Customary law

Customary law (also, consuetudinary or unofficial law) exists where:


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.

Within contemporary legal systems[edit]

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".^[11] 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 also 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 English common law, "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". 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.^[12]


In Canada, customary aboriginal law has a constitutional foundation^[13] and for this reason has increasing influence.^[14]


In the Scandinavian countries customary law continues to exist and has great influence.


Customary law is also used in some developing countries, usually used alongside common or civil law.^[15] 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.^[16]


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.^[17] 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.^[17] 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.^[18] 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^[19] and in the Somali communities in the Ogaden.^[20] 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.^[21] 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).^[22]


In India many customs are accepted by law. For example, Hindu marriage ceremonies are recognized by the Hindu Marriage Act.


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.