Customary Law System

In General

According to Bruce Benson (“The Enterprise of Law”):

“Law can imposed from above by some coercive authority, such as a king, a legislature, or a supreme court, or law can develop “from the ground” as customs and practice evolve. Law imposed from the top — authoritarian law — typically requires the support of a powerful minority; law developed from the bottom up — customary law — requires widespread acceptance. Hayek explained that many issues of law are not

whether the parties have abused anybody’s will, but whether their actions have conformed to expectations which other parties had reasonably formed because they corresponded to the practices on which the everyday conduct of the members of the group was based. The significance of customs here is that they give rise to expectations that guide people’s actions, and what will be regarded as binding will therefore be those practices that everybody counts on being observed and which thereby condition the success of most activities.

Customary law is recognized, not because it is backed by the power of some strong individual or institution, but because each individual recognizes the benefits of behaving in accordance with other individuals’ expectations, _given_ that others also behave as he expects. Alternatively, if a minority coercively imposes law from above, then that law will require much more force to maintain social order than is required when law develops from the bottom through mutual recognition and acceptance.

Reciprocities are the basic source both of the recognition of duty to obey law and of law enforcement in a customary law system. That is, individuals must “exchange” recognition of certain behavioral rules for their mutual benefit. Fuller suggested three conditions that make a duty clear and acceptable to those affected:

First, the relationship of reciprocity out of which the duty arises must result from a voluntary agreement between the parties immediately affected; they themselves “create” the duty. Second, the reciprocal performances of the parties must in some sense be equal in value. … We cannot here speak of an exact identity, for it makes no sense at all to exchange, say, a book or idea in return for exactly the same book or idea. The bond of reciprocity unites men, not simply in spite of their differences but because of their differences. … Third, the relationships within the society must be sufficiently fluid so that the same duty you owe me today, I may owe you tomorrow — in other words, the relationship of duty must in theory and in practice be reversible.

Because the source of recognition of customary law is reciprocity, private property rights and the rights of individuals are likely to constitute the most important primary rules of conduct in such legal systems. After all, voluntary recognition of laws and participation in their enforcement is likely to arise only when substantial benefits from doing so can be internalized by each individual. Punishment is frequently the threat that induces recognition of law imposed from above, but incentives must be largely positive when customary law prevails. Individuals must expect to gain as much or more than the costs they bear from voluntary involvement in the legal system. Protection of personal property and individual rights is a very attractive benefit.

Under customary law, offenses are treated as torts (private wrongs or injuries) rather than crimes (offenses against the state or the “society”). A potential action by one person has to affect someone else before any question of legality can arise; any action that does not, such as what a person does alone or in voluntary cooperation with someone else but in a manner that clearly harms no one, is not likely to become the subject of a rule of conduct under customary law. Fuller proposed that “customary law” might best be described as a “language of interaction.” Facilitating interaction can only be accomplished with recognition of clear (although not necessarily written) codes of conduct enforced through reciprocally acceptable, well established adjudication arrangements accompanied by effective legal sanctions.

James Buchanan asked, if government is dismantled “how do rights re-emerge and come to command respect? How do ‘laws’ emerge that carry with them general respect for their ‘legitimacy’?” He contended that collective action would be necessary to devise a “social contract” or “constitution” to define rights and to establish the institutions to enforce those rights. But collective action can be achieved through individual agreements, with useful rules spreading to other members of a group. Demsetz explained that property rights will be defined when the benefits of doing so cover the costs of defining and enforcing such rights. Such benefits may become evident because a dispute arises, implying that existing rules do not adequately cover some new situation. The parties involved must expect the benefits from resolving the dispute (e.g., avoiding a violent confrontation), and of establishing a new rule, to outweigh the cost of resolving the dispute and enforcing the resulting judgment, or they would not take it to the adjudication system.

Dispute resolution can be a major source of legal change since an adjudicator will often make more precise those rules about which differences of opinion exist, and even supply new rules because no generally recognized rules cover a new situation. If the relevant group accepts the ruling it becomes part of customary law, but not because it is coercively imposed on a group by some authority backing the court. Thus, good rules that facilitate interaction tend to be selected over time, while bad decisions are ignored.

Dispute resolution is not the only source of legal evolution under customary law. Individuals may observe others behaving in a particular way in a new situation and adopt similar behavior themselves, recognizing the benefit of avoiding confrontation. Institutions for enforcement similarly evolve due to recognition of reciprocal benefits.

Consider the development of dispute resolution procedures. No state- like coercive authority exists in a customary system to force disputants into a court. Because rules of customary law are in the nature of torts, the aggrieved party must pursue prosecution. Under such circumstances, individuals have strong reciprocal incentives to form mutual support groups for legal matters. The makeup of such groups may reflect family (as it frequently did in primitive societies), religion (as in some primitive groups), geographic proximity (as in Anglo-Saxon England), functional similarity (as with commercial law), or contractual arrangements (e.g., as in medieval Ireland and in medieval Iceland). The group members are obligated to aid any other member in a valid dispute, given that the member has fulfilled his obligations in the past. Thus, ability to obtain support in a dispute depends on reciprocal loyalty.

Should a dispute arise, reciprocal support groups give individuals a position of strength. This does not necessarily mean, however, that disputes are settled by warfare between groups. Violence is a costly means of solving a dispute: if the accuser and his support group attack the accused, the accused’s group is obliged to avenge the attack. Consequently, arrangements and procedures for non-violent dispute resolution should evolve very quickly in customary law systems.

The impetus for accepting adjudication in a customary legal system (as well as in an authoritarian system) is the omnipresent threat of force, but use of such force is certainly not likely to be the norm. Rather, an agreement between the parties must be negotiated. Frequently, a mutually acceptable arbitrator or mediator is chosen to consider the dispute, but this individual (or group) will have no vested authority to impose a solution on disputants. The ruling, therefore, must be acceptable to the groups to which both parties in the dispute belong. The only real power an arbitrator or mediator holds under such a system is that of persuasion.

If the accused offender is found guilty, the “punishment” tends to be economic in nature: restitution in the form of a fine or indemnity to be paid to the plaintiff. Liability, intent, the value of the damages, and the status of the offended person all may be considered in determining the indemnity. Every invasion of person or property is generally valued in terms of property.

A judgment under customary law is typically enforceable because of an effective threat of total ostracism by the community (e.g., the primitive tribe, the merchant community). Reciprocities between the groups, recognizing the high cost of refusal to accept good judgments, takes those who refuse such a judgment outside their support group and they become outcasts or “outlaws.” The adjudicated solutions tend to be accepted due to fear of this severe boycott sanction.

Carl Menger proposed that the origin, formation, and ultimate process of all social institutions (including law) is essentially the same as the spontaneous order Adam Smith described for markets. Markets coordinate interactions, as does customary law. Both develop as they do because the actions they are intended to coordinate are performed more effectively under one system or process than another. The more effective institutional arrangement replaces the less effective one.

The evolutionary process is not one of deliberate design. In the case of primitive societies, for example, early kinship or neighborhood groups were effective social arrangements for internalizing reciprocal legal benefits — as well as other benefits arising out of cooperative production, defense, religious practices, and so on — _relative_ to previously existing arrangements. Others saw some of those benefits and either joined existing groups or copied their successful characteristics and formed new groups. Neither the members of the earliest groups nor those who followed had to understand what particular aspect of the contract actually facilitated interactions that led to an improved social order… ”

CUSTOMARY LAW SYSTEMS AND MIXED SYSTEMS WITH A CUSTOMARY LAW TRADITION

Information provided by the Univesity of Ottawa:

“Today, hardly any political entity in the world operates under a legal system which could be said to be typically and wholly customary. Custom can take on many guises, depending on whether it is rooted in wisdom born of concrete daily experience or more intellectually based on great spiritual or philosophical traditions. Be that as it may, customary law (as a system, not merely as an accessory to positive law) still plays a sometimes significant role, namely in matters of personal status, in a relatively high number of political entities with mixed legal systems. This obviously applies to a number of African countries but is also the case, albeit under very different circumstances, as regards the law of China or India, for example. (…)

Customary law, which category also includes what is known as “Aboriginal laws” have not been highlighted in cases where, even though they may be used for certain means, they do not represent a key characteristic of the relevant political entity’s legal system.”

CUSTOMARY LAW MONOSYSTEMS

ANDORRA
GUERNSEY (UK)
JERSEY (UK)

MIXED SYSTEMS OF CIVIL LAW AND CUSTOMARY LAW

BURKINA FASO
BURUNDI
CHAD
CHINA (CN) (minus Hong-Kong and MACAU)
CONGO
DEMOCRATIC REPUBLIC OF CONGO
COTE D’IVOIRE
ETHIOPIA
EQUATORIAL GUINEA
GABON
GUINEA
GUINEA-BISSAU
JAPAN
KOREA SOUTH
KOREA NORTH
MADAGASCAR
MALI
MONGOLIA
MOZAMBIQUE
NIGER
RWANDA
SAO TOMÉ AND PRINCIPE
SENEGAL
SWAZILAND
TAIWAN
TOGO

MIXED SYSTEMS OF COMMON LAW AND CUSTOMARY LAW

BHUTAN
GHANA
HONG KONG (CN)
LIBERIA
MALAWI
MICRONESIA
MYANMAR
NEPAL
PAPUA NEW GUINEA
SAMOA
SIERRA LEONE
SOLOMON ISLANDS
TANZANIA
UGANDA
ZAMBIA

MIXED SYSTEM OF MUSLIM LAW AND CUSTOMARY LAW

UNITED ARAB EMIRATES

MIXED SYSTEMS OF CIVIL LAW, MUSLIM LAW AND CUSTOMARY LAW

DJIBOUTI
ERITREA
INDONESIA
JORDAN
KUWAIT
OMAN
TIMOR LESTE

MIXED SYSTEMS OF CIVIL LAW, COMMON LAW AND CUSTOMARY LAW

CAMEROUN
LESOTHO
SRI LANKA
VANUATU
ZIMBABWE

MIXED SYSTEMS OF COMMON LAW, MUSLIM LAW AND CUSTOMARY LAW

BRUNEI
GAMBIA
INDIA
KENYA
MALAYSIA
NIGERIA

MIXED SYSTEMS OF COMMON LAW, CIVIL LAW, MUSLIM LAW AND CUSTOMARY LAW

BAHRAIN
QATAR
SOMALIA
YEMEN

Resources

See Also

• Consuetudinary
• Customary international humanitarian law
• Legal dualism
• Legal pluralism
• Jus gentium (law of nations)
• Rule of law
• Germanic law‎
• Somalian law‎
• Sri Lankan law
• Customary law
• Anglo-Saxon law
• Celtic law
• Centre for Tribal and Customary Law
• Chthonic law
• Coutume
  Coutumes de Beauvaisis
• Custom
• Custom of the sea
• Early Irish law
• Lex mercatoria
• Scandinavian law
• Norman law
• Usages of Barcelona
• Vlach law

Further Reading

ACADEMIE AFRICAINE, Repenser les droits africains pour le XXIème siècle, Menaibuc, 2004.

ACQUARONE, D., La coutume : Réflexion sur les aspects classiques et les manifestations contemporaines d’une source de droit, Nice, Université de Nice-Faculté de droit et des sciences économiques, 1987.

ELIAS, O.T., La nature du droit coutumier africain, Présence africaine, 2000.

GLUCKMAN, M., (ed.), Ideas and Procedures in African Customary law, London, International African Institute and Oxford University Press, 1969.

GLUCKMAN, M., Politics, Law and Ritual in Tribal Society, Oxford, B.Blackwell, 1977.

GONIDEC, P.-F., Les droits africains, Pichon & Duran-Auzias, 1968.

HOOKER, M.B., Adat Law in modern Indonesia, Kualalumpur, Oxford, Oxford University Press, 1998.

LEMASURIER, R., Le droit de l’île de Jersey : La loi, la coutume et l’idéologie, Paris, A. Pedone, 1956.

MOORE, S.F., Social Facts and Fabrications: Customary law on Kilimanjaro, 1880-1980, Cambridge, Cambridge University Press,1986.

NTAMPAKA, C., Introduction aux systèmes juridiques africains, P.U. de Namur, 2005.

OUVRAGE COLLECTIF, Sacralité, pouvoir et droit en Afrique, Paris, Éditions du centre national de la recherche scientifique, 1978.

POUDRET, J.-F., Coutumes et coutumiers, histoire comparative des droits des pays romands du XIIIe siècle à la fin du XVIe siècle, Berne, 2002.

RENTLEN, A.D and ALAN Dundes, (eds), Folk Law: Essays in the Theory and Practice of Lex Non Scriptum, Madison, University of Wisconsin Press, 1995, 2 vols.

VANDERLINDEN, J.,”Les droits africains entre positivisme et pluralisme”, (2000) 46 Bulletin des séances de l’Académie royale des sciences d’outre-mer, 279-292.

VANDERLINDEN, J., Les systèmes juridiques africains, coll. Que-sais-je?, 2103, Paris, P.U.F., 1983.