In 2023 YouTuber Abigail Thorn published a thought-provoking video essay on her channel Philosophy Tube, titled “How Police Make Up the Law.” In this essay, she explores philosophical debates on defining law, highlighting its paradoxes and pragmatic consequences—primarily within the framework of modern legal systems. This focus is understandable, especially given the second half of her essay, which examines the often troubling relationship between policing and the law, including police bias against marginalized groups and discriminatory stop-and-search practices.

However, this approach largely overlooks the historical dimension of this philosophical question—particularly the primacy of oral customary law in human societies. From an anthropological perspective, it is also problematic to imply that the foundational principles of legal systems in preliterate civilizations were fundamentally different from those in codified legal systems.

Because are they really that different? Even in societies without written laws, legal norms are considered authoritative and are enforced both externally—through social or physical consequences—and internally, via a deep-seated compulsion to adhere to established rules.

All human societies operate under certain regulations. These may be called laws—legal rules—or, more broadly, customs, in much the same way that etiquette dictates behaviors like not burping at the dinner table or holding the door open for guests. The distinction between law and custom is often more fluid than modern legal frameworks suggest.

A telling anecdote from colonial Morocco illustrates this. In the 19th century, French administrators sought to codify Berber tribal law, intending to drive a wedge between Arab and Berber cultural identities within the French protectorate. When they asked Berber village elders to define their tribe’s laws, they received not only legal rules as we understand them but also a comprehensive recounting of customs—ranging from conflict resolution after homicides to proper etiquette at watering holes. To these Berber legal experts, “law” encompassed the entire framework of how things ought to be done.

This perspective also explains early medieval legal procedures. Plaintiffs would open their cases by appealing to the legal community with phrases such as “What is the law?” or “Tell us the law.” These formulas were not mere requests for legal rulings; they were calls for the reaffirmation of societal order. In essence, they were asking, “Tell us the custom” or “Tell us the proper course of events.” This reflects how early medieval Germanic societies embedded their legal systems within a broader sociocultural framework of peace and order.

This conception of law closely mirrors what we find in early medieval legal texts. To understand this, we must recognize that early medieval societies were complex but predominantly oral cultures, where legal authority rested largely on the spoken word. Within their legal systems, we can distinguish between two forms of authoritative justice:

1. Underlying Law – the customary and deeply ingrained principles that governed social behavior.
2. Enacted Law – written decrees issued by authoritative bodies such as kings or ruling councils, which could enforce justice through coercive means that overrode the legal independence of kinship groups.

Modern legal discourse tends to focus on the latter—enacted law—because it aligns with contemporary notions of legal authority. However, in pre-modern societies, customary law was equally, if not more, fundamental to the functioning of justice.

With this in mind, perhaps we should adopt a broader definition of law and justice than the ones discussed by Abigail Thorn. Rather than viewing law solely through the lens of modern codified systems, we might instead define a legal system as the collection of enforceable norms that constitute “the proper way of doing things.” Under this framework, law serves two primary functions:

• Defining a person’s right to act in a certain way.
• Establishing society’s obligation to allow that person to act accordingly.

By shifting our perspective in this way, we can better appreciate the diversity of legal traditions throughout history and the ways in which law—whether written or unwritten—has always functioned as a mechanism for maintaining order, resolving disputes, and shaping societal norms.