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Custom and Law

Custom and law are both normative systems that regulate behavior patterns in certain areas of human society, in contrast to morals and religious faith, which motivate people for inward social obligations. Yet custom and law each have different attributes, among which are basic differences in the areas of their application and the sources of their normative authority. Custom pertains to spontaneous human groupings with no specific authority, while law, in contrast, pertains to particularized areas controlled by specific, usually governmental, authority. For these reasons, philosophers and jurists have frequently discussed custom and law since ancient times. Curiously, however, contemporary social sciences have rarely concerned themselves with the global observation and theoretical analysis of custom and law as representative social norms.

Western Treatment

Historical Development

Ancient Greek philosophy developed two principal ideas about law and its relationship to custom. The first was “natural law,” believed to originate in human nature and to be the conceptual foundation of every human norm, including both custom and law. The second was nomos (roughly translated as “regulations”), believed to originate in divine commandments and to have been observed throughout generations. Nomos guided the general standard of social behavior, not specifically differentiated into custom, law, morals, or other systems of social norms or social control.

Similarly, Roman philosophy spoke of mores (roughly, “folkways”), accepted by people, as including all social norms. A differentiation of social norms, however, began to emerge as the Roman Empire and the Roman Catholic Church established their own legal systems and jurisprudence. They expanded their jurisdiction throughout Europe, and, as a result, local laws, including “feudal law,” came into contact with them. Differentiation further developed in early modern times when rulers established absolute monarchies, leading to two significant developments with regard to custom and law. First, the law of these monarchies rested on an authority distinguishable from all other social norms; and second, Western monarchs began to extend their rule into the non-Western world, backed by their military power and their conception of law, as exemplified by Christopher Columbus's discovery of the new world in 1492. This advancement accelerated after Western law achieved an epoch-making revolution by devising democratic “modern law.” Under this new conception emerging from the Enlightenment, the legal systems of nationstates, monopolized by the sovereign power, left all other social norms outside of the legal world.

Western Legal Transplants to the Non-Western World

The advancement of Western powers into the non-Western world continued in later modern times, but the situation was different from earlier times. Modernized Western countries competed in the non-Western world for economic and political advantage backed by their power and law. Consequently, they colonized many non-Western countries and allowed a few others to adopt the policy of Westernization for their economy, politics, and law. Modern Western law, thus, was transplanted, accompanied by Western jurisprudence, as a symbol of national improvement or “civilization” of all the world's countries. Modern Western law appeared to have developed as if it was the only model for human society, and legal theory in Western jurisprudence legitimized this seemingly universal model.

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