Law and Custom Today and Tomorrow

I've blogged a couple of times about the year-long Law & Custom Program going on at Duke Law School this year.  We kicked off the program with a series of summer reading group sessions, and followed that up with a (still ongoing) workshop series in which scholars from around the country will present work relating to law and custom.  You can find a full list of readings and resources, speakers, and faculty scholarship on the topic here.  

This afternoon, we begin our symposium on Law & Custom which has a great line up of internal speakers and commenters.  The papers so far look interesting and cut across a wide range of subject matters, so I'm looking forward to the event.  I'm impressed with how many of our colleagues have joined in this dialogue (if you recall from my first post on this topic, the goal was to build a continuing academic dialogue at the law school that was broad enough to include large segments of the faculty and, eventually, other folks on campus as well).

The symposium flyer is below.  If you happen to be in the neighborhood, drop on by, especially for the particularly interesting Kieran Healy-Kim Krawiec-Arti Rai presentation on organ donation and NEAD chains this afternoon.  

Comments

[Patrick S. O'Donnell]

I'm curious as to how "custom" is thought about among some of the participants. Any place you can refer me to examples of preferred definitions, etc.? I'm especially interested in the similarities with and differences between social norms, and how custom is, if at all, distinguished from "tradition," hence my question. Thanks.

[Kim Krawiec]

Excellent question, Patrick. As you might expect, a fair amount of time yesterday was devoted to definitional issues. I won’t be able to properly rephrase Gerry Postema’s excellent comment on this, but something about the term custom being an amorphous cloud that we have to corral just long enough to all talk about the same thing, even if some wisps get out and then it all goes away. He said it much more eloquently, of course. I’d say, first, that I think our group would all agree that tradition is different from custom, in that custom is obligatory, whereas tradition is not – it’s just what normally happens. A few folks discuss this in the draft papers for the symposium, so you might want to look at it when it comes out. Social norms, however, is different and I think that most of us used that term interchangeably with custom, though I don’t know if that is really correct (maybe it depends on the circumstance?). The international law folks, I suspect, may have to define custom a little more narrowly than others to make it useful for them since, as you know better than I do, their main concern is when custom becomes binding as law, so there are more conditions to meet.

I’ll let you know if anything else interesting emerges from today’s discussion. And, if you haven’t yet, you might want to check the website in the link I posted yesterday. Our summer reading papers and speaker series are there, and some of those papers (including the Postema paper, if I recall correctly) tackle definitional issues.

[Patrick S. O'Donnell]

Thank you very much Kim, all of that is quite helpful (and I will track down links and papers). You're right about the international law conception which is, I think, tantamount to a "theoretical" definition (like 'work' in physics or 'valid' in formal logic) and thus a special case. Of course I'm not looking for THE definition, but am interested in how the boundaries are drawn and the various conceptions employed. I once wrote in a paper (some years ago!) in which I said "that it’s often quite difficult to make hard and fast categorical distinctions between traditions and customs on one hand, and social norms on the other, as there’s clearly a strong (Wittgensteinian) family resemblance if not genetic relation between all three phenomena." True or not, I think there are some possible distinctions worthy of address and if custom IS obligatory, then there's certainly a stronger social norm dimension than is typically the case with traditions (which MAY have the backing of such a norm and why the latter would be more subject to 'drift' than the former). Jon Elster speaks of traditionalISM as involving the deliberate imitation of a model, which would make it closer to custom in your sense as it would have the backing of a social norm. Social norms simpliciter strike me as ocassionally lacking the sedimentation of time or sanction of history (as it were) and thus might be distinguished from custom in at least that way (in other words, a social norm MAY be rather quickly established but customs take time to appear and 'harden').

Thanks again for your reply.

[Matt]

It looks like a really excellent line-up, Kim. I wish I could be there to see it. Is the plan for the papers to be published, in the Law Review or elsewhere? I couldn't tell for sure from the flyer or your remarks.

[Kim Krawiec]

Thanks, Matt -- theyll be published next year in the Duke Law Journal. Patrick, you might want to take a look at the Katzenstein and Bradley-Gulati articles, in addition to Postemas when they are posted. All address to some extent emergent customs, or the ways in which custom forms and changes, and thus talk a bit about the type of newer traditions that you mention, whether they can properly be called custom, what are the consequences of that, etc.

Sent from my iPad