CUSTOMS OR CUSTOMARY LAWS: A SOURCE OF MODERN ENGLISH LAWS

“Via trita, via tuta”

----- Lat. Maxim

Custom occupies a very important place in regulation of human conduct in almost all the societies, irrespective of the countries to which they belong. It is one of the oldest sources of law-making, but with the progress of the society its significance gradually diminishes and legislations and judicial precedents become the main source of law, replacing the influence of Custom.

Custom takes birth from the habits and natural dealings of the people in a society; by their unconscious adoption of a certain rule of conduct and its sanctity is based on nothing but its long continued use and recognition by the people.

Custom is some kind of special rule which is followed from time immemorial[1]. Law based on custom is known as customary law. Custom, as a source of law, has to be studied on the touchstone of a number of parameters: its nature and origin; its significance, factors for its recognition, various types, diversity of its theories, its distinction with prescription and usage, and the essential elements of a valid custom.

In the Western part of the globe, the Holy Church was known to have imposed various kinds of rules and taxes on its subjects. Without delving into the controversy of those being right or wrong, it can be safely assumed that even in the Customary Laws of the Western world, Church made rules and regulations, including those of taxes, played a significant role, as it was an effective means to exert control and establish some sense of social orders, amidst the prevailing anarchy and chaos.

THE ROMAN CIVIL LAW – THE CANON LAW – THE COMMON LAW

When the legendary Roman Empire flourished, it became a common place proverb of “Via trita via tuta”[2]. The well known latin maxim, recognized by the Indian as well as International Courts of Justice, amply explains the principle of "beaten path, safe path". The Principle used by P.J. Fitzgerald[3] while explaining the concept of age old customs being an important source of Law.

Alike the notion prevailing in Ancient Indian Laws, where Manu asserted “Immemorial Custom is transcendental Law”[4], such customs were similarly treated and were accepted as a source of law by the Civil Laws of Roman Empire[5], which thrived in the earliest dawn of English History in the land contemporaneously known as the Province of Britain[6]. Thereafter, the same concept was handed down to the Canon Laws[7], right from the ages of Corpus Juris Canonici[8]. Even to this date, one of the lasts of the codified Canon Laws, lay down that customs immemorial are to be preserved.[9] Codes of Roman Canon Laws happen to be a complete code in itself; it is a fully developed legal system, with all the necessary elements: courts, lawyers, judges, a fully articulated legal code.[10] Thus, the importance of customs or customary laws can be appreciated from the Roman Canon Laws. Again, from these canon laws, the English Law inherited the concept or the notion of ‘custom being an important source of law’.

As per Salmond[11], “There is more than one reason for thus attributing to custom the force of law. In first place, custom is frequently the embodiment of those principles which have commended themselves to the national conscience as principles of justice and public utility.”[12]

According to Professor Fitzgerald[13] it is obvious and natural that the Courts would be more content to accept those principles which have already been standing in the favor of prestige and authority of long acceptance, rather than attempting the more dangerous task of fashioning a new set of rules for the purpose of adjudication.

But, there exists a resistance to such proposition, especially in the Western world. As it will become clear from the discussions hereafter, that the Western jurists had long cherished a divergence of opinion regarding accepting Customary Laws as a significant Source of Law, as it stands on date.

DEVELOPMENT OF THE THESIS

While appreciating the development of the proposition of ‘customs (or customary laws) as a source of Law’, it can be noticed that apart from the Customary Laws or Customs, there can be two more sources of law, in the English Legal System. According to a Research Paper by Professor Neil Duxbury[14], it can be summarized as follows[15]: Precedent and statute are the main sources of English law. But it was not always thus. Precedent emerges late in the history of the common law – it would take until the nineteenth century for the courts to become properly equipped to develop the common law according to the principle that like cases should be treated alike.[16] Before then, a case (or line of cases) would typically be treated as persuasive rather than as binding authority – as something which judges might recognise as venerable legal opinion, and which a lawyer might rely on in court because it provided evidence of what the common law was rather than because it was itself common law.[17]

In other words, ‘Precedents’ were used and accepted by the then English Courts, not because of the fact that they considered those to be law per se, but because they considered such precedents to the evidence as to ‘what law is’.

Lord Mansfield, reflected this same concept, when he wrote, “precedent, though it be evidence of law, is not law in itself”[18]. The common law itself was a form of custom until it gathered the support of ‘Precedents’ and thus got the force of law.

It can be gathered from the works of the first ever Historically acclaimed English eminent jurists of yester years, Ranulf de Glanvill (died 1190), the Chief Justiciar (equivalent to modern day Prime Minister) of England during the reign of King Henry II (1154–89) who is the probable author of Tractatus de legibus et consuetudinibus regni Anglie (The Treatise on the Laws and Customs of the Kingdom of England), the earliest treatise on the laws of England[19], wrote, “if, merely for lack of writing, they [i.e., unwritten laws] were not deemed to be laws, writing would doubtless supply to written laws a force of apparently stronger authority than either the justice [equitas] of him who decrees them or the reason of him who establishes them.”[20]

Thus, the apparent inclination of the English jurors towards unwritten laws, rather uncodified laws is manifest from a very old time. Hence, it can be summed up that there are always two types of laws, viz. unwritten laws or customs and written laws or statutes. But, it is essential to bear in mind, unwritten laws of customs, do not mean that those are not written down anywhere; but simply means that those were not written down as “laws” in a statute book, they were uncodified; but, of course had been documented in some way or the other: like being recorded in court proceedings, in a verdict or in any legal writing.

Again, taking cue from Professor Duxbury[21]: Late-medieval and Renaissance English lawyers typically understood binding customs to be not common law but rather customs which held good in a locality – examples would be local customs relating to trade, inheritance, tenure and wardship – as exceptions to the common law. In Anthony Fitzherbert’s Abridgement, first published in 1514, the entry for “custom” is devoted entirely to local customs tried before manorial court juries and held enforceable as lex loci in the localities where they prevailed.[22] A century later John Davies, in his account of the arguments presented before the King’s Bench in the Case of Tanistry, observed how “custom, in the intendment of the law, is such usage as has obtained legal force, and is in reality a binding law to such particular place, persons and things which it concerns”[23]

According to Professor Duxbury[24]: The common law, then, was itself understood to be customary (derived from general custom), but there was also this other category of law – local customs enforced by local and royal courts so as to be binding within a locality – which was customary law but not common law. A “custom cannot be alleged generally within the kingdom”, Coke insisted in the late 1620s, “for that is the common law.”[25] With the common law – the pith and substance of Coke’s theory was – nothing needed to be alleged as custom law which was by definition, and otherwise, within the knowledge of judges to be common law, and so there was no reason for lawyers to mention it in writs or pleadings. The point finds manifestation in the writings and works of Sir Henry Finch[26], when writing around the same time, he proclaimed mercantile custom to be general custom – part of the common law rather than something which merchants had to demonstrate. According to Finch, it was “not good” legal technique to “plead that there is a custom among merchants throughout the realm” regarding the recognition of bills of exchange, for “that which is current throughout the realm, is common law, not custom.”[27]

In other words, if a custom applies to the country as a whole, it ceases to be a custom, but it becomes the Common Law itself. Coke and Henry Finch were the two most prominent and earliest of the jurists who advocated this theory. So, at this point, one may opine ‘all common laws are customs, but all customs are not common law’. It has to be then borne in mind, the word “custom” as it means in the present context, restricts itself only to local customs, which do not have the universal acceptance throughout the country. Hence, when I say, ‘custom as a source of law’, I mean ‘local custom as a source of law’, and not ‘general customs’.

Sir Matthew Hale[28] (1st November 1609 – 25th December 1676), a late contemporary of Sir Edward Coke[29] and Sir William Blackstone[30] (10th July 1723 – 14th February 1780), early in seventeenth and eighteenth century, under whose guiding hands the very essence of the Common Law was shaped and seasoned to pave the way for the modern day legal system, had also completely depended on Customary Laws, while deciding, interpreting and contextualizing the ambit of the statutory or common laws.

Sir W. Blackstone[31] too laid down that laws of England could be grouped under two classes, viz. lex scripta and lex non scripta. Lex scripta was the written down or statutory laws, while the lex non scripta or the unwritten law comprised of not only the general customs[32], but also, certain particular customs, which were peculiar to only certain particular parts of the kingdom[33]. These lex non scripta were later on taken into the folds of the statutory laws, as statutes were enacted specifically taking such unwritten laws (peculiar to some localities) into account; thereby, establishing the fact that Customary Laws serve as a very important source to the Common/Statutory Laws and also paved the way for the codified laws, later on, as a whole.

TIME: ESSENCE OF VALID CUSTOMS

Irrespective of varied legal theories and plethora of legal philosophers and thinkers, the thought regarding ‘time requirement’ of being a valid custom is more or less equivocal. The jurists and the philosophers agree that in order to be a valid custom, it must have been in force for ‘time immemorial’ or ab antiquity and it should also be continuous, that is to say, it should not have ever fallen out of practice. In fact such falling out of practice happens to be a ground on which the authority of an alleged custom can be undermined. As it is an accepted principle under the Ancient Indian/Hindu laws, where Manu said “Immemorial custom is the transcendental law”, likewise the Roman law too accepted the idea of custom transcending memory, becomes Law.[34]

But, as to the requirement of the length of time, we have divergences of opinions among the legal anthropologists and thinkers.

In pre-stare decisis English law, a custom was considered already existing law because the relevant pattern of behaviour had prevailed largely unaltered in the community for a long time, which was usually taken to mean that nobody could testify to a time when things were otherwise.[35] Whereas it had to be proved that a local custom had persisted since time beyond memory, the antiquity of a general custom was treated as fact per se. “[T]he realm has been continuously regulated by the same customs as it is now”, John Fortescue observed around 1470.[36] Again Coke, writing almost after hundred and fifty years than Fortescue, reiterated, “the grounds of our common laws … were beyond the memory or register of any beginning”.[37]

Now, in the medieval times, things were much less stringent, so “[w]hen something[38] is done twice,” one thirteenth-century civilian claimed, “this makes a custom”[39] and were inclined to treat customs as legally binding after the passing of but a few decades.[40]

Professor Duxbury[41], here had some very important insights. As per him, “Something, but not just anything: de Fontaine had in mind judicial opinions. Although Justinian’s Code eschewed precedent following (C 7. 45. 13), it was accepted that ‘customs and usage’ should guide judicial rulings ‘where we have no applicable written law’ (D 1. 3. 32 (Julian)). If an opinion had been repeated it was custom, and so, in the absence of written law, it could be cited as legal authority.”

The number of decades depended on the type of custom; the period appears never to have been less than ten years, and never more than forty.[42]

After the Norman invasion of England, we perceive a marked shift in the theory of ‘customs as a source of law’, insofar as the requirement of ‘time immemorial’ is concerned. The notion that customs had been in existence throughout and beyond human memory: now, came to be accepted as per the four corners of a well demarcated legal definition, rather than the relaxed medieval approach of ‘generally accepting’ the same.

Now, the million dollar question was how under the English law the concept of ‘time immemorial’ was to be defined?

The answer to such query is a bit deductive. Medieval legal actions for the recovery of possession of land (seisin) were subject to limitation by past events. In the late twelfth century, a when claimant sought to recover possession of land, he had to trace a right of seisin from his forefathers who held that right since, but not before, the accession of Henry I (August 05, 1100). In and around 1200 CE, the crucial date for establishing rightful seisin was changed to December 01, 1135 (the day of Henry I’s death). The Provisions of Merton 1236[43] changed the date again to the accession of Henry II (December 19, 1154), and finally, the first Statute of Westminster[44] (1275 CE) changed it yet again to the year of the coronation of Richard I (September 03, 1189).[45]

THE ANTITHESIS

Now as I indicated supra, there exists a diametrically opposite school of thought, which prefers to attach very little importance to the Customary Laws, and at certain points, denies the contribution of such Customary Laws in shaping the present day statutory command and control structure.

Foremost amongst such thinkers was Sir Paul Gavrilovitch Vinogradoff[46], who believed the influence and importance of the customary laws as a source of law “continuously diminishes as the legal system grows.”[47] According to Vinogradoff, since the customary laws, to a large extent have been superseded by legislations and precedents and also due to the stringent limitations imposed by law upon its law-creating efficacy, they have lost their shine and the significance and importance thereof, is on a steady decline.

Stalwart jurists in the likeness of Sir Frederick Pollock[48] and more recently, Sir Arthur Sigismund Diamond[49] have at times scorned at the idea of accepting Customary Laws as one of the sources or influencing factors of the modern day statutory laws or Common Law.

ELDER ENGLISH JURISTS PREVAIL

But, it is a common sighting that the older doctrines have been reaffirmed in the modern times, as late as the twentieth and this twenty first century, as is clear from Sir Salmond’s view on the topic, as re-affirmed by Prof. Fitzgerald[50].

According to Salmond and Fitzgerald, the language of custom, is the echo of the past, though not an accurate account of facts in the present day. “Nevertheless, even now custom has not wholly lost its law-creating efficacy. It is still to be accounted

(as) one of the legal sources of the law of England, along with legislation and precedent, but far below them in importance.”[51]

Again Ronald Dworkin[52], as late as 1977, observed, “Austin … held that … customary practices were not law until the courts … recognized them…. Hart reversed Austin on this point. The master rule (the rule of recognition), he says, might stipulate that some custom counts as law even before the courts recognize it. But he does not face the difficulty this raises for his general theory because he does not attempt to set out the criteria a master rule might use for this purpose.”[53]

Perhaps it will not be out of place to quote what Encyclopaedia Britannica[54] has to offer on this subject:

“Custom, in English law, an ancient rule of law for a particular locality, as opposed to the common law of the country. It has its origin in the Anglo-Saxon period, when local customs formed most laws affecting family rights, ownership and inheritance, contracts, and personal violence. The Norman conquerors granted the validity of customary law, adapting it to their feudal system. After the great transformations of the 13th and 14th centuries, when English law was given statutory authority under the crown, the “customs of the realm” became England’s common law. Since that time, a local custom outside of common law has been considered valid if it: (1) has been practiced peaceably and continuously from time immemorial—in practice, as long as living testimony can recall; (2) is reasonable, certain, and obligatory; and (3) is confined to a specific locality. With the cultural uniformity of the modern age, custom as a force of law retains its validity, but in practice it has lost ground to common law.”

[Emphasis Supplied]

CONCLUSION

Thus it makes clear, that statutory law as a whole has a strong influence of Customary Laws, as it prevailed since time immemorial, ab antiquity.

However, despite above conviction I am tempted to quote:

“The eternal mobility of fact. The ever-changing of the material with which the student in the social sciences has to deal makes all his generalisation provisional. Each decade adds its contribution to the raw material; and each generation, however sensible it may be of its indebtedness to the past, lies under the eternal necessity to give its own account of things or rest a defaulter. The garment which was devised for the ancestor, however cunningly shaped, will never quite fit the heir, and may at times be indeed ludicrous. The part of custom in the social life is no exception to the rule. A theory about it which has become established ought in all probability to be obsolete. The most superficial examination of its history will convince us that its importance and authority have varied indefinitely from age to age. There have been periods when it is paramount; periods when it seems a mere fiction to conceal a judicial activity; periods when it is reverenced and periods when it is denied. Needless to add, similar divergences exist with regard to different countries”[55]

Thus, taking cue from the above, especially, in order to pen down my thoughts on this brilliant topic, I, somehow feel, the genesis of present, rather future, lies in the womb of past. So, as a student of law, which is one of the most illustrious of the social science subjects, I cannot disown the contribution that the customary laws have made in shaping up the present day Law, as it stands. This perhaps holds true for not only English or Indian legal systems, but also is an indispensable concept to properly appreciate the ever dynamic nature of Law, as a subject.

However, in this regard it would not be out of place to quote Lord Alfred Tennyson:

“And out again I curve and flow

To join the brimming river;

For men may come and men may go

But I go on forever.”

__________________________________________________________________________

[1] Ab antiquity.

[2] Beaten path, safe path (latin).

[3] Salmond on Jurisprudence, 12th Edn. 2004 India Reprint, Book II, Chapter 6, Pg.191.

[4] Infra.

[5] Sometimes synonymously used with the Roman Canon Laws (Roman Catholic Church Laws).

[6] The ‘Province of Britain’ was the area of the island of Great Britain that was governed by the Roman Empire, from 43AD to 410 AD. It comprised almost the whole of England and Wales and, for a short period, southern Scotland.

[7] Church laws, ecclesiastic laws.

[8] Canon Laws compiled in the Medieval Age.

[9] Book I, Can.5, Code of Canon Law, 1983.

[10] Ramstein, Fr. Matthew (1948). Manual of Canon Law. Terminal Printing & Pub. Co., p. 3.

[11] Salmond on Jurisprudence: Sir John Salmond, 1st Edn. 1902.

[12] Chapter 6, Paragraph 32, p.191; Salmond, Supra.

[13] Ibid.

[14] London School of Economics, Dept of Law.

[15] Duxbury, Neil (2017) Custom as law in English law, Cambridge Law Journal.

[16] See Neil Duxbury, The Nature and Authority of Precedent (Cambridge 2008), 53-57.

[17] See e.g. Coke, 1 Institutes (Co. Litt.) 254a (“our book cases are the best proofs what the law is”); Matthew Hale (d. 1676), The History of the Common Law of England, ed. C.M. Gray (Chicago 1971), 45 (“Judicial decisions … are less than a law, yet they are a greater evidence thereof than the opinion of any private persons”); also Jones v Randall (1774) Lofft. 383, 385 (Lord Mansfield) (“precedent, though it be evidence of law, is not law in itself”).

[18] Supra.

[19] Everyman's Encyclopaedia, 5th edition, London, 1967, vol. 6, p. 31; see also F.J. West, The Justiciarship in England 1066-1232 (Cambridge University Press 1966); also see R.V. Turner, The English Judiciary in the Age of Glanvill and Bracton c. 1176-1239 (Cambridge University Press 1985).

[20] [Ranulf de Glanvill?], Tractatus de legibus et consuetudinibus regni Angli? (London 1604 [c. 1187-89]), prologue, 3 (unnumbered).

[21] Duxbury, Neil (2017), Cambridge Law Journal, supra.

[22] See Anthony Fitzherbert, La Graunde Abridgement, 2nd ed. (London 1516), 277. Fitzherbert’s primary legal source was the year books, wherein “custom”, absent an indication to the contrary, refers to local rather than general custom.

[23] Case of Tanistry (1608) Dav. 28, 31-2 (“custome, in l’entendment del ley, est tiel usage que ad obtaine vim legis, & est revera un binding ley al tiel particular lieu, persons & choses que ceo concern”).

[24] Duxbury, Neil (2017), Cambridge Law Journal, supra.

[25] Coke, 1 Institutes 110b.

[26] Sir Henry Finch (died 1625) was an English lawyer and politician, created serjeant-at-law and knighted, and remembered as a legal writer.

[27] Henry Finch, Law or a Discourse Thereof (New York 1969 [1627]), 77.

[28] Hale, History of the Common Law, Ch. II.

[29] Coke, Institutes of the Lawes of England, (1628-1644).

[30] Blackstone, Commentaries on the Laws of England, Ch. I.

[31] Supra, at 63.

[32] In re.

[33] In personam.

[34] See F.C. von Savigny, System des heutigen R?mischen Rechts, 8 vols (Berlin 1840-49), IV (1841), 481.

[35] Usually, but not always: for exceptions in Bracton and in the manorial court records, see, David Ibbetson, “Custom in Medieval Law” at pp. 164, 167-8.

[36] John Fortescue, “In Praise of the Laws of England” (1468x1471) in his On the Laws and Governance of England, trans. S.B. Chrimes, ed. S. Lockwood (Cambridge 1997), 1-80, at 26.

[37] Edward Coke, “To the Reader” (1611) in Eighth Part of the Reports of Sir Edward Coke, Kt (London 1727), 1-33, at 2 (unnumbered pages).

[38] Infra.

[39] Infra.

[40] Pierre de Fontaine (d. circa 1289), Le conseil, ou Traité de l’ancienne jurisprudence fran?aise, ed. M.A.J. Marnier (Paris 1846), 492.

[41] Duxbury, Neil (2017), Cambridge Law Journal, supra.

[42] See J.W. Tubbs, The Common Law Mind: Medieval and Early Modern Conceptions (Baltimore 2000), 26-7; T.F.T. Plucknett, A Concise History of the Common Law, 5th ed. (Boston 1956), 307-8; Gilissen, La coutume (Turnhout 1982), at pp. 29-30.

[43] Also known as Statute of Merton, 1236, passed during the reign of King Henry III.

[44] Also known as the Statute of Westminster I.

[45] Statute of Westminster I 1275 (3 Edw. 1), c. 39: “en conte de decente en le bref de dreit qe nul ne seit oy por demaunder la seisine son auncestre de plus lointein seisine qe del tens le rey Richard, oncle le piere le Roy qe ore est” (“in making the count of the descent [from the last ancestor in seisin] in a writ of right, no one shall presume to trace the seisin of his ancestor beyond seisin at the time of King Richard, uncle to [Henry III,] the father of [Edward I,] the king that now is”). The idea that Richard I’s coronation marked the beginning of legal memory was reinforced by Edward I’s investigations into the exercise of jurisdictional franchises, which settled that peaceful enjoyment of such a franchise since 1189 would be an answer in a writ of quo warranto: Statute of Quo Warranto 1290 (18 Edw. 1); source: Duxbury, Neil (2017), Cambridge Law Journal, supra.

[46] See Vinogradoff, The Problem of Customary Law, in Collected Papers of Paul Vinogradoff, Vol.II, Oxford, Pub: The Clarendon Press (1928).

[47] Supra, at 410.

[48] See Pollock, note “B” to his Edn of Maine’s Ancient Law.

[49] The Evolution of Law and Order, 1951.

[50] Supra.

[51] Para. 31, Chapter: 6, Salmond, supra.

[52] Ronald Myles Dworkin (December 11, 1931 – February 14, 2013) was an American, philosopher, jurist, and scholar of United States constitutional law.

[53] Dworkin, Taking Rights Seriously (London 1977), 42.

[54] https://www.britannica.com/topic/custom-English-law.

[55] Brown, W. Jethro, Customary law in Modern England, Columbia Law Review, Dec., 1905, Vol. 5, No. 8 (Dec., 1905), pp. 561-583e.

Pic Courtesy: Google: Various Sources