Customary law

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 Law and custom
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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 the 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 have 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

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

Nature, definition and sources[edit]

A central issue regarding the recognition of custom is determining the appropriate
methodology to know what practices and norms actually constitute 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 characterized 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 behavior
and resolving disputes.[2]
As an indefinite repertoire of norms[edit]

A court presided over by a customary chief in the Belgian Congo, c.1942

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's 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 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 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[edit]
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]

Codification[edit]
Main article: Codification (law)
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[edit]
Main article: Customary 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.