Customary Law

Custom in law is the established pattern of behavior that can be objectively verified within a particular social setting. A claim can be carried out in defense of "what has always been done and accepted by law." Related is the idea of prescription; a right enjoyed through long custom rather than positive law.

Customary law (also, consuetudinary or unofficial law) exists where:

Most customary laws deal with standards of community that have been long-established in a given locale. However the term can also apply to areas of international law where certain standards have been nearly universal in their acceptance as correct bases of action - in example, laws against piracy or slavery (see hostis humani generis). In many, though not all instances, customary laws will have supportive court rulings and case law that has evolved over time to give additional weight to their rule as law and also to demonstrate the trajectory of evolution (if any) in the interpretation of such law by relevant courts.

A central issue regarding the recognition of custom is determining the appropriate methodology to know what practices and norms actually constitutes customary law. It is not immediately clear that classic Western theories of jurisprudence can be reconciled in any useful way with conceptual analyses of customary law, and thus some scholars (like John Comaroff and Simon Roberts) have characterised customary law norms in their own terms. Yet, there clearly remains some disagreement, which is seen in John Hund's critique of Comaroff and Roberts' theory, and preference for the contributions of H. L. A. Hart. Hund argues that Hart's "The Concept of Law" solves the conceptual problem with which scholars who have attempted to articulate how customary law principles may be identified, defined and how they operate in regulating social behaviour and resolving disputes.

Comaroff and Roberts' famous work, "Rules and Processes", attempted to detail the body of norms that constitute Tswana law in a way that was less legalistic (or rule-oriented) than had Isaac Schapera. They defined "mekgwa le melao ya Setswana" in terms of Casalis and Ellenberger definition: melao therefore being rules pronounced by a chief and mekgwa as norms that become customary law through traditional usage. Importantly, however, they noted that the Tswana seldom attempt to classify the vast array of existing norms into categories and they thus termed this the 'undifferentiated nature of the normative repertoire'. Moreover, they observe the co-existence of overtly incompatible norms that may breed conflict, either due to circumstances in a particular situation, or inherently due to their incongruous content. This lack of rule classification and failure to eradicate internal inconsistencies between potentially conflicting norms allows for much flexibility in dispute settlement and is also viewed as a 'strategic resource' for disputants who seek to advance their own success in a case. The latter incongruities (especially of inconsistencies of norm content) are typically solved by elevating one of the norms (tacitly) from 'the literal to the symbolic'. This allows for the accommodation of both as they now theoretically exist in different realms of reality. This is highly contextual, which further illustrates that norms cannot be viewed in isolation and are open to negotiation. Thus, although there are a small number of so-called non-negotiable norms, the vast majority are viewed and given substance contextually, which is seen as fundamental to the Tswana.

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