Custom (law)


Custom (law)

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:

  1. a certain legal practice is observed and
  2. the relevant actors consider it to be law (opinio juris).

Related is the idea of prescription; a right enjoyed through long custom rather than positive law.

Contents

Customary law and codification

The modern codification of civil 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 jurists. Customaries acquired the force of law when they became the undisputed rule by which certain rights, entitlements, and obligations were regulated between members of a community.[1] The Coutume de Paris - a major collection of the laws of the city of Paris - is an example.

International law

In international law, 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 norms, 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.

Customary law within contemporary legal systems

Customary law is a recognized source of law within jurisdictions of the civil 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."[2]

In Canada, customary aboriginal law has a constitutional foundation[3] and for this reason has increasing influence.[4]

In the Scandinavian 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.[5] 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.[6]

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.[7] 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.[8] 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.[9] 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,[10] including the Somali communities in the Ogaden.[11] 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.[12] 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).[13]

Custom in torts

Custom is used in tort 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

Custom law in India

In India many customs are accepted by law. For example, Hindu marriage ceremonies are recognised by the Hindu Marriage Act.

Customary legal systems

See also

Notes

  1. ^ In R. v Secretary of State For Foreign and Commonwealth Affairs, [1982] 2 All E.R. 118, Lord Denning said "These customary laws are not written down. They are handed down by tradition from one generation to another. Yet beyond doubt they are well established and have the force of law within the community."
  2. ^ John Henry Merryman, The Civil Law Tradition, p. 23 (2d Ed. 1985)
  3. ^ "Constitution Act, 1982, s. 35(1)". http://laws.justice.gc.ca/en/const/annex_e.html. Retrieved 29 July 2008. 
  4. ^ Slattery, Brian. Generic and Specific Aboriginal Rights. p. 6. http://www.law.uvic.ca/calder/Papers/Brian%20Slattery.pdf. Retrieved 21 August 2008.  and Foster, Hamar; Heather Raven and Jeremy Webber (eds.) (2007). Let Right Be Done: Aboriginal title, the Calder Case, and the Future of Indigenous Rights. 18 No. 7 (July, 2008). Vancouver: UBC Press. pp. 574–578. http://www.bsos.umd.edu/gvpt/lpbr/subpages/reviews/foster0708.htm. Retrieved 11 September 2010. 
  5. ^ "JuryGlobe". University of Ottawa. http://www.droitcivil.uottawa.ca/world-legal-systems/eng-tableau.php#g. Retrieved 11 September 2010. 
  6. ^ Dolores A. Donovan and Getachew Assefa, "Homicide in Ethiopia: Human Rights, Federalism, and Legal Pluralism," American Journal of Comparative Law, 51 (2003), p. 505
  7. ^ Judith Beyer, Kyrgyz Aksakal Courts: Pluralistic Accounts of History, 53 J. OF L. PLURALISM 144 (2006)
  8. ^ Judith Beyer, Kyrgyz Aksakal Courts: Pluralistic Accounts of History, 53 J. OF L. PLURALISM 144 (2006)
  9. ^ Former President Akaev, quoted in Beyer, Kyrgyz Aksakal Courts
  10. ^ Spencer Heath MacCallum (12 September 2007). "The Rule of Law without the State". Ludwig von Mises Institute. http://mises.org/story/2701. Retrieved 11 September 2010. 
  11. ^ "Grassroots Conflict Assessment Of the Somali Region, Ethiopia". CHF International. August 2006. http://www.chfhq.org/files/3707_file_Somali_Region_Assessment_8.4.06.pdf. Retrieved 11 September 2010. 
  12. ^ "Better off stateless". http://www.peterleeson.com/Better_Off_Stateless.pdf. Retrieved 11 September 2010. 
  13. ^ Van Notten, Michael. 2005. The Law of the Somalis: A Stable Foundation for Economic and Social Development in the Horn of Africa, Trenton NJ: Red Sea Press.

External links


Wikimedia Foundation. 2010.

Look at other dictionaries:

  • custom — cus·tom n 1: a practice common to many or to a particular place or institution; esp: a long established practice that is generally recognized as having the force of law see also section 1983 compare usage 2 pl …   Law dictionary

  • law — / lȯ/ n [Old English lagu, of Scandinavian origin] 1: a rule of conduct or action prescribed or formally recognized as binding or enforced by a controlling authority: as a: a command or provision enacted by a legislature see also statute 1 b:… …   Law dictionary

  • custom and practice — In the context of employment law, the process by which a practice or benefit within a particular workplace or employer which has not previously been explicitly recognised or recorded in a contract of employment may become implied into the… …   Law dictionary

  • custom or usage — a residual source of law. Collins dictionary of law. W. J. Stewart. 2001 …   Law dictionary

  • custom and usage — n. A customary practice that has been done so long that it has acquired the force of law in its locality. The Essential Law Dictionary. Sphinx Publishing, An imprint of Sourcebooks, Inc. Amy Hackney Blackwell. 2008 …   Law dictionary

  • Custom — may refer to: Convention (norm), a set of agreed, stipulated or generally accepted rules, norms, standards or criteria, often taking the form of a custom Customization (disambiguation), anything made or modified to personal taste Custom (law) or… …   Wikipedia

  • Custom (in Canon Law) — • An unwritten law introduced by the continuous acts of the faithful with the consent of the legitimate legislator Catholic Encyclopedia. Kevin Knight. 2006. Custom (in Canon Law)     Custom (in …   Catholic encyclopedia

  • Law — • By law in the widest sense is understood that exact guide, rule, or authoritative standard by which a being is moved to action or held back from it Catholic Encyclopedia. Kevin Knight. 2006. Law     Law …   Catholic encyclopedia

  • Custom — Cus tom (k[u^]s t[u^]m), n. [OF. custume, costume, Anglo Norman coustome, F. coutume, fr. (assumed) LL. consuetumen custom, habit, fr. L. consuetudo, dinis, fr. consuescere to accustom, verb inchoative fr. consuere to be accustomed; con + suere… …   The Collaborative International Dictionary of English

  • Custom of merchants — Custom Cus tom (k[u^]s t[u^]m), n. [OF. custume, costume, Anglo Norman coustome, F. coutume, fr. (assumed) LL. consuetumen custom, habit, fr. L. consuetudo, dinis, fr. consuescere to accustom, verb inchoative fr. consuere to be accustomed; con +… …   The Collaborative International Dictionary of English


Share the article and excerpts

Direct link
Do a right-click on the link above
and select “Copy Link”

We are using cookies for the best presentation of our site. Continuing to use this site, you agree with this.