Customary Law

Daniel P. Strouthes

The term customary law commonly refers to law that a legal authority has created in order to support a particular custom, because of that custom's antiquity and a popular belief that such a law is necessary. Customary law is virtually always introduced through a judicial decision in which the custom has relevance and is therefore distinguished from positive law, which has as its source legislation or some other form of proclamation or edict. Customary law is a concept devised by Western scholars and used almost exclusively by them, primarily to describe Western law. The first scholars to undertake a serious attempt at conceptualizing customary law were ancient Romans faced with the obvious differences between the statutes created by central authorities and the customary law that preceded them, as well as differences between Roman law and the indigenous customary law used in outlying parts of the empire. For all their discussion ...

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