Custom and primitivity

It is sometimes being said that all law is customary law. ¹ If this trope is supposed to mean anything at all, it certainly cannot be that the only law that exists is customary law, that, say, legislation and adjudication are no valid sources of law. What the statement is usually meant to provide is a boundary reflection on the law: whilst the central case of law may be very well explicable in terms of explicitly stipulated rules, the closer we come to the limes of law, to the place where the law ends and something else begins, the more we have to make recourse to oblique modes of explanation. It is always pretty easy to explain the law given that there already is law. ² However, as soon as we let go of this presupposition and try to explain the existence of law as such, then things escalate rather swiftly and explaining the law in terms of stipulated rules does not seem to do the trick any longer. We quickly reach an impasse and have to turn to organic emergence. Since so far there has been no promising way to conceptualise this organic emergence other than in terms of customs, it seems perfectly plausible to posit custom as the ultimate fount of legality.