Law and Custom Notes (Lloyd):

Introduction:
We have so far considered law mainly in the context in which
it is encountered in a modern state, namely as a system of
norms which derives its binding force, directly or indirectly,
from some organ of the state invested with legislative
authority under the constitution
Jurists such as Austin, have been content to confine their
attention to legal systems of this character, in which the
ground that the normative systems encountered in earlier or
primitive forms of society are different in character from those
developed communities
There is nothing to prevent jurists, any more than other
systematizers, from delimiting, defining, or classifying their
subject-matter in whatever way they please, and for some
purposes it may be desirable or at least convenient to
distinguish between normative systems occurring at different
phases of human development

Classification is a matter of choice; as long as it is borne in

mind that the choice is not entirely arbitrary seeing that it
must be governed, as in any other classification system, by
close attention to the features which the various types
possesses in common, as well as to those which are dissimilar
The element of value-judgement we will have to decide on
the
relative
importance
of
the
resemblances
and
dissimilarities
An example of classification: International Law
o It has been shown that though it by no means
corresponds precisely with national law, there are
nevertheless good grounds for bracketing the two
together as legal phenomena
o What is recognized is that there are persuasive reasons
for treating the term law as wide enough to cover
various closely related though not identical types of
normative systems

Law and Custom Compared:

The sociological jurists have taught us to see that even in
developed communities, law exists on more than one level
and that to penetrate its mechanisms it is not sufficient to
confine our attention exclusively to the sophisticated
documentation of legal rules
We seem always to find sets of norms regulating the conduct
of their members inter se and regarded as binding upon them

If then we are to grasp the significance of law as a means of

social control, it seems unwise to ignore the way normative
rules operate in all different types of societies

Custom, Habit, and Convention:

Customary Law: the norms operating in less developed
societies
Habit: is a course of conduct which we regularly, though not
necessarily invariably, pursue, but without any sense of
obligation or compulsion to do so
o Such habits may become extremely rigid, for it is part of
the psychological make-up of human beings that they
tend to form habits, and without this tendency life would
be so erratic that social order would be impossible
o But the point about habits generally is that they are not
regarded as socially compulsive
o It is true that some types of habits, as psycho-analysts
have demonstrated, are of an obsessive-compulsive
type but this is a distinct psychological characteristic
of certain kinds of neurosis
It should not be confused with the sense of
obligation which arises because the individual
recognizes that the doing of certain acts is
imposed upon him by reason of the existence of a
given legal, social or moral norm
o Characteristic of customary observance = social
obligatory element
Ex.) A man is expected to dress manly clothes
every time they are outside the street
This rule about men dressing up in a mens
clothes are neither absolute nor regarded as
equally obligatory by all concerned
Main difference between habit and custom: those who accept
the customs and adhere to them, regard themselves as in
some way bound or obliged to observe them
o In habit, it is the voluntary action of the person that
constitutes the action (innate action), and NOT the
sense of compulsion
Lying between habit and custom, are regarded as proper
modes of behaviour which people are expected to carry out
o Although nowadays, it is considered to be weak due to
the changes in society
Conventional behaviour while particular individuals may
feel themselves bound to observe it, it is not regarded as
generally binding, and the individual may largely please
himself whether he conforms or not
Customs + Conventions = normative (they establish rules of
conduct for compliance)
2

Habits do not prefer to or depend on norms, but simply

involve regularities of behaviour which are in fact observed
Habits never assume a normative character, but remain on
the level of personal idiosyncrasy
o An example of this would be an individual laying out
new years resolutions for him to follow
o Although these personal norms have little significance in
the field of social regulation, for it is the outward-looking
rather than the inward-looking norm that eventually
becomes established in customary form
Habits can be converted into customs, though the reasons for
this transmutation may not be easy to identify and many
factors may cooperate
Customs can also originate from nobles such as Kings and
Queens
o Although such society may have no conception of legal
precedent, either because of the authority of the chief,
or because the ruling seems eminently reasonable, a
custom henceforth may be established which will be
regarded as binding in like situations