Customary law

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"Consuetudinary" redirects here. For the ritual book, see Consuetudinary (book).
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Political and
legal anthropology

Basic concepts[hide]

Status and rank

 Ascribed status
 Achieved status
 Social status
 Caste
 Age grade/Age set
 Leveling mechanism
Leadership
 Big man
 Patriarchy
 Matriarchy
 Pantribal sodalities
 Chief
 Paramount chief
Polities
 Band society
 Segmentary lineage
 Tribe
 Chiefdom
 House society
 Ethnic group
 Theatre state
Law and custom
 Customary law
 Legal culture

Case studies[show]

Related articles[show]

Major theorists[show]
 Social and cultural anthropology

 v
 t
 e

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". Related is the idea of prescription; a right enjoyed through long custom
rather than positive law.[1]
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

 1Nature, definition and sources of customary law

o 1.1Customary law as an indefinite repertoire of norms
o 1.2Law as necessarily rule-governed
 2Customary law and codification
 3International law
 4Customary law within contemporary legal systems
 5Custom in torts
 6Customary legal systems
 7See also
 8References
o 8.1Citations
o 8.2Sources
 9External links

Nature, definition and sources of customary law[edit]

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)[2] have 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.[3]