CUSTOM, RULES, ADMINISTRATION,

COMMUNITY*
RICHARD

The concept of "customary law" often is used to refer to a particular kind of

legal rule—one that is oral rather than written, for instance. Such a conception
contains a kernel of truth—customary rules are distinctive—but the focus is
too narrow. In this essay I want to look at the totality of legal phenomena in a
society—rules, processes, institutions, personnel, and ideology—exploring
how they are interrelated and how they relate to other social phenomena. For
this purpose I want to construct four configurations of law in society, none of
which can be found in its pure form anywhere. Such an ideal type is a heuristic
device that, if successful, reveals the dynamic tendencies of a particular
configuration and the connections among its parts.
The first configuration, which I will call custom, is found in the
pre-capitalist societies of the third world prior to colonial domination.
Obviously we never can know what those societies actually looked like, since
oral history inevitably introduces nostalgic distortions, and the earliest
European travellers and traders were changing the societies even as they were
describing them (and of course expressed their own ethnocentric biases).
Furthermore, to employ the category "precapitalist" is to invite a number of
analytic difficulties: it defines these societies negatively (they are not yet
capitalist); and it lumps together societies that differ greatly in economy (e.g.,
agricultural and pastoral), polity (e.g., chiefly and chiefless), and social
structure (e.g., the presence or absence of corporate lineages).
The second configuration, which I will call rules, is identified with liberal
capitalism: the conjunction of free wage labour and a competitive market with
the laissez-faire economic policies of a nightwatchman state constrained by an
ideology of individual freedom and accountable to some segment of the
population through representative institutions. This, too, never existed: even
eighteenth- and nineteenth-century Europe contained significant feudal relics;
the state played a central role in the construction of capitalism; monopoly
capital began to emerge even before competitive capital reached maturity;
individual freedom often was denied to blacks, Indians, women, religious
dissenters, political activists, and trade unionists; and government
represented only a fraction of the population through institutions that were
subject to the distortions of wealth and social status. Furthermore, this
configuration is of even more doubtful applicability to the third world, where
there were no feudal powers to overthrow and no indigenous bourgeoisie to
overthrow them, where the local market for both labour and commodities was
very constricted, and where individual freedom was subordinated to the
whims of a colonial state imposed by a metropolitan power. And of course this

* This essay is an exercise in the construction of models of law in society. It draws upon my own
research on the legal system of Kenya and on the very large and rapidly expanding literature of
anthropology and sociology of law. Given the alternatives of citing everything and nothing, I have
chosen the latter. This should not be taken as any claim to originality, for I am deeply aware that I
have done little more than synthesise and paraphrase others (probably poorly). But since I am not
asserting empirical connections among the legal and other social elements in these configurations,
it seemed unnecessary to invoke support from descriptive studies. If these models have any value,
it is as a stimulus to empirical research and theoretical clarification.
f Richard Abel is Professor of Law at the University of California, Los Angeles.
6
Vol. 28, Nos. 1 & 2 Custom, Rules, Administration, Community 7
configuration also conflates enormous variations: whether the local economy
was agricultural or extractive, its relationship to the world economy, the
presence or absence of a settler class, differences in metropolitan policies, etc.
Nevertheless, the fact that both the colonial state and European capital
inevitably imported social, economic, and political institutions prevailing in
the metropolis suggests that liberal capitalism may have had some influence
on colonial legal systems.
The third configuration, which I will call administration, is even less of a
unity. Indeed, it is better visualised as a set of points along a continuum
ranging from monopoly capitalism (with a minimum of economic regulation
and welfare benefits) through social democracy (with greater state
participation in the economy and more generous welfare provisions) to state
socialism (with some market activity, whether free or illicit). But even the
extremes are less distinct than their proponents may like to pretend.
Third-world countries that claim ideological allegiance to laissez-faire
capitalism, such as Chile or Kenya or South Korea, still maintain an
enormous state apparatus in order to crush strikes and intervene in the
economy through marketing boards, subsidies, tax relief, training
programmes, etc. At the other pole, countries with a strong commitment to
socialism frequently find that they must tolerate local entrepreneurs and allow
or indeed encourage investment by multinational corporations,
accommodating to the demands of the World Bank or the I.M.F.
The last configuration, which (with conscious partisanship) I will call
community, is the most difficult to imagine. It is pure aspiration, constructed
not only out of the hopes of the configurations already identified but also out of
others that transcend them. Thus it aspires to the reconciliation between
individual and community that we often attribute (in wistful self-delusion) to
pre-capitalist society. Yet it recognises that community can be stifling and
oppressive as well as warm and supportive and that it can be built upon
unacceptable hierarchies of caste, gender, and age. It aspires to the respect for
the individual that is the ideal of liberal capitalism. Yet it maintains that
merely limiting public intrusions by state power does not liberate the
individual to enjoy a private realm of freedom because economic and cultural
constraints can be just as confining as political repression. Because it takes the
liberal ideal of democracy seriously, it insists that democracy be direct not
representative, participatory not passive, and that it extend to the economy
and the household rather than just the polity. It embraces the humanitarian
concerns that inspire the welfare state but recognises that such care can
become routinised and paternalistic. It accepts as inevitable the
interpenetration of state and economy but realises that state direction can
stifle productive activity. For both these reasons it looks forward to the atrophy
of the state, not its hypertrophy. Therefore it strives to create means of
co-ordinating activity and allocating resources that do not rely on the tyranny
of either centralised administration or the all too visible hand of the market.
If these configurations possess some internal integrity, still they should not
be visualised as successive and inevitable stages, distinct in time, separated by
sharp ruptures. Rather, all are likely to co-exist, in varying degrees, in all
third-world countries (and indeed in all capitalist and many socialist countries
of the first and second worlds). Any model must respect this social and legal
pluralism. On the other hand, these configurations are antagonistic, not
harmonious, and it is the tensions between them that constitute the dynamic of
change. The object of this paper is to set forth, in very tentative fashion, the
underlying social structure, legal institutions, substantive rules, and legal
8 Custom, Rules, Administration, Community [1984] J.A.L.
processes of the four configurations. I do not advance a theory; indeed, many
will find the connections I posit far too eclectic, unsystematic, and incomplete.
If the exercise has any virtue, it is as a checklist for future research, reflection,
and policy-making.

I. SOCIAL STRUCTURE

A. Social Relations
1. Custom. Social relations are multiplex, i.e., people who interact in one
realm (e.g., the economy) also interact in others (e.g., the polity, kinship,
residential neighbourhoods, or ritual). They also are emotionally intense and
enduring. Although normatively unequal, they often are equal in fact.
2. Rules. Social relations are simplex: trading partners have nothing else in
common: neighbours often are strangers; communicants of a church
interact only on the sabbath. Consequently, these relationships are
emotionally attenuated and, ideally, even may be emotionless (the "hard-
nosed businessman", the neighbour who "minds her own business"). They
also tend to be transitory: people frequently change residence and job,
marriages are dissolved, trading relationships are terminated whenever the
market offers a better deal elsewhere. Although normatively equal, these
relationships often are unequal in fact.
3. Administration. Multiplexity accretes around functionally specific links,
typically that of employee and employer because virtually everyone is
relegated to the status of an employee, either of private capital or of a public
entity (another such nexus links the citizen to the state). But these multiplex
relationships (unlike those in precapitalist society) are highly unequal: the
employee is dependent on the employer for sustenance, sociality, political
voice, often even ritual. The employee hopes the relationship will be enduring
and endows it with enormous emotion: witness the psychological devastation
of workers who have been laid off or fired. The employer is emotionally
uninvolved and views the relationship as terminable at will.
3. Community. Social relations are multiplex not simplex, emotionally
intense not affectless, reciprocal not one-sided. They are achieved rather than
ascribed. Therefore they are terminable, but the parties are aware of the high
costs of termination (psychic and social as well as economic and political).
They are equal in norm and fact. In order to construct such relationships the
society must confront and struggle with differences that historically have been
given cultural significance: race, gender, physical, mental, and interpersonal
skills, appearance, etc. Community is always becoming.

B. Conflict
1. Custom. Conflict is frequent, complicated, intense, and memorable.
Disputants tend to be intimates, or at least to belong to the same small social
unit. Society approves and encourages the voicing of grievances. Because
disputants have strong ties to many other people, conflict quickly ramifies. In
order to forestall such escalation, observers constantly intervene to prevent
deviant acts and to defuse tension.
2. Rules. Conflict is infrequent, simple, emotionally superficial (because it
arises within functionally specific relationships), and readily forgotten. The
disputants tend to be strangers, united only by nominal membership in some
large social entity. The voicing of grievances declines (both because it is
disapproved and because it is not worth the effort), so that the modal response
Vol. 28, Nos. 1 & 2 Custom, Rules, Administration, Community 9
to conflict is exit from the troubled relationship. Because society is atomistic,
conflict is interindividual; others do not interfere. In order to maintain societal
norms, violations are corrected with great violence, but only sporadically.
3. Administration. The grievances of dependents and subordinates (workers
and citizens but also women, ethnic minorities, the young and old) are
endemic, complicated, highly wrought, and never forgotten, although the
object of the grievance tends to be unaware of this. Because of the unequal
relationship, the aggrieved individual has no choice but "loyalty", silence, and
repression. The conflict therefore becomes intraindividual, and the societal
response is therapy to help the grievant accept his or her condition as
inevitable and proper and adjust to it. Dominant actors (corporations, the
state) do not have grievances—they simply do what they want.
4. Community. Conflict is endemic, reciprocal, and intense. The society
encourages everyone to voice their grievances both for their own intrapsychic
health and in order to identify systemic problems that should be corrected. It
may institutionalise structures and processes to facilitate voicing, especially by
those who are fearful or reluctant, while discouraging slander in other
contexts. Because conflicts are resolved they can be forgotten instead of
festering and reappearing in other guises. At the same time, the society also
permits exit—both from conflictual relationships and from social units.
II. LEGAL INSTITUTIONS

1. Custom. Legal institutions for handling disputes are relatively

unspecialised, undifferentiated, and nonbureaucratic. They possess little
coercive power. "Judges" work part time and without salary (though
disputants may donate food or pay fees). They are local men who derive their
authority from ascribed status, age, experience, and demonstrated skill.
Particular judges may be partial, although the court as a whole should not be
biased. Courts are numerous, and their jurisdictions (area and population) are
small; as a result, caseloads are low. Hearings can be held whenever required
and can devote as much time to the matter as the parties wish. But the process
is the outcome: after the hearing is over it is very difficult to "enforce" a
judgment; failure to comply with the agreed resolution simply becomes the
basis for a new grievance and a new dispute. All participants are actively
involved in the hearing: judges question parties and witnesses; the parties
themselves testify and mobilise their own cases without the assistance of
experts (just as they engage in self-help). Anyone assisting a party does so out
of political loyalty.
2. Rules. Legal institutions are progressively specialised, differentiated, and
bureaucratised. They assert coercive power (but what they gain in power they
lose in authority, hence the rise of legal positivism as the dominant
jurisprudential school and the preference of the court for negotiated outcomes
over adjudication—a means of husbanding its "power" for fear it will prove
inadequate). Judges become full-time salaried state employees, and gifts from
disputants are forbidden as bribes. Judges are outsiders who derive their
authority from the combination of their youth, the visible display of esoteric
knowledge (mastery of a foreign language, manipulation of incomprehensible
rules), and formal credentials earned within an ostensibly meritocratic
educational system. Individual judges must appear impartial, although the
court as a whole may be unrepresentative, and thus possibly biased, in terms of
class, race, or gender. In order to rationalise and centralise state authority and
economise state responses, the number of courts (and judges per court) is
10 Custom, Rules, Administration, Community [1984] J.A.L.

reduced drastically, with the result that jurisdictions are expanded and
caseloads enlarged. There are long delays before a hearing can be held, and the
hearing itself is abbreviated, because of the cost to both the state and the
parties. Process and outcome are sharply distinguished: a "fair" process may
produce an outcome the party dislikes but must accept precisely because the
process was fair. The court has the power to enforce a judgment that, once
rendered, cannot be reopened, in either the same case or any other. In
common-law jurisdictions, the judge becomes relatively passive. In both
common and civil-law jurisdictions the parties are rendered passive. Because
the state claims a monopoly of legitimate force, the parties cannot resort to
self-help. Because the courts employ an esoteric language, process, and
normative universe, the parties no longer can conduct the hearing unaided.
Furthermore, in the most common category of hearing unaided. Furthermore,
in the most common category of hearing (criminal prosecutions), the parties
are thoroughly marginalised: victims have no role (except as prosecution
witnesses at the disposition of the state), and even the accused may be forced
into a strategic silence (invoking the privilege against self-incrimination). This
passivity of the parties is vigorously encouraged by the specialised technicians
on whom they come to rely—the lawyers. Just as the state claims a monopoly
of force (by outlawing self-help), so lawyers assert a similar claim over
rhetoric. This monopoly is aggresively constructed and defended, both by
elaborating the technical content of legal work and by securing state
protection through certification and licensure. The efforts of lawyers, judges,
legislators, and legal scholars to restate, rationalise, and unify the law are one
manifestation of the former project. Lawyers represent parties for fees, not out
of political loyalty; indeed, they disavow any personal allegiance to their clients.
Because the monopoly they achieve allows them to demand very high fees,
they work largely for the emerging bourgeoisie (regardless of whether
individual lawyers are subjectively partisan, the activity of the professional
category may introduce class bias). Consequently, lawyers often are vigorous
defenders of bourgeois rights (both property interests and political freedoms
threatened by state incursion), participate in bourgeois revolutions, elaborate
and disseminate bourgeois ideology, and play prominent roles in the bourgeois
state.
3. Administration. Both customary and rule-oriented legal institutions exist.
Although legalistic courts survive^ they decline in significance: disputes where
the parties are relatively equal (between the state and private enterprise or
between two such enterprises) lead to negotiated solutions; and administrative
tribunals emerge to handle conflict between unequals (individuals confronting
either the state or capital). As both the state and monopoly capital turn from
law to administration as a means of control, legal knowledge is displaced by
other forms of technocratic expertise (economics, science, psychology), which
tends to fuel the ambitions of a new bureaucratic class. Lawyers cease to be
independent professionals and become employees of state or capital (or at least
financially dependent on a few major clients). Agencies do not claim
impartiality because they justify their actions in purposive rather than
legalistic terms. Because of the high cost of litigation, courts deal only with
very large matters (antitrust litigation), or those that can be routinised and
thus mass-produced (criminal prosecutions, debt collection, evictions).
Consequently, they become fora in which repeat players successfully assert
claims against one-shot defendants. In order to continue justifying outcomes
in terms of process, the state (and private philanthropy) subsidise
representation for poor litigants through legal aid schemes and transform
Vol. 28, Nos. 1 & 2 Custom, Rules, Administration, Community 11
diffuse unorganised grievances into legal claims through public interest
lawyers; but neither strategy overcomes the basic passivity of most grievants
or the individualism of bourgeois law. Some administrative states recently
have taken the further step of creating institutions that superficially resemble
(and often modelled upon) customary dispute institutions. But these revivals
lack both authority and power; the mediators claim technical expertise but fail
to command respect; although they seek to involve the disputants in the
process, they cannot produce the outcomes that disputants desire. Thus the
process is rendered more accessible, but outcomes remain more elusive than
ever. Process has advanced from a justification for an unfavourable outcome to
a surrogate for any outcome at all. The mediator presents herself as a passive
sympathetic listener but actually seeks to persuade the disputants to accept
the status quo.
4. Community. Responsibility for intervening in disputes, like all roles in the
community, is widely shared, either because it is part time (and thus
something that can be done by everyone without pay) or because as many
people as possible rotate through positions with specialised responsibility
(which are paid the same as all other community roles). Although technical
skills are required, everyone is encouraged and helped to acquire them. This
not only disseminates expertise (thus contributing to the growth of an
informed and critical public) but also inhibits the emergence of an entrenched
elite of office-holders. Interveners have little coercive power (although all
communities must reserve the right to expel incorrigibles), but they derive
authority both from institutional structure and process and from their
individual abilities. Recognising that bias is an ineradicable expression of
individualism, the community seeks to ensure that the totality of interveners
is representative of whatever personal differences remain salient and that each
one is aware of and seeks to overcome his or her particularity. Because the role
of intervener is widely dispersed, individual caseloads are low and hearings are
prompt, leisurely, and exhaustive; furthermore, grievances always can be
reopened if any party is dissatisfied. Since the interveners are not significantly
differentiated from the parties (in terms of either ascribed or achieved
characteristics) both participate equally in the hearing; parties receive
whatever training is necessary to permit this. Because it is impossible to
separate the legal from the political, parties first must be rendered
substantively equal in order to achieve a just result. The intervener strives for a
negotiated solution that respects prevailing norms. A central purpose of the
hearing is to educate both the parties and the larger community: to this end
hearings are public and couched in ordinary language.

III. SUBSTANTIVE LAW

A. Contract
1. Custom. Status relations are the dominant form of social connectedness.
Although people do conclude contracts, only a limited number of contractual
forms are recognised. Furthermore, contractual exchanges, particularly if
repeated, tend to congeal into status relationships. Purely executory contracts
are not enforceable because they express no such relationship.
2. Rules. Contractual relations dominate the economic sphere. The number
of contractual forms is virtually unlimited (except for a few illegal acts). Status
relationships retain significance primarily as a fertile ground for making
contracts, which themselves can change the underlying relationship (but
12 Custom, Rules, Administration, Community [1984] J.A.L.
friendship and business do not mix). No matter how long a contractual
relationship may have endured, it can be severed at the will of either party.
Executory contracts are enforceable.
3. Administration. Status and contract are synthesised into a new form.
Status relationships (such as employment) are clothed in a contractual form so
as to create an illusion of freedom within the realm of necessity: a worker who is
exposed to toxic chemicals has chosen to do that job. Contracts (such as
consumer purchases) are disguised as status relationships so as to create the
illusion of paternalistic concern within the realm of free market selfishness: the
price is fair and the quality and safety adequate because the seller has satisfied
certain regulatory conditions. Bur regardless whether the relationship is
presented as contract or status, the terms are fixed unilaterally by one party
(capital and/or the state); compare the reciprocal bargaining over contracts
under liberal capitalism and the mutual subordination to status relationships
in precapitalist society.
4. Community. Interaction and exchange within the community are
structured not by custom or by individual agreement or by domination from
above but by collective decision making. There are no formal limitations on
this structure, but tradition and the need to secure a consensus exercise a
powerful constraint, and the costs of terminating a structure are very high.
Interaction and exchange between communities (which are approximately
equal) occur through agreements, which tend to evolve into ongoing
relationships. In the absence of any superordinate authority to enforce these
agreements, the value of the relationship is the primary sanction, with the
result that purely executory contracts are weak.

B. Property
1. Custom. Property is important as a source of status relationships and
political power (as in feudalism), and these in turn are converted into
property. Only members of certain status categories can own property. The
transfer and use of property are tightly controlled. Several people may enjoy
distinct and different rights in a single parcel. But gifts and exchanges of
property accompany all important social interactions: marriages, rituals,
dispute hearings, etc.
2. Rules. Status becomes simply a means of acquiring property, which now
is valued as capital, i.e., as a mechanism for generating surplus. (But
precapitalist residues are visible in the conversion of productive capital back
into land ownership, as businessmen aspire to become gentry.) Everyone is
equally entitled entitled to own property (a formal equality that obscures
actual inequalities in ownership). AH use rights in a given parcel are vested in a
single owner. There are no restrictions on transfer (which accelerates the
concentration of property among a few and the creation of a propertyless
class). Gifts of property now are limited to kin and close friends, or to
impersonal giving through organised charity; only the very wealthy make
conspicuous donations to enhance their status. Gifts made in other contexts
are denounced as corruption and bribery.
3. Administration. Except for the tiny fraction of capitalist entrepreneurs,
property ownership no longer is the foundation of status, which derives instead
from income, itself a function of ascribed characteristics and cultural capital.
Most people own only consumer goods, which can be freely exchanged but
actually enslave their owners rather than liberating them. Some own shares in
corporations but exercise no control For many, their only form of "ownership"
Vol. 28, Nos. 1 & 2 Custom, Rules, Administration, Community 13
is through participation (as citizens or employees) in organisations (the state
or the company) that own property. Dominion over property actually is
exercised by those whose technical expertise is certified by formal
credentials—which thus become one category of the "new property". Once
again this form of property is limited to the few; the many are passive
recipients of another kind of "new property" in the form of welfare benefits.
There are no limitations on the transfer of property among individuals
(although such transactions may be heavily taxed), either because it makes no
difference which individual owns which property (consumer goods) or
because transfer is impossible (e.g., of credentials and welfare entitlements).
Transfer among those who actually control productive property is tightly
regulated (by antitrust laws under monopoly capitalism, by restrictions on
private ownership under state socialism). Rights in a piece of property no
longer are vested exclusively in the "owner" but are shared with creditors and
the state, among others. Individual "gifts" of property now are organised by
the state (through taxation) rather than by private philanthropy. The state
and monopoly capital also engage in conspicuous expenditures (bread and
circuses). To the extent that state officials monopolise control over the
distribution of economic resources (regulating economic activity, granting
welfare benefits), they expect and receive gifts from the beneficiaries; similar
reciprocity occurs within capital (e.g., insider trading).
4. Community. All productive property is owned and managed by the
community. Decisions are made through a combination of direct democracy
(on important policies) and rotating offices that everyone occupies (on matters
of daily routine). Nonproductive property is owned by individuals, who
express their individuality through it (homes, gardens, clothes, etc.). Property
ownership does not create status nor does status confer rights to property,
because rights in productive property are exercised and enjoyed collectively
and because all have a right to whatever consumer goods they need. The
community expresses and strengthens its cohesion through collective (and
often ceremonial) consumption; individuals express and strengthen their
personal affections through gifts that they themselves have produced.

C. Family
1. Custom. The family is the source of both status relationships and property
entitlements. Relations are enduring. Affect is expected to follow status (or is
irrelevant). Status relationships within the family are thoroughly unequal:
women and children are more objects than actors. A senior male relative
negotiates marriage, accepts marriage prestations, and seeks compensation
for seduction or impregnation; similar rights devolve on the husband at
marriage (e.g., to sue for adultery, to divorce and recover the marriage
payment) and on his heir after his death.
2. Rules. Family relations are contractual. Individual freedom is the
foundation on which parties enter a marriage or terminate it through divorce.
Affect precedes relationship, and when affect ends, so should the relationship.
The logical extension of this idea is single parenthood (fathers abandoning
children, women deliberately conceiving without an ongoing relationship),
contraception and abortion, and state responsibility for discarded dependants
(mothers and children, the severely disabled, the elderly). At the same time,
family, property, and status remain interchangeable: money, power, beauty,
and title still carry value in the marriage exchange (sometimes formalised
through dowry and antenuptial agreements and alimony and support
14 Custom, Rules, Administration, Community [1984JJ.A.L.
payments). There is formal equality with respect to age and gender, though
this hides real inequality and is resisted in the name of custom or tradition.
Just as there are unlimited forms of contract and free transfer of property, so
the marriage relationship can be shaped by agreement between the parties.
3. Administration. New status relationships are created through actions that
take the form of free contract—a recognition of the real inequality between the
parties that underlies the facade of formal equality. Thus a woman who has
lived with a man for an extended period of time, performing household
services, obtains rights in his property and income even without marriage.
And the relationship between divorced parents of minor children persists until
the children reach maturity, especially in the increasing proportion of divorces
where custody is shared. The importance and expense of higher education, the
tightness of the labour market, and the shortage of housing prolong the
dependency of children on their parents, often by a decade. Increased life
expectancy, the high cost of medical care, and the inadequacy of pensions and
social security augment the dependency of parents on their children.
4. Community. Relationships of affection are not influenced by, nor do they
influence, property rights or status differences. Property rights, as we have
seen above, are either held collectively or distributed according to need.
Differences (of birth, age, gender) do not create status inequalities. Therefore
everyone is equally free to enter and terminate relationships of affection
without being swayed by a desire for material gain or fearing material loss, for
each person's entitlement to economic support and to an equal voice in
community governance is independent of such relationships. This separation
of affect from economic, political, and social considerations enhances choice
but also encourages responsibility (rather than flight), for ongoing emotional
ties do not entail economic dependence.

D. Injury
1. Custom. Most significant injuries are the result of intentional acts: assault,
insult, seduction of an unmarried girl, rape, adultery, damage to property.
Furthermore, many are intended to deflate the status of the victim and indeed
have that effect. Even unintentional acts that cause injury are construed as
intentional (by reference to witchcraft beliefs) or sanctioned without regard
to intent (e.g., cattle trespass, accidental damage by fire). Because of the
centrality of intent, the victim seeks a restoration of the moral balance through
punishment of the offender, a symbolic prestation, an apology, or some
combination.
2. Rules. Significant injuries are unintentional: the industrial revolution
increases the amount of energy at the disposal of individuals, and capitalism
and urbanisation distance those in control from those likely to be affected.
Indeed, even injuries that appear to be intentional are construed as
"accidental" if the tortfeasor is pursuing some collateral (usually economic)
goal knowing that injury to others is likely to occur. Mens rea becomes an
essential ingredient in tort liability. Yet there rarely is any animus against the
victim: the offender does not care about deflating the status of the victim (who
is a stranger) but is motivated rather by economic gain, whether the act is
theft, or a speed-up of the production line that injures workers, or the use of
cheap materials to manufacture products that injure consumers. To the extent
that moral blame is apportioned, it is likely to be placed on the victim, who is
held to have "assumed the risk", i.e., to have encountered the injury
intentionally. Injuries are viewed as controversies between individuals.
Vol. 28, Nos. 1 & 2 Custom, Rules, Administration, Community 15
Contract is the dominant response to tort: both agreements not to sue (entered
before the injury is incurred) and negotiated settlements (after it has been
suffered).
3. Administration. The mens rea of both tortfeasor and victim become
irrelevant, either because they are viewed as roughly equal under doctrines of
comparative fault (tout condamner c'est tout pardonner) or because they are
disregarded (the tortfeasor is held strictly liable, or the victim recovers
through a no-fault system of compensation). Where the object under liberal
capitalism was to correct individual wrongdoing by holding particular
tortfeasors civilly liable, now it is to compensate the victim, who has a
status-based claim against a deep-pocket corporate defendant or the state.
This status entitlement cannot be altered by contract. Regulation (specific
deterrence) displaces tort liability (general deterrence) as a means of
controlling dangerous behaviour.
4. Community. Injuries decline. There are fewer intentional injuries: for
instance, there is little motivation to take or destroy the property of another if
all possess the same individual property and most property is communal.
There are fewer unintentional injuries because those who might cause them
simultaneously are their potential victims (through job rotation, consuming
dangerous products, and sharing the polluted environment). Even where this
identity between tortfeasor and victim is not fully attained, they are intimates
rather than strangers and thus concerned about safety. When injuries occur,
the community (rather than an impersonal bureaucracy) cares for the victim.
Freed from the preoccupation with compensation, the response to the injury
can focus on preventing its recurrence (by changing behaviour), on restoring
the moral balance between the tortfeasor and society (by punishment), and on
repairing the relationship between the tortfeasor and victim (by apology and
forgiveness).

IV. LEGAL PROCESS

A. Norms
1. Custom. Norms are particularistic, vague, flexible, inconsistent, familiar,
and widely accepted. They are phrased in vernacular, sometimes in poetic
forms that enhance intensity and memorability through compression and
metaphor, and are absorbed through repeated exposure in everyday
experience. They are preserved through oral tradition, which facilitates
change but in ways that usually are implicit. It is rare for any individual or
group to have authority to amend rules purposively; indeed, the dominant
ideology insists that norms are eternal. Application of rules also is implicit
because they are too well known to require explicit statement; as a result,
dispute processes are fact-centred. Nevertheless, the language of disputes is
moralistic, judgmental. At the same time, it is future-oriented—concerned
with what can be done to restore social harmony, between the parties and
between them and society.
2. Rules. Norms are universalistic, precise, inflexible, consistent, esoteric,
and accepted by only some of the citizenry (if by any). They are phrased in a
jargon (often a foreign language) that purports to be technical and certainly is
unpoetic; norms are learned by a lengthy apprenticeship (early
professionalism) or through formal university education (mature
professionalism). They are preserved in written form and can be changed only
in accordance with clearly specified procedures carried out by those with
16 Custom, Rules, Administration, Community [1984] J.A.L.
designated authority (typically legislatures, not courts). Thus the application
of rules is differentiated from their formulation and amendment (at least
ideologically). Such application is rule-centred (at the appellate court level)
because the rules are neither known nor widely accepted and because the
legitimacy of the court depends on the appearance of fidelity to rules. Courts
engage in legalistic reasoning and are oriented to the past—concerned with
which rules should be applied in light of what has happened.
3. Administration. Norms purport to be universalistic, precise, inflexible, and
consistent but in fact are particularistic, vague, flexible, and inconsistent.
(This is the message of legal realism.) They are phrased in a language that
imitates everyday discourse but quickly becomes esoteric. They can be learned
only by experience, although formal educational credentials still are required.
Although norms are embodied in written form they are so complicated and
discretionary that an oral tradition develops to explain official behaviour. The
same institution (the administrative agency) makes rules (within broad limits)
and applies them, although its legitimacy is problematic. Because rules are
justified purposively, application is oriented to the future—what should be
done to prevent a recurrence of this problem.
4. Community. Norms are universalistic, vague,flexible,consistent, familiar,
and widely accepted. Although some are framed in technical language, this
can be and is learned by all. The same institution (either the whole community
through direct democracy or the occupants of specialised roles which everyone
can and does fill) makes, changes, and applies norms. This process is public; it
seeks both to educate and to elicit criticism because the rules constantly are
changing. The process is concerned with both facts and norms: what
happened (for purposes of assigning moral blame) and what should happen
(to repair the relationship, restore the social order, and forestall recurrences).

B. Disputing
1. Custom. Disputes are polycentric (i.e., there are many different parties
with divergent interests). They involve multiple issues, which are explored in
great historical depth. Disputants are formally unequal, and outcomes are
expected to reaffirm this inequality (e.g., between the old and young, men and
women, indigenes and strangers). But these status inequalities are offset by the
wide variety and dispersion of the resources that disputants can mobilise:
oratory, kinship, political obligation, and physical force.
2. Rules. Disputes are bicentric (other parties lack "standing"). They
involve single issues (because of strict rules of pleading and joinder and narrow
concepts or relevance) and are granted only a shallow history. Disputants are
formally equal, and outcomes are expected to disregard any inequalities. But
in fact the resources disputants can mobilise produce cumulative inequalities:
wealth (which enables a party to engage in strategic delay) and the technical
expertise wealth can buy. This inequality is a direct result of legalistic decision
making.
3. Administration. Disputes are polycentric, but the state determines who can
participate (and itself is a party). They are expansive in their concern with the
future rather than the past (e.g., environmental impact statements,
inflationary impact statements, etc.). The dispute process acknowledges
actual inequalities between parties and seeks to compensate for them (if
inadequately). But in fact most of what passes through dispute institutions is
not a dispute at all but rather the routine bureaucratic processing of matters in
which there typically is only one party: the state or a capitalist repeat player.
The other party either has defaulted or participates only formally.
Vol. 28, Nos. 1 & 2 Custom, Rules, Administration, Community 17
4. Community. Disputes are polycentric because the entire community is
involved. For the same reason, they raise multiple issues, though there may be
some limitations on the breadth and depth of inquiry because it is possible to
put an old grievance to rest. Disputants are equal, not just formally but also
substantively, not just equalised for this dispute but also in their daily lives.
C. Social control
1. Custom. Social control occurs through interpersonal disputing; there is no
differentiated state to take responsibility. Much social control is mediated by
informal sanctions imposed or threatened by ordinary people in everyday life:
deference, rebuke, avoidance, hospitality, respect, reciprocity. Their efficacy
is enhanced by the multiplex ties that bind all who are likely to offend each
other. At the same time, these societies have difficulty in dealing with the
persistent deviant, except by tolerance, exile, or execution.
2. Rules. The rise of the state is in large part its expropriation of the right to
redress individual injuries: tort becomes crime. Civil matters decline as state
prosecutions dominate the courts. Claims between intimates decrease; the
court becomes a forum for litigation between strangers, but the latter
frequently prefer to exit from a troubled relationship. The victim is banished
from the scene, so that prosecution is exclusively a matter between the state
and the offender. Sanctions (like procedures) are formalised; these may be
adequate for dealing with the economic maximiser (the purely rational
offender who constantly calculates the likelihood and severity of punishment),
but they are too cumbersome to control casual deviance (indeed, they turn
amateurs into professionals). To regulate the latter, the invisible hand of
custom is succeeded by that of the market and the patriarchal family.
3. Administration. The state mobilises an increasing range of institutions to
assist it in the task of social control: the family, the school, the workplace
(where the state often is the employer), and the ideological apparatus
(religion, the mass media, politics). In order to husband its resources, the state
selectively decriminalises some behaviour (mainly consumption—of sex,
alcohol, drugs). There is an attempt to repackage state social control in the
guise of interpersonal disputing through the reintroduction of the victim,
diversion from the criminal process, and the use of mediation. Sanctions
appear to be informal but in fact are backed by the threat of state coercion.
4. Community. In order to enhance the efficacy of individual and collective
grievances as a means of social control, the community strongly encourages
their expression in formalised hearings, before either the entire community or
the occupants of specialised offices through which everyone rotates (indeed, it
discourages grievants from lumping it or exit). These processes are both public
and private, expressing community sentiments but also involving the victim.
The community must establish the basis of its concern; otherwise the
behaviour is a private matter for the parties. There are no specialised
enforcement agencies: once the criticised behaviour has been exposed, its
correction is left to informal sanctions. But the community retains the right to
expel those who refuse to submit to the process or persist in flouting public
opinion.

V. CONCLUSION

If the four configurations of law in society sketched above (in a very

fragmentary, tentative, and incomplete manner) have the internal coherence
18 Custom, Rules, Administration, Community [1984] J.A.L.

and logical necessity I attribute to them, several important consequences

follow. First, it is very difficult to change a single element. For instance, when
European colonial regimes sought to impose their parochial conceptions of
legal process (usually dignified as "the rule of law") on precapitalist African
societies, while otherwise seeking to preserve those societies, the effort failed in
one of two ways. Either the new process was stillborn—a formalistic
proceeding that confirmed a result already reached by traditional institutions
or an imposing decree that promptly was nullified by subsequent events; or the
process succeeded all too well—transforming legal institutions, personnel,
substantive norms, and ultimately social relations in the direction of liberal
capitalism. To continue this (dangerous) organic metaphor—rejection of the
foreign tissue or transformation of the organism through its incorporation—
similar alternatives can be traced in the transition from competitive to
monopoly capitalism. The novel institutions of the administrative state first
introduced by the political process often were struck down by legalistic courts:
early wage and hour laws, or workers compensation programmes, or the entire
regulatory apparatus of Roosevelt's New Deal (both its substantive doctrines
and the structure of administrative rulemaking). On the other hand, once
administrative agencies were accepted, they proliferated rapidly, quickly
supplanting courts as the locus of most important conflict and decision
making. The enormous obstacles confronting those who seek to create islands
of decentralised socialism within the hostile environments of advanced
capitalism or state socialism hardly need recounting.
The second lesson is: "you can't go home again". It is equally impossible
selectively to preserve elements of a configuration—whether a customary
practice in a regime of rules, a legalistic rule in the administrative state, or a
centralised hierarchy in a community. Although I have presented the
administrative regime as though it were a combination of custom and rule, like
all such syntheses its component parts have assumed new forms. The
transformations that occur are not a cyclic return to the status quo ante.
Indeed, they preclude any such return. The professionalisation of law
associated with the displacement of custom by rule deskills both the citizen
and the disputant, disabling them from participating in customary legal
processes in much the same way that the rise of capitalism deprives the worker
of the skills necessary to control the productive process. The arrogation by
monopoly capital and/or the political branches of the state of the power to
allocate the vast bulk of accumulated surplus necessarily marginalises courts
as significant economic institutions. People who once have participated in
governing their own community—deciding disputes, formulating rules, and
running the economy—never again will be as passive or maleable when
confronted with a centralised state or a capitalist employer. The same
irreversible transformation occurs at the level of ideology. It is not possible to
restore the authority of chiefs or elders when everyone agrees it is the young
men and women with Western educations who possess socially valued
knowledge. Neither courts nor scholars can revive legalistic forms of reasoning
that have been ridiculed by generations of legal realists, especially when the
dominant discourse legitimates legal rules by reference to instrumental
purposes. Once women have been equal actors in all realms of social life, it is
impossible to argue convincingly that they are inherently inferior or incapable.
But this exercise suggests two other observations that may be even more
important. One is that every society and legal system contains residues of
earlier configurations, and it is possible to nurture these rather than
undermining or destroying them. Thus there are potent manifestations of
Vol. 28, Nos. 1 & 2 Custom, Rules, Administration, Community 19
custom wherever there are emotionally strong, multiplex, enduring
relationships, and such relationships survive even in competitive and
monopoly capitalism and state socialism—sometimes in the family (albeit a
transformed family, whose members enjoy greater equality), sometimes in the
workplace, or ethnic group, or voluntary association, or church, or even
neighbourhood. Where they survive it is essential to construct a realm of
privacy protected (as far as possible) from domination by economic
relationships or intrusion by the state. Similarly, people continue to value
rules wherever individual autonomy is threatened by coercion, especially state
coercion—and this threat persists not only under advanced capitalism but also
in some forms of the socialist millenium. Therefore legalism has a continuing
role to play in protecting the citizen from the state. And if community
repudiates the statist authoritarianism of the regime of administration,
nevertheless it preserves central elements of the latter: the notion that the
collectivity has a responsibility for its members that includes the organisation
of both production and reproduction.
The final lesson may appear to be a repudiation of everything that has
preceded it. The tone of this essay has been strongly deterministic: societies are
totalities in which the whole shapes the parts; they are transformed by
inexorable forces—the conquest of precapitalist societies by European
colonialism, the rise of capitalism, the concentration of capital and the
symbiotic growth of the regulatory state. Yet we know that such a narrative
conceals more than it illuminates. The successful revolutions against colonial
rule demonstrate the power of people to change their destiny. The resistance to
authoritarianism of both the right and the left shows the resilience of
individualism. The struggle for socialism in the face of domestic and
international opposition reaffirms the dedication to autonomy and equality.
So it is possible for people to strive for the law and society they want. Certainly
they cannot recreate precapitalist custom; but they can seek to construct social
environments in which everyone participates in rulemaking, judging, and
"disputing. They cannot restore the faith of the pandectists in a logically
coherent, comprehensive, fully-determined system of rules; but they can strive
to offer principled reasons for the exercise of power. They may have
reservations about the efficiency and incorruptibility of centralised planning;
but still they may choose to subject the principal social resources to collective,
rather than individual, appropriation and use. And they may visualise and
seek to attain a law and a society that transcends all the categories of recent
history. It is important to see the connections between law and society—not to
be paralysed by a vision of necessity but to choose wisely among alternative
futures.