Customary law

Lore & Background

Customary law is defined as the set of customs, practices, and beliefs that a community accepts as binding rules of conduct. A central issue is determining the appropriate methodology to identify what practices constitute customary law. Some scholars, like John Comaroff and Simon Roberts, have characterized customary law norms in their own terms, while John Hund critiques their approach and prefers the contributions of H. L. A. Hart, arguing that Hart's The Concept of Law solves the conceptual problem of identifying and defining customary law principles. Comaroff and Roberts' work 'Rules and Processes' details the body of norms constituting Tswana law, distinguishing melao (rules pronounced by a chief) from mekgwa (norms becoming customary law through traditional usage). They note the 'undifferentiated nature of the normative repertoire' and the coexistence of incompatible norms, allowing flexibility in dispute settlement. Outcomes of specific cases can change the normative repertoire, and a chief's legitimacy directly determines the legitimacy of his decisions. Hund challenges Comaroff and Roberts' flexibility thesis, drawing from Hart's analysis to distinguish social rules (with internal and external aspects) from habits (external only). He identifies two forms of rule skepticism: first, that customary law content derives from practice so no objective rules exist; second, that rules are not arrived at deductively but are driven by personal or political motives. Hund argues these are misconceptions based on failure to acknowledge the internal element of social rules.

Reader's Guide

Customary law's significance lies in its role as a foundational source of legal norms in both local communities and international law. The debate between scholars like Comaroff and Roberts versus Hund highlights fundamental tensions in legal theory: whether customary law is a flexible repertoire of negotiable norms or a system of binding social rules identifiable through internal attitudes. Comaroff and Roberts emphasize the contextual, strategic use of norms in Tswana dispute resolution, where outcomes can transform the normative repertoire. Hund, following Hart, insists on the importance of distinguishing social rules from mere habits through criteria such as societal criticism of deviation and the perception of a common standard. This unresolved dispute shapes how customary law is understood and applied, particularly in postcolonial legal systems and international law contexts like prohibitions on piracy and slavery. The legacy of customary law includes its ongoing influence in legal pluralism and the recognition that law can emerge from social practice rather than solely from state legislation.

Did You Know?

• Customary law exists where a legal practice is observed and actors consider it an opinion of law or necessity (opinio juris).
• Comaroff and Roberts described the Tswana normative repertoire as 'undifferentiated' and containing overtly incompatible norms.
• Hund argues that Hart's analysis of social rules, with internal and external aspects, solves the problem of identifying customary law.
• A chief's legitimacy directly determines the legitimacy of his decisions in customary law systems.