Customary Law
Customary law refers to a body of unwritten traditions and practices that have been accepted and enforced within a particular community over time. It is based on the customs and norms of a specific culture or society and is often passed down orally from generation to generation. Customary law can coexist with, or in some cases, even take precedence over statutory law within certain communities.
4 Key excerpts on "Customary Law"
eBook - ePubCulture and Change Along the Blue Nile
Courts, Markets, And Strategies For Development
- Lina Fruzzetti(Author)
- 2019(Publication Date)
- Routledge(Publisher)
...Shari'a or divine law was derived from four sources: Koran, Sunna or practice of the Prophet Mohammed, ijma or consensus of the doctors of law, and qyias or analytical deductions of the jurists from given primary sources. Today, unwritten Customary Laws are under scrutiny. Some question whether these laws are compatible with the interest of a modernizing and developing state. According to planners, there is no potential for the resolution of future problems if the numerous Sudanese tribes, representing various languages, and social and economic patterns, continue to function under their own Customary Laws. Labor migration is noted as one potentially central problem. During the colonial era, the institution and mechanisms of Customary Law suited a less mobile population than is the requisite of a modern state embarking on economic development. In a modern setting, the migration of peoples from rural to urban areas necessitates the knowledge of various systems of Customary Laws. This creates a situation in which courts call for the standardizing of Customary Laws, a codified legal system. But are Customary Laws necessarily incompatible with or counteractive to economic development and modernization? By definition, Customary Law is a living organism which endures through time due to its inherent ability to adapt to changes in a society. These laws reflect the value system of a society, the cultural and societal patterns of the population to which they apply at any given point in time (Verholst 1968). Today, many African nations are re-evaluating their legal structure. The literature on law and development offers some suggestions; first, an African nation can continue with the legal system as inherited from its colonal predecessors; second, all the Customary Laws can be codified into one written and documented body. Seidman (1966) suggests that due to the "stagnatory" nature and present day "irrelevance" of such laws, they should be completely replaced...
eBook - ePub- Ralph Grillo, Roger Ballard, Alessandro Ferrari, André J. Hoekema, Marcel Maussen, Prakash Shah, Ralph Grillo, Roger Ballard, Alessandro Ferrari, André J. Hoekema, Marcel Maussen, Prakash Shah(Authors)
- 2016(Publication Date)
- Routledge(Publisher)
...African immigrants to England are thus familiar with the main features of English law, and accustomed to mixed legal systems in which English common law co-exists with Customary Laws. It is sometimes said that received law, being imposed by the colonial state, has not penetrated into indigenous African society, but this claim can be overstated. Especially in urban areas and among the economically advantaged sections of society, exposed to governmental powers and global economic and cultural influences, the received laws have significant effect; and immigrants tend not to come from the most isolated, disadvantaged sectors of society in the countries of origin. Thus this aspect of the cultural diversity of England 4 today arises from persons who remain active within their cultures of origin, continuing to observe their Customary Laws, but who find much of the English cultures and laws not unfamiliar. Some of their Customary Laws are different in fundamental respects from English law, and this fact presents challenges to English law. English Legal Practice and Legal Culture: Principles of Recognition Many lawyers and legal theorists see the concept of law as concerning state law alone. In this chapter the references to Customary Law have already implicitly departed from this usage. If law is viewed as a social phenomenon many non-state normative orders do not differ in significant characteristics from state law. On this view any population with a diversity of cultures, such as England, observes a variety of legal orders – that is, legal pluralism prevails (Griffiths 1986, Woodman 1998). The present chapter considers a portion of English legal pluralism, namely, the ‘legal practice’ of English state law and its norms and practices regarding African Customary Laws. That legal practice is conducted in a limited area of society, by officials and other specialists such as judges, police, barristers and solicitors...
eBook - ePub- Eugene Ehrlich, Klaus A. Ziegert(Authors)
- 2017(Publication Date)
- Routledge(Publisher)
...Customary Law arises directly in the legal consciousness of the whole people or of various classes as a rule of conduct; the whole people or the various individual classes regulate their conduct according to it, and in this way Customary Law becomes ethical custom; in this form it has become cognoscible to the jurist, especially to the judge, and thereafter the jurist, especially the judge, derives the norm for decision from it. Often statutes have come into being in the same way, and this is the only form of legislation that the founders of the Historical School unqualifiedly approve of, to wit declaration of what the law is. But they do not close their eyes to the fact that statutes can arise in other ways. This too Puchta was the first to state. He said it in plain words in his review of Beseler's book. Said Puchta: “statute is valid because it has been promulgated by the legislator; it is expected to correspond to the actual national will, but its validity is not conditioned upon an investigation of this presupposition; therefore legislation is a formally distinct source of law." In the light of what has been said this can have only one meaning, to wit : The content of a statute corresponds to the popular consciousness if and only if, it has been drawn from the prevailing rules of conduct; if not, it is foreign to the popular consciousness and does not meet Puchta's requirements; it is binding on the courts, it is true, but only as a norm for decision. It is strange that both Savigny and Puchta fail to observe that the same argument must apply to juristic law, and in a much greater measure than to statute law. For juristic law has never been drawn from the rules of popular conduct; if it were, it would not be juristic law, but Customary Law. It has not been drawn from the rules of juristic conduct, for the jurists do not, as such, take part in the affairs of everyday life...
eBook - ePubUncertainty in International Law
A Kelsenian Perspective
- Jörg Kammerhofer(Author)
- 2010(Publication Date)
- Routledge(Publisher)
...The relevance of usages makes Customary Law customary – the presence of such a behavioural regularity is required to make customary norms (see Section 3.1). The reason for this lies beyond the semantic tautology of ‘Customary Law requires customs because it is Customary Law’. Customary norms receive their content from the repetition of similar behaviour. State practice, e.g. the repeated passage of ships through straits, becomes the norm’s content or ‘prescribed behaviour’ (Tatbestand); see Section 3.2.1. The practice of using white paper can give rise only to a norm prescribing the use of white paper, e.g. ‘white paper ought to be used’ or ‘white 64 See Section 3.2.1. 65 Akehurst (1977a) supra note 15 at 10, 39; Mendelson (1999) supra note 15 at 226. 66 Fisheries (United Kingdom v. Norway), Judgment of 18 December 1951, ICJ Reports (1951) 116, Dissenting Opinion Read at 191. 67 D’Amato (1971) supra note 15 at 89, 174; Ian C. MacGibbon, Customary international law and acquiescence, 33 British Year Book of International Law 1957 (1958) 115–145 at 117. 68 Ulrich Fastenrath, Lücken im Völkerrecht. Zu Rechtscharakter, Quellen, Systemzusammenhang, Methodenlehre und Funktionen des Völkerrechts (1991) 157. paper may be used’. Hence, state practice forms the content of the customary norm, 69 wheras opinio iuris delivers its normativity (e.g. that ships may pass through straits); see Section 3.3. In addition, it is clear now that customary norms do not prescribe certain behaviour as words, but as historically accumulated behaviour – customary international law has no text. Customary norms can therefore only have such content that can be classified as accumulated factual behaviour (as a pattern in reality). This is the most important limit of customary regulation, which, while overlooked by most scholars, has far-reaching consequences for the doctrine and theory of international law. A content that refers to other norms cannot be reflected as factual pattern...
