1
   

Customary Law

 
 
Reply Wed 7 Apr, 2010 09:42 am
I am quite interested in customary law and its relatives (the Law Merchant, Germanic tribal law), including modern works on customary law (such as those by Anthony de Jasay and Lon L. Fuller). Contrary to modern legal positivism (and to absolutism, which is generally no longer advanced) it seems to me that common law is in fact the origin of real jurisprudence and, as a market phenomena that reflects the actual interests of involved party is both more equitable and more effective.
I am something of an anarchist (or I would be, if so many crazies didn't call themselves anarchists) and it has always seemed to me that governments are just as bad at producing law and order as they are at shoes and bread.
  • Topic Stats
  • Top Replies
  • Link to this Topic
Type: Discussion • Score: 1 • Views: 1,153 • Replies: 11
No top replies

 
kennethamy
 
  1  
Reply Wed 7 Apr, 2010 10:14 am
@TranscendHumanit,
TranscendHumanit;149232 wrote:
I am quite interested in customary law and its relatives (the Law Merchant, Germanic tribal law), including modern works on customary law (such as those by Anthony de Jasay and Lon L. Fuller). Contrary to modern legal positivism (and to absolutism, which is generally no longer advanced) it seems to me that common law is in fact the origin of real jurisprudence and, as a market phenomena that reflects the actual interests of involved party is both more equitable and more effective.
I am something of an anarchist (or I would be, if so many crazies didn't call themselves anarchists) and it has always seemed to me that governments are just as bad at producing law and order as they are at shoes and bread.


And if you could present another option for producing law and order, I am sure we would all be grateful to you. As James Madison wrote in The Federalist Papers, if men were angels, we would need no governments or laws.
TranscendHumanit
 
  1  
Reply Wed 7 Apr, 2010 10:30 am
@kennethamy,
kennethamy;149246 wrote:
And if you could present another option for producing law and order, I am sure we would all be grateful to you. As James Madison wrote in The Federalist Papers, if men were angels, we would need no governments or laws.


That is the whole idea of customary law. There is quite a developed history and theory of customary law, and there is really no substantial evidence that state law is in any way superior - in fact, from a commercial point of view, it is positively disastrous.

The basic theory is that customary law is in fact responsible for most of what would be called 'civilized' law, and in fact constitutes a major portion of modern legal practice (especially regarding international law). The other correlary is that private individuals and firms can, have and do still provide services of arbitration and defense. Coupled together, the State is not only superfluous but positively harmful.

Lon L. Fuller
Private Creation and Enforcement of Law (Iceland) by David D. Friedman
The Decline and Fall of Private Law in Iceland by Roderick T. Long
Articles by de Jasay
The Private Enforcement of Public Rules
Permission, Prohibition, and Presumption
Freedom, Rights and "Rights"
Justice
The Private Production of Defense by Hans Hoppe
Justice and Its Surroundings by Anthony de Jasay (Book)
0 Replies
 
Fido
 
  1  
Reply Wed 7 Apr, 2010 12:29 pm
@TranscendHumanit,
TranscendHumanit;149232 wrote:
I am quite interested in customary law and its relatives (the Law Merchant, Germanic tribal law), including modern works on customary law (such as those by Anthony de Jasay and Lon L. Fuller). Contrary to modern legal positivism (and to absolutism, which is generally no longer advanced) it seems to me that common law is in fact the origin of real jurisprudence and, as a market phenomena that reflects the actual interests of involved party is both more equitable and more effective.
I am something of an anarchist (or I would be, if so many crazies didn't call themselves anarchists) and it has always seemed to me that governments are just as bad at producing law and order as they are at shoes and bread.

You need to read a book called Law and Revolution about how the Church took over Western Society after the world did not end as expected about a thousand years ago... That was the Beginning of Western law as we know it, of Roman Law through much of Europe with the reintroduction of the laws of Justinian, and even the beginning of philosophy in Europe, because philosophy, really, the dialectic was turned from a method of discovering truth toward the resolution of opposites... Lot of info on the subjects you mentioned. American Indians, and in fact, all primitives lived by much the same rules as the German Tribes, and many people still do since they have honor economies rather than money economies...Morgan's Ancient Society is still a good read, perhaps still in print...Indians of the Western Great lakes has a lot of useful information...

The thing is, that so much has been lost, that you need to see all to understand one...Cu'Chalain is very like Achilles in more than one fashion, and like all those who sailed against Troy.. Beowulf, and Kriemhild too... To know one, you must know them all...
TranscendHumanit
 
  1  
Reply Wed 7 Apr, 2010 12:41 pm
@Fido,
I will try to find some of those books/authors. Thanks for the information Smile
0 Replies
 
Fido
 
  1  
Reply Wed 7 Apr, 2010 12:59 pm
@kennethamy,
kennethamy;149246 wrote:
And if you could present another option for producing law and order, I am sure we would all be grateful to you. As James Madison wrote in The Federalist Papers, if men were angels, we would need no governments or laws.

Primitives had their moments of peace, and they had their methods, common to all for resolving disputes...It may be that bloodshed and feud were at one time fairly constant, but it is unlikely that anything reached the level of violence that even one of our modern wars has reached...

In a sense, all of modern society is built upon law and order, for only with long periods of peace can technological advancement continue...The problem is that having peace, law and order, there suddenly is no need for justice, and even where societies have been founded on the idea of justice there justice will languish until revolution becomes necessary, and all the violence which attends it becomes inevitable...

Believe it or not, primitives with little technology survived because their gentile social organizations were more advanced than our own, and because that was key to their survival, those people put much more of their time into them...Many of us resent having to watch the evening news, or having to vote, in part because the failures of government and press have made us slaves unable to spare the time to pay attention when doing so will have no positive effect...

When we go to war, it is not so much democracy that we seek to export as our law which gives no person the right to justice, and we can see in our own land how many are imprisoned or under the control of the Courts and how much law and the threat of law controls our lives and does not benefit us at all...The more law we have the more we need because law attacks the community which was once the organization of social control and social survival... Communities have no power over their own, and even families are reduced to what influence they can manage...Law is not a success, but it is the slow path to destruction...People around the world are right to resist western law, because it denies justice, leads to the hierarchy of of rich and poor, and destroys all communities...For what, to become a nation state among nation states??? Pleez

Men only need to be men as our forefathers were men to have peace and justice... We do not need to be angels, but it is certain that where people are denied justice they are brutalized as many in this land are, made brutes, raised into brutality, with nothing more expected from them but brutality... Humanity is denied to those who are denied justice...In this place the people are denied even the democratic power of their fathers, and because they have no political power are denied education, and because they are uneducated are denied political power... That is the original catch 22...
Baal
 
  1  
Reply Wed 7 Apr, 2010 02:15 pm
@TranscendHumanit,
In smaller communal circles, customary law is not only possible but also inevitable as that which itself forms cohesion within that circle, and to a degree defines it. In such a situation laws are borne out of mutual understanding and inevitability; with each member being aware of his/her responsibility and contribution to the group. In that sense, the law is not only Law proper, but also custom as properly defined; it is inherently not imposed but rather a notion to which one voluntary submits precisely because this notion is what defines the person as a member of the group (for which one wishes to become).

In such a situation, a centralized power structure still exists, but due to the size of the group, the structure is not removed from the individual, but is rather formed from it, because of a certain notion of codependency felt among all members of the group. This perhaps still exists to a lesser degree in any 'clique' or 'group', in which it can be observed that when a disagreement arises, an attempt is made by all members to resolve the dispute and not immediately assert their authority qua power structure, but rather assert their codependency and evoke it as such.

In larger, more developed societies where there is place for stratification to occur on a larger level, the role of the individual in the smaller societies is transferred over to larger representatives and such etc. etc. because this stratification creates hierarchical membership, with the individual still assuming a role of codependency in a given society, but that society only being itself an individual itself in terms of larger societies and circles. The individual qua subject is not in the capacity to delegate and properly balance this codependency with multiple power structures properly without having it delegated linearly, hierarchically.

It is essentially this stratifying tendency which makes customary law possible in smaller circles, and makes it impossible in larger circles, precisely because custom is valid only insofar as it applies within a group that has a mutual codependency and identification.
GoshisDead
 
  1  
Reply Wed 7 Apr, 2010 02:27 pm
@Fido,
I end up having the same thing to say everytime the topic crosses anarchism and law, but here goes again. This is not however a strictly philosophical response it is more of a social sciences response.

Customary Law as has been put here is not feasable in a modern society for several reasons.

Population:
Economy:
Political Structure:
Personal relationship with morality:

Population: Anarchist texts tend to idealize the egalitarian state and in that idealization forget that egalitarianism was never ideal when it was practiced and not suitable for a population size that exceeds more than a couple hundred. Customary law, or law bound by implicit cultural norms can only work in a culture where the population knows everything about every member. It is the reason why egalitarianism works in band level populaces. A positioned executive is not necessary because the council needed to expidite cultural breeches is inherent in the system.

Economy: As we study cross culturally to populations larger than band size we notice that the rule of law changes. A broad hunter gatherer culture where the entire populace is tasked for all the different operations of survival means that people do not necessarily specialize in skills. The non specialization of skills limits the opportunity for social captial and the imbalance of pretige held by a single person. As prestige builds certain groups or certain people tend to become immune to certain minor breeches in the cultural normative 'law'. Classes of sorts begin to form etc...

Political Structure: The advent of classes etc.. require a political structure that is less and less egalitarian as the population grows. As the economy changes from hunter gatherer through pastoral and agricultural, a surpluss of goods often leads to a solidification of state sponsored classes, military, clergy, academic, EXECUTIVE etc... These structures and their diverse functions require codified organization, as the population has become too big to keep track of a single cultural set of norms. All of the various classes and specializations create their own subcultures that also require a set of customary laws and it goes on from there

Personal relationship with morality:
on a mass cultural scale the relationship the average person has with the morals they have, many of which have been codified due to the above reasons, changes. It changes from one of shame to one of guilt in regards to transgressing the cultural norm. In a very small group shame often is the ultimate punishment, because exile from the group or activities in the group means that that person has no group at all. Shame is an external applied emotional maniputlation that carries with it very real physical consequences, especially considering one's well being is directly dependent on one's band. However when one can shift from group to group in a larger population, one can hide from shame, and exile and like punishments are not as physically traumatic. Thus one is acquires the necessity to feel guilt from birth which is more of an internal emotional manipulation. Most people assume that guilt is a religious function, however it is part of all parts of a large population's culture. It may be the very notion from whence ethics springs. Would there really be ethics debates if we lived in small bands barely surviving and constantly counceling? Probably not in any of the forms that we practice it, it wouldn't be necessary.

So combine the various problems inherent in the above and you have a society not capable of executing a customary law.
0 Replies
 
TranscendHumanit
 
  1  
Reply Wed 7 Apr, 2010 02:34 pm
@TranscendHumanit,
Quote:
Anarchist texts tend to idealize the egalitarian state and in that idealization forget that egalitarianism was never ideal when it was practiced and not suitable for a population size that exceeds more than a couple hundred.

I am not an egalitarian. I am a propertarian.
Quote:

As we study cross culturally to populations larger than band size we notice that the rule of law changes.

As it should. Differences in local custom suit the people actually involved, and at the points of contact people will use arbitration and solutions that suit their interactions. This is an advantage, not a disadvantage. The State system of 'justice' is not only inexcusably expensive, but it actually interferes with restitution and commercial activity. This is why most commercial agencies use private arbitration and settle out of court.

Quote:
The advent of classes etc.. require a political structure that is less and less egalitarian as the population grows.

'Classes' are a Marxist myth, outside of a political organization (in politics there are the Rulers and the Ruled). As I said, I am not an egalitarianism - egalitarianism is a fantasy.

Quote:
on a mass cultural scale the relationship the average person has with the morals they have, many of which have been codified due to the above reasons, changes.

Which is irrelevant. If you read de Jasay and Fuller, the first is a non-cognitivist and holds that justice is different than morality and formed by self-interest. The second holds that the morality of justice has nothing to do wit the morality of personal conflict.
GoshisDead
 
  1  
Reply Wed 7 Apr, 2010 02:57 pm
@TranscendHumanit,
TranscendHumanit;149307 wrote:
I am not an egalitarian. I am a propertarian.

Like I said it is a social sciences answer to a philosophical question, as there has never been a successful documented case of propertarianism, there is really no way to make commentary on its effectiveness concerning rule of law. My post was not commenting on the ideal of law but the practice of communal norms as they are practiced. a.ka. cummunal law.

TranscendHumanit;149307 wrote:

As it should. Differences in local custom suit the people actually involved, and at the points of contact people will use arbitration and solutions that suit their interactions. This is an advantage, not a disadvantage. The State system of 'justice' is not only inexcusably expensive, but it actually interferes with restitution and commercial activity. This is why most commercial agencies use private arbitration and settle out of court.


Note again population size. we have no functional populations with a size that merits the communal law practice without some sort of express or implied executive force, which in turn mandates a judicial source in order to reign them in.

TranscendHumanit;149307 wrote:

'Classes' are a Marxist myth, outside of a political organization (in politics there are the Rulers and the Ruled). As I said, I am not an egalitarianism - egalitarianism is a fantasy.


Marxist classes are a marxist construction explaining the difference between groups of people's ability to consume without producing. However one cannot deny that state supported militaries and judiciaries etc... are a (not)edited) myth call them classes call them groups it doesn't matter. if fact the marxist class dichotomy is saying pretty much what you say "(in politics there are the Rulers and the Ruled)". Egalitarianism in its ideal as i said in my previous quote is not a reality. Put two people in a room and within 15 seconds there is a dominant one. Its the nature of social beasts. However, i'm still not sure why this is even an issue considering the meat of the my previous post, unless it is the old pick a semantic quibble to avoid issue ploy.


TranscendHumanit;149307 wrote:

Which is irrelevant. If you read de Jasay and Fuller, the first is a non-cognitivist and holds that justice is different than morality and formed by self-interest. The second holds that the morality of justice has nothing to do wit the morality of personal conflict.


Again Jasay and Fuller are dealing in ideal hypotheticals not functional systems as practiced, documented human behavior and bio-social structure.
0 Replies
 
TranscendHumanit
 
  1  
Reply Wed 7 Apr, 2010 03:06 pm
@TranscendHumanit,
Quote:
without some sort of express or implied executive force

You should read about Iceland, or tribal Germany (very similar). They have exercise of force based on private arbitration and personal responsibility. 'Executive force' just mean 'irresponsible force'.
0 Replies
 
Fido
 
  1  
Reply Wed 7 Apr, 2010 03:29 pm
@Baal,
Baal;149299 wrote:
In smaller communal circles, customary law is not only possible but also inevitable as that which itself forms cohesion within that circle, and to a degree defines it. In such a situation laws are borne out of mutual understanding and inevitability; with each member being aware of his/her responsibility and contribution to the group. In that sense, the law is not only Law proper, but also custom as properly defined; it is inherently not imposed but rather a notion to which one voluntary submits precisely because this notion is what defines the person as a member of the group (for which one wishes to become).

In such a situation, a centralized power structure still exists, but due to the size of the group, the structure is not removed from the individual, but is rather formed from it, because of a certain notion of codependency felt among all members of the group. This perhaps still exists to a lesser degree in any 'clique' or 'group', in which it can be observed that when a disagreement arises, an attempt is made by all members to resolve the dispute and not immediately assert their authority qua power structure, but rather assert their codependency and evoke it as such.

In larger, more developed societies where there is place for stratification to occur on a larger level, the role of the individual in the smaller societies is transferred over to larger representatives and such etc. etc. because this stratification creates hierarchical membership, with the individual still assuming a role of codependency in a given society, but that society only being itself an individual itself in terms of larger societies and circles. The individual qua subject is not in the capacity to delegate and properly balance this codependency with multiple power structures properly without having it delegated linearly, hierarchically.

It is essentially this stratifying tendency which makes customary law possible in smaller circles, and makes it impossible in larger circles, precisely because custom is valid only insofar as it applies within a group that has a mutual codependency and identification.

Ethics has the meaning of costom, or on the other hand, character... Community is morality, and the community that cannot enforce its morality is no community at all... Laws today do not reflect the community morality, or they would not tear down the communities and leave them all divided... Govermment should be the expression of the common ethic, the character of the people; and when we look at ours, the goals expressed clearly have not been met or even approached...The goals are purely moral; but the means are faulty beyond belief... If the moral goals of government are not pursued by government, and the laws result in immorality on a grand scale, and people are not free to enforce, or hardly express their own morality, then the nation is not a nation, and is certainly not a community.... The results of our government are the destruction of communities and the immorality of the whole people, and such people as are produced by our government, and our economy, are not fit for self government... Democracy demands morality, and that was the edge of primitive peoples, that they were governing according to their customs, which were their ethics, that justice was essential, and all had a hand in deciding what was just...

---------- Post added 04-07-2010 at 05:44 PM ----------

TranscendHumanit;149322 wrote:
You should read about Iceland, or tribal Germany (very similar). They have exercise of force based on private arbitration and personal responsibility. 'Executive force' just mean 'irresponsible force'.

Correct... Moot, and Doom, and Thing were all words for the sorts of community councils that came together to decide all issues of imprtance as well as to decide law, what it was and how it would be expressed...In a democracy, the people are the law...And only when people must decide their own course and take responsibility for their thoughts and actions then they can no longer act irresponsibly as so many do now in regard to our coercive laws... Democracy is the social equivalent of everyone acting responsibly as individuals.. Powerlessness fosters irresponsibility...
0 Replies
 
 

Related Topics

How can we be sure? - Discussion by Raishu-tensho
DOES NOTHING EXIST??? - Question by mark noble
Proof of nonexistence of free will - Discussion by litewave
morals and ethics, how are they different? - Question by existential potential
Destroy My Belief System, Please! - Discussion by Thomas
Star Wars in Philosophy. - Discussion by Logicus
Existence of Everything. - Discussion by Logicus
Is it better to be feared or loved? - Discussion by Black King
 
  1. Forums
  2. » Customary Law
Copyright © 2019 MadLab, LLC :: Terms of Service :: Privacy Policy :: Page generated in 0.03 seconds on 03/23/2019 at 07:14:38