32 Pages Posted: 16 Jul 2013
Date Written: November 1, 2012
Legally binding custom is conventionally analyzed in terms of two independent elements: regularities of behavior (usus) and convictions of actors engaging in the behavior that it is legally required (opinio juris). This additive conception of custom is deeply flawed. This essay argues that we must abandon the additive conception and replace it with an account of custom that understands legally relevant customs as norms that arise from discursive normative practices embedded in rich contexts of social interaction characterized by intermeshing anticipations and interconnected conduct. The hallmark of legally binding customs, it is argued, is not the addition of belief or conviction to behavioral regularities, but rather the integration of meaningful conduct into a web of legally recognized reasons and arguments.
Keywords: Custom, Normative Practice, opinio juris, international law, social interaction
JEL Classification: Z 00
Suggested Citation: Suggested Citation
Postema, Gerald J., Custom, Normative Practice, and the Law (November 1, 2012). Duke Law Journal, Vol. 62, No. 707, 2012; UNC Legal Studies Research Paper No. 2294081. Available at SSRN: https://ssrn.com/abstract=2294081 or http://dx.doi.org/10.2139/ssrn.2294081