CUSTOMARY LAW. The body of customs recognized as binding in any social group or community, and enforced by its authority. As, in the evolution of humanity, social habits or customs precede the definite organization of social groups, such an organization, when it arises, finds a body of customary observances ready to be transformed, and in process of being transformed, into positive law. This body of cus toms constitutes the entire legal system of primi tive society, and the development and recogni tion of new customs and the modification of old customs are its principal, if not its only, means of expansion and change. Indeed, the primitive codes—as the Mosaic law of the Jews, the laws attributed to Lycurgus among the Greeks, the Twelve Tables of Rome, and the more recent barbaric codes (legcs barbaroruln) of the early Middle Ages—represent little more than a state ment, in precise and definite form, of the body of custom which had already gained the force of law in the community. It is only a community has reached the stage of political consciousness that it undertakes deliberately, by legislation or judicial methods, to effect changes in its laws; and even then custom, though rela tively diminishing in importance, continues to be an important source of new law.
Customary law, then, is the foundation and basis of all existing legal systems. Of many, if not most, of those systems it constitutes by far the greater portion of the body of rules of which they are composed, and in all of them it forms an important increment of their growth. Even where the political and legal consciousness of a community has reached the stage of sweeping legal refo•m—as in the Eastern Empire under Justinian and in France under Napoleon Bona parte—the resultant code of laws, however com prehensive, must be based upon, and must con sist mainly of, the rules of the customary law which it is intended to supersede, and its most radical departures from that law are most swiftly corrected by the judicial organs of the community. Undoubtedly the most complete and
widespread transformation which the customary law of mankind has ever undergone was the gen eral reception throughout Europe of the civil ian- system of Rome. (For the history of this process, see CIVIL Law.) Only the common-law system of England. upon which that of the Unit ed States is based, was able to withstand that influence; and this is still, for the most part, consciously and avowedly a body of customary law. (See ConE; ComAioN Law.) Under the influence of the spirit of nationality, which has so powerfully affected the nations of Europe during the last quarter of the nineteenth cen tury, there has recently developed a strong senti ment in favor of the revival of the local eus t ornery law, as against the more general law of foreign origin. This is particularly noticeable in the recent revision of the German codes.
Consult : Maine, Ancient Law (11th ed., London, ISS7, or any other edition), and Lectures on the Early History of Institutions (Gth ed., London, 1893) ; Lee, Historical Jurisprudence (New 1000) ; Blackstone, Commentaries on the Lairs of England (hook i. 03-84) ; Bryce. Studies in History and Jurisprudence (New York, 1901) ; 'Holmes, The Common Law (Boston, ISSI) ; Pol lock and Maitland, History of English Lou' (2d ed., Cambridge, Eng., 1899).