Customary law

DOI

10.4337/9781800372122.ch30

Abstract

All countries around the world have social norms that regulate behaviour and structure the decisions of individuals. In many countries, these are sufficiently weighty as to fall into a category that we refer to as customary law. Customary law exists in places as diverse as Australia, sub-Saharan Africa, Asia, Melanesia and the Western Balkans. Customary law is a body of rules governing personal status, communal resources, and local organization. It can determine access to land and water, the pool of eligible marriage partners, and what a child or a spouse inherits. It is, therefore, socially and economically important. Customary law can be conceived of as a very strong social norm, and while it is possible to break that norm, the consequences, both social and economic, are so high as to prevent noncompliance. It is a normative order formed by rights and obligations controlling access to community and personal resources. Customary law is not exclusive and exists in hybridized forms, layering onto statute law in both rural and urban areas. It is complex, fluid, and resilient, differing across communities and reflecting social hierarchies and power. Customary law is typically unwritten, or incompletely systemized, enabling dynamism and adaptation in its application (Sage and Woolcock 2012).

Much of what we know about customary law comes from the study of post-colonial societies. Customary law in colonial regimes was used as a tool of administering indigenous populations and was encouraged, transformed, and sometimes even constructed in ways to assist with domination and rule (Chanock 1991, 1998; Joireman 2011; Mamdani 1996). Colonial policies established communal land rights based on customary law, empowered a cadre of local leaders, and enabled customary dispute resolution institutions. After colonization, customary law often became embedded in the formal legal systems of independent states through explicit recognition, case law, or the use of assessors.

The use of customary law in colonial and post-colonial settings is distinct from customary law in socialist settings in which customary norms were allowed to continue insofar as they did not interfere with public law. To be explicit, customary law thrived and developed under colonization because it controlled access to important resources such as land, timber, water, and labour. The use of customary law under colonial regimes gave it a power that endured into the post-colonial era. Customary law in post-communist states is slightly different. Customary law survived the Soviet era and efforts to supplant its use in both family life and the control of resources (Edgar 2004; Joireman 2014; Upton 2009). In both post-colonial and post-communist settings, customary law clearly forms group identity and practices.

Document Type

Book Chapter

ISBN

9781800372115

Publication Date

10-17-2023

Publisher Statement

Copyright © 2024

The Elgar Encyclopedia of Development is a ground-breaking resource that provides a starting point for those wishing to grasp how and why development occurs, while also providing further expansion appropriate for more experienced academics.

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