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Customary law

In developing countries which have been decolonised since the 1940s or 1950s, the law is generally a mixture of law introduced by the former colonial power and customary law which was there before colonisation. That customary law often still takes priority in certain areas of life.

Typically, customary law applies in those areas of life least affected by colonisation. These may include land ownership, customary titles and family relationships.

There may be special courts to deal with these matters, conducted according to tradition and presided over by a customary chief or group of elders. Alternatively, these matters may be dealt with by an ordinary court, but customary law may take precedence over other kinds of law in these cases. In any society, everybody is subject to the law. Everybody must do as the law says, or face the punishments which can be handed out to law-breakers. Journalists are no different. They, too, must obey the laws of their society. However, there are certain laws which will affect journalists especially, and that is what we shall deal with in the next few chapters.

Societies have laws in order to protect people from the actions of other people. It is clearly impossible for everybody in any society to have absolute freedom: as one person exercised that freedom, it would trample upon somebody else's freedom. For example, if my neighbour plants pineapples in my garden, then I am not free to use that piece of land myself. It is for this reason that societies have property laws.

The law puts limits on each person's freedom in order to protect other people's freedom. We are free to drive a car on the road, but only if we possess a valid driving licence; and, even then, we must keep to one side of the road, and obey speed limits and road signs. In this way, although our freedom to drive is restricted, we are protected from other people's careless or unskilled driving, which would make it impossible for us to drive safely at all.

In order to make people obey the laws of the society, there have to be punishments. If you decide to drive a car even though you have no licence (and if you are caught), you may be fined. If you cannot or will not pay the fine, you can be sent to jail. The main reason that many people obey the law is that they know they may be punished if they break the law.

There are many different legal systems in the world - traditional and modern, Christian and Islamic and they regulate society in different ways. However, the reason the laws are there at all is the same - to limit people's rights in certain ways in order to protect other people's rights; and to punish those who ignore the laws.
Common law
English common law is the customary law of England, yet it has become influential in the laws of many other countries. The United States and most countries in the Commonwealth have legal systems based on English common law. If there is nothing in the Constitution to cover a situation, and if no specific law has been passed by parliament to cover a situation, a court in a Commonwealth country may decide the case depending upon English common law. Indeed, some Commonwealth countries have the British House of Lords as their final court of appeal. This is not true in all countries, of course. There are many different legal systems, and they do things in different ways. It would be impossible, within the limits of a book like this, to deal with them all. We are therefore limiting ourselves in this volume to talking about those legal systems which are based on English common law. If you want to know more about common law and the differences between it and other legal systems, click here.

Any law passed by a lawful government which is different from English common law will take precedence over common law. For example, under the English common law principle of habeas corpus, the police are not able to hold a person for longer than a certain period (typically 24 hours) without bringing them before a public court. Habeas corpus can be loosely translated from Latin to mean "show us the person" and it is meant to prevent authorities holding people in secret without due legal process. However, in times of emergency such as war many countries pass legislation suspending these provisions. In the socalled "war on terror", many countries have introduced anti-terrorism laws which override habeas corpus to allow authorities to hold people, often in secret, for much longer periods. Some prisoners held by US authorities in Guantanamo Bay prison off the American coast have been held for many years without trial or even appearing before an American judge.