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you are here: > Self > 22. LEX
| 22.6 | Customary law |
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| Customary law are systems of law that have evolved largely on their own within a given country and have been adapted to meet the needs of the particular culture. |
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| In law, custom, or customary law consists of established patterns of behaviour that can be objectively verified within a particular social setting. Generally, customary law exists where a certain legal practice is observed and the relevant parties consider it to be law. |
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| 22.6.1 | Customary law and civil law/common law |
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| The concept of customary law, cuts across both common law systems as well as civil law systems can be equated to the concept of “traditional law” as much as any other description. |
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| For example, the Magna Carta Libertatum ("Great Charter of Freedoms"), is an English charter originally issued in 1215 considered a founding document of principles for English speaking nations that adopted Common Law Systems. It can also be considered an important customary law- that is believed to underpin the implied rights of individuals in those nations, with or without the existence of a specific Bill of Rights chartering those rights. |
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| Similarly for nations practicing Civil Law, systems such as the Napoleonic Code of the 19th Century is an example of customary law given its wide adoption and active use still in many French speaking former colonies such as Africa. |
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| A further example are international conventions such as the Geneva Convention that while being based around historic treaties and agreements is also considered a Customary Law recognizing the essential rights of prisoners of war. |
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| 22.6.2 | The benefit of customary law |
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| The benefit of customary law is that it promotes a degree of legal stability in the institutions of law, the procedures of law and the respect of law. |
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| There is always a danger for nations that undertake major changes to their legal systems that the respect for the law will automatically diminish until such time that through consistency and tradition, the process of law is seen to be more stable and reliable. |
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| 22.6.3 | The negatives of customary law |
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| The negatives associated with customary law relate to two points: orthodoxy and absence of effectual law. |
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| The first relates to when orthodoxy creates distortions within a legal system that promote unjust practices, which overtime become harder to reform because of tradition. |
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| An example in America is the effect of the legal reforms of the 1970’s that introduced practices in court procedure, cross examination and a whole host of actions initially designed to improve law that now result in clear distortions in due legal process. |
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| The second negative of customary law is the frequent absence of effectual law protected and argued against on the basis of customary practice. |
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| For example, many common law nations consider Bills of Rights an unnecessary legal element, given the belief under customary law that the implied rights of individuals from the time of the Magna Carta onwards have been duly protected and enshrined in precedents. |
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| In many cases, such arguments are false but still effective due to the general lack of legal understanding of both media and public opinion. |
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| 22.6.4 | Solution |
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| The existence of stable legal frameworks is no substitute for effective legal frameworks. |
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