Comparative Legal History
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Comparative Legal History

Edited by Olivier Moréteau, Aniceto Masferrer and Kjell A. Modéer

The specially commissioned papers in this book lay a solid theoretical foundation for comparative legal history as a distinct academic discipline. While facilitating a much needed dialogue between comparatists and legal historians, this research handbook examines methodologies in this emerging field and reconsiders legal concepts and institutions like custom, civil procedure, and codification from a comparative legal history perspective.
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Chapter 5: Here, there and everywhere … or nowhere? Some comparative and historical afterthoughts about custom as a source of law

Jacques Vanderlinden

Abstract

The chapter identifies four possibly ‘sinful’ uses of the word custom by lawyers: (1) the supposed original policies prevailing in Western European communities prior to the revival of Roman law or in overseas communities before colonialism; (2) a formal source of law inherited from Rome in Western Europe and developed from the 13th century onwards, also called ‘customary law’; (3) the part of the original policies of overseas communities incorporated in the colonial legal systems, also referred to as ‘customary law’; and (4) the remnants of original pre-colonial policies still existing in ‘colonial’ communities, which continue to function under colonial rule and the post-independence ‘new’ policies, functioning as autonomous, possibly clandestine tension-solving mechanisms in various social contexts. All are visited in the perspective of a radical pluralist. Based on field work in Africa and knowledge of colonial Acadia, the author characterizes custom (1) and (4) as ‘this is what we do’ or ‘have always done’ and everything we can write about it is conjectural or hypothetical. He suggests reviving the archaic sense of the substantive ‘do’, to designate tension-solving mechanisms resulting from the fact only, as they ‘naturally’ exist in the mind of members of societies where the existence of ‘law’ – in its strict meaning of state law – is non-existent. The statement that a remedy is a ‘do’ provides a justification for its enforcement in the same way as a norm, even if it is not yet provided for by any norm.

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