Planting Seeds of Order: How the State Can Create, Shape, and Use Customary Law

This paper argues that government can strategically trigger the emergence of customary law in order to achieve specific policy ends. While much has been written on customary law, the idea that the State can stimulate its emergence is a radical notion with clear policy implications. Harnessed correctly, such an approach could be a powerful legislative weapon to create, sustain, and even redirect social order. Building upon basic insights from game theory, the paper posits a way to do this: policymakers can deliberately recreate the social conditions that foster the emergence of customary order.

The paper, however, draws a sharp divide between the technical and the normative. After laying out how this may technically be achieved, the paper considers the normative legitimacy of this kind of socio-legal engineering, concluding that, while it may be theoretically possible to trigger the emergence of customary law, the normative implications of doing so are quite another matter, and as such it is difficult to see how such policies could ever be casually pursued.