'Customs in common': the old emperor's clothes

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‘Customs in Common’ has an old sweet scent – of apples dried in autumn for a midwinter bake, or of willow on leather through a balmy afternoon. ‘Our customs’, surely, are a nicer form of social regulation than the tank-backed norms of the state or the bank-backed norms of the market. The concept of custom, then, should be very attractive to socialists. One socialist who was so attracted was historian E P Thompson, from whom this volume’s theme is drawn. For him, however, the attraction quickly soured. I shall trace his path and his difficulty in theorising it. Then I shall examine ‘custom’ afresh, beginning at the effective origins of the western legal tradition in Constantinople. I will not consider ideas of ‘custom’ otherwise than as candidates for a popular mode of social regulation: hence I will not consider customary international law or customs of a trade or profession; nor the philosophers who used to conceive custom as a personal, habitual ‘second nature’. I shall conclude that the concept of ‘custom’ has long ceased to make sufficient sense for any scholarly or political purpose, and that the sense that it formerly made was a ready tool of oppression and but a blunt weapon of resistance.
Original languageEnglish
Pages (from-to)139-160
Number of pages22
JournalMacquarie Law Journal
Publication statusPublished - 2006

Bibliographical note

Publisher version archived with the permission of the Dean, Division of Law, Macquarie University, NSW, Australia. This copy is available for individual, non-commercial use. Permission to reprint/republish this version for other uses must be obtained from the publisher.


  • E. P. Thompson
  • moral economy
  • common law


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