Custom in law 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.
Customary law (also, consuetudinary or unofficial law) exists where:
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 – in 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.
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) 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.
Comaroff and Roberts' famous work, "Rules and Processes", 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. Importantly, however, they noted that the Tswana seldom attempt to classify the vast array of existing norms into categories 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. 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'. 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. These changes are justified on the grounds that they are merely giving recognition to de facto observations of transformation . Furthermore, the legitimacy of a chief is a direct determinant of the legitimacy of his decisions. In the formulation of legislative pronouncements, as opposed to decisions made in dispute resolution, 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.
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. 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.
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. 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. 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.
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.
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. 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.
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.
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". 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 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 Common Law of England, "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 "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 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.
In the Scandinavian countries customary law continues to exist and has great influence.
Customary law is also used in some Third World countries, such as those in Africa, usually used alongside common or civil law. 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.
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. 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. 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. 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 and in the Somali communities in the Ogaden. 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. 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).
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 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.
The adet-i ağnam (literally meaning "sheep number") was an annual tax on sheep and goats in the Ottoman Empire. Initially, the tax was known as resm-i ağnam; the name changed around 1550.Awbere (woreda)
Awbere (Somali: Awbarre) (Amharic: ተፈሪ አሞሌ), (also known as Teferi Ber), is one of the woredas in the Somali Region of Ethiopia. Part of the Jijiga Zone, Awbere is bordered on the southwest by Jijiga, on the west by the Shinile Zone, on the east by Somalia, and on the southeast by Kebri Beyah. Towns in Awbere include Aw Barre, Aw Bube, Derwernache, Lefe Isa, Gogti, Jaare, Herageel and Sheder.
High points in this woreda include Sau (1863 meters), near the international border.Ba 'Alawi sada
The Ba 'Alawi sadah or Sadah Ba 'Alawi (Arabic: السادة آل باعلوي, translit. al-sādatu al-bā'alawiy) are a group of Hadhrami Sayyid families and social group originating in Hadhramaut in the southwest corner of the Arabian Peninsula. They trace their lineage to Sayyid al-Imam Ahmad al-Muhajir bin Isa ar-Rumi born in 873 (260H), who emigrated from Basra to Hadhramaut in 931 (320H) to avoid sectarian violence, including the invasion of the Qaramite forces into the Abbasid Caliphate.Ba 'Alawiyya
The Ba'Alawi tariqa (Arabic: طريقة آل باعلوي), also known as the Tariqa Alawiyya is a Sufi order centered in Hadhramawt, Yemen, but now spread across the Indian Ocean rim along with the Hadhrami diaspora. The order is closely tied to the Ba'Alawi sadah family.
It was founded by al-Faqih Muqaddam As-Sayyid Muhammad bin Ali Ba'Alawi al-Husaini, who died in the year 653 AH (1232 CE). He received his ijazah from Abu Madyan in Morocco via two of his students. Abu Madyan was a student of Abdul Qadir Jilani, as well as one of the shaikhs in the Shadhiliya tariqa chain of spiritual transmitters from Muhammad. The members of this Sufi way are mainly sayyids whose ancestors hail from the valley of Hadramaut, in the southern part of Yemen, although it is not limited to them.The chain of ijazah of spiritual Sufi transmission from al-Faqih Muqaddam Sayyid Muhammad traces back to the Islamic prophet Muhammad via his cousin Ali and from him, his son Husain.Baligubadle
Baligubadle is a town in southern Woqooyi Galbeed province of Somaliland, a self-declared republic that is internationally recognized as an autonomous region of Somalia. The locality serves as the capital of the Hawd Region, an administrative subdivision of the Somaliland region that was created in 2008.Burkhanism
Burkhanism or Ak Jang (Altay: Ак јаҥ) is a new religious movement that flourished among the indigenous people of Russia's Gorno Altai region (okrug) between 1904 and the 1930s. Czarist Russia was suspicious of the movement's potential to stir up native unrest and perhaps involve outside powers. The Soviet authorities ultimately suppressed it for fear of its potential to unify Siberian Turkic peoples under a common nationalism.
Originally millenarian, charismatic and anti-shamanic, the Burkhanist movement gradually lost most of these qualities—becoming increasingly routine, institutionalized (around a hierarchy of oral epic singers), and accommodating itself to the pre-existing Altaian folk religion. It exists today in several revival forms.
On the whole, the Burkhanist movement was shown to be a syncretistic phenomenon combining elements of ancient pre-Shamanist, Shamanist, Lamaist and Orthodox Christian beliefs. According to a Professor of Tomsk State University L. Sherstova, it emerged in response to the needs of a new people - the Altai-kizhi or Altaians who sought to distinguish themselves from the neighboring and related tribes and for whom Burkhanism became a religious form of their ethnic identity.Dilla District
Dilla District (Somali: Degmada Dilla) is a district in the northwestern Awdal region of Somaliland. Its capital lies at Dilla.
This district is exclusively inhabited by the Reer Nuur clan of the Makahiil sub-clan of the Gadabursi . with the Mohamed Nuur in greater numbers then the Farah NuurEdictum Rothari
The Edictum Rothari (lit. Edict of Rothari; also Edictus Rothari or Edictum Rotharis) was the first written compilation of Lombard law, codified and promulgated on 22 November 643 by King Rothari. According to Paul the Deacon, the 8th century Lombard historian, the custom law of the Lombards (Lombardic: cawarfidae) had been held in memory before this. The Edict, recorded in Vulgar Latin, comprised primarily the Germanic custom law of the Lombards, with some modifications to limit the power of feudal rulers and strengthen the authority of the king.
Although the edict has been drafted in latin, few lombard words were untranslatable, as "grabworfin, arga, sculdhais, morgingab, metfio, federfio, mahrworfin, launegild, thinx, waregang, gastald, mundius, angargathung, fara, walupaus, gairethinx, aldius, actugild or, wegworin".
The Edict, divided in 388 chapters, was primitive in comparison to other Germanic legislation of the time. It was also comparatively late, for the Franks, Visigoths, and Anglo-Saxons had all compiled codices of law long before. Unlike the 6th century Breviarium Alaricianum of Visigoth king Alaric II, the Edict was mostly Germanic tribal law dealing with weregilds, inheritance, and duels, not a code of Roman law. In spite of its Latin language, it was not a Roman product, and unlike the near-contemporary Forum Iudicum of the Visigoths, it was not influenced by Canon law. Its only dealings with ecclesial matters was a prohibition on violence in churches. The Edict gives military authority to the dukes and gives civil authority to a schulthais (or reeve) in the countryside and a castaldus (or gastald) in cities.
It was written down by one Ansoald, a scribe of Lombard origin, and was affirmed by a gairethinx convened by Rothari in 643. The gairethinx was a gathering of the army that passed the law by clashing their spears on their shields in old Germanic fashion, a fitting passing for a Latin code that was so Germanic.
The Edict makes no references to public life, the governance of trade or the duties of a citizen; instead, it is minutely concerned with compensations for wrongs, a feature familiar from the weregild system of Anglo-Saxons and the defence of property rights. Though Lombard women were always in some status of wardship to the males of the family—and a freeborn Lombard woman who married an aldius (semi-free man) or a slave might be slain or sold by her male kin—the respect, amounting to a taboo, that was owed to a freeborn Lombard woman was notable. Anyone who whould "place himself in the way" (injure) of a free woman or girl must pay 900 solidi, an immense sum. For comparison, anyone who would "place himself in the way" of a free man had to pay him 20 solidi if there was no bodily injury, and in similar cases involving another man's slave, handmaid or aldius, 20 solidi to the lord had to be paid as the price for copulation with another man's slave. Roman slaves were of lower value in these matters compared to Germanic slaves.
Physical injuries were all minutely catalogued, with a price set for damage done to each tooth, finger or toe. Property was a concern: many laws in the Edict dealt specifically with injuries to an aldius or to a household slave. A still lower class, according to their assigned values, were the agricultural slaves.
In the laws pertaining to inheritance, illegitimate offspring had rights as well as legitimate ones. No father could disinherit his son except for certain grievous crimes. Donations of property were made in the presence of an assembly called the thinc, which gave rise to the barbarous Latin verb thingare, to grant or donate before witnesses. If a man wishes to thingare his property, he must make the gairethinx ("spear donation") in the presence of free men.
Slaves might be emancipated in various ways, but there were severe laws for the pursuit and restoration of fugitives. In judicial procedure, a system of compurgation prevailed, as well as the wager of battle. The general assembly of free men continued to add ritual solemnity to important acts such as the enactment of new laws or the selection of a king.
Lombard law applied to Lombards solely. The Roman population ruled by Lombard aristocracy expected to live under long-codified Roman law. The Edict stipulated that foreigners who came to settle in Lombard territories were expected to live according to the laws of the Lombards unless they obtained from the king the right to live according to some other law.
Later, by the reign of King Liutprand (712–743), most inhabitants of Lombard Italy were considered Lombards regardless of their ancestry and followed Lombard Law.Gadabuursi
The Gadabuursi (Somali: Gadabuursi, Arabic: غادابوورسي), also known as Samaroon, is a northern Somali clan, a sub-division of the Dir clan family.As a Dir sub-clan, the Gadabuursi have immediate lineal ties with the Issa, the Surre (Abdalle and Qubeys), the Biimaal (who the Gaadsen also belong too), the Bajimal, the Bursuk, the Madigan, the Gurgura, the Garre (the Quranyow sub-clan to be precise as they claim descent from Dir), Gurre, Gariire, other Dir sub-clans and they have lineal ties with the Hawiye (Irir), Hawadle, Ajuraan, Degoodi, Gaalje'el clan groups, who share the same ancestor Samaale.The etymology of the name Gadabuursi, as described by writer Ferrand in Ethnographic Survey of Africa refers to Gada meaning people and Bur meaning mountain, hence Gadabuursi is believed to mean people of the mountains.Isonomia
Isonomia (ἰσονομία "equality of political rights," from the Greek ἴσος isos, "equal," and νόμος nomos, "usage, custom, law,") was a word used by ancient Greek writers such as Herodotus and Thucydides to refer to some kind of popular government. It was subsequently eclipsed until brought back into English as isonomy ("equality of law").Kastom
Kastom is a pidgin word (Bislama/Tok Pisin) used to refer to traditional culture, including religion, economics, art and magic in Melanesia.
The term is the generally accepted term in anthropology to describe such phenomena as well as the common and lay term used in everyday language.
The word derives from the Australian English pronunciation of custom but crosses meanings that incorporate:
Custom (law) or customary law,
Convention (norm) and
TraditionIt is consistent in spelling across most of the many variations in pidjin and pisin across the region.
Kastom is mostly not written only passed down through teachings and stories. It is concentrated through:
Kastom House - sites where objects and rituals are stored.
Kastom stories - myths, legends and communal histories.
ritual objects - objects of special power, significance and symbolism.The use of the word is slightly different in the different countries and cultures of Melanesia.
There are designated Kastom villages in Vanuatu which are open to tourists, dedicated to preserving Kastom.Legal practice
Legal practice is sometimes used to distinguish the body of judicial or administrative precedents, rules, policies, customs, and doctrines from legislative enactments such as statutes and constitutions which might be called "laws" in the strict sense of being commands to the general public, rather than only to a set of parties.List of areas of law
The following is a list of major areas of legal practice and important legal subject-matters.Nomisma
Nomisma (Greek: νόμισμα) was the ancient Greek word for "money" and is derived from nomos (νόμος) "anything assigned, a usage, custom, law, ordinance".
"....but money has become by convention a sort of representative of demand; and this is why it has the name 'money' (nomisma)-because it exists not by nature but by law (nomos) and it is in our power to change it and make it useless." Aristotle, Nicomachean Ethics [1133b 1].In modern Greek, the word nomisma means "currency". It is also a term used by numismatists when referring to the pieces of money or coin in the plural nomismata an example of which is the Aes rude of Numa Pompilius (the 2nd King of Rome).The term nomos may also refer to an approximately 8 gram Achaean coin denomination.Reer Nuur
The Reer Nuur (Somali: Reer Nuur, Arabic:قبيلة نور) also known as Nuur Yoonis (Arabic: نور يونس), is a noble northern Somali clan, a sub-division of the Makahiil sub-clan of the Gadabursi clan family.Usos y costumbres
Usos y costumbres ("customs and traditions"; literally, "uses and customs") is a legal term denoting indigenous customary law in Latin America. Since the era of Spanish colonialism, authorities have recognized local forms of rulership, self governance, and juridical practice, with varying degrees of acceptance and formality. The term is often used in English without translation.
Usos y costumbres political mechanisms are used by numerous indigenous peoples in Mexico, Guatemala, Bolivia, and other countries to govern water rights, in criminal and civil conflicts, to elect their representatives to regional and national bodies.Woqooyi Galbeed
Woqooyi Galbeed (Somali: Woqooyi Galbeed, Arabic: وقويي جالبيد), also known as Maroodi Jeex, is an administrative region (gobol) located in Somaliland. It is considered to be the most populous region in the self-declared but internationally unrecognised Republic of Somaliland.