Duhaime's Law Dictionary


Custom Definition:

The consensual regulation of human conduct and commerce by the community itself.

Related Terms: Law, Lex Non Scripta, Consuetudo Volentes Ducit, Lex Nolentes Trahit, Common Law

Jeudwine's description of a custom is excellent especially as it distinguished custom from law:

"Custom is regulation made by the community itself, as opposed to law which may be imposed by force upon it from without....

"Custom has at all times a greater force by far than the law, and a more continuous sanction, as it expresses the will of the community in which it originates....

"Where a custom is admitted, based upon common consent, very little sanction ... is necessary for its enforcement; when law is imposed from without, it rests solely on the military power at the disposal of the ruler to have it obeyed.

"Law at its best is only an alternative for physical force, resting for its satisfaction on the force behind it."

This is also the essence of the Latin/Roman law maxim: Consuetudo volentes ducit, lex nolentes trahit.

REFERENCES:

  • Jeudwine, J. W., Tort, Crime and Police in Medieval Britain: A Review of Some Early Law and Custom (London: Williams & Norgate, 1917), pages 1-2

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