Chapter VIII — Custom
§ 55 The Early Importance of Customary Law
The importance of custom as a source of law continuously diminishes as the legal system grows. As an instrument of the development of English law in particular, it has now almost ceased to operate, partly because it has to a large extent been superseded by legislation and precedent, and partly because of the very stringent limitations imposed upon its law-creating efficacy, the legal requirements of a valid custom being such as few customs can at the present day conform to. In earlier times, however, it was otherwise. It was long the received and official theory of English law that whatever was not the product of legislation had its source in custom. Law was either the written statute law, or the unwritten, common, or customary law. Precedent was not conceived as being itself a legal source at all, for it was held to operate only as evidence of those customs from which the common law proceeded. Lex et consuetudo Angliae was the familiar title of our legal system. The common law of the realm and the common custom of the realm were synonymous expressions. It may be gravely doubted whether at any time this doctrine expressed the truth of the matter, but it is clear that it was much truer in the early days of our legal history, than it subsequently became; and it remained the accepted theory long after it had ceased to retain any semblance of the truth. For some centuries past, the true sources of the great bulk of our law have been statute and precedent, not statute and custom, and the common law is essentially case-law, not customary law. Yet we find Hale121 in the seventeenth century, and Blackstone in the eighteenth, laying down the older doctrine as still valid. In the words of Blackstone:122 “The municipal law of England... may with sufficient propriety be divided into two kinds; the lex non scripta, the unwritten, or common law; and the lex scripta, the written, or statute law. The lex non scripta, or unwritten law, includes not only general customs, or the common law properly so called; but also the particular customs of certain parts of the kingdom; and likewise those particular laws that are by custom observed only in certain courts and jurisdictions.” Such language is an echo of the past, not an accurate account of the facts of the present day. Nevertheless even now custom has not wholly lost its efficacy. It is still one of the legal sources of the law of England, and an examination of its nature and operation pertains to modern juridical theory, and not merely to legal history or antiquities.