Text 2. Customs

Customs are social habits, patterns of behaviour, which all societies evolve without express formulation or conscious creation. Custom is one of the principal sources of law; originally law was based upon it. Moreover, custom is not important only as a source of law, for even today some customary rules are still observed and they have almost the same power as rules of law. The only difference is that their observance is not enforced by the organs of the State. Thus, many of the fundamental rules of the Constitution are “conventional” (i. e. customary) rather than legal, rules.

But in modern times most general customs (i. e. customs universally observed throughout the realm) either do not exist or have become absorbed in rules of law. For example many of the early rules of the common law were general customs which the courts adopted, and they have become laws.

On the other hand customs of particular groups of people living in particular localities, are sometimes still capable of creating a special “law” for the locality in question which is different from the general law of the land.

But such variants will only be recognized if certain conditions are satisfied. The following are among the more important of those conditions. The custom must (1) not be unreasonable, (2) the right must be claimed by or on behalf of a defined group of people, (3) must have existed since “time immemorial”. This means that it must go back to 1189 (by historical accident the terminal date of “legal memory”).

Exercise 12. Answer the questions on text 2.

1. What is one of the principle sources of law?

2. Is custom important only as a source of law?

3. What is the difference between customary rules and rules of law?

4. Do customs still create new laws?

5. What conditions must such customs satisfy?