18.1.09

MAYBE 1000 YEARS AGO. NOW, NOT SO MUCH. Helen, quoting:

Once a practice was established it could be considered a custom, and a custom, steadily exercised, was nearly as good as a right in law. The process was, however, nearly imperceptible under ordinary circumstances so as not to provoke an open confrontation.


Several qualifications are in order:

1. "Nearly as good" does a lot of work. Custom, in international law and elsewhere, is frequently a source of law co-eval with statute (assuming, for argument's sake, that we're thinking of the minority of the world that follows a common law, rather than civil law, system; this is also no longer true in most common law countries, and hasn't been for some time), but even amongst custom's strongest defenders, it is generally admitted that statutes abrogate customs more quickly and more fully than customs abrogate statutes.

2. It's nearly imperceptible unless one derogates from the custom, which happens all the time.

3. Not sure what she's quoting, but it may be reading custom as usus. So far as I'm aware, no one thinks this: either opinio juris matters just as much as usus, or one follows Blackstone et al in establishing conditions for a custom to be considered valid and binding.

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