Custom (law)
Encyclopedia
Custom in law
is the established pattern of behavior that can be objectively verified within a particular social setting. A claim can be carried out in defense of "what has always been done and accepted by law." Customary law exists where:
Related is the idea of prescription
; a right enjoyed through long custom rather than positive law.
developed from the tradition of medieval
customaries
, collections of customary law that developed in particular communities, slowly gathered, and later written down by local jurist
s. Customaries acquired the force of law when they became the undisputed rule by which certain right
s, entitlements, and obligation
s were regulated between members of a community. The Coutume de Paris - a major collection of the laws of the city of Paris - is an example.
, customary law refers to the Law of Nations or the legal norms that have developed through the customary exchanges between states
over time, whether based on diplomacy
or aggression. Essentially, legal obligations are believed to arise between states to carry out their affairs consistently with past accepted conduct. These customs can also change based on the acceptance or rejection by states of particular acts. Some principles of customary law have achieved the force of peremptory norm
s, which cannot be violated or altered except by a norm of comparable strength. These norms are said to gain their strength from universal acceptance, such as the prohibitions against genocide
and slavery
. Customary international law can be distinguished from treaty
law, which consists of explicit agreements between nations to assume obligations. However, many treaties are attempts to codify pre-existing customary law.
tradition, inferior to both statutes and regulations. In addressing custom as a source of law within the civil law tradition, John Henry Merryman notes that, though the attention it is given in scholarly works is great, its importance is "slight and decreasing."
In Canada
, customary aboriginal law has a constitutional foundation and for this reason has increasing influence.
In the Scandinavia
n countries customary law continues to exist and has great influence. Customary law is also used in some Third World
countries, such as those in Africa
, usually used alongside common or civil law. For example in Ethiopia
, despite the adoption of legal codes based on civil law
in the 1950s according to Dolores Donovan and Getachew Assefa there are more than 60 systems of customary law currently in force, "some of them operating quite independently of the formal state legal system." They offer two reasons for the relative autonomy of these customary law systems: one is that the Ethiopian government lacks sufficient resources to enforce its legal system to every corner of Ethiopia; the other is that the Ethiopian government has made a commitment to preserve these customary systems within its boundaries.
In 1995, President of Kyrgyzstan
Askar Akaev announced a decree to revitalize the aqsaqal
courts of village elders. The courts would have jurisdiction over property, torts and family law. The aqsaqal courts were eventually included under Article 92 of the Kyrgyz constitution. As of 2006, there were approximately 1,000 aqsaqal courts throughout Kyrgyzstan, including in the capital of Bishkek
. Akaev linked the development of these courts to the rekindling of Kyrgyz national identity. In a 2005 speech, he connected the courts back to the country's nomadic past and extolled how the courts expressed the Kyrgyz ability of self-governance. Similar aqsaqal courts exist, with varying levels of legal formality, in other countries of Central Asia
.
The Somali people
in the Horn of Africa
follow a customary law system referred to as Xeer
. It survives to a significant degree everywhere, including the Somali communities in the Ogaden
. Economist Peter Leeson attributes the increase in economic activity since the fall of the Siad Barre
administration to the security in life, liberty and property provided by Xeer in large parts of Somalia
. The late Dutch attorney Michael van Notten also draws upon his experience as a legal expert in his comprehensive study on Xeer, The Law of the Somalis: A Stable Foundation for Economic Development in the Horn of Africa (2005).
law to help determine negligence
. Following or disregarding a custom is not determinative of negligence, but instead is an indication of possible best practices or alternatives to a particular action. The case R v. Boomsdale defines this principle with the courts ruling that Mr Boomsdale customary practice was not sufficient to be deemed an act of negligence
marriage ceremonies are recognised by the Hindu Marriage Act
.
Law
Law is a system of rules and guidelines which are enforced through social institutions to govern behavior, wherever possible. It shapes politics, economics and society in numerous ways and serves as a social mediator of relations between people. Contract law regulates everything from buying a bus...
is the established pattern of behavior that can be objectively verified within a particular social setting. A claim can be carried out in defense of "what has always been done and accepted by law." Customary law exists where:
- a certain legal practice is observed and
- the relevant actors consider it to be law (opinio juris).
Related is the idea of prescription
Statute of limitations
A statute of limitations is an enactment in a common law legal system that sets the maximum time after an event that legal proceedings based on that event may be initiated...
; a right enjoyed through long custom rather than positive law.
Customary law and codification
The modern codification of civil lawCivil law (legal system)
Civil law is a legal system inspired by Roman law and whose primary feature is that laws are codified into collections, as compared to common law systems that gives great precedential weight to common law on the principle that it is unfair to treat similar facts differently on different...
developed from the tradition of medieval
Middle Ages
The Middle Ages is a periodization of European history from the 5th century to the 15th century. The Middle Ages follows the fall of the Western Roman Empire in 476 and precedes the Early Modern Era. It is the middle period of a three-period division of Western history: Classic, Medieval and Modern...
customaries
Coutume
Coutumes are legal customs of France.During the Middle Ages and early modern period the French kings and their vassals constantly asserted the importance and, in effect, primacy of customary law, especially in the lands north and west of Paris. The area where the French customary law was in force...
, collections of customary law that developed in particular communities, slowly gathered, and later written down by local jurist
Jurist
A jurist or jurisconsult is a professional who studies, develops, applies, or otherwise deals with the law. The term is widely used in American English, but in the United Kingdom and many Commonwealth countries it has only historical and specialist usage...
s. Customaries acquired the force of law when they became the undisputed rule by which certain right
Right
Rights are legal, social, or ethical principles of freedom or entitlement; that is, rights are the fundamental normative rules about what is allowed of people or owed to people, according to some legal system, social convention, or ethical theory...
s, entitlements, and obligation
Obligation
An obligation is a requirement to take some course of action, whether legal or moral. There are also obligations in other normative contexts, such as obligations of etiquette, social obligations, and possibly...
s were regulated between members of a community. The Coutume de Paris - a major collection of the laws of the city of Paris - is an example.
International law
In international lawInternational law
Public international law concerns the structure and conduct of sovereign states; analogous entities, such as the Holy See; and intergovernmental organizations. To a lesser degree, international law also may affect multinational corporations and individuals, an impact increasingly evolving beyond...
, customary law refers to the Law of Nations or the legal norms that have developed through the customary exchanges between states
Sovereign state
A sovereign state, or simply, state, is a state with a defined territory on which it exercises internal and external sovereignty, a permanent population, a government, and the capacity to enter into relations with other sovereign states. It is also normally understood to be a state which is neither...
over time, whether based on diplomacy
Diplomacy
Diplomacy is the art and practice of conducting negotiations between representatives of groups or states...
or aggression. Essentially, legal obligations are believed to arise between states to carry out their affairs consistently with past accepted conduct. These customs can also change based on the acceptance or rejection by states of particular acts. Some principles of customary law have achieved the force of peremptory norm
Peremptory norm
A peremptory norm is a fundamental principle of international law which is accepted by the international community of states as a norm from which no derogation is ever permitted.There is no clear agreement regarding precisely which norms are jus cogens nor how a norm reaches that status, but...
s, which cannot be violated or altered except by a norm of comparable strength. These norms are said to gain their strength from universal acceptance, such as the prohibitions against genocide
Genocide
Genocide is defined as "the deliberate and systematic destruction, in whole or in part, of an ethnic, racial, religious, or national group", though what constitutes enough of a "part" to qualify as genocide has been subject to much debate by legal scholars...
and slavery
Slavery
Slavery is a system under which people are treated as property to be bought and sold, and are forced to work. Slaves can be held against their will from the time of their capture, purchase or birth, and deprived of the right to leave, to refuse to work, or to demand compensation...
. Customary international law can be distinguished from treaty
Treaty
A treaty is an express agreement under international law entered into by actors in international law, namely sovereign states and international organizations. A treaty may also be known as an agreement, protocol, covenant, convention or exchange of letters, among other terms...
law, which consists of explicit agreements between nations to assume obligations. However, many treaties are attempts to codify pre-existing customary law.
Customary law within contemporary legal systems
Customary law is a recognized source of law within jurisdictions of the civil lawCivil law (legal system)
Civil law is a legal system inspired by Roman law and whose primary feature is that laws are codified into collections, as compared to common law systems that gives great precedential weight to common law on the principle that it is unfair to treat similar facts differently on different...
tradition, inferior to both statutes and regulations. In addressing custom as a source of law within the civil law tradition, John Henry Merryman notes that, though the attention it is given in scholarly works is great, its importance is "slight and decreasing."
In Canada
Canada
Canada is a North American country consisting of ten provinces and three territories. Located in the northern part of the continent, it extends from the Atlantic Ocean in the east to the Pacific Ocean in the west, and northward into the Arctic Ocean...
, customary aboriginal law has a constitutional foundation and for this reason has increasing influence.
In the Scandinavia
Scandinavia
Scandinavia is a cultural, historical and ethno-linguistic region in northern Europe that includes the three kingdoms of Denmark, Norway and Sweden, characterized by their common ethno-cultural heritage and language. Modern Norway and Sweden proper are situated on the Scandinavian Peninsula,...
n countries customary law continues to exist and has great influence. Customary law is also used in some Third World
Third World
The term Third World arose during the Cold War to define countries that remained non-aligned with either capitalism and NATO , or communism and the Soviet Union...
countries, such as those in Africa
Africa
Africa is the world's second largest and second most populous continent, after Asia. At about 30.2 million km² including adjacent islands, it covers 6% of the Earth's total surface area and 20.4% of the total land area...
, usually used alongside common or civil law. For example in Ethiopia
Ethiopia
Ethiopia , officially known as the Federal Democratic Republic of Ethiopia, is a country located in the Horn of Africa. It is the second-most populous nation in Africa, with over 82 million inhabitants, and the tenth-largest by area, occupying 1,100,000 km2...
, despite the adoption of legal codes based on civil law
Civil law (legal system)
Civil law is a legal system inspired by Roman law and whose primary feature is that laws are codified into collections, as compared to common law systems that gives great precedential weight to common law on the principle that it is unfair to treat similar facts differently on different...
in the 1950s according to Dolores Donovan and Getachew Assefa there are more than 60 systems of customary law currently in force, "some of them operating quite independently of the formal state legal system." They offer two reasons for the relative autonomy of these customary law systems: one is that the Ethiopian government lacks sufficient resources to enforce its legal system to every corner of Ethiopia; the other is that the Ethiopian government has made a commitment to preserve these customary systems within its boundaries.
In 1995, President of Kyrgyzstan
President of Kyrgyzstan
The President of Kyrgyzstan is the head of state and the highest official of Kyrgyzstan. The President, according to the constitution, "is the symbol of the unity of people and state power, and is the guarantor of the Constitution of the Kyrgyz Republic, and of an individual and citizen." The...
Askar Akaev announced a decree to revitalize the aqsaqal
Aqsaqal
Aqsaqal in Turkic languages literally means "white beard", and metaphorically refers to the male elders, the old and wise of the community...
courts of village elders. The courts would have jurisdiction over property, torts and family law. The aqsaqal courts were eventually included under Article 92 of the Kyrgyz constitution. As of 2006, there were approximately 1,000 aqsaqal courts throughout Kyrgyzstan, including in the capital of Bishkek
Bishkek
Bishkek , formerly Pishpek and Frunze, is the capital and the largest city of Kyrgyzstan.Bishkek is also the administrative centre of Chuy Province which surrounds the city, even though the city itself is not part of the province but rather a province-level unit of Kyrgyzstan.The name is thought to...
. Akaev linked the development of these courts to the rekindling of Kyrgyz national identity. In a 2005 speech, he connected the courts back to the country's nomadic past and extolled how the courts expressed the Kyrgyz ability of self-governance. Similar aqsaqal courts exist, with varying levels of legal formality, in other countries of Central Asia
Central Asia
Central Asia is a core region of the Asian continent from the Caspian Sea in the west, China in the east, Afghanistan in the south, and Russia in the north...
.
The Somali people
Somali people
Somalis are an ethnic group located in the Horn of Africa, also known as the Somali Peninsula. The overwhelming majority of Somalis speak the Somali language, which is part of the Cushitic branch of the Afro-Asiatic language family...
in the Horn of Africa
Horn of Africa
The Horn of Africa is a peninsula in East Africa that juts hundreds of kilometers into the Arabian Sea and lies along the southern side of the Gulf of Aden. It is the easternmost projection of the African continent...
follow a customary law system referred to as Xeer
Xeer
Xeer, pronounced , is the polycentric legal system of Somalia. Under this system, elders serve as judges and help mediate cases using precedents. It is a good example of how customary law works within a stateless society and is a fair approximation of what is thought of as natural law...
. It survives to a significant degree everywhere, including the Somali communities in the Ogaden
Ogaden
Ogaden is the name of a territory comprising the southeastern portion of the Somali Regional State in Ethiopia. The inhabitants are predominantly ethnic Somali and Muslim. The title "Somali Galbeed", which means "Western Somalia," is often preferred by Somali irredentists.The region, which is...
. Economist Peter Leeson attributes the increase in economic activity since the fall of the Siad Barre
Siad Barre
Mohamed Siad Barre was the military dictator and President of the Somali Democratic Republic from 1969 to 1991. During his rule, he styled himself as Jaalle Siyaad ....
administration to the security in life, liberty and property provided by Xeer in large parts of Somalia
Somalia
Somalia , officially the Somali Republic and formerly known as the Somali Democratic Republic under Socialist rule, is a country located in the Horn of Africa. Since the outbreak of the Somali Civil War in 1991 there has been no central government control over most of the country's territory...
. The late Dutch attorney Michael van Notten also draws upon his experience as a legal expert in his comprehensive study on Xeer, The Law of the Somalis: A Stable Foundation for Economic Development in the Horn of Africa (2005).
Custom in torts
Custom is used in tortTort
A tort, in common law jurisdictions, is a wrong that involves a breach of a civil duty owed to someone else. It is differentiated from a crime, which involves a breach of a duty owed to society in general...
law to help determine negligence
Negligence
Negligence is a failure to exercise the care that a reasonably prudent person would exercise in like circumstances. The area of tort law known as negligence involves harm caused by carelessness, not intentional harm.According to Jay M...
. Following or disregarding a custom is not determinative of negligence, but instead is an indication of possible best practices or alternatives to a particular action. The case R v. Boomsdale defines this principle with the courts ruling that Mr Boomsdale customary practice was not sufficient to be deemed an act of negligence
Custom law in India
In India many customs are accepted by law. For example, HinduHinduism
Hinduism is the predominant and indigenous religious tradition of the Indian Subcontinent. Hinduism is known to its followers as , amongst many other expressions...
marriage ceremonies are recognised by the Hindu Marriage Act
Hindu Marriage Act
The Hindu Marriage Act was established in 1955 as part of the Hindu Code Bills. Three other important acts were also created during this time and they include the Hindu Succession Act , the Hindu Minority and Guardianship Act , and the Hindu Adoptions and Maintenance Act...
.
Customary legal systems
- AdatAdatAdat in Indonesian-Malay culture is the set of cultural norms, values, customs and practices found among specific ethnic groups in Indonesia, the southern Philippines and Malaysia...
(Malays of NusantaraNusantaraNusantara is an Indonesian word for the Indonesian archipelago. It is originated from Old Javanese and literally means "archipelago".The word Nusantara was taken from an oath by Gajah Mada, as written on an old Javanese manuscript Pararaton and Negarakertagama...
) - Anglo-Saxon lawAnglo-Saxon lawAnglo-Saxon law is a body of written rules and customs that were in place during the Anglo-Saxon period in England, before the Norman conquest. This body of law, along with early Scandinavian law and continental Germanic law, descended from a family of ancient Germanic custom and legal thought...
(England) - AqsaqalAqsaqalAqsaqal in Turkic languages literally means "white beard", and metaphorically refers to the male elders, the old and wise of the community...
(Central AsiaCentral AsiaCentral Asia is a core region of the Asian continent from the Caspian Sea in the west, China in the east, Afghanistan in the south, and Russia in the north...
) - CoutumeCoutumeCoutumes are legal customs of France.During the Middle Ages and early modern period the French kings and their vassals constantly asserted the importance and, in effect, primacy of customary law, especially in the lands north and west of Paris. The area where the French customary law was in force...
(France) - Customary law (AustraliaAustraliaAustralia , officially the Commonwealth of Australia, is a country in the Southern Hemisphere comprising the mainland of the Australian continent, the island of Tasmania, and numerous smaller islands in the Indian and Pacific Oceans. It is the world's sixth-largest country by total area...
) - Early Germanic lawEarly Germanic lawSeveral Latin law codes of the Germanic peoples written in the Early Middle Ages survive, dating to between the 5th and 9th centuries...
- Early Irish law (IrelandIrelandIreland is an island to the northwest of continental Europe. It is the third-largest island in Europe and the twentieth-largest island on Earth...
) - Laws of the Brets and ScotsLeges inter Brettos et ScottosThe Leges inter Brettos et Scottos or Laws of the Brets and Scots was a legal codification under David I of Scotland...
(ScotlandScotlandScotland is a country that is part of the United Kingdom. Occupying the northern third of the island of Great Britain, it shares a border with England to the south and is bounded by the North Sea to the east, the Atlantic Ocean to the north and west, and the North Channel and Irish Sea to the...
) - Medieval Scandinavian laws
- PashtunwaliPashtunwaliPashtunwali or Pakhtunwali is a non-written ethical code and traditional lifestyle which the indigenous Pashtun people from Afghanistan and Pakistan follow. Some in the Indian subcontinent refer to it as "Pathanwali". Its meaning may also be interpreted as "the way of the Pashtuns" or "the code of...
and JirgaJirgaA jirga is a tribal assembly of elders which takes decisions by consensus, particularly among the Pashtun people but also in other ethnic groups near them; they are most common in Afghanistan and among the Pashtuns in Pakistan near its border with Afghanistan...
(PashtunsPashtun peoplePashtuns or Pathans , also known as ethnic Afghans , are an Eastern Iranic ethnic group with populations primarily between the Hindu Kush mountains in Afghanistan and the Indus River in Pakistan...
of PakistanPakistanPakistan , officially the Islamic Republic of Pakistan is a sovereign state in South Asia. It has a coastline along the Arabian Sea and the Gulf of Oman in the south and is bordered by Afghanistan and Iran in the west, India in the east and China in the far northeast. In the north, Tajikistan...
and AfghanistanAfghanistanAfghanistan , officially the Islamic Republic of Afghanistan, is a landlocked country located in the centre of Asia, forming South Asia, Central Asia and the Middle East. With a population of about 29 million, it has an area of , making it the 42nd most populous and 41st largest nation in the world...
) - SmritiSmritiSmriti literally "that which is remembered," refers to a specific body of Hindu religious scripture, and is a codified component of Hindu customary law. Smṛti also denotes non-Śruti texts and is generally seen as secondary in authority to Śruti. The literature which comprises the Smrti was...
and ĀcāraAcaraAcara may refer to:* Acara , a former region of the Ottoman Empire in present-day Georgia* Blue acara, a colorful freshwater fish* Zebra acara, a tropical freshwater fish...
(IndiaIndiaIndia , officially the Republic of India , is a country in South Asia. It is the seventh-largest country by geographical area, the second-most populous country with over 1.2 billion people, and the most populous democracy in the world...
) - Customary lawCustomary law in South AfricaSouth African customary law refers to that usually uncodified legal system developed and practiced by the indigenous communities of South Africa...
(South AfricaSouth AfricaThe Republic of South Africa is a country in southern Africa. Located at the southern tip of Africa, it is divided into nine provinces, with of coastline on the Atlantic and Indian oceans...
) - UrfUrfUrf العرف is an Arabic Islamic term referring to the custom, or 'knowledge', of a given society. To be recognized in an Islamic society, Urf must be compatible with Sharia law...
(Arab worldArab worldThe Arab world refers to Arabic-speaking states, territories and populations in North Africa, Western Asia and elsewhere.The standard definition of the Arab world comprises the 22 states and territories of the Arab League stretching from the Atlantic Ocean in the west to the Arabian Sea in the...
/Islamic lawShariaSharia law, is the moral code and religious law of Islam. Sharia is derived from two primary sources of Islamic law: the precepts set forth in the Quran, and the example set by the Islamic prophet Muhammad in the Sunnah. Fiqh jurisprudence interprets and extends the application of sharia to...
) - Welsh LawWelsh lawWelsh law was the system of law practised in Wales before the 16th century. According to tradition it was first codified by Hywel Dda during the period between 942 and 950 when he was king of most of Wales; as such it is usually called Cyfraith Hywel, the Law of Hywel, in Welsh...
(WalesWalesWales is a country that is part of the United Kingdom and the island of Great Britain, bordered by England to its east and the Atlantic Ocean and Irish Sea to its west. It has a population of three million, and a total area of 20,779 km²...
) - XeerXeerXeer, pronounced , is the polycentric legal system of Somalia. Under this system, elders serve as judges and help mediate cases using precedents. It is a good example of how customary law works within a stateless society and is a fair approximation of what is thought of as natural law...
(SomaliaSomaliaSomalia , officially the Somali Republic and formerly known as the Somali Democratic Republic under Socialist rule, is a country located in the Horn of Africa. Since the outbreak of the Somali Civil War in 1991 there has been no central government control over most of the country's territory...
)
See also
- Customary International Humanitarian LawCustomary International Humanitarian LawCustomary international humanitarian law is a body of unwritten rules of public international law, which govern conduct during armed conflict.-Customary international law:...
- Civil law (legal system)Civil law (legal system)Civil law is a legal system inspired by Roman law and whose primary feature is that laws are codified into collections, as compared to common law systems that gives great precedential weight to common law on the principle that it is unfair to treat similar facts differently on different...
- Common lawCommon lawCommon law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
- ConsuetudinaryConsuetudinaryConsuetudinary is a term applied to law where the rule of law is determined by long-standing custom as opposed to case law or statute....
- Legal systems of the worldLegal systems of the worldThe legal systems of the world today are generally based on one of three basic systems: civil law, common law, and religious law – or combinations of these...
- Rule According to Higher LawRule according to higher lawThe rule according to a higher law means that no written law may be enforced by the government unless it conforms with certain unwritten, universal principles of fairness, morality, and justice...
- Rule of lawRule of lawThe rule of law, sometimes called supremacy of law, is a legal maxim that says that governmental decisions should be made by applying known principles or laws with minimal discretion in their application...
- Time immemorialTime immemorialTime immemorial is a phrase meaning time extending beyond the reach of memory, record, or tradition, indefinitely ancient, "ancient beyond memory or record"...
, has a specific meaning in English Law