Informal Law and Custom

While I had intended to discuss heartbalm actions further, that will have to wait for a future blog entry as I wanted to discuss the concept of ‘informal law’ in more detail. I have long found the concept of informal law fascinating.

Informal law or ‘custom’ may involve practices or traditions that are symbotic or complementary to existing laws, or are designed to circumvent the law, or are quasi-legal and essentially supplant the law. Examples of symbiotic informal law or customs were once common in everyday life. By way of contemporary examples, they may include such things as the general practice of alternating cars as they merge from two lanes into one when neither lane has a yield sign–this is not a legal requirement but has become a custom that not only reflects good manners but also helps the flow of traffic when one lane is blocked. In some places, it is considered custom that someone who shovels out a parking spot following a snow storm is entitled to mark it as theirs, which is a practice rarely reflected in the law (interestingly enough, in Boston, municipal ordinances allow one to claim a parking spot one has dug out for 24 hours after a snowstorm; while neighboring Cambridge had an ordinance that makes it unlawful to do so).

The tension between what people wish to do and what the law allows them to do has often been the impetus for the growth of informal law or custom. The field of family law, for instance, is replete with examples. Couples wishing, for whatever reasons, to circumvent or skip the requirements for a legal marriage have long created informal marriages (often referred to as “common law” marriages) without seeking a marriage license or participating in a marriage ceremony. An informal or common law marriage usually involves a couple who have agreed to be married, live together as husband and wife, and hold themselves out to the public as such. (This is the legal standard as set out in the Texas Family Code §2.401, for example).

The dissolution of marriage is another striking example. Particularly when divorce law was highly restrictive, self-help divorces were a means of curcumventing the law. In the simplest form, a spouse could simply abandon the other; husbands ejected wives from their homes, wives left their husbands. Should a wife have abandoned her husband in this manner, he might well place newspaper advertisements announcing that she had left his ‘bed and board’ and that he would not be held responsible for debts incurred in his name by her.

A fascinating historical example related to self-divorces was the practice of ‘wife auctions’. While at first blush this appears to be an archtypical example of historical chauvanism, the reality was often more nuanced. A wife auction, as the name suggests, involved a husband putting his wife up for public sale. As barbarous as this sounds, in many instances the wife was a willing participant–perhaps even the instigator–the successful buyer was known beforehand to all (including the wife, who in some instances was already cohabitating with him) and the auction result a foregone conclusion; sometimes the wife herself provided the buyer with the money to finance the winning bid! English wife auctions were to die out by the mid 19th century due to reforms to the divorce laws.

Examples of informal law continue to exist all around us, although they are not always obvious. For example, in 2005 new rules regarding personal bankruptcy went into effect, with the avowed purpose of making it more difficult for individuals to file for personal bankruptcy under Chapter 7 or Chapter 13 and thus providing greater protection to creditors. One result of this has been a probable increase in ‘informal’ or ‘unofficial’ bankruptcies. An informal bankruptcy involves an individual who doesn’t file for official bankruptcy protection but attempts to have the same protection by making themself judgment proof. This might include not paying debts, not keeping assets in one’s name, moving, changing one’s name, and any number of other subterfuges in order to avoid paying one’s creditors– in other words, being what in common parlance is known as a ‘deadbeat’.

Informal law can also include a quasi-legal custom that exists in parallel, or symbiosis, to the law itself. Particularly in the context of criminal justice, informal law has often surfaced with groups have felt the law could not, or would not, act. They included ritualized forms of protest, performance, violence or demonstration used to enforce community standards related to marriage and other issues (such as whitecapping and shivarees/charivaris), vigilantism, lynching (a particularly common, and revolting, practice in the southern U.S. aimed at blacks), and rioting. The charivari or shivaree (perhaps consisting of loud processionals, banging pots and drums, blowing on trumpets and the like) could be mischievous–designed to harass a newly married couple on their wedding day in exchange for food or drink–or reflect a very real sentiment of community disapprobation over wife-beating, an inappropriate marriage, or the like.

Many rituals that accompanied the practice of criminal justice could be said to be customary or informal law insofar as they were not legally codified but became entrenched components in the administration of the law. The practice of judges’ donning a black cap when handing down a sentence of death, for example, is a marvelous example of such a custom. In the ninetenth century, labor law was often a mixture of legislation, local laws, common law concepts, and customary and judge-made discretionary law. For example, it was frequently a custom that deserting servants were required to make up lost time to their employers, even when not explicitly provided for in the law.

So, here is a question for you: what other examples of informal law or custom come to mind?


Informal Law and Custom — 17 Comments

  1. I don’t usually think of law as having an ‘informal’ component, or put another way– that there was another category of informal or quasi-legal law had never occurred to me. Can you write something about types of law or legal procedure that have died out? I noticed your wrote an article on ordeals a few years back that I found very interesting. I’d like to know more!

  2. I am enjoying your posting on informal law and custom and wish you would post more often! Will you be addressing more unusual areas of law? Incidentally, are you interested in other writers to write content? thanks, Scott Sobanski

  3. Well, I read all your posts for now…I’llcome back in the future to see what else you came up with! You make law seem so interesting, even for those of us without law backgrounds. keep up the good work! E.J.

  4. Hi- a question that’s off-topic: do you think that majoring in Criminal Justice would be a smart move if I want to go to law school to be a criminal defense attorney? I was thinking that major might give me a head start to get into law school, and also help once I’m accepted. Your advice is appreciated! thank you, Stephen Fite.

    • hi Stephen– in my experience pre-law majors don’t make any particular difference when applying for law school. Poli sci and philosophy are popular undergrad majors for law students, but I don’t think your choice of major makes any significant difference in most cases. Your overall grades, LSAT scores, and letters of recommendation are the most important– your major is most relevant in terms of its perceived difficulty rather than the subject itself, I think. With respect to helping once you are enrolled in law school, I would suppose that any law-related courses might be helpful–but you can expect that the workload and level of sophistication of analysis will probably be greater in law school than what you experienced in undergrad. Best of luck to you!

  5. Ian;
    I have an example of an informal traffic custom. Near where I live is an intersection where you blink right to go straight. Look at this link and then zoom in. Look the intersection near the Old Grist Mill, where Arcade Avenue merges with 114A.,+Fall+River+Avenue,+Seekonk,+MA&hl=en&ll=41.816361,-71.335602&spn=0.002991,0.006968&sll=37.0625,-95.677068&sspn=53.212719,114.169922&z=18

    Traffic traveling south, (towards 114A), is stuck at a stop sign until traffic traveling north, (towards Arcade Avenue), clears. North bound traffic has the option of either going straight or making a left turn across the south bound’s lane. There is no right turn for the north bound cars.
    So the south bound driver stuck at the stop sign sees oncoming cars do 1 of 3 things:
    • No turn signal at all. 50/50 chance of the person going straight or left.
    • Left turn signal, (as required by law). 95% chance the person is turning left.
    • Right turn signal. 95% chance the person is going straight. This allows the south bound driver to go. You still have to be careful of fast cars behind the first car signaling.
    The right turn signal started a few years ago. I am guessing that locals frustrated with being stuck at the stop sign decided to start being kind to each other. There is no sign and I have never heard of this being an actual traffic law.
    The intersection, (like most roads in New England), grew organically. The Old Grist Mill itself is from 1745 so this was well before any planning or zoning.

    • hi Dominic– that’s interesting, thank you for posting it! That is certainly a form of custom or ‘informal law’, and it seems not only to be local but extremely area-specific. One wonders how it started, but obviously those of you who are regular motorists in that area understand and practice the custom. cheers, Ian

  6. Hi– I seem to remember when I was younger that people would switch their headlights on and off rapidly to warn approaching cars that they had spotted a police ‘speed trap’. I don’t often see that happen anymore. Not sure this would be informal law but wanted to mention it.

    • hi Jane– yes, I remember that too! In the 1970s radar detectors were quite popular– my father received one as a present– but eventually police radar was able to track radar detectors and they seem to have died out. The practice of alerting other motorists about speed traps seems to have died out as well, as you mention– at least in the northeast, I can’t speak to other parts of the country. This would be a great example of custom, and thank you for posting it. Cheers, Ian

  7. Hi– do you have a twitter account as well? I’d like to follow you but couldn’t find a twitter link on your website. cheers, Henry

    • I use a BU-related Twitter account for program related tweets, but otherwise have not signed up for a personal account. You can sign up on our Executive LLM landing page. thanks, Ian

  8. Thank you for writing these blogs, & thank you also for allowing me to comment! While I do not read them every week, each time I have read yoru blog I have found it a most interesting place of legal information & facts.

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