The Grammar of Customary Law

Bibliographic Data

ID5830655
AuthorsJeremy Webber (0000-0003-2825-382X, University of Victoria, corresponding author)
Year2010
Volume54
Issue4
Pages579-626
Publication date2010-05-04
Peer ReviewedYes
Open AccessYes
TypeARTICLE
VenueMcGill Law Journal (JOURNAL)
Journal identifiersISSN: 0024-9041 • E-ISSN: 1920-6356
PublisherMcGill University Library and Archives (PUBLISHER)
DOI10.7202/039646ar
OpenAlexW2029513835
LanguageEN
Citations received16
References cited5

All law is customary. This article explores how we should conceive of the customary nature of law, proposing a framework for understanding how legal orders are related to their various societies. The article builds upon the pragmatist conception of law developed by Lon Fuller and Gerald Postema, but it goes well beyond their accounts, arguing that their predominantly functionalist approaches are inadequate. Although law does serve to coordinate social interaction, it does so through specific conceptual languages, through particular grammars of customary law. Law can only be understood if one takes those grammars seriously. The article pursues this argument by drawing comparisons between indigenous and non-indigenous legal orders, both to expand the comparative range and to explore what indigenous legal orders can reveal about law generally. It explores the limitations of functionalist accounts (including law and economics) in the law of persons and property, in presumptions about the foundational requirements of legal order, and in the presence of the sacred or mythic in law. The article concludes that attending to the various grammars of customary law allows one to engage, productively and with insight, in legal reasoning across the normative divide separating different legal cultures

Legal history · Law in Society and Culture · Legal principles and applications · Multicultural Socio-Legal Studies

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