>>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.