Customary Law

The process of formation of customary law is quite unique and different from the process of formation of other sources of law. According to traditional theories, an enforceable custom emerges from two formative elements: (1) a quantitative element consisting of a general practice; and (2) a qualitative element reflected in the belief that the practice reflects a legal obligation. Unlike mere social norms, customary laws are treated by some legal systems as proper sources of law and enjoy the centralized enforcement and adjudication generally reserved to legislation, judge-made law, or binding international treaties. Parisi and Fon have described the process of customary law formation as a form of “direct legislation through action,” which differs from traditional lawmaking processes in that the resulting rules emerge gradually through the actions of the subjects of the law rather than through political deliberation or adjudication.