Custom (law) - Customary Law Within Contemporary Legal Systems

Customary Law Within Contemporary Legal Systems

Customary law is a recognized source of law within jurisdictions of the civil law tradition, inferior to both statutes and regulations. In addressing custom as a source of law within the civil law tradition, John Henry Merryman notes that, though the attention it is given in scholarly works is great, its importance is "slight and decreasing."

In Canada, customary aboriginal law has a constitutional foundation and for this reason has increasing influence.

In the Scandinavian countries customary law continues to exist and has great influence. Customary law is also used in some Third World countries, such as those in Africa, usually used alongside common or civil law. For example in Ethiopia, despite the adoption of legal codes based on civil law in the 1950s according to Dolores Donovan and Getachew Assefa there are more than 60 systems of customary law currently in force, "some of them operating quite independently of the formal state legal system." They offer two reasons for the relative autonomy of these customary law systems: one is that the Ethiopian government lacks sufficient resources to enforce its legal system to every corner of Ethiopia; the other is that the Ethiopian government has made a commitment to preserve these customary systems within its boundaries.

In 1995, President of Kyrgyzstan Askar Akaev announced a decree to revitalize the aqsaqal courts of village elders. The courts would have jurisdiction over property, torts and family law. The aqsaqal courts were eventually included under Article 92 of the Kyrgyz constitution. As of 2006, there were approximately 1,000 aqsaqal courts throughout Kyrgyzstan, including in the capital of Bishkek. Akaev linked the development of these courts to the rekindling of Kyrgyz national identity. In a 2005 speech, he connected the courts back to the country's nomadic past and extolled how the courts expressed the Kyrgyz ability of self-governance. Similar aqsaqal courts exist, with varying levels of legal formality, in other countries of Central Asia.

The Somali people in the Horn of Africa follow a customary law system referred to as Xeer. It survives to a significant degree everywhere, including the Somali communities in the Ogaden. Economist Peter Leeson attributes the increase in economic activity since the fall of the Siad Barre administration to the security in life, liberty and property provided by Xeer in large parts of Somalia. The late Dutch attorney Michael van Notten also draws upon his experience as a legal expert in his comprehensive study on Xeer, The Law of the Somalis: A Stable Foundation for Economic Development in the Horn of Africa (2005).