What Are the Characteristics of Customary Law

Clearly, the source of customary law, as a rule, is the memory of elders and others, whose traditional roles enable them to have a special knowledge of the customs and traditions of their people. They make laws based on the usual practices of the people of this community. A central issue in the recognition of customary law is to determine the appropriate methodology for knowing which practices and norms actually constitute customary law. It is not immediately clear that classical Western legal theories can be usefully reconciled with conceptual analyses of customary law, and so some scholars (such as John Comaroff and Simon Roberts)[2] have characterized customary norms in their own terms. Nevertheless, there are clearly some differences of opinion that can be seen in John Hund`s critique of Comaroff and Roberts` theory and the preference for H. L. A. Hart`s contributions. Hund argues that Hart`s The Concept of Law solves the conceptual problem with which scholars who have tried to articulate how common law principles are identified, defined, and how they function in regulating social behavior and resolving disputes. [3] A peculiarity of international humanitarian law, however, is that some of its rules govern armed conflicts between a state and an armed opposition group or between such groups. The rules governing these conflicts apply to all parties, whether a State or an armed opposition group. Analysis of State practice shows that many rules of customary humanitarian law applicable in non-international armed conflicts are binding on both States and armed opposition groups. Last but not least, the characteristic of customary law that you need to know is that it does not have a unified body.

Yes! Customary law does not have a uniform organ, as the customs of one particular society may differ from another, although these societies are very similar. The diversity of people in Nigeria also implies the diversity of their customs. It is therefore not entirely possible to determine the exact content of African customary law at any given point in history. While this may seem like a recipe for anarchy in light of the Western understanding of law as a mostly written fusion of rules and regulations, it is precisely this aspect of customary law that represents its greatest strength that makes it dynamic, changeable, and adaptable to changing realities. without the lengthy, costly and sometimes politically charged process of changing official law (whether through precedents or decrees). In a way, the history and achievements of foreign jurisdictions dealing with customary law are reflected, particularly in the field of legal anthropology. Therefore, it is necessary to examine and sort in detail the history and development of legal anthropology. Legal anthropology is a discipline on the fringes of the two major disciplines of law and anthropology. It is a new discipline that jurists and anthropologists “penetrate” and cultivate on the margins of their respective disciplines [9]. For a lawyer, the main sources of many legal formulations, revisions and procedures and their universal application lie in the concepts and relationships embodied in everyday social life.

It is this kinship between law and anthropology that draws anthropologists` attention to law. It also encourages jurists to attach importance to anthropological materials and methods and is gradually becoming an “emerging” interdisciplinary subject [10]. Reference [11] presents what it calls “relative and contingent relations” that influence the legal basis, including climatic conditions, geographical environment, religious beliefs and political structure of a particular country. If the laws of one country can be adapted to another, it is a coincidence. Reference [12] believes that law is deeply rooted in the history of a particular nation, depends on the national spirit and national consciousness, and considers law as part of the overall social existence. From the perspective of examining the status and role of the primitive human legal system among individuals from different civilizations, dynamic research provides theoretical support. Reference [13] conducted fieldwork and published “Crime and Customs in Primitive Society” in 1926, which is of historical importance for the development of legal anthropology and the study of traditional customary law. Reference [14] believes that customary law exists and divides law into three types: customary law, bureaucratic law, and legal order. The reference [15] takes a completely different view. In the broadest sense, customary law secretly creates new laws, such as the latent life of plants and animals before their birth, it is the vitality of legal rules, its scope is infinite, and it is no exaggeration to say that it is the sole source of law. Reference [16] identifies customary law as one of the two fundamental types of law along with written law, arguing that customary law derives from a commonly observed act in which the actor does not consciously aim to create the law, but must consider his actions as conforming to binding norms rather than arbitrary decisions, and customary law is also valid.

Reference [17] analyses the importance of custom for the formation of law and the transitional boundaries between custom and custom and law. Reference [18] conducted a comparative analysis of the external and internal order and conducted an in-depth study of customary law, including customs and conventions as part of the discussion on the internal order. For a long time, because of the constraints of the class perspective and the influence of monistic legal theory in the discussion on the creation of law and the origin of law, the legal circle of my country believed that customary law was linked to the State, unique in class society and recognized by the State. And the habit of implementation is guaranteed by the coercive power of the state, while ignoring the objective existence of customary law and denying the category of customary law as a right [19].