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

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

22 Pages Posted: 19 Feb 2008  

Iain Stewart

Macquarie Law School


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'.

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

Suggested Citation

Iain Stewart, 'Customs in Common': The Old Emperor's Clothes. Available at SSRN:

Iain M. Stewart (Contact Author)

Macquarie Law School ( email )

NSW 2109

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