Law and Other

Social Norms
 Custom
• Practices carried out and preserved by a
group of people
• The practices may either be ritual in
observance of important events in human
life, such as birth, marriage, and death or
just a courtesy in social intercourse, such
as the way to wear clothes, give a present
at a wedding reception. etc.
• Breach of the important events results in
social reaction against the violator
 Custom becomes Customary
Law

• Carried out continually (lengthy-

used)
• Society internalized such a custom
as rule (opinio necessitatis)
 The Study of Malinowsky
• Regarding opinio necessitatis, Malinowski
found that there is characteristic of legal rule
in primitive society
• In his thorough study, he found a system of
fixed functions distribution and a rigid
reciprocal obligation system
• The system creates a sense of having
obligation and acknowledgement of the need
for cooperation in line with realization of self-
interest, individual rights, and individual
advantage
 The Study of Malinowsky
• Furthermore, Malinowski stated that it was not
sheriff who was ready to enforce right and
duty in primitive society
• The norm is self-enforcing because members
of society need others’ help and skill
• A fisherman, for example, needs a boat to
catch fish but it is impossible for him to get
the boat without promising to share the
caught fishes with the boat owner
 The Study of Malinowsky
• According to Malinowski, one who ignores his
obligation, he will be in an unfortunate
situation in the future due to the ignorance
• Obviously, what Malinowski found is not just a
custom, but it is law because there is
recognition of individual ownership right
 The Study of Malinowski
• Transaction made by and between the boat
owner and the fisherman in the example is a
legal transaction instead of practice in the
realm of custom because the transaction is
about reciprocally economic right and
obligation between individuals in a society
• Certainly, it is customary law
 The Study of Llewellyn and
Hoebel on Indian Cheyenne
• They postulated that there are three things in
every society:
• group
• different interests in the group
• claims against each other members of the group and
claims of the group against the group
• If the group desires to be united in the society,
the problems shall be resolved
• Llewellyn and Hoebel keenly stated that custom
and mores are inappropriate to resolve the
problems
 The Study of Llewellyn and
Hoebel on Indian Cheyenne
• This is because:
• First, in primitive society there is discrepancy
between what is done and what should be done
• Second, occasionally, there is conflict between
families, small groups, militaries, and tribes
since each of them has its own norm that
should be made compatible with group norms
in order that the conflict may not merely occur
between individual and its group
• Third, the word custom may sometimes refer to
the established practices
 The Study of Llewellyn and
Hoebel on Indian Cheyenne
• Llewellyn and Hoebel observed two main factors in
legal dynamic in that unrealized development and
individual demand that is intentionally made
• According the authors, the intentional individual
demand is law
• The awareness of the need of rules is usually called
opinio necessitatis
• It is the mark of differentiating custom from
customary law
• In opinio necessitatis , there is recognition of the
existence of authority behind the rule
 Law, Religion, Moral and
Etiquette
• Law and other three norms may be
differentiated from many aspects, the
objective of the norms, the scope of
regulation, the binding force of the norm, and
the contents of the norms
• In this discussion, human being as a central
figure is placed as dualistic creature
• Perceived from the relation between human
being and other human being, a person may
be regarded as an individual as well as a
component in a social life
 Law, Religion, Moral and
Etiquette
• Regarding the human being, the individual has
two aspects: outward aspect and inner aspect
• Even though the norms are social norms, the
objective of the respective norm is to regulate
one of two aspects of human being as an
individual or as a social being, the outward
aspect or the inner aspect
• Nevertheless, regulating one of the aspects
will implicate other aspect
 The Objective of the Norms
• Perceived from its objective, legal norm is
created to preserve the form of social life as a
survival mode
• Religion exists for spiritual nurture of human
being as an individual for being acceptable to
God the Almighty, by which he/she has to
keep His order and refrain from what God
forbids as laid down in Scripture of each
religion
 The Objective of the Norms
• As a cultural product inherent in human being,
moral assigns an individual to have virtuous
character and do good
• Just as law exists to preserve social life,
etiquette is made to be a guidance of courtesy
in social intercourse
 Scope of Rule
• Perceived from the scope of rule, law is
designated to prescribe rules of human conduct
• Ulpian stated that “cogitationis poenam nemo
patitur“ (“none will be punished because he thinks”)
• In Dutch there is a proverb: “gedachten zijn tolvrij”
that means “one is free to think unless it is
unspoken”
• Religion deals with the inner aspect of an
individual
• This norm is to ordain the relationship between
human being as a creature and God as Creator
 Scope of Rule
• The next norm whose scope of rule similar to
religion is moral in that it deals with individual
self-restraint for not doing wrong to another
• Etiquette is created to prescribe external
aspect of human conduct that is acceptable to
society
 Binding Force of the Norm
• Law gets the binding force because it is laid
down by authority or that is derived from
acceptable practices by society
• The binding force of religion is based on faith
• There should be a recognition of the supernatural
being
• The binding force of moral is human conscience
• An atheist still has conscience
• The binding force of etiquette is laid down by
the community
• The enforcement of this kind of norm is carried out
by the community rather than that is by the
government
 The Content of the Norms
• Law provides rights and imposes
obligations
• While, other norms only impose
obligations