>> From the Library of Congress in Washington, DC. [ Silence ] >> Oiay [phonetic], oiay, oiay comes before this venerable forum, the vexillary of the lexillary [phonetic]. Emily Kadens came from Austin via a Chicago Princeton in Belgium where she mastered Dutch, taken for a native speaker along the way. Not to be confused with others, well known by the same first name; Emily of List or Belle of Amherst. Kluge's, Emily has the true scholars, drive and thirst. This extraordinary storyteller, with her own Dickinsonian flair, exposed the Madoffs of their day in a riveting analysis of the 18th century Pitkin Affair. Do you believe in the law merchant myth? Then watch her debunk it with incredible intellectual [inaudible]. She's the legal historian who knows no bounds traveling from ancient Rome to modern bankruptcy. Emily knows so well the entire Saga of legal publishing from A to Z. Today she'll discuss the influence of custom as exemplified in international law. Something now often stuck in our highest court's crawl. Emily. [ Pause ] >> Thank you Roberta. Now we know yet another arrow that you have in your quiver. Before I begin, I'd like to thank the Kluge Center, the Library and Roberta Schaffer for having given me the opportunity to spend the time here doing this research where I have all of the resources accessible in one place. In March of this year the Supreme Court heard an argument in the case of Kiobel versus Royal Dutch Petroleum. The case concerned a lawsuit brought by Nigerian plaintiffs against Dutch and British oil companies alleging that the companies had aided and abetted the commission of human rights abuses against the Nigerian plaintiffs in Nigeria. The reason this case, in which no events occurred within the United States and which involved no American citizens or companies, can arguably be heard in an American court is a little understood sentence in the Judiciary Act of 1789. Section 1350 of that Act is known as the Alien Tort Statute, and it provides that district courts shall have original jurisdiction of any civil action by an alien for a tort only committed in violation of the Law of Nations or a treaty of the United States. The most ambiguous part of this statute and the part that brings it into contact with my historical research is the reference According to a scholarly tradition, that goes back to the seven -- 16th century Spanish theologian Francisco Suarez, and an intellectual tradition that goes back to the Romans. The Law of Nations is customary law. In fact, today scholars no longer speak of the Law of Nations but rather of customary international law. The problem for the Supreme Court in Kiobel is determining what constitutes customary international law and, in particular, in this case, whether companies can be liable for having violated it. At the time of the drafting of the Alien Tort Statute, the Law of Nations was most commonly held to concern safe conduct rites, ambassadorial immunity and prohibition on piracy. More recently, scholars have wanted to claim that customary international law should encompass prohibitions on such things as torture, genocide, war crimes and environmental degradation. This concept continues to expand, in part, because of changing notions of nations obligations to safeguard human rights and, in part, due to the failure of courts and scholars to pinpoint a fully functioning definitional yardstick against which to measure claimed international customs. In other words, we don't know how to know an international custom when we see one. This difficulty in determining the definition of custom is not new. It is not limited to international law. And it is not progressing toward a solution. In 1936, a French scholar, writing after over 50 years of modern international law scholarship, stated that the ideas of jurists about the character of custom have attained neither unity nor clarity. The same sentiments continue to be expressed today. An American scholar recently observed that customary international law has evolved into a meaningless concept that furnishes neither a coherent nor objective means of determining the norms of international law. And yet custom in international law is a meaningful type of law. In fact, international law might be the only place in which custom still furnishes a meaningful type of law. Article 38B of the Statutes of the International Court of Justice lists custom as one of and in fact perhaps the most important This continuing uncertainty about the definition of custom and its continuing importance to international law raises two obvious questions. First, why can't we come up with a definition of custom? And second, if we can't, why do we continue to insist on using it as a source of international law? I will leave the second question to the side as more properly answered by a scholar of modern law, other than to make one observation. It makes perfect sense that people looking for rules to govern the interaction of nations should have conjured a custom as a source of law. Custom arises bottom up in communities in which the state cannot impose its will. The community of nations obviously has no supreme lawgiver. And in the absence of this world Legislature, it is quite logical Having made that observation, I will return to the first question. Why can't we come up with a definition My first answer may sound tautological. We can't because jurists have been trying to define custom for 800 years without coming any closer to a solution. My second answer may help explain the first. The definition with which jurists have been working all this time fails accurately to reflect the reality of custom as lived So what we have in the realm of international law is a community of nations that does not at all resemble the communities in which custom truly does function as a source of law. We have a failed legal definition, and we have the absence of the necessary factors to permit customs to flourish. I'm going to begin with something of an intellectual genealogy in which I discuss how the medieval jurists treated and discussed this theory of custom as law and show how that -- those discussions are continuing today. And then I'm going to turn to historical evidence to show why this legal definition does not satisfactorily explain how As with just about every issue in the history of law, we have to begin with the Romans. The Romans offered a definition of custom that said that it arises from behavior frequently repeated over an indeterminate long period of time to which the community has tacitly agreed. It's tacitly come to an understanding that it must continue to perform that behavior. This Roman definition is the root of every subsequent discussion of custom to the modern day. Article 38B of the International Court of Justice defines custom as evidence of a general practice accepted as law. That, that to the Romans is obvious. Modern customary international law scholars speak of state action plus opinio juris sive necessitates. Repeat behavior by state plus a sense of obligation to perform that behavior because it is law or from necessity. Well, as the medieval jurist would say, omni [phonetic] stefinichio [phonetic] sit [phonetic] pericolosa [phonetic]; every definition has its perils. Nevertheless, they added, in order to understand what one deals with, every discussion must begin with a definition. And so they struggled and so we continue to struggle. The basic problem confronted by all jurists in thinking about custom is that doing an act because one understands that one may do it is not the same in law as doing it because one believes that one must do it. We call the former a usage, nonbinding repeat behavior, and the latter, a custom binding law. The jurists, the law professors of the 13th century, University of Orlio [phonetic], explained this distinction to their students by saying just because all the men of a village have done the pilgrimage to Santiago de Compostela in Spain for a hundred years does not mean, that, anything more than that they may, that they are permitted to do it. The fact that they have done it for a hundred years does not indicate that current and future men must, that they are bound to do it. Finding a means to determine when a community's perception of a behavior has moved from a may to a must has been the single conundrum of all discussions of custom since the Middle Ages. Note that this problem does not exist with legislation. Custom arises from behavior tacitly consented to. Enacted law arises from the specific express dictate of a lawmaker, whether that's a legislature or a ruler. Enacted law has a point of origin. The moment of the declaration that it is the law. It has a timeframe of application prospectively from the moment of that declaration. Custom is backward looking. It arises over time, and that duration is part of what gives it its authority. And yet a community may have been performing a behavior for a long period of time before it understands itself to be obligated So I hope that you are beginning to get some sense of just how problematic this very concept of custom is. When does behavior become law? The medieval jurists, following the Roman definition, said you had to have behavior repeated over time to which the majority of the community, that was their addition, the majority of the community has tacitly consented to be bound. Well, much of what the jurists had to say about custom was fairly mundane. Just as today, they asked, okay, how long does a behavior have to have existed before it can give rise to a custom? In the 12th century, some jurists started out by saying it has to have existed since time immemorial. But by the 13th century, they had accepted that 10 years sufficed. And just as do scholars today, they asked, well, how many repetitions of this behavior do we need before we know that a custom has been formed? And they debated this for a while and, finally, settled on two pieces of approved evidence of the fact of the acceptance of the behavior during the 10-year period. And the jurists understood that this tacit consent was vitally important in distinguishing between a usage and a custom, but they had no more success than do scholars today in trying to figure out how you show that, that tacit consent has actually taken root. If we were trying to ascertain today whether there was a sense of obligation to be bound to a modern international custom, we might look to UN does resolutions, diplomatic statements, treaties, scholarly writing. For the jurists, they would look to evidence of the repeat behavior. They would ask witnesses if they believed that there was a custom, and they would look at what had happened if the custom had been alleged previously in court. All right. Instead of detailing these rather basic debates, I want to focus on four more complicated more interesting examples in which the jurists also addressed issues that are being discussed by scholars today. My first example concerns a theory that is controversial and being debated right now. It is the theory of instant custom. Although modern courts, just like medieval jurists, have traditionally required that custom be shown through repeat behavior over a period of time, some scholars have argued that in today's fast-paced world the only thing that matters is whether state believe that they are bound to an act and not whether that act has actually ever been performed. This obviously entirely eliminates the objective part of the definition of custom practice and maintains only the subjective element, the opinio juris, or the sense of obligation. Some people have expressed a less extreme version of this theory, that, saying that a custom conform over a very short period of time if there has been an act, any articulation of a rule corresponding to the act. Well, critics consider the theory of instant custom to be absolutely revolutionary. But I'm here to tell you today that the 13th century French scholar Jacques de [inaudible] toyed with a very similar concept. He presented to his students a hypothetical about the creation of the custom of primogeniture. He said, all right, imagine that there was this village or this town and the town went to war. And on a single day all or almost all of the men of that village were killed. And on a subsequent single day their sons all adopted the usage that the eldest son inherits the family property. If no one, for a period of time, objects to this usage, it has, by that single act, become a custom; instant custom. My second example concerns another very pressing question today. Who is bound by a custom? This is of great significance in the international arena because the basic rules of customary international law were created by Western imperialist states. So does that mean that non-Western and new states should be bound to something in which they had no hand in creating and to which they were never given the option to choose to consent to? The jurists asked this same question in two contexts. The issue arose first in discussions of the relationship or the similarities between implied contract and custom. The jurist noted that in both instances the agreement or the fact that being bound arose from consent, but some people such as miners and the insane cannot consent to a contract. They lack the capacity. Does that mean that they are not bound by a custom? No, the jurist answered. The reason is that custom differed from contract because a contract bound only the consenting parties. A custom binds everyone. As the definition that they put forth said, the tacit consent is not required of the whole community but rather just of the majority of the community. And once the majority of the community has consented to be bound, the rest of the community is bound. The second context in which the question of non-consenting parties arose was in discussions of whether local customs bound foreigners. And here the jurists drew a distinction. If the custom concerned a daylict [phonetic] similar to a tort, then a foreigner was bound only if he knew or should have known of the custom. But if the custom concerned contracting, if it was a contracting custom, then the custom of the place of contracting controlled and the parties were bound whether or not they were foreigners. My third example concerns a perpetual debate in the world of jurispruds. Does custom exist before it has been expressed as a rule by a judicial opinion or a statute? Certainly, ever since the 19th century and perhaps well before that, lawyers have said wait, only the state can make law. Therefore, how is it possible that custom, which is law, can arise merely from the behavior of the people? The jurists too asked this question, but they realized, at least by the later 13th century, that they had to distinguish between two issues. Does the judge in stating the custom take an underlying nonbinding behavior and turn it into a custom by stating it as a rule? Does the judge create the custom? Or is the judge's opinion merely evidence of a pre-existing already binding custom? The jurist said that the judge's intervention was not required to create the custom but that the judge's decision was one of the best ways to prove the existence of the custom. By accepting or rejecting the custom, the judge gave voice to the tacit consent of the community, in a sense. The judge, while not making the law, was sort of serving as an expert witness to the community sense of obligation. Now the jurists were sophisticated enough to realize that this might create a little problem, because in litigation one of the parties was denying the existence of the custom. And the whole premise of the tacit consent is that it had to be voluntary. So if the judge was obligating one of the parties by his decision, then that consent was not voluntary. The jurist said, well, that's easy. Because the parties consented voluntarily to accept the jurisdiction of the judge. It's not the judge's statement of the custom. But what about the rest of the community? The rest of the community was only bound by the judge's statement of the custom if they did not object to it. Their silence indicated assent. But if they objected to it, then the judge's statement of the custom had no authority as evidence. My final example is a paradox that modern scholars have identified as inherent in the act plus sense of being bound, definition of custom. If a custom arises because you have repeat behavior plus the sense of obligation to perform that behavior, then the first actor who performs the behavior cannot create a custom or cannot believe that there is a custom because that first actor would be in error if he thought that he was obligated to perform this behavior. And according to the Roman definition, since accepted by everybody else, custom cannot be founded on error. Now the second actor would also be in error if he believes he is bound to perform this act, because the first actor created the custom and the third actor would be in error, et cetera. [ Pause ] Nobody's ever figured out a way to get around this paradox and that includes the medieval jurists. The great 14th-century Italian jurist Bartolus de Saxoferrato identified this paradox when he was talking about, well, when does the ten-year period start when you have behavior and people understanding themselves to be bound? And he said some say on the day of the second act, for that is when the people begin to consent. Before that, no agreement exists that can be established. But certainly, the people are not seeming to consent by the second act, unless a certain amount of time intervenes. The gloss and the doctors, in other words, the jurists hold that it is the act on the first day. No more than, can scholars today, could Bartolus figure this out. And so he fell back on the observation that it shall suffice if, within 10 years, there is a judgment, for through the running of time and repetition of the acts, the tacit consent is established that introduces a custom. All right. So, so far, I have discussed the similarities between medieval jurist discussions of custom and the debate currently raging amongst customary international law scholars. It is possible that this definition of custom has never been replaced by an alternative because it is the best legal definition that we can come up with. But my point, so far, has been to show that this definition is, nonetheless, riddled with difficulties that have plagued the jurists who have thought about it from the 12th to the 21st century. The definition is problematic for another reason. It doesn't correspond to the reality of how custom actually functioned as a force regulating behavior in communities. The evidence of custom in its natural habitat. In other words, before it gets written down or is expressed by a judicial opinion, suggests that custom does not and in fact is not intended to produce rules of decision; and yet that is what the legal definition aims for, the creation of rules of decision. So what I want to do with the second part of my talk is attempt to make clear the problems with generating formal rules from custom from behavior alone. Creating rules from behavior is tricky for two reasons. One, is that custom produces indeterminate behavior, and the second is that people's expressions of that indeterminate behavior are manipulable. So why do I say that custom generates indeterminate behavior? Take, as an example, the custom in 16th century Douai that a sick testator could only make a valid will if he walked across the drainage ditch in the middle of the street. Now let's say that the validity of a will was contested and it turned on whether or not the testator had properly performed this behavior. So we call witnesses, say, okay, what's the custom? And one witness could say, well, you have to step across the drainage ditch. Another said no. You have to jump across the drainage ditch. And another says, well, you have to get up from your sick bed and you got to walk out of your house, and you got to walk across the street until you cross the drainage ditch. And then another one says, no, you just have to walk across the street. Now why can this happen? Because the only thing we know about the custom is what we have observed people doing. And we may have observed people performing slightly different actions, and we might not know exactly which part of the total action that they are performing constitutes the mandatory The point about custom, as tacitly arising from behavior, is that nobody stops to define what it is. Nobody stops to articulate it, necessarily. And the result then is that we get a constellation of conforming behaviors, all of which people say, yeah, you've performed the custom, even though what you've done might be slightly different from what somebody else has done. Because of this indeterminacy, custom evolves over time, as jurors remember the behavior slightly differently. Philippe [assumed spelling] de Bouman [phonetic] Waugh [phonetic], the author of this monumental 13th century customs of the county, of the French County of Bovai, [phonetic] observed at the end of his work that the customs were right at the time that I wrote them down. It's not my fault if they're not right in the future because the way jurors have remembered the custom has changed. These variants, this constellation of conforming cut behaviors could last for a long period of time. Because in order to nail down what the custom is, you might need disputes. But in what situations do disputes arise? Probably they're not going to arise over very common behaviors. In other words, exactly the province of custom. Because if everybody does something and sees that everybody else does it, they're not going to fail to do that behavior, unless they're very powerful or they're an outcast and they don't care what sanctions they're going to suffer. So where might we get contests over custom? Well, one, when you have had social or economic change that has rendered a pre-existing agreed upon custom inefficient and, therefore, people had begun to stop believing that they're bound to it. So then one question is, is it still a custom at that point? Another place we might see disputes, behaviors that are not clearly customs. People do things, but it's not clear that we have to do them. A third example is when networks do have a particular custom and, they are genuine customs, and they think that everybody else does it the same way but another network, in fact, does it differently. And we only discover that when the two networks interact and they come into conflict. We see this latter happening a lot in medieval litigation over commercial disputes, where you'll get one side bringing in its witnesses to say this is the custom; the other side bringing in its witnesses to say this is the custom. Now one of those parties might be lying, but it's also entirely possible that the two networks just do it differently and don't realize the other party has their own particular patterns of behavior. This exact same problem arises in modern international law. When the International Court of Justice confronts something like this, they have never and in fact may not be permitted to declare what's called, non liquet, to declare that there is no law or custom controlling the issue. And so they do what medieval courts did as well. They pick one of the two expressions and they say Now I also said that custom is difficult because it's manipulable. Well, we have a dispute now and we have to call witnesses. How trustworthy are these witness statements? Are the witnesses relating the custom as it is, as they want it to be, or as they think that it should be, as they think that other people think that it is? They could be giving these not entirely accurate statements of the custom in completely good faith for precisely the reason that they haven't for themselves articulated what the custom is. Let me give you an example I pose to a student and think about this for yourself. I asked the student do you brush your teeth before going to bed at night? Now, of course, the student said yes. And of course, if I had asked you to raise your hand, you would have all raised your hand because, one, you expect that everybody else expects you to have that custom. You might not have that custom. But your mind, if you were asked in a court, might allow you in perfectly good faith to say yes, that is the custom. All right. The student acknowledged that yes, he brushed his teeth. So then I asked him for how long do you brush your teeth? You've done this every day of your life since you were like three years old. The student has no idea how long he spends, once, twice, three times a day brushing his teeth. So he said, well, for a minute. Really? If you were asked what is the custom, how long are you supposed to brush your teeth, you could perfectly in good faith just make up an answer that does not in fact correspond to the real behavior. There's another important characteristic of custom and, that is, that courts applying customary law tend to do equity. In other words, the jurors or the judge allows themselves to be swayed by sympathy or antipathy toward the parties in the way they formulate their memory of the custom. It is as the -- one of the leading English legal historians, David Ibbetson, has said custom is a backward-looking way to achieve a forward-looking result. It is, in fact, the case that not all statements of custom were made in good faith. The Alamos [phonetic] Potatus [phonetic] in his 13th century customs of Ladyda [phonetic] railed against those who, when the custom was in their favor, affirmed the custom. But in a similar case, when the custom went against them, declared it was not the custom. And we can see this sort of manipulation in a document from 1197 by Gilem [phonetic] the Eighth of Montpellai [phonetic] who, in order to remove his daughter and sole legitimate child from the inheritance, alleges an age old and undoubted custom that females cannot inherit; whereas, in fact, in that locality the custom seems to have been the opposite. All of this has led me to formulate a theory that custom is in fact a duality that there is, on the one hand, the behavior custom and then, on the other hand, the rule custom. The behavior custom arises from the repeat behavior of the community to which they have consented to be bound. It does not need to be expressed by a court. It exists as a law. It has all of these qualities of indeterminacy that I've already discussed. But if a dispute arises, the court needs to be able to formulate a rule. And so it takes these various articulations of the behavior, picks one and states it as a rule. That's the rule custom, which is essentially a mirror of the behavior custom, but it's not exactly the same thing because it's only one little slice of it. The rule custom can then evolve over time in very much the same way that the common law evolves over time. But we should not forget that the underlying behavior custom also continues to evolve over time because of the inherent characteristic of custom to change and that the next time a court must seek out witnesses to the custom, the evidence as to the behavior might be something different. The medieval jurists, like modern lawyers, have focused their definition on seeking the rule custom part of custom and yet they were not it seems unaware of this duality. They, as in all primitive societies and as in the English common law, said that custom is a fact. If you are proving a statute, you go to the written text and you allege the written text. If you have to prove a custom, you get witnesses. You prove it as you prove a fact. And in fact, the 13th century Italian jurist Otto [phonetic] Friedose [phonetic] seemed to suggest that he believed that the real custom was the underlying behavior and that the rule was just its reflection. Okay. So how does this historical account relate back to the dilemma with which we began? The lack of a workable definition for international custom. Well, it suggests that a legal phenomenon custom, that worked historically under a very different set of circumstances, might not work when transplanted to modern international law. Why? Well, first of all, all of the problems of that, the definition that I've mentioned, have not gone away. We still don't know how much time, how many repetitions or how to prove opinio juris. In other words, we don't really have a rule. It is left entirely up to the judge to decide have you shown sufficient evidence? Have you shown sufficient duration? And in theory, have you shown opinio juris? The International Court of Justice gives lip service to requiring opinio juris but they've never actually asked litigants to prove it. This discretion of the judge, in particular, at the level of the International Court of Justice, raises some really troubling sovereignty problems. In law we have two interpretive schools; formalism, which says that the judge just applies the law in a very mechanical fashion; and realism, which says that, well, the judge can't apply the law mechanically. The judge's biases are going to influence the way the judge finds the law. The application of custom is the extreme example of realism. Because not only does the judge have total discretion over whether or not there's been sufficient evidence, but the judge gets to pick amongst these different articulations of what the behavior is and say that this articulation represents the rule as opposed to that articulation. Now what happens if the Supreme Court in trying to decide if a particular behavior constitutes international custom? We're to look to the holding of the International Court of Justice and to say, okay, they found that this is custom; so that's evidence for us that in fact this custom exists and we have to apply it as the Law of Nations, as the law of the land. And yet that finding of the custom was really dependent entirely upon the discretion of the judges of the ICJ. In the Middle Ages you had a feedback loop. If the community didn't like the judge's articulation of the custom, they just didn't accept it. We don't have that kind of feedback loop anymore. Then we have very pragmatic problems. Customs arise in situations where a group of people can mirror and police the behavior of each other. One person does a behavior. And maybe because they're influential or they're powerful, another person observes it and does the same behavior, and a third person observes it and does the same thing. And over time they come to believe that we must do this because it's the way it has always been done. And once we've achieved that point, people continue to abide by this behavior, either because no one dares to do anything different or because anyone who does will be sanctioned. Well, in the international arena, how do we mirror and police the behavior of other nations? Start with a fundamental question. What actor are we watching, are we observing? Is it the head of state? Is it the legislature? Is it the Secretary of State? Is it a diplomat? Is it the behavior of a single naval ship? What actor represents the state action? Because, of course, as we all know, in big governments the left-hand might not be doing the same as the right-hand. Okay. Putting that aside, how many resources are we supposed to devote to trying to watch the behavior of other countries to see whether a custom is arising or whether other countries are abiding by a supposed pre-existing custom? It's very interesting to note that from the Middle Ages to the 19th century there's a consistent trope that customs could vary wildly from place to place, even across extremely small geographical distances. This suggests that such transaction costs of monitoring the behavior of people who aren't even very far away from you represent a prohibitive barrier to generalizing custom. We have another problem. In a medieval village people had similar interests. They might not have been exactly congruent but they were similar. How much interest does the United States share with the Republic of Palau, or with such other large powerful nations as Russia and China? In the medieval village if there wasn't a congruent of interest, a custom could still be maintained by the exercise of power, which explains why feudal customs, which were so detrimental to the peasant, could be maintained for hundreds of years. But in international law it is axiomatic that all countries are equal and, therefore, it is simply unacceptable to talk about customs as reflecting the behavior Finally, if international behavior really did constitute customs, then they would evolve over time because that is in the nature of customs to do. And yet international lawyers want fixed rules. They want to find winners and losers. In communities in which custom actually governed the resolution of disputes was often not a matter of finding winners or losers but rather of maintaining peace in the community. So they didn't need to find formal rules very often, which is really good because custom is extremely poor at producing formal rules. I tell my students that legal history is a form of comparative law. And what comparative lessons does the history here teach us about modern customary international law? Well, let me suggest too, first, that custom functions under very specific circumstances in which the people can mimic and police each other's behavior in which you don't have a great deal of need for formal rules in which there's generally shared interests and in which courts are willing to do equity rather than find winners and losers. In the international community we do not have these characteristics. And in particular, we want to find formal rules. Well, when you want to find formal rules, you have to get lawyers involved. And when lawyers get involved, they try to take this very squishy concept of custom and force it into the narrow parameters of formal law. Custom is not formal law, and that's in the international world of divergent interests. And the need for rules, customs has very little place. Thank you. [ Applause ] I think I'm now permitted to take questions. We have a few minutes. [ Pause ] >> What you are presenting reminds me of [inaudible] article, The Invention of Tradition, in which he distinguishes between custom in a very similar way you describe it as something that is malleable and changes. And it is actually very presentist in its function as opposed to tradition which is something that is fixed and artificially fixed in many ways and rather relates back to the past to justify something that is useful in the present. So I'm wondering whether you would be arguing that international law is, in many ways, an invention of tradition as opposed to something that is actually really customary? >> I actually -- I don't think that you could say that international law is tradition, in large part, because it hasn't been around very long. So modern international law arises in the 16th and 17th century from such scholars as Suarez and Grotius and Puffendorf and Vattel. And they looked around and they say, well, what particular behaviors do we see that the small group of Western nations generally agree to? And to some extent, -- of course, they're creating this because they're taking behaviors and they're assigning them rules -- but to some extent, there really were a particular set of behaviors that were generally accepted. That's a very small list. I think if you count it up, it's about twelve things. And that list remained consistent for quite some time. And it was really the 20th century and, particular the work, the Nuremberg War Crime Trials, that led to this absolute explosion of the idea that, well, customary law should be this, this, this and this, in addition. And most of these new rules right now have to do with preventing human rights abuses. And then you have a whole emerging strand concerning environmental degradation. Scholars do not hide the fact that this is new, that this did not exist a hundred years ago. But they still think that, well, we have this emerging consensus and, therefore, it's a custom. Essentially, what they're doing is they're taking this term, custom, and they're using it where -- what we really have are moral norms. And why won't they use the term, moral norms? Because moral norms are not binding. Custom is binding because it's law. And they want this to be binding law. But from my perspective, as somebody who's very interested in the definition, which everybody avoids, because that's the hard question, and they avoid it not only in international law but also in this other area of law called, the Study of Norms Theory. They'll say I don't know what a norm is but I'm going to talk about it anyways. From my perspective, the difficulty with this is they're taking phenomena that are legally distinguishable and they're calling all of them custom, which means that the whole concept of custom, as a source of law, has become meaningless. John. >> Thank you for your splendid debut. It was really wonderful. I was wondering about the medieval writers thinking about different venues, not geographical or political venues, but different venues of authority and how custom works within that; the [inaudible], the church, the convent, the business, the Guild, the fraternity, the sorority, all of which were viewed as legal entities with internal rules; some written, some unwritten. And the question becomes, well, what happens in the taxonomy of custom as you begin to think of all these different types of authority structures that -- [ Inaudible ] Did the jurist with whom you're associated start thinking that too as well of having another dimension to the custom [inaudible]? >> Yes. They do start to think through the different layers of, shall we call, binding behavior. You don't see it real early on. You begin to see illusions to this, certainly by the time you get to Bartolus in the first half of the 14th century. By the time you've gotten to Suarez in the 16th century, who's really the last of the medieval jurist in terms of a discussion of custom, this has become quite explicit. What they do or the -- what the medieval jurists do is say, listen, we have to distinguish between different concepts such as usage, style, practice and custom. And the distinction, that really is very clear by the time you get to Suarez, is it's a custom only if it involves a body that has sovereign lawmaking power. So if it's the people of the community, they can make the custom. If it's a Guild, it might be their private usage but it's not binding law. It binds them. We're okay with that. But it's not binding law. And similarly in the family. And they'll take it all the way down. [ Pause ] >> You had a distinction between moral custom -- [ Inaudible ] How does that not itself kill custom in the sense that it calcifies it and what the community is doing appears to no longer really matter because they're supposed to be [inaudible]? >> Because it doesn't kill the custom for two reasons. One, is there isn't a concept of precedent. So the statement of the rule is not binding on us necessarily as that is the only type of the conforming behavior that is possible under this custom. And second, because, in many instances, if you look at these medieval decisions, they're not saying the custom is XYZ. They're saying that the parties in this case did or did not abide by the custom. So then it's like, common law. Right. Well, let's go back and look at the particular facts of the case and then we can distinguish whatever. The way I think of it is the behavior custom, it's like a river that hasn't cut a channel yet. So it's very spread out. It's still water. It still has boundaries but it's spread out. And every time you get a new decision, it's like the water is cut a little bit of a channel. And so your boundaries are moving in as to what constitutes conforming behavior until you get a pretty narrow channel that has narrowed the behavior down to basically a formal rule. I think that our time is up. So thank you very much. [ Applause ] >> This has been a presentation of the Library of Congress.