Kara Sears
Customs and laws are two distinct concepts that play a significant role in shaping societal norms and behaviours. Customs refer to traditions, habits, and practices that emerge and evolve organically within a community, without any formal enactment or authority. On the other hand, laws are explicitly created and enforced by a definite power, such as a state or government, and carry sanctions for non-compliance. Customs are relatively fixed and resistant to change, while laws are dynamic and can be introduced, amended, or abolished to address changing societal needs and emergencies. Customs are often concerned with the daily routines and familiar practices of a community, while laws tend to address more idealistic concepts and vital matters that impact the life of society as a whole. The relationship between customs and laws is complex, with laws sometimes reforming or abolishing customs that are no longer considered acceptable, and customs, in some cases, influencing the creation of new laws. Understanding the differences between customs and laws is essential for comprehending the social dynamics and legal frameworks that shape our world.
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What You'll Learn
Customary law vs treaty law
Customary international law refers to international legal obligations that arise from established or usual international practices. These practices are often unwritten and less formal than the written treaties or conventions that comprise treaty law. Customary international law is generally determined through two factors: the general practice of states and what states have accepted as law (also known as opinio juris sive necessitatis or opinio juris for short). This means that a large number of states must engage in a particular practice, and they must do so out of a sense of legal obligation. For example, a state violates customary international law if it permits or engages in slavery, torture, genocide, war of aggression, or crimes against humanity.
Treaty law, on the other hand, refers to formal written treaties or conventions that are agreed upon and ratified by states. Treaty law is a more formal and explicit expression of the law, and it takes precedence over customary international law. If a treaty or law has been called customary international law, then parties that have not ratified said treaty will still be bound to observe its provisions in good faith.
While customary international law is generally considered to apply equally to all states, there are some exceptions. For example, some customary international laws may only be followed by a small group of states, and states can deviate from customary international law by enacting treaties and conflicting laws. Additionally, some customary international laws rise to the level of jus cogens, which are peremptory norms or compelling laws that are accepted by the international community as non-derogable rights. Examples of jus cogens include various international crimes, such as slavery, torture, and genocide.
It is worth noting that the International Court of Justice, jurists, the United Nations, and its member states consider custom to be one of the primary sources of international law, alongside general principles of law and treaties. Many governments accept the existence of customary international law in principle, although there may be differing opinions on the specific rules contained within it.
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Customary law in different countries
Customs rules and laws are two different concepts. Customs rules refer to the established patterns of behaviour within a particular social setting, which are often unwritten and may vary across different communities and cultures. On the other hand, laws are formal and written rules that are enforced by a governing authority and apply to a larger group of people within a specific jurisdiction.
Customary law, also known as consuetudinary or unofficial law, is a recognised source of law within the jurisdictions of the civil law tradition. It is based on long-established community standards and practices that are accepted as correct bases of action. Customary law can exist alongside official law, a condition referred to as legal pluralism. Here is how customary law varies in different countries:
Canada
In Canada, customary aboriginal law has a constitutional foundation and is increasingly influential.
Scandinavian Countries
Customary law continues to exist and has great influence in Scandinavian countries.
Developing Countries
Customary law is often used in developing countries alongside common or civil law. For example, in Ethiopia, there are over 60 systems of customary law in force, some operating independently of the formal state legal system.
Indonesia
Indonesia recognises the customary adat laws of its various indigenous ethnicities and customary dispute resolution in Papua.
Kyrgyzstan
Kyrgyzstan has aqsaqal courts of village elders with jurisdiction over property, torts, and family law. These courts are included under Article 92 of the Kyrgyz constitution.
Somalia
The Somali people in the Horn of Africa follow a customary law system called xeer, which is prevalent in Somalia and Somali communities in the Ogaden.
Tswana Society
In some sections of Tswana society, laws are determined with reference to politics and personal preference rather than objective, standalone rules.
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Social rules vs habits
Social rules and habits are two distinct concepts that often interact and influence each other. Social rules, or norms, are the perceived, informal, and mostly unwritten rules that define acceptable and appropriate actions within a group or community. They are the shared standards of behaviour that govern the actions of members of a society and can be codified into laws. Social norms are powerful drivers of human behavioural changes and can vary depending on culture, race, religion, and geographical location. For example, wearing a suit to a job interview is a common social norm in the white-collar workforce.
On the other hand, habits are individual behavioural patterns that may or may not align with social norms. While social norms are learned and reinforced through socialization, habits are often unconscious and automatic behaviours that are influenced by various factors, including biological and neurological processes. Habits can be good, neutral, or bad, and they do not necessarily reflect an individual's adherence to social norms. For instance, brushing one's teeth every morning is a habit that aligns with the social norm of maintaining personal hygiene.
Social rule system theory attempts to formally approach different kinds of social rule systems, including norms, laws, regulations, taboos, customs, and related concepts. These rules are tangible in societies and are often learned early in life, becoming deeply ingrained in personal and collective identities. Conformity to social rules is often habitual and unreflective, influenced by the expectation of rewards or sanctions.
It is important to note that social norms are not the same as laws, which are formal inscriptions at the state or federal level with established punishments for violations. However, social norms can influence the creation and enforcement of laws, and they may be seen as efficient alternatives to legal rules by providing signalling mechanisms at little or no cost.
While social norms and habits interact and influence each other, they are distinct concepts. Social norms are the shared standards of behaviour within a group or society, while habits are individual behavioural patterns that may or may not align with social norms. Understanding the interplay between social rules and habits can provide insights into human behaviour and the functioning of social systems.
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Customary law and dispute settlement
Customary law is a set of laws based on the traditions, customs, or norms of a local community. It is applied in many countries, often in conjunction with civil, common, and religious legal systems. The content and features of customary law vary by country or region and may evolve over time as local customs change. Customary law may be implemented by national judiciaries or through traditional, informal justice systems. These traditional systems, rooted in family and community structures, resolve disputes at the local or regional level.
Customary law is a recognised source of law within the jurisdictions of the civil law tradition, where it may be subordinate to statutes and regulations. Customary international law differs from treaty law, which consists of explicit agreements between nations to assume obligations. However, many treaties are attempts to codify pre-existing customary laws. In many countries, customary law exists alongside official law, a condition referred to as legal pluralism.
The flexibility of customary law allows for much versatility in dispute settlement. For example, in Tswana society, there is an undifferentiated nature of the normative repertoire, where overtly incompatible norms may coexist and breed conflict. This lack of rule classification and failure to eradicate internal inconsistencies between potentially conflicting norms is viewed as a strategic resource for disputants who seek to advance their case. In dispute resolution, the defendant will refer to norms, which the audience would typically already know, and the way one presents their case and constructs the facts will establish their paradigm. The adjudicating headman or chief may accept the normative basis implied by the parties and make a decision on a factual issue without expressly referring to any norms or imposing a new paradigm.
Customary law can be observed in various countries. For instance, the Navajo courts recognise a customary law right to notice and the right to indigent representation and effective counsel during a trial. In South Korea, custom is considered a source of law in the application of civil, commercial, criminal, and family law. Similarly, Jordan's legal system is primarily a mixture of civil and Islamic law, but it defers to tribal custom for Bedouin tribal groups in criminal and family law.
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Customary law and the canon law of the Catholic Church
Canon law, or ius canonicum in Latin, refers to the body of laws and regulations made or adopted by the Catholic Church's ecclesiastical authority to govern its organisation and members. It is the oldest continuously functioning legal system in the West. The term "canon law" was only regularly used from the 12th century onwards, with earlier terms including ius ecclesiasticum referring to secular law in relation to the Church. Canon law has its sources in Divine law, including natural law based on the teachings of Jesus Christ, and human or positive law formulated by the legislator in conformity with Divine law.
Canon law has all the ordinary elements of a mature legal system: laws, courts, lawyers, and judges. It includes written law (jus scriptum) and unwritten law (jus non scripture) or customary law, which arose from practice and custom. The written law has gained prominence over time. Canon law governs the external organisation and activities of Catholics, with general laws binding all Catholics, and particular laws applying based on domicile.
The canon law of the Catholic Church includes the legal code for the Latin Church and a code for the Eastern Catholic Churches, with the latter having developed some different disciplines and practices. The Code of Canons of the Eastern Churches was promulgated in 1990 by Pope John Paul II. The canon law of the Catholic Church lacks civilly binding force in most secular jurisdictions.
The term source or fountain of canon law (fons iuris canonici) can refer to the formal cause of a law's existence or the material channel through which laws are handed down and made known. Canon law began with rules said to have been adopted by the Apostles at the Council of Jerusalem in the first century and has evolved to include norms from the New Testament and elements from various other legal traditions.
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Frequently asked questions
Customs are a set of procedures that emerge and evolve over time without any constituted authority, whereas laws are created and enforced by a definite power of the state. Customs are relatively fixed and cannot be changed easily, whereas laws can be introduced, amended, or abolished with relative ease.
Customs can become laws through traditional usage and political influence. Laws can also be created to reform or abolish certain customs that are no longer in tune with changing societal conditions.
Laws are enforced by a special agency and sanctioned by an organized coercive authority, whereas customs are enforced by spontaneous social action and the criticism of deviation from the accepted norm.
