The study of legal transplantation is important in customary law course since legal transplantation often takes place in developing countries such as Ethiopia with diverse customary law systems. Often the transplanted laws come for a variety of reasons from advanced legal systems. Such transplanted laws officially or on paper question the validity of customary laws. In fact the customary laws continue to be little affected. The adoption of western laws presents the interaction between two sets of laws with quite distinct assumptions and methods. So the study of transplanted laws, its history, reasons and theories is significant in customary law course.
Legal transplantation: Legal transplantation is also known by other names. These are legal borrowing, legal importation, legal reception and legal taking. Legal transplantation refers to the transfer of rules, principles and legal concepts from one or more than one legal system to another legal system. The legal system borrowing laws can be called the recipient system while the legal system lending laws can be called the donor legal system. The lending system may be an existing legal system or a past legal system. Countries, for example, borrowed from the Roman legal system that ceased to exist centuries ago. The recipient legal system should be an existing one or a system at its initial stage of development. Legal borrowing can involve a single legal rule; it can be a massive borrowing. For instance, Ethiopia borrowed large quantity of laws in late 1950`s and 1960`s. At the end of 19th century, Japan received large quantity of laws from Germany. Small-scale borrowings takes place everyday. Appreciating legal transplantation is important to conduct legal research, as it enables you trace the right sources of the laws of a given country.
Factors for legal transplantation: Can you identify and explain the factors that may drive a country to receive laws from another system? Do you think that a country borrows laws based on its free decision alone? Do you think that there are cases where a country may be compelled to take laws from another system? A recipient country may borrow laws since they are accessible in terms of language, the laws are found out to be meritorious in terms of organizations, the laws were transplanted to other systems and found out to be fruitful and when the recipient country decided to modernize its legal system. A country may adopt foreign laws as a result of migration or commercial intercourse. A country may adopt the laws of another country because the important elites are attached to the legal system and education of the donor country. A country may be forced to accept the laws of other systems owing to war or conquest or colonization or physiological pressure. Can you give concrete examples for each of these reasons? Is it possible to say, for example, that many countries in Africa and Asia received laws form France and England as a result of colonization? Is it possible to say that the socialist laws were spread to several countries all over the world as a result of ideological threat from the ex-USSR? Can we say that Islamic law was propagated to the other parts of the world through conquest, migration and commercial interaction?
The development of legal transplantation: Legal history indicates that legal transplantation has been rampant. The Greek gave important legal theories to the Romans; the Romans borrowed from the Greek legal system some conceptions of laws. The Romans converted the idealism of the Greek into practical legal rules. The Romans gave principles of private law to European countries such as France and Germany. France added to the laws it received from the Romans some theories and techniques. France then codified its laws in early 19th century. France propagated its laws first to neighboring European countries. Later, France transplanted its codes to Asia and Africa through the instrumentality of colonialism. Some countries, such as countries in Latin America, received laws from France voluntarily. England also transported its laws to all over the world via colonialism. Eastern European countries received laws from the civil law countries. After the end of Second World War, however, East European countries were forced to adopt socialist system of laws. Again after the 1980`s, these countries went back to the civil law tradition owing to external pressures. The socialist legal system was developed as an idea in 19th century and early 20th century translated into practice in Russia. Russia, later USSR, became the mastermind behind the spread of socialist laws to Asia and Africa in some cases through force and sometimes through pressure.
The Islamic legal system originated as an idea in the Middle East in the 7th c AD, and then taken to the coastal areas of Africa, Middle East and Asia. Now a kind of Islamic belt is created. The spread of the Islamic legal system has been attributed to a combination of the following factors: conquest, migration and commerce. Do you realize form these descriptions that legal systems develop through borrowing? Do you appreciate that legal borrowing has implied power relations in the sense that laws usually flow form powerful legal systems to less powerful ones? Do you agree with the proposition that legal transplantation can take place faster in the cases where the recipient system has gaps?
History of Legal Transplantation: Consider the origin, development, spread and decline of the Roman law in the following few paragraphs. The Corpus Juris Civilis is the name of the code developed by a roman emperor known as Justinian. The Corpus Juris Civilis of Justinian was not restricted to Raman civil law. It included much that had to do with the power of the emperor, the organization of the empire, and a variety of other matters that lawyers today would classify as public law.
The Germanic tribes, called the Barbarians, invaded and controlled the Western part of the Roman Empire. With the collapse and the invasion of the Roman Empire, the CORUPS JURIS CIVILIS became inapplicable. The invaders applied cruder, less sophisticated versions of the Roman civil law to the peoples of the Italian Peninsula. The invaders also brought with them their own Germanic legal customs, which under their rule that the law of a person's nationality followed him wherever he/she went, were applied to themselves but not to those they had conquered. Even so, a fusion of some Germanic tribal laws with indigenous Roman legal institutions did begin to take place in parts of Italian southern France, and the Iberian Peninsula.
As light returned to Europe, and Europeans regained control of the Mediterranean and as the Renaissance began, an intellectual and scholarly interest in law emerged. What civil lawyers commonly refer to as "the revival of Roman law" is generally conceded to have had its beginning in Bologna, Italy late in the eleventh century. It was at Bologna that the first modern European University appeared, and law was a major object of study. But the law that was studied was not the body of the rules enacted or customarily followed by local towns, merchants' guildes, or petty sovereigns. The law studied was the CORPUS JURIS CIVILIS of Justinian.
Within a short time, Bologna and the other universities of northern Italy became the legal center of the Western world. Students came from all over Europe to study the law as taught in the Italian universities. The law studied was the CORPUS JURIS CIVILLIS, and the common language of study was Latin. There was a succession of schools teaching about the proper way to study and explanting the CORUPS JURIS CIVILIS. Of special prominence, for both their views of the law and their styles of scholarship, were the groups of scholars known as the Glossators and the Commentators. They produced a great body literature, which itself became the object of study and discussion and came to carry great authority. Those who have studied in Bologna returned to their nations and established universities where they also taught and studied the law of the CORPUS JURIS CIVILIS according to the style of the Glossators and Commentators (Those persons who were experts in the Corpus Juris Civilis). In this way, the Roman civil law and the works of the Glossators and Commentators became the basis of the common law of Europe, which is actually called the jus commune by legal historians. There was a common body of law and witting about law, a common legal language and a common method of teaching and scholarship.
With the rise of the nation an state and the growth of the concept national sovereignty, particularly, form the 15th century, the age of the jus commune of a common law of Europe disappeared, and the period of the national law began. In some parts of Europe (e.g. Germany), the Roman civil law and the writings of the Belgian scholars were formally "received" as binding law (civil lawyers use the term "reception" to sum up the process by which the nation - states of the civil law world came to include the jus commune in their national legal systems). In other parts of Europe, the reception was less formal; the CORPUS JURIS CIVILIS and the works of the Glossators and Commentators were received and became of value as customary law. By one means or another many countries in Europe received the Roman Civil law. These countries are now the home of the civil law tradition.
Eventually, in the nineteenth century, the principal states of Western Europe adopted civil codes (as well as other codes) of which the French Code Napoleon of 1804 is the primary one. The subject matter of the civil codes was almost identical with the subject matter of the first three books of the Corpus Juris Civilis of Justinian and the Jus Commune of medieval Europe. The principal concepts were Roman and medieval common law in nature, and the organization and conceptual structure were similar.
Some Illustrations of Legal Transplantation
French law: French law spread first to Europe, then, to Africa, Asia and Latin America. The French codes transplanted to Europe primarily through military force. In most areas where the Code was introduced, it was embraced, and survived Napoleon’s personal downfall. The Battle of Waterloo did not end the application of the Code in Europe, particularly in western Germany, and Italy. In the Netherlands, the Code survived unaltered until 1838, whereas in Prussia the Code was gradually reintroduced. Even in areas where French rule had been unpopular, such as Spain, post-Napoleonic governments were held up to French standards for a codified law based on judicial equality. Following the restoration of the old order, a series of 1820 revolts in Naples, Piedmont and Spain were affected by demands for administrative reform. Within France itself, the Code survived almost unaltered for more than 150 years, and even today has not been fundamentally changed. In many ways, the Code was the most enduring legacy of the French Revolution.
Latin America received the French codes primarily because of its technical merits and as a result of the reaction to the hated Spanish and Portuguese colonial rules. Latin American countries got independence from Spain in early 19th century. These newly founded states needed national and unifying Civil Codes; the only available model was the French code Civil and Spanish law was out of the question since it was the law of the previous colonial power and since it was neither codified nor uniform even in Spain where local customary laws survived. The code civil was a product of the great Revolution, rooted in a world of ideas on which the Latin Americans had frequently drawn to justify their own struggles for independence. In its compactness and clarity of phrase, the Code Civil was far ahead of any other mode. And furthermore, the code was so full of traditional concepts and ideas especially from Roman law, that its reception was not a deviation from the legal institutions known to the Spanish and Portuguese settlers. Some countries in Asia and Africa received French codes due to the existence of gaps and the force of French colonialism.
The code had such a wide influence because it was the Code of the French Empire whose military powers, backed by a brilliantly integrated civilization, made such a deep impression on people not only during its brief life but many years after it was over. The reception of the French Civil Code is attributable not only to the political power of the French Empire, or to the spiritual influence of French civilization, but also in a great measure to the merits of the Code Civil itself. In the 19th century the Code enjoyed intellectual authority and an almost supernatural appeal as the Code of the Great Revolution, which had abolished the ancient regime. The Code of Napoleon also produced for the first time legal unity and equality for the citizens of a centrally organized national state. The spread of the code civil throughout the world was greatly helped by its admirable language and the easy flexibility of its expression, in brief, by its very quality.
German law: The German codes were not transported so extensively as the French codes. They were transplanted at the end of the 19th century to Japan and thereafter to some African countries. The reasons for the little expansion of the German codes lie in: the fact that Germany did have few colonies, as she was a latecomer to the scramble for different parts of the world. There are another reasons for this little influence. The codes were a bit sophisticated and complex. The third reason is that when the German codes were put in place at the beginning of the 20th century in Germany, many countries had already adopted laws from France and Great Britain. So there were then little legal gaps to be filled with in countries in Africa and elsewhere.
The English Law: Originated in 11th century, the English legal tradition expanded itself predominately through colonialism. The expression ``the sun never sets in the British Empire`` has attained the level of a saying. In addition to some other meanings, the expression suggests the extent of the spread of the British law. The English law was transported to North America (the United States of America, to Canada), Asia and Africa. England transported legal ideas, legal methods, and legal institutions of the common law to countries in these continents. Britain also carried the substantive and procedure laws to these parts of the world. These parts of the world also reflect the English court system and the structure of the legal profession.
Theories on legal transplantation: Do you support legal borrowing? Is there any problem in borrowing laws? There are three views on whether legal transplantation is a desirable one. The first approach is referred to as the custom theory. F. von Savigny, a German thinker of 19th century, elaborated this approach. The approach states that law and society have unique relationships. Law and society have inherent connections. There is a unique relationship between law and society means that laws are found in the common consciousness of the people. This common consciousness is manifested via the behaviors of individual members of that community. Laws are related to the identity of a society for which they are created. Further, every community is legally self-sufficient; whenever a society faces a legal problem, it creates legal rules. To this theory, if one attempts to take the laws of X community to Y community by way of legal borrowing, those transferred laws will inevitably fail. Legal transplantation will never solve the problems of a recipient legal system. If you know in advance that borrowed laws will fail, there is no reason to try it.
An opposing theory developed by Alan Watson holds the view that there is no unique connection between law and society. The theory also holds that no community has ever been legally self-sufficient in the history of mankind. The theory is named as legal engineering. This theory views laws as intangible instruments to achieve certain goals. As laws are tools, they can be taken to any society and used with success. Justifications are given for this position. The first reason is that the fact that legal transplantation has been very common in the history of legal systems shows that people have found it rational and useful. In the second place, if there are laws used by X Community and if Y community needs those laws, why should the latter be asked to reinvent those legal concepts and legal rules? It is rational for Y community to receive the laws of X community, which are tested in practice.
Thirdly, the custom theory assumes implicitly, but wrongly, that countries take the laws of other nations on the basis of their own free will. However, history gives us several examples where countries have borrowed laws as a result of external pressures.
The third theory attempts to strike a middle ground. In some areas of law, for example, in the area of commercial law, public law and technology law, there are gaps or traditional laws do not exist in developing countries. In such cases, developing countries do not have a choice; they have to borrow laws. In other areas of laws such as family law, inheritance laws and land laws, developing countries have longstanding laws. In the latter cases, it is difficult to transplant laws and even if transplantation takes place, the laws so transplanted will not be welcomed. This hybrid approach is articulated by Kahn-Freund. This position is also called the degree of transferability approach. This moderate approach to legal transplantation states that the contexts of the recipient country should be studied well before the borrowing of laws is made. Which theory do you support: the custom theory (also known as the historical theory), the social engineering theory (also called the instrumentalist theory) or the hybrid theory? And why?
More on the Theories of Legal Transplantation: The debate surrounding the theory of legal transplants has an almost unique beginning. In 1974 Alan Watson and Otto Kahn-Freund presented competing theories on the viability of legal transplants. The divergence of their views can be traced to the adoption of contrary propositions about the relationship between a state's law and its society.
Watson's theory begins with the proposition that there is no inherent relationship between law and the society in which it operates. He believes that law is largely autonomous, with a life of its own. Watson states that law develops by transplanting, not because some such rule was the inevitable consequence of the social structure and would have emerged even without a model to copy, but because the foreign rule was known to those with control over lawmaking, and they observed the apparent merits that could be derived from it.
Under Watson's theory, a legal rule is transplanted simply because it is a good idea. While Watson does not explicitly present a method to predict the viability of a proposed legal transplant, his writings provide guidance for such a method. He has further identified several factors that he believes must be considered to determine if the conditions are ripe for legal change by transplantation.
Kahn-Freund's disagreements with Watson begin with Watson's proposition that there is no inherent relationship between a state's law and its society. He claims that laws must not be separated from their purpose or from the circumstances in which they are made. Kahn-Freund argues "we cannot take for granted that rules or institutions are transplantable and believes that "there are degrees of transferability. Ewald summarizes Kahn-Freund's theory: "legal institutions may be more-or-less embedded in a nation's life, and therefore more-or-less readily transplantable from one legal system to another; but nevertheless at one end of the spectrum law is so deeply embedded that transplantation is in effect impossible.
Kahn-Freund identified a two-step process to determine the viability of a proposed transplant. The first step is to determine the relationship between the legal rule to be transplanted and the socio-political structure of the donor state. The second step involves comparing the socio-political environment of the donor and receiving state.
There is agreement, however, that the phrase "legal transplants" refers to the movement of legal norms or specific laws from one state to another during the process of law-making or legal reform. However, as a consequence of these conflicting propositions, their theories clash not only over how to evaluate the viability of a proposed legal transplant, but also over the general conclusions that can be reached about the usefulness of legal transplants as a tool of comparative scholars. Other scholars debate nearly every aspect of the legal transplant theory.
The study of legal transplants has been revived since the collapse of totalitarian rule. It is not. The issue of reception of foreign law has a considerable history and a remarkable topicality. As states around the globe implement dramatic political and economic changes in response to external and internal developments, their legal systems must be radically altered. In making these changes, legislators determine whether the borrowing of foreign law is feasible and if the international harmonization of a particular set of laws is viable. The argument is strong that there is no need for legislators to struggle to reinvent the wheel when others have dealt with the same issues. This argument is further supported by the fact that states are under pressure in the increasing interdependent world to create uniformity in law.
Massive successful borrowing is common in law. Borrowing is usually the major factor in legal change. Legal borrowing is of enormous importance in legal development. The borrowed rule does not operate in exactly the way it does in its country of origin. Since the time of late Roman Empire, they have been a major factor in legal change in the western world. England is no exception. Nor is the United States. Nor is Québec, even with its differences from the other provinces. The real issue is whether there should be a deliberate concerted effort, spear-headed perhaps by academics, to create a common law.
Beginning in 1991, Eastern Europe began the unprecedented effort of lawmaking on a grand scale. Almost overnight and at the request of their people and/or international organizations, former communist countries had to disassemble their political, economic, and legal institutions, which were based on centrally planned economies, to erect market-based democracies. Large sections of their old legal systems were now obsolete. The legislatures, however, were in most cases not free to form law and policy, as an "author is free to write a novel.`` The legal establishment of the communist era held influential posts and had contacts in the East and the West. They were ex officio called to lead reform efforts. In addition to them, foreign technical assistance arrived with ideas for ``legal surgery or reception of foreign law.`` A great number of foreign concepts (e.g., negotiable instruments of credit security devices) were introduced as if they were legal transplants to replace malfunctioning organs.
Comparative law was employed to decide either compatibility of foreign legal concepts or the merits of foreign legal systems and to provide an anthology of foreign legal ideas. Modern comparative legal methodology deals with legal transplants and reception of foreign law.
Legal penetration versus legal extension: Can you define legal penetration and legal extension? Do you think there is a gap between legal penetration and legal extension? If there is a gap between the two, in developed or undeveloped legal systems does it exist? Can you give reasons for the gap? As you may recall, legal penetration and legal extension are two of the elements of a legal system.
Legal extension: Those responsible for the importation of laws assume that the transplanted laws would affect human conducts possibly 100%. The assumption is based on the belief that the actors at the time of massive importation of laws desire that communities would adjust their behaviors to the imported laws. The actors who sponsored wholesome importation of laws plan that the imported laws would be implemented in all parts of the territory of the recipient country. For example, Ethiopia borrowed large scale laws in 1950`s and 1960`s; at that time, key personalities responsible for such project, it is assumed, expected that such laws would be accepted by the people; the people would shift their allegiance towards the new western oriented laws. Was that expectation realized?
Legal penetration: Legal extension refers to the extent to which people are actually following the imported laws. If legal extension is the aspiration, legal penetration is the reality. The question is whether people have actually adjusted their behaviors to the prescriptions of the imported laws or people are settling their social and economic conflicts pursuant to customary or religious laws?
In the context of developing countries such as Ethiopia that transplanted laws from the west there is a substantial gap between legal extension and legal penetration. The gap is not. We can cite examples. In Ethiopia, the imported family law, as incorporated in the Ethiopian Civil Code of 1960, states that spouses are equal, at the time of the creation of marriage, in the course of marriage and upon the dissolution of marriage. The husband and the wife should conclude marriage on their free consent. The husband and the wife should share household burdens equally. The husband and wife should divide the common property equally when their marriage comes to an end via dissolution. But the customary laws do not conform to these prescriptions of imported laws. You can take the case of land. Land since 1974, in Ethiopia, has been taken as a collective property. But under customary law some tribes still believe that land belongs to them. You can go on citing examples in the area of homicide law etc. In developed countries, on the other hand, people have sufficiently adjusted their conducts to the official laws.
Additional notes on legal extension and penetration: Like other social systems, a legal system has boundaries, and its components are interrelated by an internal logic. Legal extension and legal penetration help define the boundaries of the legal system.
In every society, much is left to custom and tradition, to religion, to informal negotiation and settlement, to social convention and peer influence. But the precise location of the boundaries between such non-legal matters and those of legal concern is unlikely to be always and precisely the same. The range of variation becomes particularly significant if we identify law with the official legal system, manned and operated by the state.
The degree to which a legal system seeks to penetrate and control social life is often quite different from the extent to which it actually does so. For example, a large number of Ethiopians live much of their lives relatively free of any substantial contact with the official legal system, which actually applies with most force to an urban middle class and rapidly loses its power as one moves down the socio-economic scale and away from the major cities. In a substantial number of such nations as Ethiopia, Kenya and Indonesia, the paper legal system will look much like that of France or Spain or Italy, or England or the United States of America. But if one looks at the actual role of law in the lives of important elements of the population the resemblance is only superficial. Thus along two dimensions, the aspects of social life that proposes to affect and the extent to which it actually does so, the scale of divergence of legal extension and legal penetration between societies can be, and often is, substantial. Both the social reach and the social grasp of the law are important variables. Legal penetration can take to mean the degree to which a rule, code, or law takes hold in a population. Key to closing the gap and improving penetration is better communication of law to the populace.
An empirical research carried out jointly by North Western-Haile Sellassie I University on the impact of the various laws on the Ethiopian society revealed that in the area of commercial law there exist some major conflicts in the mercato between law and practice. However, according to the researchers these conflicts appear due to lack of education or knowledge on the part of the merchants with respect to accounting practice and registration requirements and reluctance on the part of authorities to strictly enforce many harsh legal provisions. Little if any, evidence of resistance to these laws on the basis that they are "foreign" to customary way of doing things was detected.
While in the area of family law, it was found that despite the fact that the new law's attempt to break the customary practice of adoption by imposing a requirement of court approval, people are still continuing to adopt according to customary procedures without seeking court approval. Although no empirical research was made and we cannot positively say that the law is not being followed, it is very doubtful whether the Civil Code's requirement that a man be eighteen and a girl be fifteen years old in order to marry is being followed. In addition, one can cite the provisions dealing with names that up to now have been more or less a dead letter.
However, even though law as an instrument of achieving the desired results may be slow or weak in matters that affect basic drives and values, the mere fact of affirmation through acts of law and government as it expresses the public worth of one set of norms, of one sub-culture vis-à-vis those of others demonstrates which cultures have legitimacy and public domination and which do not is significant in itself. Thus the law aside from its effectiveness as an instrument can still have this symbolic effect, as an act, decision or gesture important in itself.
In developing societies such as Ethiopia, one can note a gap between a professed ideal and reality. For example, if one examines the Ethiopian Civil Code which is basically designed for the future Ethiopian society and tries to introduce new norms, one can note that some of its provisions are already out of tune with the times. One of the few mandates in the code regarding marital dispute resolution is that the parties should submit the disputes to arbitrators selected by them, Although this system of having relatives, neighbors and friends attempt to resolve a couple's dispute makes sense in the abstract, litigants with divorce petitions are coming to courts initially in increasing numbers in the cities. Under the Civil Code, family arbitration was a codified customary practice with its origins in rural Ethiopia before the rise of cities. In rural Ethiopia, family friends and community elders are quick to agree and often to volunteer to arbitrate marital disputes. But the city filled with migrants, where independence is fostered, it is relatively difficult to get acquaintances to devote the long hours, seldom compensated, that are required by family arbitrators. For this reason, then many couples approach a court to obtain an "order" that arbitrators, whom the parties select shall act in a dispute. It apparently puts the fear of authority into some otherwise reluctant candidates. The fact that the institution of family arbitration did not reduce the court congestion and the fact that divorces in present Ethiopia demand a degree of expertise not commonly possessed by most family arbitrators are some of the reasons that were given by Aklilu Wolde Amanual to justify his recommendation to abolish the institution. Constant legislative, judicial and administrative innovation are thus necessary to keep the law abreast of life and this process of innovation requires sociological investigation, for a mere guess of politicians combined with the skill of legal draftsman is not an adequate basis of law reform, nor is a more armchair analytical legal study of existing alternative rules.
Reasons for the Gap: What is the explanation for this gap? What are the possible reasons for the divergence between official legal prescriptions and the reality? We can simply speculate the answers as we do not have sufficient empirical data. The first possible reason is that the imported laws have not yet been sufficiently communicated to the people or to the governed because the laws are published in English and Amharic which millions of people in this country do not understand. Further, the laws have not been adequately communicated to the addressees since there is a huge percentage of illiterate population. The imported laws assume a literate society. Secondly, the state lacks the necessary resources to implement some of the provisions of the imported laws. The third reason is that the laws were defectively transplanted, which means the country’s context was not properly studied and the customary and religious laws were not given the place they deserved. As a result, the imported laws lacked the necessary legitimacy from the people. A related factor is that the pre-existing laws in Ethiopia are so deeply rooted in the fabric of the society that they could not easily and quickly be replaced. People are deeply attached to the customary laws. People have inherited dispute settlement mechanisms that were used by their ancestors. Simply stated the force of tradition is the reason behind the tacit resistance put up against imported laws. Finally, it is argued that the transplanted laws could not succeed since the assumption of the customary laws is different from the assumption of the western laws. The customary laws focus on the group; paramount importance is attached to the survival of the collectivity. On the other hand, it is opined that western laws are designed for and around the interests of an individual.
For custom to be regarded as law, more than simple usage is required, even if the usage is general and has long flourished. Consistent behavior in accordance with particular implicit rules does not indicate that people should so behave, or conversely should be subject to some sanction if they do not.
The main problem for any theory of customary law is determining the nature of the additional factor required to transform custom into law. Here you will study this issue by considering some five theories of customary law, namely the tacit consent theory, the theory of opinion necessitaties, the common spirit of the people, sovereign recognition and judicial recognition.
The tacit consent of all: Can you guess how this theory of customary law might define customary law? The Roman sources clearly indicate that some additional factor is needed to recognize custom as law, even if the nature of this factor is not apparent. For example, the Epitome Ulpiani states that custom is the tacit consent of the people, deeply rooted through long usage. Another Roman source document states that unwritten law is that which usage has approved. For long-practiced customs, endorsed by the consent of the users, take on the appearance of statute. In this instance, the additional factor is expressed by "endorsed by the consent of the users. The element that transforms custom into customary laws is deeply rooted custom is observed as a statute, not undeservedly; and this is what is called law established by usage. For since legislation binds because it has been accepted by the judgment of the people; then those things that the people have approved without writing will bind all. Thus, custom is law because the people accept it as law.
Can you state the problems of this theory? The theory of the tacit consent of all tells that custom would be transformed into customary law if and only if all members of a given community agree on such transformation. Thus, one problem is that it is almost impossible to get the consent of all members of a given community on each and every custom to be upgraded to customary law. Is it not impractical to obtain the assent of all? It is almost impossible to obtain the unity of minds of all to the transform of custom into customary law. The second criticisms directed against the tacit consent of all theory is that customary law binds every member of a given community; its breach would entail sanctions. But this serious matter is reduced by the tacit consent theory of customary law to a covert consent not an open and explicit consent. The point is that the idea of explicit consent makes more sense that the idea of tacit consent in such type of serious matters.
Theory of Opinion Necessitatis: For opinion necessitatis, individuals purposely follow a certain rule simply because they believe it to be a rule of law. The practice must be the expression of an intention of legal validity of the community or of a general conviction of law provided only that one is clear that this "intention of legal validity" or the "general conviction of law" is not solely a "psychological fact" but the "sense of fulfilling a norm" (of a legally commanded behavior) developing or dwelling in the individual acts of conduct according to the judgment of those sharing the same law. Under this view, custom becomes law when it is known to be law, is accepted as law, and is practiced as law by persons who share the same legal system.
Can you comment on this theory? Assume that once the custom is known to be law and is accepted as law, the practice changes. Does the old law cease to be law, and the new practice become law? If this does happen, at what moment does it happen? And, what is the machinery for change? The theory of opinion necessitatis fails to adequately answer these questions.
In the first situation, those subject to the law remember the past custom. In the second, they forget the past custom. In the first situation, a contrary practice cannot change the law. So long as people remember the past custom as being law, there can be no point on the custom-law continuum at which the new practice usurps what in consciousness has been the law. Accordingly, the outmoded practice must cease to be law before a different law can begin to emerge from customary usage. The theory of opinio necessitatis contains no mechanism for deleting law that no longer commands approval. Under the doctrine of opinio necessitatis, overlapping practice does not create a new legal rule because the new practice was not followed in "the general conviction of law.
the doctrine of opinio necessitatis does not allow the desuetude of a customary legal rule when that legal rule is remembered. Customary law is a "general conviction of law"; hence, it corresponds to what people generally do. People conform to customary law because it is the law. Failure to conform would be an unacceptable deviant act contrary to law. The point is not that customary behavior does not change; rather, under the doctrine of opinio necessitatis, when a rule of customary law exists and is remembered, the rule cannot become obsolete by desuetude. In other words, acts that are known to be contrary to the rule cannot affect the rule's efficacy
There is another problem in the doctrine of opinio necessitatis. A legal rule can only fall into desuetude if another legal rule replaces the existing rule regardless of whether this later rule merely states that the first rule no longer applies. But under a theory of opinio necessitatis, the new rule can only come into existence after the old known rule is recognized as extinct. Otherwise, those subject to the law would not be convinced that the new behavior corresponds to the law. Accordingly, no framework exists within which desuetude can operate in compliance with the doctrine of opinio necessitatis.
When those subject to the laws forget the past custom, the prior law effectively is not changed by a contrary practice. If the people completely forget customary law, then as a practical matter, the law does not and did not exist. People may have gradually adopted a very different lifestyle with respect to the past custom, e.g., perhaps as a result of migration. We should regard the new practice as law, not simply because new law has replaced old law, but because law has been created for circumstances where no law previously existed. When the people completely forget a rule of customary law, the doctrine of opinion necessitatis does not explain how a subsequent contrary practice has, as law, replaced previously existing customary law. Thus, the doctrine of opinion necessitatis excludes the possibility of changing customary law by subsequent practice, both when the customary law is remembered and when it is forgotten.
The Common Spirit of the People: This theory was developed by von F. Savigny. Under this view, law arises not from individual acts of behavior but from common consciousness. Individual acts of behavior do not create customary law but are merely appearances or indications of a preexisting common conviction about the law.
The common spirit of the people is criticized for its several failings. First, this theory presents a nation as a corporate entity; it assumes that a nation manifests unity of action when it comes to developing customary laws. Second, the theory hides several historical instances where the minority has imposed its will on the majority in the form of laws. Third, the theory dismisses the possibility of a country borrowing laws from other countries. Finally, the theory is criticized for being narrow or ethnocentric.
Sovereign Recognition: John Austin suggests that customary laws originate as rules of positive morality, which arise from the consent of the governed. However, for moral rules to be transformed into positive laws, the state must establish these customary laws. The state may establish customary laws either directly by statute, or indirectly by judicial decree. Thus, under Austin's approach, customary behavior does not make law; custom becomes law only when it is the subject of statute or judicial decision.
Austin's theory implicitly assumes that all law is legislation and that judges, insofar as they create law, are legislators. Austin's theory is consistent with his position that law is the command of the sovereign. Under this view, a statute becomes law even before it is enforced by a court decision. Scholars who do not accept Austin's theory of law will find Austin's theory of custom unacceptable. If one believes that other sources of law, such as custom, exist in theory, then law may also potentially exist without benefit of a court decision. It is precisely the binding force of custom which challenges [Austin's] initial assumption itself," and that "he failed to explain satisfactorily why the body of rules which he classified as positive morality' . . . lacked the true character of law.
A second objection to Austin's theory concerns societal treatment of judicial decisions. Societies that do not treat judicial decisions as binding legal precedents may nevertheless treat decisions establishing a custom as binding. From this viewpoint, a legal historian might claim that custom rather than judicial precedent is law. In this system, when a court finds that a custom exists, the subsequent decision based on that custom is not binding as a decision. Accordingly, the court establishes the preexisting custom as a matter of fact, and the decision, which is not law, merely confirms the preexisting law.
Therefore, the defects of the sovereign recognition theory of customary law are that the state has no moral authority to validate or invalidate the wishes of the communities as reflected in their customary laws, that the state may distort the authenticity of customary laws in the course of validating them, that it is unsound to state that the state is the only valid source of legal rules and that customary laws are already valid by the assent of the community and thus not need to validate them any more.
Judicial Recognition: The basis of local customary law is frequently treated as custom rather than judicial precedent even though acceptance of the rule actually stems from local judgments rather than from antecedent local behavior. This treatment raises a question about the role of judgments in creating customary law. Similarly, custom is a separate source of law distinct from both legislation and judicial precedent. But like judicial precedent, custom must be accepted by the sovereign in order to constitute law. To become law, custom, like legislation and binding precedent, must be clothed with the requisite form, which marks its official acceptance by the sovereign. This requisite form requires that adjudicators incorporate custom in a judicial decision. A society may accept custom as law when incorporated in a judicial decision but deny law-making effect to precedent, thereby demonstrating that custom as a means of making law is not simply subsumed into binding precedent. So long as the courts treat the custom as law, the custom is the accepted customary law. Should the courts hold that the custom has changed, however, then the new ruling becomes the customary law.
In sum, a major problem for any theory of customary law is determining the nature of the additional factor required to transform custom into law. The doctrine of opinion necessitatis generally has replaced earlier consent theories, but a major flaw of the opinion necessitatis doctrine remains. The doctrine fails to adequately incorporate the creation of new customary law or the deletion of obsolete customary law. Savigny's theory of the common consciousness fails to resolve the logical failings of opinion necessitatis. Austin's work suggests that custom becomes law only by the additional factor of state confirmation. Redactions of customary law show that, although the basis of customary law is treated as custom rather than judicial precedent, acceptance of the rule often arises from official judgments rather than from antecedent local practices. Court decisions, not law themselves, function as official sovereign recognition and acceptance of rules of custom as law. Court decisions transform rules of custom into law, regardless of whether the antecedent custom was actually recognized as law. Customs do not become law until institutionalized by inclusion in an official court decision. This theory of customary law may help to explain several otherwise problematic aspects of medieval and practice.
The theory of Desuetude: Can you explain the theory of desuetude? A full appreciation of this theory warrants asking the following four questions. First what is desuetude? This term is a generic term. Desuetude means anything that is no longer in use; but originally designed to serve a given purpose. As applied to customary law, what is the meaning of this term? The doctrine of desuetude is inherent in customary law. The doctrine of desuetude states that when a practice that is recognized as law ceases to be followed or to be regarded as law, it ceases to be law. At that stage, but not before, the road becomes clear for the creation of new customary law. Adherence to the new custom before the old customary legal rule becomes obsolete is a factor in making the old legal rule obsolete. It simply means the customary law in force has lost its obligatory force. The third question is the reasons why customary law may lose its obligatory force. Customary law may lose its obligatory force owing to internal and external changes in the community that developed the customary law in the first place. The community has developed the customary law in order to solve a given legal problem and when the context in which the customary law changes the customary law itself must disappear or be modified. The final question in respect of theory of desuetude is whether the outdated customary law might revive.
History of Customary Laws:
This sub-section describes certain information relating to the origin and development of customary laws in different legal traditions.
Origin and Development: The history of customary law is as long as the history of human kind. In those early times where there was no codified law by institutionalized organ of the state, people were governing themselves in a certain way. The evaluation of law began before history was recorded with laws built upon one by one as disputes were settled. In fact the development of rules in society predates both courts and the written law. For thousands of years, customary and private legal systems alone ordered human activities. The obligation to behave in a certain way in a particular community became a customary law in that particular community the failure to observe result in a sort of sanction from the community against the deviant. This is so because behind customary law there is moral force to behave in a certain way. They became compulsory and have acquired the force of law with respect to the place or subject matter to which it related.
“… Rules (i.e., customary laws) can evolve and emerge spontaneously as the unintended outcomes of individuals separately seeking their own goals. Such laws are less likely to be violated than enacted authoritarian laws because they require voluntary acceptance by individuals in recognition of reciprocal benefits received, As a result, customary law is less likely to require adjudication.
Since its inception, customary law has undergone considerable change as the society is always in a constant motion. Customary rules also respond to the particular needs and interests of the social group. When these change, customary rules tend to change though the way they change is influenced by the nature of previous rules… Some customary law lost its power as there is a constant mobility and interaction of the society. As a result, there is a move from old customary law to modern law. As certain activities of human beings are beyond the reach of customary law, it is supplemented by modern law. In ancient societies a greater degree of psychological conformity was necessary. So custom is stronger in ancient than modern societies. In the present world, custom is conserved in the rural districts among less developed groups than in the cities.” Circumstances were slowly changing that people themselves were unaware of the change. So law and custom change with those circumstances. The old practice were forgotten, however, people believe that they are still following the percepts of their ancestors, when the truth is that they have long since abandoned them.
Customary Laws in Some Legal Systems: Customary law is one of the elements of the civil law tradition. The modern law of merchant, whose origin is usage, has passed three successive historical stages. The first stage was the situation where by the existence of certain usage in particular business was proved by the witnesses called by the party before the court; the second stage was the time when the court took cognizance of the existence of certain custom in particular transaction. This is so by referring to earlier decisions of similar question of facts and /or laws. The second stage of development is reached when the courts take judicial notice of the custom in question, so that it no longer requires to be specially pleading or proving in the particular case. It has already been sufficiently proved in the previous cases, and has received the authority of the precedents established by those earlier cases.
The last stage of merchant law is its incorporation into the formal national laws. This law has its first source in the conventional law, and secondary source in the precedent. The law of bill of exchange, and the law of marine insurance which were both in their origin part of the customary law merchant, have now completed its normal course of legal development.
It is said that conventional custom is the source of modern law merchant. The bulk of the law as to bills of exchange and other negotiable instruments, bills of lading and marine insurance, has originated in this manner as customary law. Law so derived from the conventional customer of merchants is known as the law merchant.
Prior to codification, Germany used customary laws. European countries regulated themselves, among other, by customary practices and customary laws in the Middle Ages.
Before the French Revolution, traditional customary laws prevailed in the north. The rules were Germanic customs while Roman law influenced the southern part of France. Roman law gradually spread northwards. The French legal system was not sharply divided because there were written rules influenced by Roman law but containing strong Germanic elements in the south. And Roman law was not entirely rejected in the North.
France received Roman law not because it had been laid down by Rome, but on the ground that it had been accepted by custom or by reason of its quality. The existence of diverse customary rules and edicts created some degree of legal uncertainty in France.
France’s need for a single, unified code of laws had been keenly felt even before the collapse of the ancient regime. Whereas, southern France had inherited Roman law, northern France was ruled by a system based on customary law. The two systems were fundamentally different. The laws differed not only from province to province but also from town to town. Nor were the laws always rational. Louis XIV, the Sun King, had summed up his approach to lawmaking with his famous phrase “It is legal because I wish it.”
Before the introduction of the Civil Code, a patchwork of customary laws based on tradition and the whim of the monarch had ruled throughout the continent. The new Code introduced the concept of a unified, logical system based on general principles of law. This facilitated the export of the ideas of the French Revolution beyond French borders.
In their move to eliminate legal uncertainty, some practitioners attempted to record customary laws of particular regions in France. It remained true, however, that the customary laws of Northern France depended principally on oral tradition. The judge who did not know the appropriate rule of the relevant area had to discover it by interviewing local inhabitants. The proliferation of custom and the difficulty of discovering their content led to great legal uncertainty. As a result, a French king in the 15th century declared that the customs of the various territories should be written down. The king also ordered that those, which were already recorded, should be drafted anew.
The intervention of the kings in having the customs recorded met with opposition from some territories. The intervention and the effort to write down the various customs in France strengthened the power of the traditional customary laws to withstand Roman Laws. The recording of customary rules saved France from the massive reception of Roman law, which took place in Germany. The codification of customary laws created conflict of different customary rules. Recording of customary law in France had brought about legal certainty. Yet, it could not diminish the substantial differences between them. The recoding efforts of French customary laws made the difference among such rules sharp and conspicuous.
Case law grew up in England because of the accident of the early English judges being Normans. They were foreigners to England and they were bound together by an ESPRIT DE CORPS, which made them respect each other's decisions, especially when these decisions dealt with matters, which were strange and unfamiliar to them. If half a dozen of you were to be sent to the wilds of Africa as judges, naturally when you meet together you would discuss the strange customs of the Africans, and if in a case you feel that what you heard from another judge would help in solving the problem. You would naturally remember that example and follow the precedent. In this fashion in England the Norman judges when they used to meet at the Temple discussed their cases, and started the practice of following each other’s decisions. Once the Bar discovered that the best argument in favor of a particular case was the decision of a brother judge in a similar case, they began to take notes of cases by these judges and in that manner law reporting came in to existence. Law reporting became an established practice in this manner, and now as you know the opinions of one judge are regarded as an authority binding on the other judges. The growth of case law in England was also accelerated by the reaction that set in against the reception of Roman law. On the continent, particularly in countries like Germany and France, the indigenous or local law was found to be unsatisfactory as society progressed, and whenever a complex case came up, to which the local law could supply no remedy, it was the practice of the judge to apply Roman law, with the result that at the present day, a large part of Germany and French law is nothing more than Roman law.
Also in England the local law was found to be unsatisfactory with the advance of civilization, and the same remedy of introducing Roman law was attempted. But the common lawyers in a body resisted it, and to meet the exigencies of the situation, the judges resorted to a fiction, namely, that there was no legal problem that could not be solved by the application of customary law, and that every judge carried about in his brains a complete body of such law ''of amplitude sufficient to furnish principles which would apply conceivable combination of circumstances''. A judgment or declaration of a judge was supposed to be in conformity with the custom of the land, and when such declarations were followed by subsequent judges for the sake of conformity, there grew up in England the practice of following precedents. It is possible as Maine points out, that the judges were influenced by Roman law principles, and that they borrowed in large quantities from the Roman law, but what is important for us to note, is that they did not rest the authority of their pronouncements on either the Roman law or on the theory of IPSE DIXIT, but on the fiction that their judgments indicated the custom of the land. It was always as indicating the custom of England, and not as an authority, that these decisions were acted upon and followed during the 13th and the 14th centuries.
Customary laws that were legitimatised when found out to be in line with the teaching of the Holy Veda. There are factors that led to the differing interpretation of the teachings of the Holy Veda; one of which was customs and practices surrounding the others affected their respective version of Veda. Islamic law was also subjected to different interpretations owing to, among others, the customary laws and practices of the Muslim communities living in different geographical conditions.
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.
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.