CUSTOM.
§ 55. =The Early Importance of Customary Law.=
The importance of custom as a source of law continuously diminishes as
the legal system grows. As an instrument of the development of English
law in particular, it has now almost ceased to operate, partly because
it has to a large extent been superseded by legislation and precedent,
and partly because of the very stringent limitations imposed upon its
law-creating efficacy, the legal requirements of a valid custom being
such as few customs can at the present day conform to. In earlier times,
however, it was otherwise. It was long the received and official theory
of English law that whatever was not the product of legislation had its
source in custom. Law was either the written statute law, or the
unwritten, common, or customary law. Precedent was not conceived as
being itself a legal source at all, for it was held to operate only as
evidence of those customs from which the common law proceeded. _Lex et
consuetudo Angliae_ was the familiar title of our legal system. The
common law of the realm and the common custom of the realm were
synonymous expressions. It may be gravely doubted whether at any time
this doctrine expressed the truth of the matter, but it is clear that it
was much truer in the early days of our legal history, than it
subsequently became; and it remained the accepted theory long after it
had ceased to retain any semblance of the truth. For some centuries
past, the true sources of the great bulk of our law have been statute
and precedent, not statute and custom, and the common law is essentially
case-law, not customary law. Yet we find Hale[121] in the seventeenth
century, and Blackstone in the eighteenth, laying down the older
doctrine as still valid. In the words of Blackstone:[122] “The municipal
law of England ... may with sufficient propriety be divided into two
kinds; the _lex non scripta_, the unwritten, or common law; and the _lex
scripta_, the written, or statute law. The _lex non scripta_, or
unwritten law, includes not only general customs, or the common law
properly so called; but also the particular customs of certain parts of
the kingdom; and likewise those particular laws that are by custom
observed only in certain courts and jurisdictions.” Such language is an
echo of the past, not an accurate account of the facts of the present
day. Nevertheless even now custom has not wholly lost its efficacy. It
is still one of the legal sources of the law of England, and an
examination of its nature and operation pertains to modern juridical
theory, and not merely to legal history or antiquities.
§ 56. =Reasons for the Reception of Customary Law.=
The reasons for attributing to custom the force of law have been already
briefly indicated in relation to legal sources in general. We have seen
that, in the first place, custom is the embodiment of those principles
which have commended themselves to the national conscience as principles
of truth, justice and public utility. The fact that any rule has already
the sanction of custom raises a presumption that it deserves to obtain
the sanction of law also. _Via trita via tuta._ Speaking generally, it
is well that the courts of justice, in seeking for those principles of
right which it is their duty to administer, should be content to accept
those which have already in their favour the prestige and authority of
long acceptance, rather than attempt the more dangerous task of
fashioning a set of principles for themselves by the light of nature.
The national conscience may well be accepted by the courts as an
authoritative guide; and of this conscience national custom is the
external and visible sign.
Custom is to society what law is to the state. Each is the expression
and realisation, to the measure of men’s insight and ability, of the
principles of right and justice. The law embodies those principles as
they commend themselves to the incorporate community in the exercise of
its sovereign power. Custom embodies them as acknowledged and approved
not by the power of the state, but by the public opinion of the society
at large. Nothing, therefore, is more natural than that, when the state
begins to evolve out of the society, the law of the state should in
respect of its material contents be in great part modelled upon and
coincident with the customs of the society. When the state takes up its
function of administering justice, it accepts as true and valid the
rules of right already accepted by the society of which it is itself a
product, and it finds those principles already realised in the customs
of the realm. As those customs develop and alter with change of
circumstance and the growth of public enlightenment, the state is wisely
content to allow such development and modification to reflect themselves
in the law which it administers. This influence of custom upon law,
however, is characteristic rather of the beginnings of the legal system
than of its mature growth. When the state has grown to its full strength
and stature, it acquires more self-confidence, and seeks to conform
national usage to the law, rather than the law to national usage. Its
ambition is then to be the source not merely of the form, but of the
matter of the law also. But in earlier times it has perforce to content
itself with conferring the form and nature of law upon the material
contents supplied to it by custom.
A second ground of the law-creative efficacy of custom is to be found in
the fact that the existence of an established usage is the basis of a
rational expectation of its continuance in the future. Justice demands
that, unless there is good reason to the contrary, men’s rational
expectations shall, so far as possible, be fulfilled rather than
frustrated. Even if customs are not ideally just and reasonable, even if
it can be shown that the national conscience has gone astray in
establishing them, even if better rules might be formulated and enforced
by the wisdom of the judicature, it may yet be wise to accept them as
they are, rather than to overturn all those expectations which are based
upon established practice.
§ 57. =The Requisites of a Valid Custom.=
In order that a custom may be valid and operative as a source of law, it
must conform to certain requirements laid down by law. The chief of
these are the following:—
1. _Reasonableness._—A custom must be reasonable. _Malus usus abolendus
est._[123] The authority of usage is not absolute, but conditional on a
certain measure of conformity with justice and public utility. It is not
meant by this that the courts are at liberty to disregard a custom
whenever they are not satisfied as to its absolute rectitude and wisdom,
or whenever they think that a better rule could be formulated in the
exercise of their own judgment. This would be to deprive custom of all
authority, either absolute or conditional. The true rule is that a
custom, in order to be deprived of legal efficacy, must be so obviously
and seriously repugnant to right and reason, that to enforce it as law
would do more mischief than that which would result from the overturning
of the expectations and arrangements based on its presumed continuance
and legal validity. We shall see, when we come to discuss the theory of
precedent, how the authority of judicial decisions is, in general,
similarly conditional rather than absolute; a precedent which is plainly
and seriously unreasonable may be overruled instead of followed. We are
told in the old books that a similar rule obtains in respect of the
authority of acts of Parliament themselves. It was once held to be good
law, that an unreasonable act of Parliament was void.[124] This, indeed,
is no longer so; for the law-creating authority of Parliament is
absolute. Certain forms of subordinate legislation, however, are still
subject to the rule in question; an unreasonable by-law, for example, is
as void and unauthoritative as an unreasonable custom or precedent.
2. _Opinio necessitatis._—The second requisite of a valid custom is that
which commentators on the civil law term _opinio necessitatis_.[125] By
this is meant the conviction on the part of those who use a custom that
it is obligatory, and not merely optional.[126] Custom, merely as such,
has no legal authority at all; it is legally effective only because and
in so far as it is the expression of an underlying principle of right
approved by those who use it. When it is based on no such ethical
conviction or _opinio necessitatis_—when those who use it hold
themselves free to depart from it if they will—it is of no legal
significance. The only customs which are a source of law are those which
are observed by the community as determining the rights and duties of
its members.
3. _Conformity with statute law._—The third condition of legal validity
is that a custom must not be contrary to an act of Parliament. We shall
see that certain forms of custom possess not merely constitutive, but
also limited abrogative power, being capable of derogating from the old
law, as well as of creating new. But no custom of any sort is of any
validity as against statute law. The authority of legislation is in
English law higher than that of custom. By no length of desuetude can a
statute become invalid, and by no length of contrary usage can its
provisions be modified in the smallest particular. The common law will
yield to immemorial usage, but the enacted law stands for ever.[127]
It must not be supposed that this rule is one of necessity, derived by
logical inference from the nature of things. It is nothing more than a
positive principle of the law of England, and a very different rule was
adopted by Roman law,[128] and by the various Continental systems
derived from it. There the recognised maxim is _Lex posterior derogat
priori._ The later rule prevails over the earlier, regardless of their
respective origins. Legislation has no inherent superiority in this
respect over custom. If the enacted law comes first, it can be repealed
or modified by later custom; if the customary law is the earlier, it can
be similarly dealt with by later enacted law. “If,” says Savigny,[129]
“we consider customs and statutes with respect to their legal efficacy,
we must put them on the same level. Customary law may complete, modify,
or repeal a statute; it may create a new rule, and substitute it for the
statutory rule which it has abolished.” So Windscheid:[130] “The power
of customary law is equal to that of statutory law. It may, therefore,
not merely supplement, but also derogate from the existing law. And this
is true not merely of rules of customary law _inter se_, but also of the
relations of customary to statute law.”[131]
4. _Immemorial antiquity._—The fourth requisite of the validity of a
custom relates to the length of time during which it has been
established. Here it is necessary to distinguish between two kinds of
customs, namely, those which are _general_—the customs of the realm,
prevailing throughout the whole territory governed by the legal
system—and those which are _local_, being limited to some special part
of the realm.[132] The rule of English law with respect to the necessary
duration of a custom is that one which is merely local must have existed
from _time immemorial_. In the case of other customs, however, there is
no such requirement. It is there sufficient that the usage should be
definitely established, and its duration is immaterial. A local custom
must make up for the limited extent of its application by the long
duration of its existence, but other customs derive from their
generality such a measure of authority as does not require to be
supplemented by length of days.
We shall see later, how the idea of immemorial custom was derived by the
law of England from the canon law, and by the canon from the civil law.
Time immemorial, or time whereof the memory of man runs not, means in
the civil and canon law, and in the systems derived therefrom, and
originally meant in England also, time so remote that no living man can
remember it, or give evidence respecting it. Custom was immemorial, when
its origin was so ancient that the beginning of it was beyond human
memory, so that no testimony was available as to a time when it did not
as yet exist.[133] In the thirteenth century, however, a very singular
change took place in the meaning of the term. The limit of human memory
ceased to be a question of fact, and was determined by a very
unreasonable rule of law which still remains in force. In consequence of
the interpretation put by the judges upon the Statute of Westminster I.,
passed in the year 1275, it became an established legal principle that
the time of memory reached back as far as the commencement of the reign
of Richard I. and no further. From that day to this the law has remained
unaltered. The discordance between the memory of man as it is in fact,
and as it is in law, has been steadily growing with the lapse of years,
so that at the present day the law of England imputes to living men a
faculty of remembrance extending back for seven centuries. There is
perhaps no more curious example of the conservatism of our law.[134]
The rule, therefore, that a particular custom is invalid unless
immemorial means in practice this: that if he who disputes its validity
can prove its non-existence at any time between the present day and the
twelfth century, it will not receive legal recognition. It is not
necessary for the upholder of it to prove affirmatively its existence
during the whole of that period. If he can prove that it has existed for
a moderate period, say twenty years, from the present day, this will
raise a presumption of its immemorial antiquity, which must be rebutted
by him who disputes it.[135]
It is not difficult to understand the reason which induced the law to
impose this stringent limitation upon the efficacy of local customs. It
was designed in the interests of a uniform system of common law for the
whole realm. Had all manner of usages been recognised without any such
limitation, as having the force of special law, the establishment and
maintenance of a system of common law would have been rendered all but
impossible. Customary laws and customary rights, infinitely various and
divergent, would have grown up so luxuriantly, as to have choked that
uniform system of law and rights which it was the purpose of the royal
courts of justice to establish throughout the realm.[136]
_Origin of the rule as to time of memory._—The requirement of
immemorial antiquity was introduced into the English law courts of the
twelfth or thirteenth century from the canon law. In two respects the
Canonists developed and rendered more definite the somewhat vague and
indeterminate theory of customary law which we find in the writings of
the Roman lawyers. In the first place, clear recognition was accorded
to the distinction between _jus commune_ and _consuetudines_, the
former being the common, general, or written law of the whole Church,
while the latter consisted of the divergent local and personal customs
which were added to, or substituted for the _jus commune_ in
particular places or in respect of particular persons. This
nomenclature, with the conceptions expressed by it, passed from the
canon law to the law of England.
In the second place the Canonists attempted to supply a defect of the
civil law by laying down a fixed rule as to the necessary duration of
customs. They determined that no _consuetudo_ was to be held valid, so
as to derogate from the _jus commune_, unless it was _praescripta_,
that is to say, unless it had endured during the legal period of
prescription. Consuetudo praescripta praejudicat juri communi.[137]
What, then, was the period of prescription thus required? On this
point we find no agreement among the doctors, for there were several
different forms of prescription known to Roman law, and there was no
unanimity among the Canonists in the selection of any one of them as a
test of the validity of custom. Many favoured the adoption of the
ordinary decennial prescription of Roman land law, and held that a
custom must have endured for ten years at least, but need have lasted
no longer.[138] Others demanded forty years, since this is the
prescription required as against the Church by the legislation of
Justinian.[139] At one time, however, there was a widely held opinion
that the true time of prescription required to enable a custom to
derogate from the common law of the Church was time immemorial. Illa
consuetudo praejudicat juri, cuius non exstat memoria hominum.[140]
This conception of time of memory as a period of prescription was
derived from the civil law. Immemorial prescription was there a mode
of acquiring servitudes. Ductus aquae cuius origo memoriam excessit,
jure constituti loco habetur.[141] The Canon law adopted this rule,
and made a more extensive use of it. Immemorial prescription became a
supplementary mode of acquisition, available in all cases in which
there was no shorter period of prescription to which a claimant might
have recourse. From the canon law it passed into the laws of France,
Germany, and England.[142]
As already stated, then, many Canonists recognised time immemorial not
merely as a period of prescription, but as a condition of the validity
of customary law. Suarez, writing at the end of the sixteenth century,
tells us, indeed, in the course of an exhaustive examination of the
theory of customary law, that in his day this doctrine was no longer
received.[143] Long before Suarez, however, it had established for
itself a secure place in the law of England. The canonical principles
of _consuetudo rationabilis et praescripta_ and of _tempus
immemoriale_ were in the thirteenth century at the latest incorporated
in our legal system by those ecclesiastical lawyers who laid the
foundations of it. This, indeed, was the only form of prescription
which obtained recognition from the common law. We find the rule
settled with perfect definiteness in the earliest Year Books of Edward
I.[144]
5. _Conformity with the common law._—The fifth and last requirement of a
valid custom is that, unless immemorial, it must be consistent with the
common law. That it must be consistent with statute law is, as we have
already seen, a rule applicable to all customs whatever, whether
immemorial or not. That it must be consistent with the common law is a
rule applicable only to recent customs, and not to those which have the
prestige and authority of immemorial antiquity. Modern custom possesses
constitutive, but no abrogative power; it must operate in the spaces
left vacant by the law already established; it may supplement the law,
but cannot derogate from it. Immemorial custom, on the other hand, can
destroy as well as create, so far as the common law is concerned; though
as against the statute law it is as powerless as the most ephemeral
usage.[145]
The combined effect of the various rules which we have considered is to
render custom less and less important as a source of new law. As the
legal system develops, the sphere within which custom is operative grows
gradually smaller. For, in the first place, custom cannot derogate from
statute law, and this latter tends progressively to absorb into itself
the whole of the common law. In the second place, the requirement of
immemorial antiquity precludes local custom from operating as an
instrument of fresh legal growth. Such customs may now be proved and
applied for the first time, but they cannot now for the first time come
into existence. In the third place, all recent custom must be consistent
with the law as already established, whether common or statutory. As the
law develops and completes itself, therefore, there is less and less
room left for the constitutive operation of custom. There are fewer
vacancies within which customary law may grow. It is for this reason
that the growth of general customary law has already all but ceased.
Until a comparatively recent date, a great part of mercantile law was so
imperfectly developed as to leave very considerable scope for the
operation of mercantile custom. The law as to negotiable instruments,
for example, was chiefly customary law. But at the present day our
mercantile law is so complete that it is only in comparatively rare
cases that the custom of merchants has any opportunity of serving as the
ground of new principles.
§ 58. =Conventional Custom.=
Custom which does not fulfil all the requirements hitherto considered by
us does not necessarily fail of all legal effect. It cannot, indeed,
operate as a source of law by virtue of its own inherent authority. Yet
it may nevertheless become legally operative by being incorporated into
agreements, through the tacit consent of those who make them. Customs so
operative may be distinguished as _conventional_. It is a rule of
English law, as well as of other systems, that where a contract is made
in any matter in respect of which an established custom exists, it must
be interpreted by reference to that custom, and the parties must be
deemed to have intended (in the absence of any expression of contrary
intent) to adopt it as one of the terms of their agreement. _In
contractibus tacite veniunt ea quae sunt moris et consuetudinis._[146]
For example, if a lease of agricultural land is made in any district in
which there are established usages as to the mode of agriculture and as
to the relative rights and liabilities of landlord and tenant, the
parties must be taken to have agreed to those usages as terms of the
bargain, unless they have expressly or implicitly shown an intention to
the contrary. In the same way, a mercantile contract must be taken to
incorporate any usages of trade which are relevant to its
subject-matter. In this manner customs which are not in themselves
authoritative as sources of law or rights may become indirectly
operative through the added authority of agreement. But the law and
rights so produced are in reality conventional and not customary. It is
sometimes not easy to determine whether a custom is operative directly
and as such, or only indirectly as accessory to a contract, and the
distinction has not always been sufficiently adverted to.
§ 59. =Theories of Customary Law.=
So far we have been concerned rather with those positive rules of
English law which determine the validity and effect of custom, than with
the abstract theory of the matter. This portion of juridical theory,
however, has been the subject of considerable discussion and difference
of opinion, and it is not free from apparent difficulties. We have to
consider two opinions which differ materially from that which is here
accepted as correct. The first of these is a characteristic feature of
foreign and more especially of German jurisprudence, its reception being
chiefly due to the influence of Puchta and Savigny. It essentially
consists in this, that custom is rightly to be considered as a formal,
and not merely as a material source of law. According to this doctrine,
custom does itself confer the force and validity of law upon the
principles embodied in it. It does not merely provide the material
contents which derive their validity as law from the will of the state.
It operates directly through its own inherent force and authority; not
indirectly by reason of its recognition and allowance by the supreme
authority and force of the state. The will of the state is not admitted
to be the exclusive source of legal validity. It has no pre-eminence in
this respect above the will of the _people_, as manifested in national
usage. Custom is regarded as the expression of the national will and
conscience, and as such it confers immediately the authority of law upon
all principles approved by it. The will of the state is simply a special
form of the popular will, and these are of equal authority. Customary
law, therefore, has an existence independent of the state. It will be
enforced by the state through its courts of justice because it is
already law; it is not because it will be so enforced, that it is law.
Thus it is said by Arndts,[147] a German jurist of repute: “Customary
law contains the ground of its validity in itself. It is law by virtue
of its own nature, as an expression of the general consciousness of
right, not by virtue of the sanction, express or tacit, of any
legislature.” So Windscheid:[148] “In custom is manifested the
conviction of those who use it that such custom is law (Recht), and
this conviction is the source of the authority and validity of
customary law. For the ultimate source of all positive law is national
reason.... And this national reason can establish law in two different
ways, namely, mediately and immediately. Mediately, through
representation, it creates law by means of legislation. Immediately,
it creates law by means of custom.”
Notwithstanding the credit of the great names by which this theory is
sanctioned, it is rightly and all but unanimously rejected by English
jurists. Custom is a material, not a formal source of law. Its only
function is to supply the principles to which the will of the state
gives legal force. Law is law only because it is applied and enforced by
the state, and where there is no state there can be no law. The popular
conscience is in itself as powerless to establish or alter the law of
the land, as it is to deal in like fashion with the laws of nature. From
custom, as from any other source, the state may draw the material
contents of the rules to which it gives the form and nature of law, but
from no other source than the will of the state itself can this form or
nature be itself derived.
A second theory of customary law is that which we may term the
Austinian, as having been advanced by Austin, and generally received by
his followers. Austin rightly repudiates the German theory on the
ground, already indicated, that custom is not a formal but merely a
material source of law. The rejection of this and other allied
confusions of thought is, indeed, one of the great services which he and
his school have rendered to legal science. Nevertheless his own theory
cannot be regarded as wholly satisfactory. For he in his turn confounds
the legal and the historical sources of the law, and erroneously regards
custom as one of the latter, rather than as one of the former. He
considers that the true legal source of customary law is to be found in
the precedents in which customs receive for the first time judicial
recognition and enforcement. Customary law is for him simply a variety
of case-law. It is case-law in which pre-existing customs have served as
the historical sources from which the courts have drawn the matter of
their decisions. The judges are conceived as basing their judgments upon
custom, just as, on other occasions, they may base them on Justinian’s
Digest or on the law of nature. It follows from this that a custom does
not acquire the force of law until it has actually come to the notice of
the courts and received judicial approval and application. If it is
never disputed, and therefore never requires enforcement, it never
acquires the force of law at all. “Law styled customary,” says
Austin,[149] “is not to be considered a distinct kind of law. It is
nothing but judiciary law, founded on an anterior custom.”
This opinion, however, seems inconsistent with the established doctrines
of English law as to this matter. Custom is law not because it _has
been_ recognised by the courts, but because it _will be_ so recognised,
in accordance with fixed rules of law, if the occasion arises. Its legal
validity is not dependent on the accidents of litigation. A custom does
not wait to put on the nature of law until it has been actually enforced
by the courts, any more than an Act of Parliament or an agreement is
destitute of legal efficacy until it has required and received judicial
recognition. This recognition may make a custom part of the _common_
law, as being thereafter entitled to judicial notice, but it was part of
the _law_ already. The Austinian theory forgets that the operation of
custom is determined by fixed legal principles, just as much as the
operation of precedent itself. These two are co-ordinate legal sources,
and each operates independently of the other. Custom does not enter the
law through precedent, any more than precedent through custom. A custom
is taken as the ground of a judicial decision, just as an Act of
Parliament is so taken. In each case the law has been already made, and
the judicial decision merely applies it.
§ 60. =Custom and Prescription.=
The relation between custom and prescription is such as to demand
attention here, although the theory of the latter will receive further
consideration in another place. Custom is long usage operating as a
source of law; prescription is long usage operating as a source of
rights. That all the lands in a certain borough have from time
immemorial, on the death of an owner intestate, descended to his
youngest son, is a custom, and is the source of a rule of special and
customary law excluding in that borough the common law of
primogeniture. But that John Styles, the owner of a certain farm, and
all his predecessors in title, from time immemorial have used a way
over the adjoining farm is a prescription, and is the source of a
prescriptive right of way vested in John Styles.
Regarded historically, the law of prescription is merely a branch of
the law of custom. A prescription was originally conceived as a
_personal_ custom, that is to say, a custom limited to a particular
person and his ancestors or predecessors in title. It was
distinguished from a local custom, which was limited to an individual
place, not to an individual person. Local and personal customs were
classed as the two species of _particular customs_, and as together
opposed to the general customs of the realm. Coke distinguishes as
follows between custom (_i.e._ local custom) and prescription.[150]
“In the common law, a prescription which is personal is for the most
part applied to persons, being made in the name of a certain person
and of his ancestors, or those whose estate he hath; or in bodies
politique or corporate and their predecessors.... And a custome, which
is local, is alleged in no person, but layd within some mannor or
other place.”
Since prescription and custom were thus regarded as two species of the
same thing, we find, as might be expected, that they are originally
governed by essentially similar rules of law. The requisites of a valid
prescription were in essence the same as those of a valid custom. Both
must be reasonable, both must be immemorial, both must be consistent
with statute law, and so on. It was only by a process of gradual
differentiation, and by the later recognition of other forms of
prescription not known to the early law, that the difference between the
creation of customary law and the creation of prescriptive rights has
been brought clearly into view. In the case of custom, for example, the
old rule as to time immemorial still subsists, but in the case of
prescription it has been superseded by the statutory rules contained in
that most unfortunate specimen of legislative skill, the Prescription
Act. A prescriptive right to light, for instance, is now finally
acquired by enjoyment for twenty years. Usage during this period is now
an absolute title, instead of, as at common law, merely evidence of
usage during time of memory.
SUMMARY.
Historical importance of customary law.
Reasons for the recognition of customary law.
Requisites of a valid custom:
1. Reasonableness.
2. Opinio necessitatis.
3. Consistency with statute law.
4. Immemorial antiquity (unless general).
History of this rule.
5. Consistency with the common law (unless immemorial).
Conventional customs.
Theories of the operation of custom as a source of law:
1. Savigny’s—custom a formal source.
2. Austin’s—custom an historical source.
Relations between custom and prescription.