Custom (law): Wikis

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In law, custom can be described as the established patterns 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." Generally, customary law exists where:

  1. a certain legal practice is observed and
  2. the relevant actors consider it to be law (opinio juris).

Contents

Customary law and codification

The modern codification of civil law developed out of the customs, or coutumes of the Middle Ages, expressions of law that developed in particular communities and slowly collected and later written down by local jurists. Such customs acquired the force of law when they became the undisputed rule by which certain entitlements (rights) or obligations were regulated between members of a community.[1] The Custom of Paris - the customary law that developed within the city of Paris - is an example of custom law.

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.

Customary law within contemporary legal systems

Customary law is a recognized, but inferior, source of law within jurisdictions of the civil law tradition. inferior 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."[2]

In Canada, customary aboriginal law has a constitutional foundation[3] and for this reason has increasing influence.[4]

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 in Africa, usually used alongside common or civil law.[1]

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.[5] 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.[6] 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.[7] Similar aqsaqal courts exist, with varying levels of legal formality, in other countries of Central Asia.

The Somali people people in the Horn of Africa have for more than a thousand years followed a customary law system referred to as Xeer. It survives to a significant degree everywhere,[8] including the Somali communities in the Ogaden.[9] Economist Peter Leeson attributes the rather astounding 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.[10]

Custom in torts

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 case R v. Boomsdale defines this principle with the courts ruling that Mr Boomsdale customary practice was not sufficient to be deemed an act of negligence

See also

Notes

  1. ^ In R. v Secretary of State For Foreign and Commonwealth Affairs, [1982] 2 All E.R. 118, Lord Denning said "These customary laws are not written down. They are handed down by tradition from one generation to another. Yet beyond doubt they are well established and have the force of law within the community."
  2. ^ John Henry Merryman, The Civil Law Tradition, p. 23 (2d Ed. 1985)
  3. ^ Constitution Act, 1982, s. 35(1), http://laws.justice.gc.ca/en/const/annex_e.html, accessed 29 July 2008.
  4. ^ Brian Slattery, "Generic and Specific Aboriginal Rights", p. 6, http://www.law.uvic.ca/calder/Papers/Brian%20Slattery.pdf, accessed 21 August 2008; and see: Brian Slattery, in Let Right Be Done: Aboriginal Title, the Calder Case, and the Future of Indigenous Rights, Hamar Foster, Heather Raven and Jeremy Webber (eds.), UBC Press, Vancouver (2007). http://www.bsos.umd.edu/gvpt/lpbr/subpages/reviews/foster0708.htm, accessed 11 September 2008.
  5. ^ Judith Beyer, Kyrgyz Aksakal Courts: Pluralistic Accounts of History, 53 J. OF L. PLURALISM 144 (2006)
  6. ^ Ibid.
  7. ^ Former President Akaev, quoted in Beyer, Kyrgyz Aksakal Courts
  8. ^ http://mises.org/story/2701
  9. ^ http://www.chfhq.org/files/3707_file_Somali_Region_Assessment_8.4.06.pdf
  10. ^ http://www.peterleeson.com/Better_Off_Stateless.pdf
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