The Injunctive, Practical, and Metaphysical Power of Customary and Statutory Law

By the very fact of its written-ness statutory law is weaker than customary law in its injunctive power. For the written law is necessarily external to the individual (positive law), while the customary, unwritten law is in some sense internal to the individual (i.e. human law analogous to natural law, since natural law is in the very nature of the human person). Due to its internal residency, unwritten law is stronger than external, written positive law.

Now this is certainly true on the practical level in cultures with only unwritten law. But unwritten law has less practical force in Western law due to its indefiniteness as to its exact provisions. The enforcement of customary law in a courtroom poses problems and leaves far too much interpretive power  (and possibility for abuse) in the hands of the judge.

With the Western mindset of exactitude and external enforcement, written law has more practical force. With the mindset of personal obedience, unwritten  law has equal practical force to written law in the West. Metaphysically, unwritten law has more force, since it is the spirit of the law and not its letter which has the morally-binding force, and unwritten law is internalized in man in a manner analogous to the natural law residing in the very nature of the human person.

This post was inspired by the writings of Luther Standing Bear, a chief of the Lakota. 12 September 2014.