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Concept
Customary law
Summary
A legal custom 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".
Customary law (also, consuetudinary or unofficial law) exists where:
a certain legal practice is observed and
the relevant actors consider it to be an opinion of law or necessity (opinio juris).
Most customary laws deal with standards of the 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 – for 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 have 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 constitute 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 characterized 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 behavior 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.
Official source
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