23 March 2012 Written by  Muradu Abdo and Gebreyesus Abegaz

Defining Customary Law and Legal System

 

There are three ways of understanding the historical process of bringing the various entities in the country together in the past two centuries, namely the re-union approach, the national question approach and the colonial thesis approach. You will consider the re-union approach and the national question approach. Emperor Hileselassie I and his supporters understood the process as a re-union or expansion. They argued that prior to 19th and 20th centuries Ethiopia lost territories as a result of wars and migrations. They argue that in 19th and 20th centuries, Ethiopia successfully regained her lost territories. These actors worked to bring about political centralization. They used western oriented codes. They used the methods of assimilation, integration, urbanization and industrialization to unify the country. The 1931 and 1955 constitutions were designed to implement the state policy of political centralization as well as legal unification. Their concern was to avert political disintegration in the country. Giving official and proper place to customary laws in Ethiopia was regarded as undermining the nation-building efforts. So, customary laws were given little official recognition. If customary laws existed under that system, thus, they existed in spite of hostile official stance.

The second group of personalities understood the historical process of the 19th and the 20th century in Ethiopia as a problem of class exploitation. The conquest approach has two models, namely the class exploitation and the national exploitation models. According to the first model, the issue was not ethnic exploitation. The economic elites, who were few in number, oppressed the mass. The various groups brought together under the umbrella of the central government suffered injustice in the hands of the economic and political elites. The solution sought was to end this exploitation by building a communist society in the country. Ethiopia was led for about 17 years by the promoters of this view. As the promoters of the re-union approach remade Ethiopia, the promoters of the second view, also called the conquest approach, reordered the Ethiopian polity. Ethiopia under this approach had had little faith in anything about law whether state or customary. Law was to play a role in the transition to the communist society and then was to vanish.

The first model is the one that thinks that the main problem is class oppression whose solution is to eliminate this exploitation by constructing a classless society. The second model in the conquest approach thinks that the main problem is national exploitation. The various previously autonomous entities, once brought together under the authority of the central government were humiliated. The solution proposed was to accord true self-rule especially in the form of federal state. The second model is reflected in the FDRE Constitution, which pledges to give recognition to customary laws in some senses. This Constitution focuses on giving due place to diversity. The Constitution reflects the belief that if diversity, which is a fact of life in the country, is not respected conflict is inevitable and hence the desired national development would be impeded.

In addition to the importance of studying customary laws in the Ethiopian context, such study has general significance. In the following few paragraphs, Juma argues that customary laws in Africa are still relevant for many reasons. He states that the reasons for such importance lies in the place given to customary laws in the Banjul Charter, the global resurgence of politics of identity and the increasing importance attached to traditional conflict resolution mechanisms in the area of tribal conflicts, environmental laws and intellectual property law.

African traditional customs and values are not static. The erroneous assumption that African traditional customs are monolithic and unchanging finds support among some relativists. Its gradual codification, as witnessed in some countries, the inevitable mixing of populations and the movement from tribe to state has greatly disturbed its purity. However, contrary to many people's expectation, customary law has not withered away. Its resilience stems from many factors, prominently its command of majority following in Africa. Specifically, the majority of Africa population resides in the countryside or rural areas. These areas are of low economic productivity where livelihood is sustained mainly by subsistence farming. They are also areas of minimal economic growth due to neglect by the central state administration. Since independence, for instance, industrial development in Kenya has concentrated in urban areas. Improvement of infrastructure and the establishment of public facilities and services have equally taken place only in towns and cities. Meanwhile, the rural population suffers from lack of hospitals, roads and even schools. Therefore, these communities retain significance in traditional African beliefs and customs as a means of regulating societal life. Consequently, since the traditional African beliefs and customs are interwoven with political, social and economic spheres of human endeavor, it has never been possible to disassemble one area or deal with a single aspect of societal life without affecting the other.

The disparity in economic development between the rural population and the urban minority has, in itself, illuminated the differing views on the position which customary law ought to occupy in the legal system. Low levels of economic development and the near marginal conditions by which people in the rural areas live have prompted suggestions that such customary systems of rules are inimical to progress. Customary law has equally been dismissed precisely on this ground. Further, customary law has been seen to perpetuate vestiges of traditional African civilization, which, to many people, bear no relevance to modern times.  One African socialist noted that the politics and ideology of the past were the concentrated expression of their economics, the economics of the past, and has no relevance to the economics of the present or the economics of the future. The neo-traditionalism of African legal writing, before and after independence, has kept the customary law belief alive. The claim for surviving African Customary Law was, and is still, seen as a crucial ingredient in cultural nationalism. The call to African nationalism during the independence struggles was predicated upon the plight of 'African people' as distinct persons with unique needs, aspirations, culture, and law. These struggles were legitimized by notions of rights of the African people, strengthened by the emerging principles of humanity, freedom and equality borne out of international human rights instruments and the American Constitution. It is, therefore, of no surprise that the independence constitution of most African countries contained a whole chapter on the Bill of Rights.

Most profoundly, however, is the idea of a 'peoples right,' which later provided an ideological base wherein continental unity was forged. Indeed, with the formation of the Organization of African Unity (OAU) in 1963, the independent African states affirmed their solidarity in the quest for better life of the 'African peoples.  It is also within the OAU political framework that African states have adopted the African Charter on Human and Peoples Rights (also known as the Banjul Charter on Human and Peoples Rights) and the Protocol on the Establishment of an African Court on Human and Peoples Rights. In its preamble, the Banjul Charter requires the parties to take into consideration the virtues of their historical tradition and the values of African civilization which should inspire and characterize their reflection on the concept of human and Peoples rights. The implication here is that African traditional values, and by extension customary law, are key to the realization of human rights. The terminology of 'peoples rights,' recognizes the contribution that African Customary Law, appropriately developed, could render to the development of human rights in the continent. The study of African Customary Law and the institutions that it fosters is not misplaced. Currently, the world at large is witnessing a general resurgence of politics of identity. A casual look at the spate of intra-State conflicts in many parts of the world reveals that allegiance to ethnic values and glorification of customs and tradition has become part and parcel of people's agenda for political reform and development. Similarly, reference to customary rights in resource utilization regimes and environmental management has added impetus to the reification of customary values and belief systems. In Africa, the renewed recognition of customary rights will unravel new challenges. Remodeling agrarian policies to take cognizance of the prevailing customary practices, and adapting traditional conflict resolution strategies in resolving political disputes have all been presented as an effective way to deal with African problems.  Notwithstanding, the place of African Customary Law in the legal system will have to be unambiguously defined and its antecedents cleverly reinterpreted to set the stage for a more progressive utilization of its principles.

 

The Concept of Source in Law: The term source has a couple of definitions. One sense of the term `source` is that all the pieces of information used in the preparation of a legal document. A legal document may be a constitution, a proclamation, a regulation, a directive, a testament and any other legal document. This sense of the term is also referred to as a material source. Secondly, the term refers to the reason why a given legal rule is valid or must be respected. When you ask the question: why should people respect law? The answer to this question gives you the second sense of the term `source.` Material source of the document may be obtained form public opinion, pertinent books, experts, past legislation, foreign sources and research, etc. In the case of customary laws, customs or customary practices are material sources.

The second sense of the term, the validity requirement, is very controversial. As you have learned from the course in legal history, in the Mesopotamian society law was perceived as god-given. The Greek society secularized law. The French legal system attributed the source of law to the legislature. The French pattern was followed in the German legal system. The Islamic legal system thought laws to come from a supernatural being called Aalh. The Confucian legal system believed that a prophet, Confucius, had to do with the creation of binding legal rules. The socialist legal system has taken the communist party as the sole source of law. The present course pertains to the analysis, among others, of the validity source of customary law; the question is What transforms customary practice into customary law? As  can be see in due course, there are several conflicting answers to this question.

Importance of the Concept of Source in Law: The importance of understanding the meaning of source of law lies in two reasons. The first one is for legal research. Whenever there is a gap or an inconsistency in an area of law, you need to apply to, you may resort to interpretation. Interpretation may lead you to do some legal research. And legal research, in turn, may lead to consulting the historical sources of materials.  The second significance is to understand the issue why a given legal rule is binding. You appreciate that different communities in human history answered the question of the validity of laws quite differently.

Definition: There is no uniformly accepted definition of customary law, and different scholars define customary law in different ways. This is so because custom varies from place to place. As custom varies from place to place, and so there is no single accepted definition of it. However, it may be defined as a rule of conduct, which is accepted and governs a group of people.In addition to its lack of uniform definition, customary law is given different names by different scholars. Some scholars have referred to customary law as folk law, people’s law, unofficial law, indigenous law or primitive law often implying its inferior positions as compared with the modern western state originated laws.

Other literature, mores (plural of Latin ‘mos’ meaning custom) defines mores as involving several sanctions when behavior deviates from the customary rule of the group. The marriage of white woman to a black man in the Southern US or a Brahman to an untouchable in India was considered a violation of mores of these groups until recently.Custom is a norm of action, percept or rules of conduct, which is generally accepted and practiced by group of people. Custom is a rule or law set by the people themselves by which they voluntarily accept to govern their actions. A custom can be partial, specific with regard to a certain subject matter or locality or general custom applicable through out the country.

Customary law is not the mere stipulation of rights and obligation in a particular community but it is the mechanism of resolving dispute. There is a procedure to resolve disputes without the assistance of the institutionalized justice system. Customary law is unwritten law and kept in the memory of people or elders. Therefore, when a case or dispute arises, the interested party have to ask these people for a solution” Custom is to society what law is to the state. Each is the expression and realization of men’s insight and ability of the principles of right and justice. Customary law involves spontaneously evolved rules emerging through dispute adjudication, customary law provides a rather reliable process for discovering the natural law, because spontaneously evolved and voluntarily followed custom is more likely to result in mutual advantages than a rule imposed by a powerful group.

Kinds of Custom: All customs which have the force of law are categorized into legal custom and conventional custom. “A legal custom is one whose legal authority is absolute, and one which in itself possesses the force of law. A conventional custom is one whose authority is conditional on its acceptance and incorporation in agreements between the parties to be bound by it.

Conventional Custom: The binding authority of conventional custom emanates from not because it is in advance incorporated to the law, but because the parties have accepted it as practice. In this regard, Fitzgerald argue that usage or conventional custom is, as has been indicated, on established practice which is legally binding, not because of any legal authority independently possessed by it, but because it has been expressly or impliedly incorporated in a contract between the parties concerned. Fitzgerald further argues how conventional custom may be applicable in the area of contract. He says that in the contract entered between two parties the implied terms of the contract is supplied by implication to make the contract workable and complete.

In the absence of contract with fully expressed terms, it is advisable for the courts to look for the presumed intention of the parties by accepted business practice of a particular contract. The law presumes that where persons enter into a contract in any matter in respect of which there exists some established usage, and to incorporate it as a term of contract in the absence of any expressed indication of a contrary intention. He who makes a contract in any particular trade, or in any particular market, is presumed to intend to contract in accordance with the established usages of that trade or market, and he is bound by those usages accordingly as part his contract. Terms may be implied into such contracts either by establishing a trade usage in the strict sense or even by showing that it is reasonably necessary to assume that it was entered into on the basis of some established practice of the trade.

The other point to be discussed here is the legal requirements that must be fulfilled by the conventional custom before it can thus serve as a source of a law and of legal rights and obligation. As opposed to the legal custom on which law imposes the requirement of immemorial antiquity whereof there is no memory, no specified duration is legally imposed on conventional custom. But what is required is that in point of duration the custom shall be so well established, and therefore so notorious, as to render reasonable the legal presumption that it is impliedly incorporated in agreements made in respect of the subject matter.

Legal Custom: As it was defined somewhere above, legal custom is one whose legal authority is absolute. It is independently sufficient to create legal rights and obligation without prior consent of the parties. Such custom is that which is effective as a source of law and legal rights directly and per se, and not merely indirectly through the medium of agreement in the manner already explained.

Legal custom is further divided into two: the one is local custom, and the other is the general custom of the realm.

Local Custom: Local custom, as the name indicates, is the custom whose applicability is limited to particular area. It prevails only in defined locality. The present day local customs consists of the most part of customary rights vested in the in habitants of a particular place to the use for diverse purposes of land held by others in private ownership.

In order that a local custom may be valid and operative as a source of law, it must conform to certain requirements laid down by law.

Paton (year)says that the custom (a) must not conflict with any fundamental principle of the common law; (b) must have existed from time immemorial; (c) has been continuously observed and peacefully enjoyed; (d) be certain; (e) must not conflict with other established customs; (f) and be reasonable. These days, advanced local customary law continues to play some supplementing part in the adjustment of local interest. Nevertheless, advanced local customary law is diminishing as the result of the establishment of a universal system of law in a given state possessing clearly defined organs of legislation. Some of the codified civil law systems of modern times go so far even as to reject local custom altogether as being contrary to the objective of legal unification aimed at by the code.

National Customary law: National customary law is also called general customary law.  There is a legal requirement for the general custom too. As it is said for a local custom, there is time requirement for a general custom. There are also other requirements: The very same considerations of public interest which induced our early law to impose up on local custom the requirement of immemorial antiquity are applicable with equal force to the general custom of the realm. The public interest requires that modern custom shall conform to the law, and not that the law shall conform automatically to newly established customs.

Customary Practice versus Customary Law: Customary practice also called custom or convention implies a behavior that is followed by the majority member of a given community habitually and for a longer period without having an obligatory force. All customary laws are customary practices while some customary practices are customary laws and others are not.

Customary Law and Social Control:  Social control consists of the whole range of instruments and institutions used to bring an individual to conformity. Every community employs social control, though the complexity and aim of such social control may differ from society to society, to create and maintain as well as instill in the members of such community values deemed essential. You can cite state law, customary law, international law, customary practice, education, family, religion, morality, etc. as parts of social control. Social control aims in general at keeping a society together. Such society may be a local community, a country, a region or a global community.

Customary Law and Traditional Laws: Traditional laws, also called cultural laws or indigenous laws, are broader in scope than customary laws. Traditional laws may be made at a certain point in time. Customary laws are just part of traditional laws. For some, traditional laws, to be made, do not have to wait for a longer period of time. Authorized elders of a given community may gather together to discuss a matter and to pass legislation. This latter form of traditional laws resembles modern state laws.

Customary Law V. Positive Law: Can you make a distinction between customary law and positive law? Below, you will draw similarities and distinctions between the two types of laws: positive law is also called state law and customary law. You will also learn about the distinction between customary law and customary practice.

Similarities: Both customary law and positive law have many things in common. Both are body of rules that regulate the conflicting interests of men.The other similarity between the two is the binding force each has though they differ in application. While positive law may have wide applicability, customary law may limit itself to the particular locality. Even if the extent to which they are going to bind differs, both customary law and positive law have a binding nature within a community. Both of them can adjust to the changing circumstances. Customary law is not rigid to changes, but capable of making itself flexible to accommodate the changing social, economic and political circumstances. Moreover, these rules, far from being absolutely inflexible and unchanging, are indeed in manner similar to the state legal system, subject to a process of constant adaptation to a new situation, old rules being re-interpreted and new rules being from time to time created.

Custom is to society, what law is to state. Each is the expression and realization, to the measure of men’s insight and ability, of the principles oflight and justice. The laws embodied those principles as they commend themselves to incorporate community in the exercise of sovereign power. Custom embodies them as acknowledged and approved, not by the power of the state, but by the public opinion of the society at large.As modern secular laws, customary laws are in most cases secular in nature and subject to violation. Many if not all such rules are secular in character and are just as liable to be breached or disregarded, as are modern laws.

Differences: The one difference between customary law and positive law is that, while the former is not reduced into writing, the former is the codified one, customary law passes from one generation to the next through songs, chants, proverbs and etc. In a society which has no written records, or writing of any kind, the operative custom of the tribe must depend upon the accuracy, reliability, and indeed honesty of the memories of those, especially the chieftains and elders, in whom it is enshrined. Accordingly, the fallibility of human memory alone must account for a good deal of gradual erosion of an accretion to the body of customary law.

The fact that positive law is in black and white reduces the potential weakness attributable to customary law. The other point worth mentioning is the scope of application. While customary law is applicable only to the particular locality concerned, the positive law has binding force on all over the people living in the land. A law is general since it applies not only to one particular group of person but also to other persons with in the community. On the other hand, there are customs that only apply in a particular territory of the country and these are local customs

There is organized body to enact, interpret and enforce the law made by the state, i.e., positive law. Whereas customary law lacks institutionalized body to get assurance of being observed. This does not mean that customary law is left without any one to take care of its observance. Since it is dependent upon reciprocity, a member of the community may be denied a reciprocal right if he refuses to act in accordance with the custom. There is also other sanction against the deviant. Punishment may follow. The problem is that customary institution is not as such strongly organized and dedicated only for the enforcement of customary law. The other difference is the effect they have in the society. That is, statute law is superior in that rules are logically arranged and may easily be discovered. The predominately unwritten nature of customary law makes it difficult to ascertain the rule thereof.

Last modified on Wednesday, 02 May 2012 13:05
More in this category: « Law and Custom