Customary Law and Legal Systems

Concepts: Basic

Points to be discussed:

Define concepts such as custom and customary law.
Discuss the relevance of the course.
Explain the historical development of customary law.
Discuss the various aspects of legal transplantation.

Defining Customary Law and Legal System: Relevance

Three ways of understanding the historical process of bringing the various entities in the country together in the past two centuries:

The re-union approach
The national question approach
The colonial thesis approach

Re-union Approach

Emperor Hileselassie I and his supporters understood the process as a re-union or expansion.
They argued that prior to the 19th and 20th centuries, Ethiopia lost territories as a result of wars and migrations.
They argue that in the 19th and 20th centuries, Ethiopia successfully regained her lost territories.
These actors worked to bring about political centralization.
They used western-oriented codes.
They used the methods of assimilation, integration, urbanization, and industrialization to unify the country.
The 1931 and 1955 constitutions were designed to implement the state policy of political centralization as well as legal unification.
Their concern was to avert political disintegration in the country.
Giving official and proper place to customary laws in Ethiopia was regarded as undermining the nation-building efforts, so customary laws were given little official recognition.
If customary laws existed under that system, thus, they existed in spite of a hostile official stance.

The National Question Approach

The second group of personalities understood the historical process of the 19th and the 20th century in Ethiopia in two models:

Problem of class exploitation
National exploitation model
according to the first model, the issue was not ethnic exploitation; the economic elites, who were few in number, oppressed the mass.
The various groups brought together under the umbrella of the central government suffered injustice in the hands of the economic and political elites.
The solution sought was to end this exploitation by building a communist society in the country.
Ethiopia was led for about 17 years by the promoters of this view.
As the promoters of the re-union approach remade Ethiopia, the promoters of the second view, also called the conquest approach, reordered the Ethiopian polity.
Ethiopia under this approach had little faith in anything about law, whether state or customary.
Law was to play a role in the transition to the communist society and then was to vanish.
The first model thinks that the main problem is class oppression whose solution is to eliminate this exploitation by constructing a classless society.

National Exploitation Model

The various previously autonomous entities, once brought together under the authority of the central government, were humiliated.
The solution proposed was to accord true self-rule, especially in the form of a federal state.
This model is reflected in the FDRE Constitution, which pledges to give recognition to customary laws in some senses.
This Constitution focuses on giving due place to diversity.
The Constitution reflects the belief that if diversity, which is a fact of life in the country, is not respected, conflict is inevitable and hence the desired national development would be impeded.

The Concept of Source in Law

The term source has a couple of definitions.

One sense of the term source is that all the pieces of information used in the preparation of a legal document. A legal document may be a constitution, a proclamation, a regulation, a directive, a testament, and any other legal document. This sense of the term is also referred to as a material source.

Examples of Material Sources of Law:

Social and Moral Values: The beliefs and ethical standards of a society influence the creation of laws. For example, laws on human rights or criminal justice often reflect societal views on fairness and morality.
Economic Conditions: Economic realities and needs often shape laws. For instance, labor laws, trade regulations, and tax policies are influenced by the economic environment.
Historical Development: The historical context of a society plays a key role in shaping its legal system. For example, many legal systems were influenced by colonialism, revolutions, or significant legal traditions (like Roman law or English common law).
Public Opinion: Laws are sometimes formed in response to the demands of the public, especially in democratic systems where the will of the people can lead to legislative changes.
Religious Beliefs: In some jurisdictions, religious doctrines have significantly influenced the legal system (e.g., Sharia law in Islamic countries).

Secondly, the term refers to the reason why a given legal rule is valid or must be respected.
When you ask the question: Why should people respect law? The answer to this question gives you the second sense of the term source.
In the case of customary laws, customs or customary practices are material sources.

Importance of the Concept of Source in Law:

The importance of understanding the meaning of the source of law lies in two reasons.

The first one is for legal research. Whenever there is a gap or an inconsistency in an area of law, you need to apply to, you may resort to interpretation. Interpretation may lead you to do some legal research. And legal research, in turn, may lead to consulting the historical sources of materials, e.g., listening to Minutes of the parliament or law-making organ.
The second significance is to understand the issue of why a given legal rule is binding. You appreciate that different communities in human history answered the question of the validity of laws quite differently.

Defining Customary Law

There is no uniformly accepted definition of customary law, and different scholars define customary law in different ways.
This is so because custom varies from place to place. As custom varies from place to place, and so there is no single accepted definition of it.
However, it may be defined as a rule of conduct, which is accepted and governs a group of people.
In addition to its lack of uniform definition, customary law is given different names by different scholars.
Some scholars have referred to customary law as folk law, people‘s law, unofficial law, indigenous law, or primitive law, often implying its inferior positions as compared with the modern western state-originated laws.

Defining Custom

Custom is a norm of action, percept, or rules of conduct, which is generally accepted and practiced by a group of people.
Custom is a rule or law set by the people themselves by which they voluntarily accept to govern their actions.
A custom can be partial, specific with regard to a certain subject matter or locality or general custom applicable throughout the country.
Customary law is not the mere stipulation of rights and obligation in a particular community but it is the mechanism of resolving disputes. There is a procedure to resolve disputes without the assistance of the institutionalized justice system.
Customary law is unwritten law and kept in the memory of people or elders. Therefore, when a case or dispute arises, the interested party has to ask these people for a solution.

Kinds of Custom:

All customs which have the force of law are categorized into legal custom and conventional custom.
A legal custom is one whose legal authority is absolute and one which in itself possesses the force of law.
A conventional custom is one whose authority is conditional on its acceptance and incorporation in agreements between the parties to be bound by it.

A Conventional Custom

The binding authority of conventional custom emanates not because it is in advance incorporated into the law but because the parties have accepted it as practice.
In this regard, Fitzgerald argues that usage or conventional custom is, as has been indicated, an established practice that is legally binding, not because of any legal authority independently possessed by it, but because it has been expressly or impliedly incorporated in a contract between the parties concerned.
In certain cultures, the practice of giving a dowry or bride price can be a conventional custom agreed upon between families during marriage negotiations. Though not enforceable as a legal requirement, it becomes a binding custom based on the agreement between the parties.
In some organizations, it may be a custom to give employees annual bonuses based on performance. This custom, while not mandated by law, could become part of the employment contract by mutual agreement.
The legal requirements that must be fulfilled by the conventional custom before it can thus serve as a source of law and of legal rights and obligation:
- In point of duration, the custom shall be so well established, and therefore so notorious, as to render reasonable the legal presumption that it is impliedly incorporated in agreements made in respect of the subject matter.
Conventional customs are not directly enforceable by law unless they are incorporated into a contract or agreement between the parties. They become binding only within the context of that specific agreement.

Legal Custom:

Legal custom is one whose legal authority is absolute.
It is independently sufficient to create legal rights and obligation without the prior consent of the parties.
Such custom is that which is effective as a source of law and legal rights directly and per se, and not merely indirectly through the medium of agreement in the manner already explained.
It is binding on people and recognized by the courts or legislative bodies without any need for an explicit agreement between parties.
Legal customs are enforceable by the courts or recognized as part of the legal system, even without any contractual agreement between individuals.
*Over time they become a part of the law either through.
Legal custom is further divided into two: the one is local custom, and the National custom.

Local Custom:

As the name indicates, is the custom whose applicability is limited to a particular area.
It prevails only in a defined locality.
The present-day local customs consist for the most part of customary rights vested in the inhabitants of a particular place to the use for diverse purposes of land held by others in private ownership.
In order for a local custom to be valid and operative as a source of law, it must conform to certain requirements laid down by law.
- must not conflict with any fundamental principle of the common law;
- must have existed from time immemorial;
- has been continuously observed and peacefully enjoyed;
- be certain;
- must not conflict with other established customs; and
- be reasonable.
These days, advanced local customary law continues to play some supplementing part in the adjustment of local interest.
Nevertheless, advanced local customary law is diminishing as a result of the establishment of a universal system of law in a given state possessing clearly defined organs of legislation.
Some of the codified civil law systems of modern times go so far even as to reject local custom altogether as being contrary to the objective of legal unification aimed at by the code.

National Customary Law:

Is also called general customary law.
There is a legal requirement for the general custom too.
As it is said for a local custom, there is a time requirement for a general custom.
There are also other requirements:
- The very same considerations of public interest which induced our early law to impose upon local custom the requirement of immemorial antiquity are applicable with equal force to the general custom of the realm.
- The public interest requires that modern custom shall conform to the law, and not that the law shall conform automatically to newly established customs.

Key Differences

Aspect Conventional Custom Legal Custom
Binding Authority Based on agreement or consent between parties Recognized as law through long usage or court rulings
Enforceability Only binding on the parties who agree to it Enforceable by the courts, part of the legal system
Scope Limited to specific contracts or Applies generally, can be recognized as

Customary Practice versus Customary Law

Customary practice, also called custom or convention, implies a behavior that is followed by the majority member of a given community habitually and for a longer period without having an obligatory force.
All customary laws are customary practices while some customary practices are customary laws and others are not.

Customary Law and Social Control:

Social control consists of the whole range of instruments and institutions used to bring an individual to conformity.
You can cite state law, customary law, international law, customary practice, education, family, religion, morality, etc. as parts of social control.
Social control aims in general at keeping a society together.
Such society may be a local community, a country, a region, or a global community.

Customary Law and Traditional Laws:

Traditional laws, also called cultural laws or indigenous laws, are broader in scope than customary laws.
Traditional laws may be made at a certain point in time.
Customary laws are just part of traditional laws.
For some, traditional laws, to be made, do not have to wait for a longer period of time. Authorized elders of a given community may gather together to discuss a matter and to pass legislation.
This latter form of traditional laws resembles modern state laws, e.g., passing a law that prohibits a horse cart in some locality.

Customary Law V. Positive Law:

Similarities

Both are the body of rules that regulate the conflicting interests of men.
Even if the extent to which they are going to bind differs, both customary law and positive law have a binding nature within a community.
Both of them can adjust to the changing circumstances.
Customary law is not rigid to changes but capable of making itself flexible to accommodate the changing social, economic, and political circumstances.
Moreover, these rules, far from being absolutely inflexible and unchanging, are indeed, in a manner similar to the state legal system, subject to a process of constant adaptation to a new situation, old rules being re-interpreted and new rules being from time to time created.
As modern secular laws, customary laws are in most cases secular in nature and subject to violation. Many, if not all, such rules are secular in character and are just as liable to be breached or disregarded, as are modern laws.

Differences

The one difference between customary law and positive law is that, while the former is not reduced into writing, the later is the codified one, customary law passes from one generation to the next through songs, chants, proverbs, etc.
In a society that has no written records, or writing of any kind, the operative custom of the tribe must depend upon the accuracy, reliability, and indeed honesty of the memories of those, especially the chieftains and elders, in whom it is enshrined.
The scope of application, While customary law is applicable only to the particular locality concerned, the positive law has binding force on all over the people living in the land.
Positive law is general since it applies not only to one particular group of person but also to other persons within the community.
On the other hand, there are customs that only apply in a particular territory of the country and these are local customs.
There is an organized body to enact, interpret, and enforce the law made by the state, i.e., positive law. Whereas customary law lacks an institutionalized body to get assurance of being observed.
This does not mean that customary law is left without anyone to take care of its observance.
Since it is dependent upon reciprocity, a member of the community may be denied a reciprocal right if he refuses to act in accordance with the custom.
The problem is that the customary institution is not as such strongly organized and dedicated only for the enforcement of customary law.
The other difference is the effect they have on society. That is, statute law is superior in that rules are logically arranged and may easily be discovered.
The predominately unwritten nature of customary law makes it difficult to ascertain the rule thereof.

Custom, Habit, and Convention

A habit is a course of conduct which we regularly, though not necessarily invariably, pursue but without any sense of obligation or compulsion to do so.
For instance, somebody may have the habit of wearing a hat out of doors, or of going to work by one means of transport rather than another.
Habits form through consistent repetition, eventually requiring little or no conscious thought. They can be actions, like brushing your teeth every morning, or thought patterns, like responding positively to stress. Habits can be beneficial (e.g., exercising regularly), neutral (e.g., always sitting in the same seat), or detrimental (e.g., biting nails).
Such habits may become extremely rigid, for it is part of the psychological make-up of human beings that they tend to form habits, and without this tendency, life would be so erratic that social order would be impossible.
Some individuals are more regular in their habits than others. It was said that people in Konigsberg used to set their watches by the time at which the German philosopher Kant was wont to proceed on his afternoon walk.
But the point about habits generally is that they are not regarded as socially compulsive.
I may be so accustomed to take a train to work rather than a bus that I do this automatically and without reflection, yet I do not regard myself as under any social compulsion to do so, and I can change to any other available means of transport without any sense of infringing any kind of norm.
It is true that some types of habit, as psycho-analysis has demonstrated, are of an obsessive-compulsive type, but this is a distinct psychological characteristic or certain kinds of neurosis and is not to be confused with the sense of obligation which arises because the individual recognizes that the doing of a certain act is imposed upon him by reason of the existence of a given legal, social, or moral norm.
It will be observed that whereas both customs and conventions are normative in the sense that they establish rules of conduct for compliance, habits do not refer to or depend on norms but simply involve regularities of behavior which are in fact observed.
Many, if not most, habits never assume a normative character but remain on the level of personal idiosyncrasy.
An individual may lay down norms for himself, as, for instance, in the usually rather fragile new-year resolutions‘.
The fact is, however, that habits can and do become converted into customs, though the reasons for this transmutation may not be easy to identify and many factors may cooperate.
The tendency towards imitation between human beings may well play some part here, though it has sometimes been exaggerated, especially by Trade. Much may depend upon whether a practice is established by a member or group of members who enjoy a special authority in a community and whose example is therefore likely to be followed.
It seems to be a recognized form of human progression that practices that continue to be observed over a period tend, especially if they appear to possess a distinct social function or utility, to be norm-creating. That is to say that the ‗done thing‘ eventually proves to be the thing that ought to be, and perhaps ultimately, must be done. Custom may result from deliberate innovations instituted by the ruling class or the example of some authoritative or highly reverenced personage in a community.

Differences

Aspect Habit Custom Convention
Scope Personal, individual Social, community-based Social or group-specific
Formation Through individual repetition Through long-term social practice Through mutual agreement or norms
Purpose Self-regulation, convenience Preserves cultural identity Facilitates uniformity and order
Example Daily exercise routine Thanksgiving celebration Greeting with a handshake
In summary, habits are individual, customs are socially ingrained practices, and conventions are agreed-upon norms followed for coherence and ease in social or group contexts.

The Absence of Legal Machinery in Primitive Society

The absence of centralization, which expressed in modern terms, amounts to saying that there is a community but not a state, means that there are no centralized organs either for creating law or for enforcing it.
This does not imply that there is nothing but unchanging and eternal and self-enforcing custom.
Primitive law (for such, we can now see, it may justly be termed) possesses a flexibility analogous to developed law in its ability to adjust to new conditions.
In the absence of regular machinery for formally establishing or creating law, change may still come about in a variety of ways.
For instance, a council of elders may give a new interpretation of an old rule or even establish an entirely new one.
The settlement of a dispute may result in a decision which may be treated (as occurs in modern judicial process) as a precedent for future cases.
In neither instance will the new custom or interpretation derive its authority from a formal legislative and constitutional power vested in some person or body;
Recognition will be given to it because of the reverence felt for the chieftain or the elders, or because these have invoked the spirit of the tribal ancestors or some other supernatural force, or possibly even because the decision or ruling appears to the community as being eminently just and reasonable.
In a society that has no written records or writing of any kind, the operative custom of the tribe must depend upon the accuracy, reliability, and indeed honesty of the memories of those, especially the chieftains and elders, in whom it is enshrined.
Accordingly, the fallibility of human memory alone must account for a good deal of gradual erosion of and accretions to the body of customary law.
The lack of established judicial tribunals to settle disputes and, even in the rare cases where these exist, the absence of centralized machinery for enforcing decisions, mean that primitive law is dependent on rather indiscriminate modes of enforcement, including self-help remedies applied by the next-of-kin of the injured person.

The concept of legal system:

A system implies that there are several elements that are put together to achieve a certain purpose.
A legal system is defined as a synergy of legal rules, legal principles, legal standards, legal policies, legal structures, legal tradition, legal actors, legal extension, and legal penetration operating in a given geographical area, e.g., Ethiopian legal system.
The term synergy in this definition implies that a legal system is not a mere summation of the elements listed. A legal system is rather qualitatively different from and bigger than the sum totality of those elements.
The complexity of a legal system varies depending on the stage of development of a country.
In the definition, the term legal system refers to a present or past legal system.
The purpose of a legal system may be to sustain a slave-owning system or a feudal system or a capitalist system or to achieve a communist system.
A legal system may be created to assure the survival of a theocratic system.
A legal system may exist at the local level or national level or regional level or international level, e.g., Common law, Civil law, customary law, religious law
Legal structure means all those institutions responsible for creating, modifying, interpreting, improving, and implementing laws.
Legal structure encompasses law schools, bar associations, the police, courts, the legislature, the executive, and prison administration.
Legal actors mean the persons acting in legal structures, means members of the parliament, officers of the state, law students, law teachers, legal practitioners, etc.

Legal culture

Legal culture refers to a set of deeply rooted and historically conditioned attitudes of the majority of the members of a given legal system towards the other elements of that legal system, which means the way laws are made, modified, interpreted, and the way the legal actors and structures function.
The attitude directed towards a legal system can be hostile, neutral, or favorable.
When the attitude of the governed is hostile, the legal system will show instability, and it will have to be changed.
When the attitude of the governed is supportive of the legal system, the system will show continuity, e.g., the US Constitution.
So depending on the type of attitude of the majority members of the legal system, the legal system may show deep and frequent changes or stability.

Legal Tradition,

A legal tradition is a set of attitudes and beliefs about the law, how it should be applied, and how a legal system should operate.
Legal traditions are deeply rooted and historically conditioned.
The attitude should also be historically conditioned in the sense that it should be there for a relatively longer period of time and that it should have the feature of perpetuating itself.
Examples: the two main legal traditions; Civil law and common law Hebrew law

Definition of Customary law

Blacks‘ Law Dictionary defined customary law in the following terms, law consisting of customs that are accepted as legal requirements or obligatory rules of conduct; practices and believes that are so vital and intrinsic parts of social and economic systems that they are treated as if they were laws.
In contrast to the statutes, customary law may be said to exemplify law. A custom is not declared or enacted but grows or develops through time. The date when it first came into full effect can usually be assigned only within broad limits.
Though we may be able to describe in general the class of persons among whom the custom has come to prevail as standard conduct, it has no definite author, there is no person or definite human agency we can praise or blame for its being good or bad.
There is no authoritative verbal declaration of the term “custom.“ It expresses itself not in a succession of words but in a course of conduct.
Whenever conflicts or disputes arise and a cultural mechanism for resolving them exists, or behavioral infractions occur that are punishable in some way, we are dealing with law.
Therefore, we can see that customary law is broader than the western notion of law.
Customary law is also associated with morality and value systems. When viewed as a series of statements of what constitutes proper behavior, the law differentiates right from wrong, good from bad.
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For most of society, customary laws have been internalized. That is, most people do not break such laws, not because they are afraid of being punished but because if they did break such laws, they would feel guilty.
In traditional societies, the enforcer of the laws is the person‘s conscience.

THEORIES OF CUSTOMARY LAW:

For custom to be regarded as law, more than simple usage is required, even if the usage is general and has long flourished.
Consistent behavior in accordance with particular implicit rules does not indicate that people should so behave or conversely should be subject to some sanction if they do not.
The main problem for any theory of customary law is determining the nature of the additional factor required to transform custom into law.
There are five theories of customary law, namely, the tacit consent theory, the theory of opinion necessitates, the common spirit of the people, sovereign recognition, and judicial recognition.

The Tacit Consent Theory:

People implicitly agree to follow certain customs simply by participating in a community or society where those customs are practiced.
According to this theory, when individuals follow established customs over time without objection, they are seen as consenting to them, even if they never explicitly agreed to them.
A custom becomes binding through the implicit agreement of the people practicing it.
The legitimacy of customary law in this theory comes from the community’s consistent, voluntary compliance rather than from state endorsement.
The element that transforms custom into customary laws is deeply rooted custom is observed as a statute, not undeservedly; and this is what is called law established by usage.
Thus, custom is law because the people accept it as law.
The theory of the tacit consent of all tells that custom would be transformed into customary law if and only if all members of a given community agree on such transformation.

Critics on Tacit Theory

Thus, one problem is that it is almost impossible to get the consent of all members of a given community on each and every custom to be upgraded to customary law.
The second criticism directed against the tacit consent of all theory is that customary law binds every member of a given community; its breach would entail sanctions.
But this serious matter is reduced by the tacit consent theory of customary law to a covert consent not an open and explicit consent.
The point is that the idea of explicit consent makes more sense than the idea of tacit consent in such type of serious matters.

Theory of Opinion Necessitatis

The Theory of Opinio Necessitatis (also known simply as Opinio Necessitatis) is the idea that a customary practice is considered legally binding when it is followed out of a sense of necessity or obligation.
In this theory, people comply with customs not merely out of habit or convenience but because they believe they are legally or morally required to do so.
For opinion necessitatis, individuals purposely follow a certain rule simply because they believe it to be a rule of law.
Opinio Necessitatis, meaning that those who follow the custom do so out of a sense of obligation, not merely personal preference or convenience.
This theory is significant because it helps distinguish legally binding customs from mere social habits.
For example, shaking hands as a greeting is a social custom, but it is not practiced with a sense of legal obligation.
However, a customary law (like respecting territorial boundaries) is followed because people believe it is required, which makes it legally binding under the theory of Opinio Necessitatis.
Under this view, custom becomes law when it is known to be law, is accepted as law, and is practiced as law by persons who share the same legal system.
Assume that once the custom is known to be law and is accepted as law, the practice changes. Does the old law cease to be law, and the new practice become law?
If this does happen, at what moment does it happen? And, what is the machinery for change? The theory of opinion necessitatis fails to adequately answer these questions.

Critics to the Theory

Difficulty in Proving Intention or Belief: One of the main problems with this theory is proving that individuals or states act out of a sense of legal obligation rather than for other reasons (e.g., convenience, tradition, or mutual benefit).
The theory of opinio necessitatis contains no mechanism for deleting law that no longer commands approval.
Under the doctrine of opinio necessitatis, overlapping practice does not create a new legal rule because the new practice was not followed in