Custom as Law

Today we think of law as deriving from those with governmental authority: judges, legislators, administrators. But for most of human history, law came primarily from below: from the community. Some of this law took the form of custom, defined by the Roman and medieval jurists as law made through repeat behavior to which the community has tacitly consented to be bound. Legal anthropologists, law & economics scholars, students of law in developing countries, and public international law scholars have taken a renewed interest in custom as the question has arisen whether top-down lawmaking has taken too much space away from community-based lawmaking. In 5 class meetings of 2.5 hours each we will study custom from three perspectives. After an introductory class in January, for which we will read David Bederman’s recent survey book, Custom as a Source of Law (available online via the regular UT library catalogue), the February class will focus on the treatment of custom in legal anthropology. The March class will look at the theory of norms and private ordering in law & economics. The mid-April class will be devoted to discussing the conference papers for the conference: “Is There a Role for Custom in Modern European Legal Systems.” That conference will be held at UT on April 14, and students will be required to attend one 90-minute session. The last class at the end of the semester will consider theories of customary international law and whether that constitutes custom at all. We will read in the neighborhood of 200 pages per class. For each class except the first one, students will have to submit a short written analysis of the readings. Students may register for an additional directed study if they wish to use this course to write a journal note or submit a paper for consideration to be included in the April conference. Although the class is scheduled for Fridays, and the first class will meet on the first Friday of the semester, the remaining class times and dates will be arranged to suit the schedules of the students and professor. Admission into the course is by application only. As the instructor is currently engaged in research on the issue of custom, she is looking for students who will have interesting thoughts about the readings. To apply, please email your resume to along with an answer to this question: “Why will you be an interesting contributor to the class discussion?” Applications are due by the conclusion of the early registration period.

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Pass/Fail Mandatory


Kadens, Emily E Kadens, Emily E