04. customary law

The question

The traditions examined so far locate the source of law in an institution or a text: the decided case, the enacted code, or the sacred revelation. A further tradition locates the source of law in the settled practice of a community itself, in the rules that a people has observed across generations and regards as binding. This sub-unit examines the customary legal tradition, the body of law of these communities, and asks how such law is identified and applied where there is no legislature to enact it and no court hierarchy to declare it, and how it stands in relation to the law of the modern state. A preliminary distinction must be drawn at the outset, between customary law as a whole tradition and custom as the single formal source examined in the unit on sources.

Customary law as a tradition and custom as a source

The unit on sources treated custom as one formal source among several, a practice that, within defined conditions, may generate binding law inside a system whose primary sources lie elsewhere. The present sub-unit treats something larger: a customary legal tradition is a complete legal order whose primary source is the observed practice of the community, governing the central matters of social and economic life through rules that exist in practice and memory rather than in any authoritative text.

The distinction is one of scale and role. Within a common law or civil law system, custom is a subordinate, gap-filling source admitted by the primary sources; within a customary legal tradition, custom is the primary source and supplies the law of the community directly. The relation recalls the analysis of custom in the first unit, where the same word was shown to denote a subordinate source in municipal law and a primary source in public international law; here it denotes the foundation of an entire tradition.

Consider a community whose rules governing the holding of land, the conduct of marriage, the resolution of disputes, and the obligations of commerce are not written in any code but are known to the members of the community, transmitted by instruction and example, and applied by those whom the community recognises as authorities. Such a community possesses a legal order, with rules that bind and institutions that apply them, yet its law is customary throughout, resting upon observed practice rather than upon an enacted text.

A customary legal tradition is therefore distinguished from the mere presence of custom as a source: it is a complete legal order built upon practice, and the distinction between the tradition and the source must be kept clear throughout the analysis.

The identification and application of customary law

A customary legal tradition raises a question the text-based traditions do not, namely how its law is to be identified when it is written in no authoritative text, and the answer reveals the characteristic method of the tradition. Customary law is identified by ascertaining the settled practice of the community and the community's conviction that the practice is obligatory, a structure that recalls the elements of customary international law examined earlier, namely consistent practice accompanied by a sense of legal obligation.

The transmission and application of such law connect it to the institutions of the community. Customary law is ordinarily transmitted across generations through instruction, example, and the memory of those learned in the community's tradition, and it is applied by recognised authorities, whether elders, chiefs, councils, or other bodies that the community accepts as competent to declare and enforce its law. The flexibility of an unwritten law is both its strength and its difficulty: it can adapt to changing circumstances through the evolution of practice, yet its content may be contested precisely because it rests in practice and memory rather than in a fixed text.

Suppose a dispute arises over the right to use a parcel of communal land. In a customary legal tradition, the matter is resolved by ascertaining the established practice of the community concerning such land and the obligations that practice imposes, a determination made by the recognised authorities applying the law the community observes. There is no statute to consult and no binding precedent to cite; the law is found in the settled practice, and the authority's task is to declare what that practice requires.

Customary law is accordingly identified through settled practice and communal conviction, transmitted through instruction and memory, and applied by recognised authorities, a method suited to a tradition whose law lives in practice rather than in a text.

Legal pluralism and the modern state

Customary legal traditions rarely exist in isolation today, and their characteristic modern condition is coexistence with the law of the state, a condition captured by the concept of legal pluralism, the situation in which more than one legal order operates within a single social field. In many states, particularly across Africa, Asia, and the Pacific, a customary legal order governs important matters for many people alongside a general state law derived from the common law or civil law tradition, and the relation between the two orders is a central question for the legal systems concerned.

The coexistence takes various forms, and this variation is a family-level proposition. A state may formally recognise customary law and apply it through the state's own courts in defined matters, most often land, family, and succession; it may permit customary institutions to apply customary law within their communities while reserving the general law to the state courts; or it may recognise customary law only so far as it is consistent with the state's constitution and general law, subordinating the customary order where the two conflict. The practical position of customary law for any person therefore depends upon the arrangement the particular state has adopted.

Imagine an enterprise seeking to acquire rights over land in a state where land is held under a customary tenure recognised by the state's law. The enterprise must reckon with two legal orders at once: the customary law that governs how the community holds and transfers the land, and the state law that determines the effect the customary tenure has within the formal legal system. A transaction valid under the one order may be ineffective under the other unless both are satisfied, and the enterprise must understand the relation the state has established between them. The example shows legal pluralism operating as a practical reality, in which two legal orders bear simultaneously upon a single matter.

The customary legal tradition in the modern world is therefore best understood through the concept of legal pluralism, coexisting with state law in arrangements that differ from state to state, and the position of customary law in any system is a matter of the relation that system has established between its plural legal orders.