Editing Customary law (section)

=== 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/>