforce it systematically through state agents as "customary law", there's nothing customary about it. It's just law that the state justifies as custom. It's a tidy way of writing communities out of the process of making and enforcing decisions about their own affairs.
That's fine although keep in mind customary law has a definitive (even legal) definition and does exist but it doesn't help me find a sound basis for the law which was my original concern, something similar to what I found for morality.
I tragically misspoke here, the meaning I was intending to convey was that defining the law as enforced by the state doesn't seem to help me find the justification I'm looking for, and perhaps not definition generally.
I'll respond to the rest of >>16 soon, but it's very late here, and I might need some silence for a day or two.
Gotcha. I find the very word "law" kind of triggering and rantworthy.
Regarding your question at the end of
>>12
... I'm not sure if you've come across the concept of mos maiorum in your travels, but the wikipedia page is quite good: https://en.wikipedia.org/wiki/Mos_maiorum
What's the big problem with laws?
I think I'm actually going to put a pin into my research for now. I have some things I would like to achieve in a certain time-frame and I think researching this topic is part of a ``death by a thousand cuts'' which is slowing my progress. Thanks for the conversation, especially sincere reply anon.
Once the state writes down whatever it thinks custom dictates and starts to enforce it systematically through state agents as "customary law", there's nothing customary about it. It's just law that the state justifies as custom.
I agree with this. Regarding study of early codifications my hope was that they would reflected the thinking of customary law which they derived from even though they categorically were not. Supposedly Iceland maintained a partial written law at the same time as largely customary derivation and enforcement so their law is probably the best place to start.
I'm not sure if you've come across the concept of mos maiorum in your travels
I hadn't stumbled across this idea before, no. Thanks for sharing. I may try to read more about this in the near future.
What's the big problem with laws?
That's not really the issue under discussion actually. I'm just struggle to understand the justification similarly to as I was struggling to understand morality as mentioned in >>1. A poorly written exposition was given in >>4. The fact that I'm earnestly looking for justification hints at my valuing law despite their lack of sound foundations.