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Customary law
A legal custom is the established pattern of behavior that can be objectively verified within a
particular social setting. A claim can be carried out in defense of "what has always been done and
accepted by law".

Customary law (also, consuetudinary or unofficial law) exists where:

1. a certain legal practice is observed and

2. the relevant actors consider it to be law (opinio juris).

Most customary laws deal with standards of community that have been long-established in a given
locale. However the term can also apply to areas of international law where certain standards have
been nearly universal in their acceptance as correct bases of action – for example, laws against piracy
or slavery (see hostis humani generis). In many, though not all instances, customary laws will have
supportive court rulings and case law that has evolved over time to give additional weight to their rule
as law and also to demonstrate the trajectory of evolution (if any) in the interpretation of such law by
relevant courts.

Contents
Nature, definition and sources
As an indefinite repertoire of norms
Law as necessarily rule-governed
Codification
International law
Within contemporary legal systems
Custom in torts
Customary legal systems
See also
References
Citations
Sources
External links

Nature, definition and sources

A central issue regarding the recognition of custom is determining the appropriate methodology to
know what practices and norms actually constitutes customary law. It is not immediately clear that
classic Western theories of jurisprudence can be reconciled in any useful way with conceptual
analyses of customary law, and thus some scholars (like John Comaroff and Simon Roberts)[1] have

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characterised customary law norms in their own terms. Yet, there clearly remains some disagreement,
which is seen in John Hund's critique of Comaroff and Roberts' theory, and preference for the
contributions of H. L. A. Hart. Hund argues that Hart's The Concept of Law solves the conceptual
problem with which scholars who have attempted to articulate how customary law principles may be
identified, defined and how they operate in regulating social behaviour and resolving disputes.[2]

As an indefinite repertoire of norms

Comaroff and Roberts' famous work, "Rules and Processes",[1] attempted to detail the body of norms
that constitute Tswana law in a way that was less legalistic (or rule-oriented) than had Isaac Schapera.
They defined "mekgwa le melao ya Setswana" in terms of Casalis and Ellenberger definition: melao
therefore being rules pronounced by a chief and mekgwa as norms that become customary law
through traditional usage.[3] Importantly, however, they noted that the Tswana seldom attempt to
classify the vast array of existing norms into categories[3] and they thus termed this the
'undifferentiated nature of the normative repertoire'. Moreover, they observe the co-existence of
overtly incompatible norms that may breed conflict, either due to circumstances in a particular
situation, or inherently due to their incongruous content.[4] This lack of rule classification and failure
to eradicate internal inconsistencies between potentially conflicting norms allows for much flexibility
in dispute settlement and is also viewed as a 'strategic resource' for disputants who seek to advance
their own success in a case. The latter incongruities (especially of inconsistencies of norm content) are
typically solved by elevating one of the norms (tacitly) from 'the literal to the symbolic'.[5] This allows
for the accommodation of both as they now theoretically exist in different realms of reality. This is
highly contextual, which further illustrates that norms cannot be viewed in isolation and are open to
negotiation. Thus, although there are a small number of so-called non-negotiable norms, the vast
majority are viewed and given substance contextually, which is seen as fundamental to the Tswana.

Comaroff and Roberts describe how outcomes of specific cases have the ability to change the
normative repertoire, as the repertoire of norms is seen to be both in a state of formation and
transformation at all times.[6] These changes are justified on the grounds that they are merely giving
recognition to de facto observations of transformation [219]. Furthermore, the legitimacy of a chief is
a direct determinant of the legitimacy of his decisions.[7] In the formulation of legislative
pronouncements, as opposed to decisions made in dispute resolution,[8] the chief first speaks of the
proposed norm with his advisors, then council of headmen, then the public assembly debate the
proposed law and may accept or reject it. A chief can proclaim the law even if the public assembly
rejects it, but this is not often done; and, if the chief proclaims the legislation against the will of the
public assembly, the legislation will become melao, however it is unlikely that it will be executed
because its effectiveness depends on the chief's legitimacy and the norm's consistency with the
practices (and changes in social relations) and will of the people under that chief.[8]

Regarding the invocation of norms in disputes, Comaroff and Roberts used the term, "paradigm of
argument", to refer to the linguistic and conceptual frame used by a disputant, whereby 'a coherent
picture of relevant events and actions in terms of one or more implicit or explicit normative referents'
is created.[9] In their explanation, the complainant (who always speaks first) thus establishes a
paradigm the defendant can either accept and therefore argue within that specific paradigm or reject
and therefore introduce his or her own paradigm (usually, the facts are not contested here). If the
defendant means to change the paradigm, they will refer to norms as such, where actually norms are
not ordinarily explicitly referenced in Tswana dispute resolution as the audience would typically
already know them and just the way one presents one's case and constructs the facts will establish
one's paradigm. The headman or chief adjudicating may also do same: accept the normative basis

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implied by the parties (or one of them), and thus not refer to norms using explicit language but rather
isolate a factual issue in the dispute and then make a decision on it without expressly referring to any
norms, or impose a new or different paradigm onto the parties.[9]

Law as necessarily rule-governed

Hund finds Comaroff and Roberts' flexibility thesis of a 'repertoire of norms' from which litigants and
adjudicator choose in the process of negotiating solutions between them uncompelling.[2] He is
therefore concerned with disproving what he calls "rule scepticism" on their part. He notes that the
concept of custom generally denotes convergent behaviour, but not all customs have the force of law.
Hund therefore draws from Hart's analysis distinguishing social rules, which have internal and
external aspects, from habits, which have only external aspects. Internal aspects are the reflective
attitude on the part of adherents toward certain behaviours perceived to be obligatory, according to a
common standard. External aspects manifest in regular, observable behaviour, but is not obligatory.
In Hart's analysis, then, social rules amount to custom that has legal force.

Hart identifies three further differences between habits and binding social rules.[2] First, a social rule
exists where society frowns on deviation from the habit and attempts to prevent departures by
criticising such behaviour. Second, when this criticism is seen socially as a good reason for adhering
to the habit, and it is welcomed. And, third, when members of a group behave in a common way not
only out of habit or because everyone else is doing it, but because it is seen to be a common standard
that should be followed, at least by some members. Hund, however, acknowledges the difficulty of an
outsider knowing the dimensions of these criteria that depend on an internal point of view.

For Hund, the first form of rule scepticism concerns the widely held opinion that, because the content
of customary law derives from practice, there are actually no objective rules, since it is only behaviour
that informs their construction. On this view, it is impossible to distinguish between behaviour that is
rule bound and behaviour that is not—i.e., which behaviour is motivated by adherence to law (or at
least done in recognition of the law) and is merely a response to other factors. Hund sees this as
problematic because it makes quantifying the law almost impossible, since behaviour is obviously
inconsistent. Hund argues that this is a misconception based on a failure to acknowledge the
importance of the internal element. In his view, by using the criteria described above, there is not this
problem in deciphering what constitutes "law" in a particular community.[2]

According to Hund, the second form of rule scepticism says that, though a community may have rules,
those rules are not arrived at 'deductively', i.e. they are not created through legal/moral reasoning
only but are instead driven by the personal/political motives of those who create them. The scope for
such influence is created by the loose and undefined nature of customary law, which, Hund argues,
grants customary-lawmakers (often through traditional 'judicial processes') a wide discretion in its
application. Yet, Hund contends that the fact that rules might sometimes be arrived at in the more ad
hoc way, does not mean that this defines the system. If one requires a perfect system, where laws are
created only deductively, then one is left with a system with no rules. For Hund, this cannot be so and
an explanation for these kinds of law-making processes is found in Hart's conception of "secondary
rules" (rules in terms of which the main body of norms are recognised). Hund therefore says that for
some cultures, for instance in some sections of Tswana society, the secondary rules have developed
only to the point where laws are determined with reference to politics and personal preference. This
does not mean that they are not "rules". Hund argues that if we acknowledge a developmental pattern
in societies' constructions of these secondary rules then we can understand how this society
constructs its laws and how it differs from societies that have come to rely on an objective, stand-
alone body of rules.[2]

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Codification
The modern codification of civil law developed from the tradition of medieval custumals, collections
of local customary law that developed in a specific manorial or borough jurisdiction, and which were
slowly pieced together mainly from case law and later written down by local jurists. Custumals
acquired the force of law when they became the undisputed rule by which certain rights, entitlements,
and obligations were regulated between members of a community.[10] Some examples include
Bracton's De Legibus et Consuetudinibus Angliae for England, the Coutume de Paris for the city of
Paris, the Sachsenspiegel for northern Germany, and the many fueros of Spain.

International law
In international law, customary law refers to the Law of Nations or the legal norms that have
developed through the customary exchanges between states over time, whether based on diplomacy
or aggression. Essentially, legal obligations are believed to arise between states to carry out their
affairs consistently with past accepted conduct. These customs can also change based on the
acceptance or rejection by states of particular acts. Some principles of customary law have achieved
the force of peremptory norms, which cannot be violated or altered except by a norm of comparable
strength. These norms are said to gain their strength from universal acceptance, such as the
prohibitions against genocide and slavery. Customary international law can be distinguished from
treaty law, which consists of explicit agreements between nations to assume obligations. However,
many treaties are attempts to codify pre-existing customary law.

Within contemporary legal systems

Customary law is a recognized source of law within jurisdictions of the civil law tradition, where it
may be subordinate to both statutes and regulations. In addressing custom as a source of law within
the civil law tradition, John Henry Merryman notes that, though the attention it is given in scholarly
works is great, its importance is "slight and decreasing".[11] On the other hand, in many countries
around the world, one or more types of customary law continue to exist side by side with official law, a
condition referred to as legal pluralism (see also List of national legal systems).

In the canon law of the Catholic Church, custom is a source of law. Canonical jurisprudence, however,
differs from civil law jurisprudence in requiring the express or implied consent of the legislator for a
custom to obtain the force of law.

In the English common law, "long usage" must be established.

It is a broad principle of property law that, if something has gone on for a long time without objection,
whether it be using a right of way or occupying land to which one has no title, the law will eventually
recognise the fact and give the person doing it the legal right to continue.

It is known in case law as "customary rights". Something which has been practised since time
immemorial by reference to a particular locality may acquire the legal status of a custom, which is a
form of local law. The legal criteria defining a custom are precise. The most common claim in recent
times, is for customary rights to moor a vessel.

The mooring must have been in continuous use for "time immemorial" which is defined by legal
precedent as 12 years (or 20 years for Crown land) for the same purpose by people using them for that
purpose. To give two examples: a custom of mooring which might have been established in past times
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for over two hundred years by the fishing fleet of local inhabitants of a coastal community will not
simply transfer so as to benefit present day recreational boat owners who may hail from much further
afield. Whereas a group of houseboats on a mooring that has been in continuous use for the last 25
years with a mixture of owner occupiers and rented houseboats, may clearly continue to be used by
houseboats, where the owners live in the same town or city. Both the purpose of the moorings and the
class of persons benefited by the custom must have been clear and consistent.[12]

In Canada, customary aboriginal law has a constitutional foundation[13] and for this reason has
increasing influence.[14]

In the Scandinavian countries customary law continues to exist and has great influence.

Customary law is also used in some developing countries, usually used alongside common or civil
law.[15] For example, in Ethiopia, despite the adoption of legal codes based on civil law in the 1950s
according to Dolores Donovan and Getachew Assefa there are more than 60 systems of customary law
currently in force, "some of them operating quite independently of the formal state legal system".
They offer two reasons for the relative autonomy of these customary law systems: one is that the
Ethiopian government lacks sufficient resources to enforce its legal system to every corner of
Ethiopia; the other is that the Ethiopian government has made a commitment to preserve these
customary systems within its boundaries.[16]

In 1995, President of Kyrgyzstan Askar Akaev announced a decree to revitalize the aqsaqal courts of
village elders. The courts would have jurisdiction over property, torts and family law.[17] The aqsaqal
courts were eventually included under Article 92 of the Kyrgyz constitution. As of 2006, there were
approximately 1,000 aqsaqal courts throughout Kyrgyzstan, including in the capital of Bishkek.[17]
Akaev linked the development of these courts to the rekindling of Kyrgyz national identity. In a 2005
speech, he connected the courts back to the country's nomadic past and extolled how the courts
expressed the Kyrgyz ability of self-governance.[18] Similar aqsaqal courts exist, with varying levels of
legal formality, in other countries of Central Asia.

The Somali people in the Horn of Africa follow a customary law system referred to as xeer. It survives
to a significant degree everywhere in Somalia[19] and in the Somali communities in the Ogaden.[20]
Economist Peter Leeson attributes the increase in economic activity since the fall of the Siad Barre
administration to the security in life, liberty and property provided by Xeer in large parts of
Somalia.[21] The Dutch attorney Michael van Notten also draws upon his experience as a legal expert
in his comprehensive study on Xeer, The Law of the Somalis: A Stable Foundation for Economic
Development in the Horn of Africa (2005).[22]

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

In Indonesia, customary adat laws of the country's various indigenous ethnicities are recognized, and
customary dispute resolution is recognized in Papua. Indonesian adat law are mainly divided into 19
circles, namely Aceh, Gayo, Alas, and Batak, Minangkabau, South Sumatra, the Malay regions,
Bangka and Belitung, Kalimantan, Minahasa, Gorontalo, Toraja, South Sulawesi, Ternate, the
Molluccas, Papua, Timor, Bali and Lombok, Central and East Java including the island of Madura,
Sunda, and the Javanese monarchies, including the Yogyakarta Sultanate, Surakarta Sunanate, and
the Pakualaman and Mangkunegaran princely states.

Custom in torts

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Custom is used in tort law to help determine negligence. Following or disregarding a custom is not
determinative of negligence, but instead is an indication of possible best practices or alternatives to a
particular action.

Customary legal systems

Adat (Malays of Nusantara)
Anglo-Saxon law (England)
Aqsaqal (Central Asia)
Australian Aboriginal customary law
Basque and Pyrenean law
Coutume (France)
Custom (Catholic canon law)
Early Germanic law
Early Irish law (Ireland)
Inuit Qaujimajatuqangit
Kanun of Leke Dukagjini (Albania)
Laws of the Brets and Scots (Scotland)
Medieval Scandinavian laws
Pashtunwali and Jirga (Pashtuns of Pakistan and Afghanistan)
Smriti and Ācāra (India)
Customary law (South Africa)
Urf (Arab world/Islamic law)
Cyfraith Hywel (Wales)
Xeer (Somalia)
Usos y costumbres (various regions of Latin America)
Wahkohtowin (Cree Territories, Canada

See also
Civil law (legal system)
Common law—Precedent
Customary international humanitarian law
Custom (Catholic canon law)
Journal of Legal Pluralism and Unofficial Law
Legal dualism
Legal pluralism
Jus gentium (law of nations)
Oral law
Rule according to higher law
Rule of law
Time immemorial, has a specific meaning in English law

References
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Citations
1. Comaroff & Roberts.
2. Hund.
3. Comaroff & Roberts, 70
4. Comaroff & Roberts, 73
5. Comaroff & Roberts, 75
6. Comaroff & Roberts, 79
7. Comaroff & Roberts, 81
8. Comaroff & Roberts, 82
9. Comaroff & Roberts, 85
10. In R. v Secretary of State For Foreign and Commonwealth Affairs, [1982] 2 All E.R. 118, Lord
Denning said "These customary laws are not written down. They are handed down by tradition
from one generation to another. Yet beyond doubt they are well established and have the force of
law within the community."
11. Merryman, John Henry (2007). The Civil Law Tradition: An Introduction to the Legal Systems of
Europe and Latin America (https://books.google.com/books?id=6OJf9CbgKTkC&pg=PA24)
(3rd ed.). Stanford University Press. p. 24. ISBN 978-0-8047-5569-6. LCCN 2007003956 (https://l
ccn.loc.gov/2007003956).
12. "Customary Mooring Rights" (https://web.archive.org/web/20150413152848/http://ayb.ltd.uk/custo
mary-mooring-rights/). Associated Yacht Brokers. Archived from the original (http://ayb.ltd.uk/cust
omary-mooring-rights/) on 13 April 2015. Retrieved 19 April 2015.
13. "Constitution Act, 1982, s. 35(1)" (https://web.archive.org/web/20070320212057/http://laws.justic
e.gc.ca/en/Const/annex_e.html). Archived from the original (http://laws.justice.gc.ca/en/const/ann
ex_e.html) on 20 March 2007. Retrieved 29 July 2008.
14. Slattery, Brian. Generic and Specific Aboriginal Rights (http://www.law.uvic.ca/calder/Papers/Bria
n%20Slattery.pdf) (PDF). p. 6. Retrieved 21 August 2008. and Foster, Hamar; Heather Raven and
Jeremy Webber (eds.) (2007). Let Right Be Done: Aboriginal title, the Calder Case, and the
Future of Indigenous Rights (https://web.archive.org/web/20080830063039/http://www.bsos.umd.
edu/gvpt/lpbr/subpages/reviews/foster0708.htm). 18 No. 7 (July, 2008). Vancouver: UBC Press.
pp. 574–578. Archived from the original (http://www.bsos.umd.edu/gvpt/lpbr/subpages/reviews/fos
ter0708.htm) on 30 August 2008. Retrieved 11 September 2010.
15. "JuryGlobe" (https://web.archive.org/web/20080924005248/http://www.droitcivil.uottawa.ca/world-l
egal-systems/eng-tableau.php#g). University of Ottawa. Archived from the original (http://www.dro
itcivil.uottawa.ca/world-legal-systems/eng-tableau.php#g) on 24 September 2008. Retrieved
11 September 2010.
16. Dolores A. Donovan and Getachew Assefa, "Homicide in Ethiopia: Human Rights, Federalism,
and Legal Pluralism," American Journal of Comparative Law (https://www.jstor.org/stable/364911
8), 51 (2003), p. 505
17. Judith Beyer, Kyrgyz Aksakal Courts: Pluralistic Accounts of History, 53 J. OF L. PLURALISM 144
(2006)
18. Former President Akaev, quoted in Beyer, Kyrgyz Aksakal Courts
19. Spencer Heath MacCallum (12 September 2007). "The Rule of Law without the State" (https://mis
es.org/story/2701). Ludwig von Mises Institute. Retrieved 11 September 2010.
20. "Grassroots Conflict Assessment Of the Somali Region, Ethiopia" (https://web.archive.org/web/20
110726084227/http://www.chfhq.org/files/3707_file_Somali_Region_Assessment_8.4.06.pdf)
(PDF). CHF International. August 2006. Archived from the original (http://www.chfhq.org/files/3707
_file_Somali_Region_Assessment_8.4.06.pdf) (PDF) on 26 July 2011. Retrieved 11 September
2010.

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21. "Better off stateless" (http://www.peterleeson.com/Better_Off_Stateless.pdf) (PDF). Retrieved

11 September 2010.
22. Van Notten, Michael. 2005. The Law of the Somalis: A Stable Foundation for Economic and Social
Development in the Horn of Africa, Trenton NJ: Red Sea Press.

Sources
Hund, John. 'Customary law is what people say it is', ARSP Vol 84 1998, 420–433.
J Comaroff and S Roberts Rules and Processes: The Cultural Logic of Dispute in an African
Context (1981).

External links
Customary IHL Database (http://www.icrc.org/customary-ihl/eng/docs/home)
Druzin, Bryan H. (2014, April). "Planting Seeds of Order: How the State Can Create, Shape, and
Use Customary Law," (http://works.bepress.com/cgi/viewcontent.cgi?article=1017&context=bryan
_druzin) BYU Journal of Public Law 28: 373-412.

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