23 March 2012 Written by  Muradu Abdo and Gebreyesus Abegaz

Law and Custom

Many jurists, such as Austin, have been content to confine their attention to legal systems of this character on the ground that the normative systems encountered in earlier or primitive forms of society are so different in character from those of developed communities that they are not deserving of being ranked as law ‘properly so-called’ or that they are no more than ‘primeval substitutes for law’.

There is nothing to prevent jurists, any more than other systematizers, from delimiting, defining, or classifying their subject-matter in whatever way they please, and for some purposes it may be desirable or at least convenient to distinguish between normative systems occurring at different phases of human development.  There may be good reasons for not wanting to bracket together the obligatory rules found in such diverse societies as those of Australian bushmen, of the Greeks of the Homeric Age, of European feudalism in the Middle Ages, and of modern England or France.  To some extent the question of classification is a matter of choice as long as it is borne in mind that the choice is not entirely arbitrary seeing that it must be governed, as in any other classification system, by close attention to the features which the various types possess in common, as well as to those which are dissimilar.

In carrying out this process as scientifically as possible, there will enter inevitably some element of value value-judgment, for in the last resort we will have to decide on the relative importance of the resemblances and dissimilarities, in the same way as the biologist has to evaluate the comparative structure of different species in order to decide whether a whale is a fish or a mammal, and the physical anthropologist has to settle what characteristics justify him in treating the skeletons of early anthropoids as belonging to a human rather than an ape-like species.  Nor are such classifications vitiated by the need to make value-judgments, provided they are related to a close study and analysis of the phenomena from which reasons may emerge for preferring one grouping to another.  In the field of legal classification this point has already been considered in relation to international law, where it has been shown that though it by no means corresponds precisely with national law, there are nevertheless good grounds for bracketing the two together as legal phenomena.  The differences between the two are not thereby in some magical way made to vanish into thin air; what is recognized is that there are persuasive reasons for treating the term ‘law’ as wide enough to cover various closely related though not identical types of normative systems.


Law and Custom compared


There are many reasons why we may feel disposed to explore closely the interrelation between the legal norms operating in developed societies and the types of norms encountered in earlier or primitive societies.  To begin with, the sociological jurists have taught us to see that even in developed communities law exists on more than one level and that to penetrate its mechanisms it is not sufficient to confine our attention exclusively to the sophisticated documentation of legal rules.  We must also try to come to grips with the underlying social norms which determine much of its functioning; what has been graphically described by Ehrlich as the ‘living law’ of a society.  Again, the phenomenon of a developed state, with regular organs of law-making, is one which has emerged relatively infrequently in the history of human culture, yet in all human societies, however distant or primitive, we seem always to find sets of norms regulating the conduct of their members inter se and regarded as binding upon them.  Furthermore, even in the case of the most developed states of modern times, if we examine their legal systems from the point of view of their historical origins we will be obliged to trace these back to periods when conditions prevailed not dissimilar to those of ea rlier or more primitive cultures.  If then we are to grasp the significance of law as a means of social control, it seems unwise to ignore the way normative rules operate in all different types of societies.  For such an inquiry may not only enable us to decide whether there are norms in all known societies which may justifiably be classified as legal but may, by bringing into focus matters more easily visible in a simpler form of society, throw a good deal of light upon the deeply concealed roots of legal processes in more complex social orders.

Custom, Habit, and Convention

The norms operating in less developed societies are frequently referred to as customary law’. We will refrain for the moment from using this term, which rather begs at least one of the questions we are engaged in investigating, and adopt the more colourless expression, ‘custom’.  In the first place, this term must be distinguished from mere habit and from convention.  All these phenomena exist in every society and may be illustrated from our own.  A habit is a course of conduct which we regularly, though not necessarily invariably, pursue but without any sense of obligation or compulsion to do so.  For instance, I may have the habit of wearing a hat out of doors, or of going to work by one means of transport rather than another.  Such habits may become extremely rigid, for it is part of the psychological make-up of human beings that they tend to form habits, and without this tendency life would be so erratic that social order would be impossible.  Some individuals are more regular in their habits than others.  It was said that people in Konigsberg used to set their watches by the time at which the German philosopher Kant was wont to proceed on his afternoon walk. But the point about habits generally is that they are not regarded as socially compulsive.  I may be so accustomed to take a train to work rather than a bus that I do this automatically and without reflection, yet I do not regard myself as under any social compulsion to do so, and I can change to any other available means of transport without any sense of infringing any kind of norm.  It is true that some types of habit, as psycho-analysis have demonstrated, are of an obsessive-compulsive type, but this is a distinct psychological characteristic or certain kinds of neurosis and is not to be confused with the sense of obligation which arises because the individual recognizes that the doing of a certain act is imposed upon him by reason of the existence of a given legal, social, or moral norm.

It is just this socially obligatory element that is characteristic of customary observance.  Again, to illustrate from our own society, it is customary for a man to dress in public in a certain way, to eat with a knife and fork, and so forth.  These rules are neither absolute nor regarded as equally obligatory by all concerned. For Scotsmen may wear kilts, women may wear trousers, and ‘beatniks’ may adopt deliberately unconventional clothing or modes of eating, even in a society where customary observances in such matters are fairly accepted and are adhered to.  The vital difference, however, between such customs and habits of the kind previously referred to is that those who accept the customs and adhere to them regard themselves as in some way bound or obliged to observe them. The ordinary citizen visiting a restaurant no more considers himself free to pick up his food in his fingers than to assault his neighbour.  Although he is unlikely to analyse the reasons for this it seems clear that he regards himself as, in the one case, subject to a binding social norm or rule forbidding certain eating habits in public, as, in the other case, he feels bound by a legal norm or rule forbidding the use of physical violence.

Lying between habit and custom, in the sense explained, are to be found in a given society certain observances which, while not regarded as fully obligatory, may nevertheless be regarded as proper modes of behaviour which people are expected to carry out, though in practice it is recognized they frequently fail to do so, and such omissions are accordingly tolerated.  Such usages may be referred to as conventions, and as existing examples may be suggested the acknowledging of letters or of greetings.  The weakness of such conventions may be due to the fact that they represent the attenuated survivals of customs of an earlier period, for instance, the now fast disappearing modes of etiquette towards women, such as offering them a seat in a public vehicle.  The special feature, then, of conventional behaviour is that while particular individuals may feel themselves bound to observe it, it is not regarded as generally binding, and the individual may largely please himself whether he conforms or not.

It will be observed that whereas both customs and conventions are normative in the sense that they establish rules of conduct for compliance, habits do not refer to or depend on norms, but simply involve regularities of behaviour which are in fact observed.  Many, if not most, habits never assume a normative character, but remain on the level of personal idiosyncrasy.  An individual may lay down norms for himself, as, for instance, in the usually rather fragile ‘new-year resolutions’.  These, however, have little significance in the field of social regulation, for it is the outward-looking rather than the inward-looking norm that eventually becomes established in customary form.  The fact is, however, that habits can and do become converted into customs, though the reasons for this transmutation may not be easy to identify and many factors may cooperate.  The tendency towards imitation between human beings may well play some part here, though it has sometimes been exaggerated, especially by Trade.  Much may depend upon whether a practice is established by a member or group of members who enjoy a special authority in a community and whose example is therefore likely to be followed.  Again, a practice may gain currency because of its obvious or seeming advantages.  Be this as it may, it seems to be a recognized form of human progression that practices which continue to be observed over a period tend, especially if they appear to possess a distinct social function or utility, to be norm-creating.  That is to say that the ‘done thing’ eventually proves to be the thing that ought to be, and perhaps ultimately, must be done.  Customary observance has not necessarily always grown up in this kind of way.  Custom may result from deliberate innovations instituted by the ruling class or the example of some authoritative or highly reverenced personage in a community.  The headman or chief in a primitive society, for instance, may settle a dispute in a particular way, and although such a society may have no conception of legal precedent, either because of the authority of the chief, or because the ruling seems eminently reasonable, a custom thenceforth may be established which will be regarded as binding in like situations.

Custom in Primitive Society

Custom, operates at all levels of society, and it must not be assumed that its character or functioning is identical at widely different levels.  It will be as well, however, Un begin with the more primitive types of human society, for it is to these that the main attention of modern anthropology has been directed, and widespread research in this field has yielded much information which throws light on the working of custom and its relation to law.

At one time the, view commonly held was that in early society it was impossible to differentiate between legal, moral, and religious norms since these were so closely interwoven into a single texture.  Certainly the authoritative source of custom will generally, if not invariably, be attributed to some divine, semi-divine, or supernatural powers, often believed to be the ancestral founders of the tribe itself.  To quote an early investigator of Australian totem-clans, when someone asks the reason for certain customs or ceremonies the answer given is ‘because our ancestors arranged it thus’.  And writers such as Fustel de Coulange and Durkheim have shown the importance of ancestor-worship in moulding social institutions and creating social solidarity.  The fact however, that customary observances may draw upon the religious beliefs of the community and obtain from them a good deal of their binding quality, does not mean, as was supposed by earlier writers such as Sir Henry Maine, that it is not possible to distinguish between religious and secular rules in a primitive society.  True it may be that such differentiation is not always practicable, but rules which constitute religious taboos of the community, violation of which will draw upon the offender direct punishment at the hands of the supernatural powers, are often distinguished from rules which regulate the social and economic organization of the community and whose enforcement is in the hands either of some secular authority-the tribe or clan itself, the chieftain, or group of elders-or the next-of –kin of an injured person.

Two other important misconceptions have been gradually dispelled. The first of these was that in early society custom was completely rigid and unchanging, and that primitive man was born into a helpless condition of total conformity to tribal custom.  In this view the group rather than the individual was the only unit of the social order.  Sir James Frazer tells us in his famous work, The Golden Bough, that ‘there is more liberty under the most absolute despotism, the most grinding tyranny, than under the apparent freedom of savage life, where the individual’s lot is cast from the cradle to the grave in the iron mould of hereditary custom’.  Doubtless this sort of approach was a reaction to the romantic notion, disseminated by earlier writers, of the happy and peaceful savage living a life of idyllic bliss in a state of nature governed only by the beneficent control of natural law.  Fanciful though this picture was, its successor in the shape of the hidebound primitive, yielding unvarying compliance to tribal custom, and overwhelmed by a sense of fear of the supernatural, was hardly less overdrawn.,

Some of these clouds have been dispelled by such investigators as Malinowski, who have shown how many of the rules of a primitive society derive not from dark beliefs in and fear of the supernatural, but rather, as indeed in our own society, on the need for reciprocity in social and economic relations.  For just as our own society provides a legal and institutional basis for the regulated exchange of various services and commodities, so similar customary rules are to be found in primitive societies in order to provide the means of satisfying their economic and other needs.  Moreover, these rules, far from being absolutely inflexible and unchanging, are indeed, bearing in mind the vast differences between the two modes of life and the technological equipment and organization supporting them, in a manner similar to our own legal system, subject to a process of constant adaptation to new situations, old rules being re-interpreted and new rules being from time to time created.

Sanctions and Primitive Custom

This brings us to the second of the major misconceptions among the earlier writers on primitive custom.  This was the notion that primitive man was caught up like a fly in a web of inherited custom and that so great was the fear of the forces of religion and magic that violation of custom by an individual offender was virtually unthinkable.  From this the conclusion was drawn that no sanctions were really necessary in such a society, for custom was self-enforcing and any occasional violation could be left to the supernatural powers, which would speedily visit death and destruction upon any person or group which disregarded the imperative norms of the tribe.  Subsequent investigation of the actual conditions among primitive peoples in many parts of the world has revealed how utterly remote from reality is this model of a primitive social order.  For not only is it found that primitive man is just as likely to offend against his customs and, indeed, as Seagle has put it, ‘to commit adultery with civilized casualness’, but all societies seem to have some form of legally controlled sanctions for punishing breaches of the rules.  Malinowski himself underwent some changes of view in regard to the question of sanctions, since at one time he seemed to take a rather too idealized view of the controlling force of ‘reciprocity’ in the life of the Trobriand Islanders among whom his researches were largely conducted.  In the end, however, he came down firmly on the side of those who hold that ultimately the working of primitive, as of developed societies, rests on coercive sanctions, though it may be the feeling or need for reciprocity that accounts for its effective functioning.

The form and indeed the effectiveness which sanctions may take will depend upon how highly the tribal institutions are developed.  In a very underdeveloped state of society, as among the Urubus of Brazil, who possess hardly any formal tribal organization and no system of law enforcement, the only sanction, apart from supernatural retribution or the blood-feud, may be that of shaming a defaulter into conformity.  Perhaps the simplest form of control is in relation to the blood-feud, where rules are formed, even among so primitive a society as the Eskimos, which enable force to be inflicted without revenge or the blood-feud ensuing, provided the proper procedure is followed.  Among such a people as the Trobrianders, use may be made of a primitive ‘stop-list’; if a man fails to comply with his economic obligations, for instance by default in making a customary payment, the economic support of the community may be withheld from the defaulter, who will thus be left helpless and alone.  Moreover, in more serious cases, socially approved force may be applied, and the ultimate sanction of compulsion and even death may be inflicted when the life of the community is endangered.  The main object of sanctions, nevertheless, is not so much to punish the individual offender as to restore the status quo ante, that is, to maintain the social order, for the breach is regarded as disturbing social solidarity, which has then to be restored.

In what respects, then, does primitive custom differ from developed law?  We have seen that it constitutes a body of norms distinct from religious ritual and observance, regulating and controlling the social and economic life of the tribe in a manner closely comparable to the functioning of law in a more developed social order.  Moreover, many, if not all, on such rules are secular in character and are just as liable to be breached or disregarded as are modern laws.  Some kind of enforcement is, therefore unavoidable and this generally takes the form of rules which regulate the conditions in which force may be properly applied without incurring the risk of provoking a blood-feud.  Very grave violations which threaten the security of the tribe, may justify death being inflicted either directly or by cutting off the offender from all economic means of sustenance, though is some cases, if religious taboos are involved, it may be left to the supernatural powers to impose the appropriate penalty.  There are, of course, many types of primitive society, some much more developed and institutionalized than others.  Some of these may possess relatively developed machinery for handling legal disputes, including even a formal court procedure, as for instance among the Barotse.  Broadly speaking, however, the vital contrast between primitive custom and developed law is not that the former lacks the substantive features of law, or that it is unsupported by sanctions, but simply that there is an absence of centralized government.

The Absence of Legal Machinery in Primitive Society

This absence of centralization, which expressed in modern terms, amounts to saying that there is a community but not a state, means that there are no centralized organs either for creating law or for enforcing it.  This does not imply that there is therefore nothing but unchanging and eternal and self-enforcing custom.  No doubt the more simple the mode of life of the particular society and the more stable it is the less need will be felt for change and the creation of new rules or the modification of old ones.  Primitive law (for such, we can now see, it may justly be termed) possesses a flexibility analogous to developed law in its ability to adjust to new conditions.  In the absence of regular machinery for formally establishing or creating law, change may still come about in a variety of ways.  For instance a council of elders may give a new interpretation of an old rule or even establish an entirely new one.  Or again the settlement of a dispute may result in a decision which may be treated (as occurs in modern judicial process) as a precedent for future cases.  In neither instance will the new custom or interpretation derive its authority from a formal legislative and constitutional power vested in some person or body; recognition will be given to it because of the reverence felt for the chieftain or the elders, or because these have invoked the spirit of the tribal ancestors or some other supernatural force, or possible even because the decision or ruling appears to the community as being eminently just and reasonable.  It must be borne in mind too, that 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 and accretions to the body of customary law.

The lack of established judicial tribunals to settle disputes and, even in the rare cases where these exist, the absence of centralized machinery for enforcing decisions, mean that primitive law is dependent on rather indiscriminate modes of enforcement, including self-help remedies applied by the next-of-kin of the injured person.  All the same in a small and closely-knit society these can prove singularly effective.  In considering the views of the modern sociological jurists we have had occasion to refer to Roscoe Pound’s   hypothesis that every human society possesses its basic legal ideology or ‘jural postulates’ which form the main, though usually implicit, pre-suppositions of its legal system.  This line of thought has been applied by Hoebel to a large variety of primitive societies in varying stages of development, and he has been able to elicit, at least tentatively, the underlying postulates of each one of these, and how they are related to and implemented by the actual rules of customary law observed by these societies.

One or two examples may be given from the many discussed in considerable detail by Hoebel.  Among the Eskimos, social life is very simple and legal institutions are rudimentary, so there are very few basic premises of their culture which can be translated into jural postulates.  Hoebel states that among those are included such postulates as that ‘life is hard and the margin of safety is small, and unproductive members of society cannot be supported’; and that ‘all natural resources are free or common goods, and that it is necessary to keep all instruments of production, such as hunting equipment, in effective use as much of the time as is possible’.  As for the first of those postulates, it is shown to provide legal justification for such practices as infanticide, and the killing of the sick and the old, and other forms of socially approved homicide.  As to the second postulate, this has a variety of important consequences, including the fact that for the ‘Eskimos land is not treated as being property of any kind, so that any man may hunt wherever he pleases, for the idea of restricting the pursuit of food is repugnant to all Eskimos.  Moreover, although game and most articles of personal use are objects of property notions, the Eskimos are strongly hostile to the idea of any body accumulating too much property for him self and thereby limiting the amount of property that can be effectively used in the community.  In one part of Alaska, for instance, prolonged possession of more goods than a man could himself use was regarded as a capital crime, and the goods were subject to communal confiscation.

To take another example, among the Ifugao in Northern Luzon, whose social organization is a good deal more elaborate than that of the Eskimos, one fundamental postulate given is that ‘the bilateral kinship group is the primary social and legal unit, consisting of the dead, the living, and the yet unborn’; and that ‘an individual’s responsibility to his kinship group takes precedence over any self-interest’.  This postulate is shown to produce important legal consequences, for instance many types of property are treated more in the nature of a trust than of absolute ownership:  a holding in trust for future generations.  Again, as the family consists not only of the living but also of the dead and the unborn, and concern for the well-being of the dead exceeds that of those who live now or in the future, family fields may be sold if necessary to buy sacrificial animals to accompany the spirit of a deceased ancestor; they may also be sold to bring about the recovery of a family member who is dangerously ill.  It is not possible to provide more details of these and similar matters within the ambit of the present work, but it should pointed out that Hoebel indicates, with a wealth of examples, the manner in which the postulates of the particular societies with which he deals are related to the actual legal rules and institutions of that society, and the way in which these reflect the physical environment and the cultural circumstances of the societies in question.

Two factors, in particular, seem to emerge from Hoebel’s analysis.  One is the way in which each society has a pattern of legal norms directed to maintaining a stable order conforming with its basic postulates.  The other is that the success of a society in maintaining such stability will depend upon the degree of integration which it has succeeded in achieving, and this in turn will be reflected in the degree to which its basic ideology commands general assent.  Clearly a poorly integrated  community, as Hoebel demonstrates in the case of some American-Indian tribes, is likely to have trouble when it comes to enforcing its customary law.

The concept of legal system: Can you tell the meaning of the term `legal system`? Can you tell the meaning of the term system`? A system implies that there are several elements that are put together to achieve a certain purpose.  A legal system is defined as a synergy of legal rules, legal principles, legal standards, legal policies, legal structures, legal tradition, legal actors, legal extension and legal penetration operating in a given geographical area. The term `synergy` in this definition implies that legal system is not a mere summation of the elements listed. A legal system is rather qualitatively different from and bigger than, the sum totality of those elements. The complexity of a legal system varies depending on the stage of development of a country. You cannot expect the Mesopotamian legal system to show the sophistication of the current English legal system. Again you should not expect the Greek legal system to manifest the complexity of the present day French legal system in terms of the arrangement of the legal rules, the legal professionals, recording etc.

In the definition, the term `legal system` refers to a present or past legal system. The purpose of legal system may be to sustain a slave-owning system or a feudal system or a capitalist system or to achieve a communist system. A legal system may be created to assure the survival of a theocratic system. A legal system may exist at local level or national level or regional level or international level. Legal structure encompasses law schools, bar associations, the police, courts, the legislature, the executive and prison administration. Generally, legal structure means all those institutions responsible for creating, modifying, interpreting, improving and implementing laws. Legal actors means the persons acting in legal structures, means members of the parliament, officers of the state, law students, law teachers, legal practitioners, etc.

 

Legal culture: Legal culture refers to a set of deeply rooted and historically conditioned attitude of the majority of the members of a given legal system towards the other elements of that legal system, which means the way laws are made, modified, interpreted, the way the legal actors and structures function. Legal tradition is the abstract element of a legal system. The attitude directed towards a legal system can be hostile, neutral or favorable. When the attitude of the governed is hostile, the legal system will show instability; and it will have to be changed. When the attitude of the governed is supportive of the legal system, the system will show continuity. So depending on the type of the attitude of the majority members of the legal system, the legal system may show deep and frequent changes or stability. When we say legal tradition, we are referring to the attitude of the majority members of a given community. The attitude that constitutes a legal tradition should be directed to a legal system and should be something deeply embedded in the system. The attitude should also be historically conditioned in the sense that it should be there for a relatively longer period of time and that it should have the feature of perpetuating itself.

Last modified on Wednesday, 02 May 2012 13:05