Law's Evolution and Law as Custom

30 Pages Posted: 3 May 2014 Last revised: 12 Jun 2014

See all articles by William A. Edmundson

William A. Edmundson

Georgia State University College of Law

Date Written: 2014

Abstract

Legal discourse centrally involves a family of normative expressions – “obligation,” “right,” “permission,” and so on – whose surface grammar parallels that of moral discourse. Is the normativity of legal discourse then a moral normativity? Or is it a distinct type of normativity altogether? Answers are disputed.

Custom is among the sources of law. That much is agreed. But custom can also be law, independently of promulgation, or so many believe. The issue raises further questions. Is custom normative, and if so, how? Insofar as a customary norm is (or becomes) a legal norm, does it manifest (or acquire) a different kind of normativity? Or does its original normativity contribute to the normativity of law?

Another set of questions has to do with custom as a condition of legal validity. Kelsen wrote that the doctrine of desuetudo states a necessary condition of a norm’s legal validity. In contrast, Hart’s view was that desuetudo is a doctrine that a legal system might take or leave, and that norms that are customarily ignored may nonetheless possess legal validity.

I will explore the hypothesis that every legally normative utterance resolves into one expressing (a) custom-implicating moral normativity, (b) custom-extending moral normativity, or (c) normativity “in the manifesto sense” (to enlist a phrase of Joel Feinberg’s). If this is correct, there is no such thing as a distinctively legal brand of normativity.

Keywords: legal theory, legal philosophy, philosophy of law, normativity, norm, custom, validity, moral, desuetudo, moral philosophy

JEL Classification: K00, K10, K19, Z00

Suggested Citation

Edmundson, William A., Law's Evolution and Law as Custom (2014). 51 San Diego L. Rev. (December 2014, Forthcoming). ; Georgia State University College of Law, Legal Studies Research Paper No. 2014-15. Available at SSRN: https://ssrn.com/abstract=2432129

William A. Edmundson (Contact Author)

Georgia State University College of Law ( email )

P.O. Box 4037
85 Park Place NE
Atlanta, GA 30302-4037
United States
404-413-9167 (Phone)
404-413-9225 (Fax)

HOME PAGE: http://law.gsu.edu/wedmundson/

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