I Wanna Live Like Common Law People, I Wanna Do Whatever Common Law People Do

Nick writes:

MAYBE 1000 YEARS AGO. NOW, NOT SO MUCH. Helen, quoting:

Once a practice was established it could be considered a custom, and a custom, steadily exercised, was nearly as good as a right in law. The process was, however, nearly imperceptible under ordinary circumstances so as not to provoke an open confrontation.

Several qualifications are in order:

1. "Nearly as good" does a lot of work. Custom, in international law and elsewhere, is frequently a source of law co-eval with statute (assuming, for argument's sake, that we're thinking of the minority of the world that follows a common law, rather than civil law, system; this is also no longer true in most common law countries, and hasn't been for some time), but even amongst custom's strongest defenders, it is generally admitted that statutes abrogate customs more quickly and more fully than customs abrogate statutes.

2. It's nearly imperceptible unless one derogates from the custom, which happens all the time.

3. Not sure what she's quoting, but it may be reading custom as usus. So far as I'm aware, no one thinks this: either opinio juris matters just as much as usus, or one follows Blackstone et al in establishing conditions for a custom to be considered valid and binding.

If I can put up some fight against one of Nick's objections—"even amongst custom's strongest defenders, it is generally admitted that statutes abrogate customs more quickly and more fully than customs abrogate statutes"—I'll point out that the advantage of custom over legislation is that custom can be changed even by those who lack political power. Nick's right to note that it's slower and less reliable than open revolution, and he isn't the first to do so. I think it was Michel de Certeau who compared successful subversion to a winning poker hand. Or maybe it was Kenny Rogers. In any case, picking the right moment, as the original Scott quote proposes, necessarily means waiting for the perfect opportunity to arise.

As for which force is stronger, law or custom, I'm not sure either side has a conclusive case. It takes a lot of political capital to overturn a custom that has become thoroughly entrenched, and, when a custom becomes prevalent enough, it can make accompanying legislative reforms inevitable. Or seem inevitable, which is just as good if what you need are the votes of people who don't care one way or another about an issue but want to side with the winning team.