20.1.09

CUSTOM AND STATUTE, CONTINUED: Helen replies:

As for which force is stronger, law or custom, I'm not sure either side has a conclusive case. It takes a lot of political capital to overturn a custom that has become thoroughly entrenched, and, when a custom becomes prevalent enough, it can make accompanying legislative reforms inevitable. Or seem inevitable, which is just as good if what you need are the votes of people who don't care one way or another about an issue but want to side with the winning team.


At this point, we're operation one level of abstraction too high. As her commenter notes, a lot of the analysis depends on what kind of cases one has in mind. Apart from some idea of what's in the background (perhaps I should read this Scott book), it's hard to sort out the claim.

I will mention there does seem to be a conceptual slippage, or at least the possibility of one. Let me outline it by saying something more emphatic here: legislation or statute as a source of law, within the last 100 years, has absolutely overtaken custom as a source of law everywhere. Some of the reasons for this make sense: it's very difficult, even with a well-established custom, to have any idea what it means, where its boundaries are, how it fits in with other customs and other sources of law. Statutes have this problem, too, but a clear (most of the time) process by which they become amended or superseded, and the means of interpretation, however controversial, are at least known and discussed. In the US, despite the vestiges of common law in our jurisprudence, the primary source of law is legislation; England, which lacks the judicial review that keeps the US close to the common law tradition, has seen a proliferation of law as legislation.

Now, Helen may be referring to custom not so much as a source of legal change as political change. If so, it's not clear that one would want to use the language of "custom" to describe a slow, rather than rapid, process of change (or one would want to differentiate it from the legal questions involved).

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