Critique of customary law

Abstract

Legal custom is composed of two elements: the objective and the subjective. The subjective element, in particular, presents significant theoretical difficulties, prompting Carlos Nino to propose its elimination and replacement with the requirement that the customary norm be part of the legal system–that is, that it be recognized by the system’s primary organs. Applying Carlos Nino’s proposal to the definition of legal custom reveals that it accurately reflects legal practice in Chile. When this is considered alongside the methodological challenges involved in determining the existence and content of customary norms, the inherently political character of this formal source of law becomes evident. This political dimension of legal custom may range from oppression to independence and insubordination, a dynamic that will be illustrated through examples drawn primarily from administrative jurisprudence.