Law’s Evolution and Law as Custom

normative, and law works by channeling custom-in-gross into progressively finer and more precise grooves. If there is normative moral value resident in the custom of elevating and following leaders, then that normativity ought to flow downstream into the finer channels officials carve and into the fresh territory they wish us to occupy. In places, that flow is too diluted, and normativity trails off. In places, officials direct the stream over a cliff, and it is no longer normative at all.

In places, the stream is overtaken by stronger normative streams and can only make a difference yet farther downslope, where it reaches to details of procedure, compensation, and punishment. Empty channels into which custom does not reach are simply not law. Nothing is gained by saying that legal normativity flows there.