By Susan Gualtier
James Bernard Murphy, The Philosophy of Customary Law (Oxford University Press, 2014). 160 p. Hardcover $83.00.
As someone with more than a passing interest in customary law, I looked forward to reading The Philosophy of Customary Law, by James Bernard Murphy, Professor of Government at Dartmouth College.[i] In this book, Murphy posits that custom must be analyzed in terms of “two more basic logical concepts: convention and habit.”[ii] He then offers a historical overview of four philosophers who have examined the concept of custom (Aristotle, Suárez, Bentham, and James C. Carter), highlighting how each built upon or reacted to his predecessors’ work. Murphy includes a brief epilogue at the end of the book, in which he offers a few of his own thoughts on customary law. Unfortunately, although the premise of the book seemed promising, I was disappointed in the execution. Murphy largely ignores the legal framework for understanding customary law, and is more interested in the theory of human behavior more generally. He reaches no useful conclusions regarding customary law, at least from a practical standpoint, and it is unclear what this book can contribute to the discussion of customary law.
Despite its title, The Philosophy of Customary Law deals relatively little with customary law as we know it. Most of the discussion of contemporary customary law occurs in the book’s introduction, where Murphy entirely ignores tribal, indigenous, and other customary law systems, instead minimizing the importance of customary law to that of a “gap-filler” only occasional referenced by Western common law courts in situations where no written law applies. International custom merits a single paragraph in the introduction. Murphy waves away the need to describe or differentiate for the reader the specific ways in which custom can comprise or inform the law.[iii] Similarly, he dismisses what most of us will recognize as a critical element of establishing customary law, whether international or domestic: the subjective requirement that states or individuals observe a custom because they believe or intend it to have the force of law (“Instead of distinguishing the objective usage from the subjective attitudes of participants, I propose to distinguish the habitual (individual) dimension of custom from the conventional (social) dimension of custom.”[iv]).
It is unclear whether, by so openly dismissing the basic framework of customary law analysis, Murphy intends to create a groundbreaking new way of thinking about customary law, or if he simply cares more about philosophizing than about the practicalities of legal analysis and application. I hoped that the four main chapters of the book, each of which deal with a different philosopher and/or school of philosophical thought, might shed more light on his purpose and provoke me to think differently about customary law. The first chapter focuses on Aristotle and his distinction between ethos, which might be characterized loosely as habit or second nature, and nomos, which might be characterized as either convention or law–and more specifically, according to Murphy’s etymological analysis, “convention stemm(ing) from an act of deliberate stipulation.”[v] Noting Aristotle’s identification of nomos with logos (reason), Murphy states, “As applied to custom, Aristotle’s close identification of nomos and logos seems odd. … Customs seem to arise from human conduct but not from any deliberate design.”[vi] But is that the case? Murphy seems to see “deliberate design” as a process limited in time – a transaction rather than an evolution. It is arguably not very difficult to see the connection between ethos and logos if you consider the subjective requirement that participants in a customary law system believe that a custom constitutes a legal requirement or intend for it to do so. It is Murphy who has severed the connection between reason and custom, and who then seems to take issue with Aristotle’s use of nomos to describe both social convention and law. Murphy cites enough commentators that I (not being a student of philosophy myself) believe him when he states that Aristotle’s language is often unclear. However, I was struck by what seemed to be a resistance to the idea that the development of custom could be intentional or rational, which seems to indicate a limited perception of, or perhaps a limited respect for, the richness and potential efficacy of customary law.
This resistance carries into the second chapter, which begins with the statement that “customs are not in general deliberately made.”[vii] This chapter describes the work of Francisco Suárez, particularly in relation to that of his predecessor, Thomas Aquinas, and seems primarily to take issue with Suárez’s belief that law “expresses the will of the lawgiver.”[viii] Again, however, much of the argument seems to originate with a limited view of customary law. Murphy cannot reconcile Suárez’s definition of “law” with his understanding of custom, because he cannot see the individual participants as the lawmakers (“Only an author can form an intention to communicate and customs usually have no author”[ix]), and because he rejects the idea that the participants, either individually or as a group, can exercise reason, intent, or will (“Because customs are not designed or made by any one person, what kind of will or intention do they signify? No one wills custom into being as a legislator might will a statute into being. Customs simply arise will-nilly.”[x]).
The final two chapters offer more of the same, although Murphy seems to settle into a more traditional definition of customary law, including its subjective element, during his critique of Bentham. Nonetheless, he returns to the ideas of “habit” and “convention” toward the end of the chapter in order to conclude that Bentham failed to adequately grasp the concept of custom (“What is largely missing in Bentham’s account is a description of how conventions become habitualized and how habits become conventionalized: the essential nature of custom never comes into focus … customs rest upon a real relation between individual habits and social conventions. Hence, customs escape the net of Bentham’s logic.”[xi]). The book ends with a brief epilogue, in which Murphy offers a few of his own reflections on the relationship between custom and law. However, his primary argument here has little to do with customary law. Instead, he concludes with the notion that written law should become a matter of custom (or, more specifically, “habit” – or second nature – if we are to use Murphy’s framework.) In Murphy’s view, “it is better to conform to good laws by customary habit, than by constant recourse to lawyers.”[xii] This is a fine statement, indeed, but one that, as a conclusion to a book on the topic of customary law, contributes little, if anything, to the field.
It is probable that I simply disagree with Murphy that custom can or should be analyzed through the concepts of habit and convention – or perhaps the book just does not explain how doing so adds to the discussion. Rather than clarifying or broadening our understanding of customary law, the attempt to boil custom down to these two concepts would seem to limit our ability to work with custom as a legal concept or to form any useful framework for its analysis – an irony, since Murphy states in his epilogue that “[o]ur philosophers of law rightly understand that the puzzles about customary law arise mainly because of inadequate conceptions of custom.”[xiii] Murphy’s purpose appears to be disagreement with previous thinkers for the sake of disagreement (an approach which, incidentally, leads to most of my frustration with the field of philosophy in general). It is also possible that this book was an academic exercise rather than a sincere attempt to contribute to the study or practice of customary law.
What has always interested me about customary law is how it operates “on the ground” – how it changes and evolves, how it differs based on geography and culture, and how external factors can assist with or complicate its application. Given that my interest is practical rather than philosophical, I am clearly not the intended audience for Murphy’s book. Those with a background in legal philosophy might find this book interesting, but it has little relevance to the practicalities of researching or practicing customary law.
[i] James Bernard Murphy, The Philosophy of Customary Law (2014).
[ii] Id. at xiii.
[v] Id. at 9.
[vi] Id. at 10.
[vii] Id. at 23.
[viii] Id. at 28.
[ix] Id. at 25.
[x] Id. at 41.
[xi] Id. at 87.
[xii] Id. at 124.
[xiii] Id. at 117.