Editing Customary law (section)

==Nature, definition and sources==
A central issue regarding the recognition of custom is determining the appropriate methodology to know what practices and norms actually constitute customary law. It is not immediately clear that classic Western theories of jurisprudence can be reconciled in any useful way with conceptual analyses of customary law, and thus some scholars (like John Comaroff and Simon Roberts)<ref name="cr">{{harvnb|Comaroff|Roberts|1981}}</ref> have characterized customary law norms in their own terms.  Yet, there clearly remains some disagreement, which is seen in John Hund's critique of Comaroff and Roberts' theory, and preference for the contributions of [[H. L. A. Hart]]. Hund argues that Hart's [[H. L. A. Hart#The Concept of Law|'' The Concept of Law'']] solves the conceptual problem with which scholars who have attempted to articulate how customary law principles may be identified, defined, and how they operate in regulating social behavior and resolving disputes.<ref name="hund">{{harvnb|Hund|1998}}</ref>

Customary law is the set of customs, practices and beliefs that are accepted as obligatory rules of conduct by a community.

=== As an indefinite repertoire of norms ===
[[File:Tribe chief administering justice, Belgian Congo.jpg|thumb|A court presided over by a customary chief in the [[Belgian Congo]], {{circa}}1942]]
Comaroff and Roberts' famous work, "Rules and Processes",<ref name=cr/> attempted to detail the body of norms that constitute [[Tswana people|Tswana]] law in a way that was less legalistic (or rule-oriented) than had Isaac Schapera. They defined "mekgwa le melao ya Setswana" in terms of Casalis and Ellenberger's definition: ''melao'' therefore being rules pronounced by a chief and ''mekgwa'' as norms that become customary law through traditional usage.<ref name="cr70">{{harvnb|Comaroff|Roberts|1981|p=70}}</ref> Importantly, however, they noted that the Tswana seldom attempt to classify the vast array of existing norms into categories<ref name=cr70/> and they thus termed this the 'undifferentiated nature of the normative repertoire'. Moreover, they observe the co-existence of overtly incompatible norms that may breed conflict, either due to circumstances in a particular situation or inherently due to their incongruous content.<ref>{{harvnb|Comaroff|Roberts|1981|p=73}}</ref> This lack of rule classification and failure to eradicate internal inconsistencies between potentially conflicting norms allows for much flexibility in dispute settlement and is also viewed as a 'strategic resource' for disputants who seek to advance their own success in a case. The latter incongruities (especially inconsistencies of norm content) are typically solved by elevating one of the norms (tacitly) from 'the literal to the symbolic.<ref>{{harvnb|Comaroff|Roberts|1981|p=75}}</ref> This allows for the accommodation of both as they now theoretically exist in different realms of reality. This is highly contextual, which further illustrates that norms cannot be viewed in isolation and are open to negotiation. Thus, although there are a small number of so-called non-negotiable norms, the vast majority are viewed and given substance contextually, which is seen as fundamental to the Tswana.

Comaroff and Roberts describe how outcomes of specific cases have the ability to change the normative repertoire, as the repertoire of norms is seen to be both in a state of formation and transformation at all times.<ref>{{harvnb|Comaroff|Roberts|1981|p=79}}</ref> These changes are justified on the grounds that they are merely giving recognition to de facto observations of transformation. Furthermore, the legitimacy of a chief is a direct determinant of the legitimacy of his decisions.<ref>{{harvnb|Comaroff|Roberts|1981|p=81}}</ref> In the formulation of legislative pronouncements, as opposed to decisions made in dispute resolution,<ref name="cr82">{{harvnb|Comaroff|Roberts|1981|p=82}}</ref> the chief first speaks of the proposed norm with his advisors, then council of headmen, then the public assembly debate the proposed law and may accept or reject it. A chief can proclaim the law even if the public assembly rejects it, but this is not often done; and, if the chief proclaims the legislation against the will of the public assembly, the legislation will become melao, however, it is unlikely that it will be executed because its effectiveness depends on the chief's legitimacy and the norm's consistency with the practices (and changes in social relations) and will of the people under that chief.<ref name=cr82/>

Regarding the invocation of norms in disputes, Comaroff and Roberts used the term, "paradigm of argument", to refer to the linguistic and conceptual frame used by a disputant, whereby 'a coherent picture of relevant events and actions in terms of one or more implicit or explicit normative referents' is created.<ref name="cr85">{{harvnb|Comaroff|Roberts|1981|p=85}}</ref> In their explanation, the complainant (who always speaks first) thus establishes a paradigm the defendant can either accept and therefore argue within that specific paradigm or reject and therefore introduce his or her own paradigm (usually, the facts are not contested here). If the defendant means to change the paradigm, they will refer to norms as such, where actually norms are not ordinarily explicitly referenced in Tswana dispute resolution as the audience would typically already know them and just the way one presents one's case and constructs the facts will establish one's paradigm. The headman or chief adjudicating may also do same: accept the normative basis implied by the parties (or one of them), and thus not refer to norms using explicit language but rather isolate a factual issue in the dispute and then make a decision on it without expressly referring to any norms, or impose a new or different paradigm onto the parties.<ref name=cr85/>

=== Law as necessarily rule-governed ===
Hund finds Comaroff and Roberts' flexibility thesis of a 'repertoire of norms' from which litigants and adjudicator choose in the process of negotiating solutions between them uncompelling.<ref name=hund/> He is therefore concerned with disproving what he calls [[Scepticism in law|"rule scepticism"]] on their part. He notes that the concept of custom generally denotes convergent behaviour, but not all customs have the force of law. Hund therefore draws from Hart's analysis distinguishing social rules, which have internal and external aspects, from habits, which have only external aspects. Internal aspects are the reflective attitude on the part of adherents toward certain behaviours perceived to be obligatory, according to a common standard. External aspects manifest in regular, observable behaviour, but is not obligatory. In Hart's analysis, then, social rules amount to custom that has legal force.

Hart identifies three further differences between habits and binding social rules.<ref name=hund/> First, a social rule exists where society frowns on deviation from the habit and attempts to prevent departures by criticising such behaviour. Second, when this criticism is seen socially as a good reason for adhering to the habit, and it is welcomed. And, third, when members of a group behave in a common way not only out of habit or because everyone else is doing it, but because it is seen to be a common standard that should be followed, at least by some members. Hund, however, acknowledges the difficulty of an outsider knowing the dimensions of these criteria that depend on an internal point of view.

For Hund, the first form of rule scepticism concerns the widely held opinion that, because the content of customary law derives from practice, there are actually no objective rules, since it is only behaviour that informs their construction. On this view, it is impossible to distinguish between behaviour that is rule bound and behaviour that is not—i.e., which behaviour is motivated by adherence to law (or at least done in recognition of the law) and is merely a response to other factors. Hund sees this as problematic because it makes quantifying the law almost impossible, since behaviour is obviously inconsistent. Hund argues that this is a misconception based on a failure to acknowledge the importance of the ''internal element''. In his view, by using the criteria described above, there is not this problem in deciphering what constitutes "law" in a particular community.<ref name=hund/>

According to Hund, the second form of rule scepticism says that, though a community may have rules, those rules are not arrived at [[Deductive reasoning|'deductively']], i.e. they are not created through legal/moral reasoning only but are instead driven by the personal/political motives of those who create them. The scope for such influence is created by the loose and undefined nature of customary law, which, Hund argues, grants customary-lawmakers (often through traditional 'judicial processes') a wide discretion in its application. Yet, Hund contends that the fact that rules might sometimes be arrived at in the more ad hoc way, does not mean that this defines the system. If one requires a perfect system, where laws are created only deductively, then one is left with a system with no rules. For Hund, this cannot be so and an explanation for these kinds of law-making processes is found in Hart's conception of "secondary rules" (rules in terms of which the main body of norms are recognised). Hund therefore says that for some cultures, for instance in some sections of [[Tswana people|Tswana]] society, the secondary rules have developed only to the point where laws are determined with reference to politics and personal preference. This does not mean that they are not "rules". Hund argues that if we acknowledge a developmental pattern in societies' constructions of these secondary rules then we can understand how this society constructs its laws and how it differs from societies that have come to rely on an objective, stand-alone body of rules.<ref name=hund/>