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Introduction: The dimensions of customary law

The extent to which law rather than custom governed a particular society at a specific moment in the past is of vital concern to the variety of disciplines that find intellectual communion in the pages of Continuity and Change* Although the words 'law' and 'custom' may be defined in diverse terms, we understand 'law' to consist of formally articulated positive rules or norms, and 'custom' to signify patterns of conduct that operate regardless of such legal norms. Those scholars who investigate the structures and institutions of past societies, be they historical anthropologists, historical demographers, social historians, historical sociologists, or academic lawyers, are largely dependent upon documents produced directly by the legal system or by order thereof. Thus historical researchers cannot afford to be oblivious to or unconcerned with the nature of the legal order that produced their data; and, in order to understand our evidence, we must be cognizant (to the greatest degree possible) of the workings of the legal system that produced it. The notion that societies are governed by either law or custom, and not some combination thereof, should have long been discarded by interdisciplinary scholars. As Malinowsky pointed out almost 75 years ago, much conduct in advanced law-bound western societies (even, as he opined, Oxford colleges!) is governed by intuitive and unconscious adherence to unarticulated norms that earlier anthropologists branded as 'customary' (B. Malinowsky, Custom and the savage mind (New York,