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'Customs in Common': The Old Emperor's Clothes

Iain Stewart

Macquarie Law School

Macquarie Law Journal, Vol. 6, pp. 139-160, 2006

Assesses whether the concept of 'custom' continues effectively to identify a more popular alternative to formal law, as canvassed by E.P. Thompson in Customs in Common (1991). Traces the development of the idea of 'custom' or 'customary law' in the western legal tradition, from Justinian through Norman law (Laws of William, Glanvill, Bracton) and common law, then in the respectively anti-popular and pro-popular reflections of Savigny and Marx. Agrees with Thompson that popular customs can be nasty as well as nice. But concludes that, whatever sense the concept of 'custom', may once have been made in legal or law-related discourse, that sense has now disintegrated. Little remains but Owl's observation to Pooh that 'the customary procedure' is 'the Thing to Do'.

Number of Pages in PDF File: 22

Keywords: custom, customary law, common law, E P Thompson, freeborn Englishman, moral economy, Justinian, Laws of William, Glanvill, Bracton, Savigny, Marx, theft of wood, Winnie the Pooh

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Date posted: February 19, 2008  

Suggested Citation

Iain Stewart, 'Customs in Common': The Old Emperor's Clothes. Available at SSRN: https://ssrn.com/abstract=1094607

Contact Information

Iain M. Stewart (Contact Author)
Macquarie Law School ( email )
NSW 2109
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