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The articles in this symposium issue demonstrate the problems and potential in the use of custom in modern legal systems. Marie Kim describes South Korea’s struggles to fit custom, both age-old and possibly recently invented, into a modern constitutional structure. Professors Modéer and Ørebech detail the different directions Eastern and Western Scandinavian countries have taken, with Sweden showing more tolerance for custom in its property law and treatment of the Sàmi and Norway adhering to a code-based system that only begrudgingly allows custom to sneak in at the margins. One of those margins in Europe, as Pascale Fournier and Pascal McDougall’s Article demonstrates, is the family law customs of Jewish and Muslim minorities in Germany, an issue that will likely prove a continuing challenge to the civil law systems of Europe. Professor Kostritsky undertakes an extensive survey of the various ways in which law and economics adherents use and try to define norms, a form of custom that has emerged from the shadows to prove that custom has not completely disappeared even in our heavily regulated and legalized society. By contrast, Henry Smith suggests that the age of custom is largely over in American law, at least in the field of property, because custom can only function within relatively small communities and cannot provide generalizable rules of law. Finally, Professor Schauer offers Hartian insight into the perennially difficult question of how to define custom, a problem with which jurists have been struggling since at least the twelfth century.
Despite the current flood of interest in bottom-up lawmaking that these articles represent, custom is preeminently pre-modern law—law before the common use of legislation, before the sovereign nation-state. And if the medieval jurists peered over our shoulders they would, I suspect, conclude that lawyers today do not quite understand how custom works.