SOURCES OF LAW II: CUSTOM
CONTENTS
1.0 Introduction
2.0 Objectives
Main Body
Savigny’s Volksgeist theory of law and custom
Types of custom
Limitation to validity of custom
Colonial elements in Repugnancy cases
4.0 Conclusion
5.0 Summary
6.0 References/Further Readings
INTRODUCTION
This unit will consider in-depth custom as a source of law. It is meant to complement unit 1 which deals with legislation. As opposed to legislation as a source of law which emanates from a body of elected people and which may be at variance with the people’s ways of life, this unit examines custom as a source against the backcloth that it derives and emanates from the people themselves. Attempt will be made to place this source of law within a jurisprudential context of Savigny’s Historical School of law where he pontificated his Volksgeist theory of law.
OBJECTIVES
Termed volksgeist in Germany, customs are deemed to arise from a national consciousness. This unit will therefore examine the emergence and fall of customs as well as the different types of customs. Further, the limitations placed on the practice of customs by various statutes will be examined with particular reference to the notion of some kind of African law.
MAIN BODY
According to Salmond the importance of custom as a source of law continuously diminishes as the legal system grows. According to him under English law it has now almost ceased to operate, to an extent because it has been superseded by legislation and precedent and partly because of the stringent limitations imposed by law upon its law creating efficacy.
Reasons for the reception of customary law.
Salmond opines that custom is the embodiment of those principles which have commended themselves to the national conscience as principles of justice and public utility. Equally, it is important to note that the fact any rule that has already the sanction of custom, raises a presumption that it deserves to obtain the sanction of law also. Courts of justice should be content to accept rules of right which have already in their favour the prestige and authority of long acceptance.
Salmond further contends that custom is to society what law is to state. Each is the expression and realisation of the principles of right and justice. The law embodies those principles as they commend themselves to the community in the exercise of its sovereign power. Custom embodies them as acknowledged and approved, not by the power of the state, but the public opinion of the society at large.Salmond further states that nothing 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 coincide with, the customs of the society. When executing its function of administration of justice, it accepts as 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 land.
The second reason Salmond offered for 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. He went on to say that even if customs are not ideally just and reasonable, it may yet be wise to accept them as they are, rather than to disappoint the expectations which are based upon established practice.
Savigny’sVolksgeist theory of law and custom
Under this topic, you are expected to make use of Savigny’s theory of law to explain the concept of custom and its importance as a source of law. Literally, volksgeist is a term connoting the productive principle of a spiritual or psychic character operating in different national entities and manifesting itself in various creations like language, folklore, mores, and legal order.
According to Savigny however, the nature of any particular system of law was the reflection of the ‘spirit of the people who evolved it’. Hence, in a simple term, volksgeist means the general or common consciousness or the popular spirit of the people. Savigny believed that law is the product of the general consciousness of the people and a manifestation of their spirit. Savigny’s central idea was that law is an expression of the will of the people. It does not come from deliberate legislation but arises as a gradual development of common consciousness of the nation. He was of the view that a nation’s legal system is greatly influenced by the historical culture and traditions of the people and growth of law is to be located in their popular acceptance. He therefore contended that, emanating from the consciousness of the people, custom not only precedes legislation but is also superior to it. He faulted the general view that laws are of universal validity or application and contended instead that each people develop its own legal habits, as it has peculiar language, manners and constitution. Relying on his own method, Savigny stated that the law is a product of the volksgeist, embodying the whole history of a nation’s culture and reflecting inner convictions that are rooted in the society’s common experience. The volksgeist, he claimed, drives the law to develop slowly over the course of history.
Thus, a thorough understanding of the history of the people is necessary for studying their law accurately.
According to Savigny, ‘the foundation of the law has its existence, its reality in the common consciousness of the people. We become acquainted with it as it manifests itself in external acts, as appears in practice, manners and customs. Custom is the sign of positive law’. Hence, Savigny clearly believes custom as the source of law and Volksgeist (common consciousness) as the ultimate foundation of any legal system. Savigny’s view of law is therefore in line with the meaning of custom which has been defined as the way of life of a people which develops with the people over time.
Self-Assessment Exercise (SAE) 1
Is there any link between custom and Savigny’s volksgeist theory of law?
Types of Customs
For our purposes, three main types of custom can be identified and briefly discussed. These are: local customs, usages and general customs.
Local custom refers to the customs of particular localities which are capable of being recognised as laws even in derogation of the common law. Local customs were respected and resorted to in the course of the development of common law doctrines when judges would go out to decide disputes arising among different people. Such resolution was of tenbased on local customs. Their acceptance by the court is hedged around with a number of conditions which have been evolved by the judiciary. For instance, such local custom to be applicable must possess a sufficient measure of antiquity; it must have been enjoyed continuously; it must have been enjoyed ‘as of right’; it must be certain and precise; and the custom has to be consistent with other customs in the same area.
Note however that the fact that it may conflict with local customs elsewhere did not matter. This is why the geographical limit within which such local customs are applicable must be precisely defined. With time, reliability on local customs started to fizzle out as the common law had been able to develop common customs that had metamorphosed into written statutes. The idea of local customs also became demystified as developments in the transportation and other sectors brought together several localities which where hitherto unreachable.
Usage emanated from the fact that society is never still. As it develops it moves away from the letter of the law by evolving practices that may influence or simply by-pass existing rules. Such practices only acquire the label ‘laws’ when incorporated into statute or precedent, but they have immeasurably greater significance and operation apart from this.
One sphere is in contract. If transactions in a particular trade, or of a particular kind in a particular locality, have long been carried on subject to a certain understanding between the parties, it is but natural that in the course of time everyone in the trade, or in the locality, who carries on such transactions, will assume them to be done in the light of this understanding, if nothing is said to the contrary. Since one of the purposes of law is to uphold the settled expectations of men, the courts sometimes incorporate these settled conventions as terms of the contract.
Certain conditions must however be met before the court can do so, namely: the usage must be so well established as to be notorious; such usage cannot alter the general law of the land, whether statutory or common law; it must be a reasonable usage; it need have no particular scope; and the usage will not be enforced in a particular case if it purports to nullify or vary the express terms of the contract.
General custom: It has long been a commonplace of English judicial pronouncements that a custom prevailing throughout the land, if it existed before 1189, is part of the common law. This identity between general custom and the common law was a matter of historical development, for the common law from its earliest days was no more than the creation of the judges. The reliance by Royal justices on decisions given in one part of the realm, based on local customs, as precedents for decisions in other parts gradually produced principles of general application, which came to be known as the ‘common custom of the realm’ or the ‘common law’. It is only for the judges then to declare what amount to ‘general custom of the realm’
Self-Assessment Exercise (SAE) 2 Explain the various types of customs.
Limitation to validity of custom
Rules of customary law are subject to tests of validity prescribed by statute. These tests therefore constitute some limitation on the validity of customs. You are expected to study in detail those tests that limit the validity of customs.
The first test is the repugnancy test;This test holds that the custom sought to be applied must not be repugnant to natural justice, equity and good conscience. It is provided for in the High Court Laws of all states of the federation. See Section 26(1) of the High Court Law of Lagos State; see also Section 14(3) of the Evidence Act.
What this test is composed of has not really been well defined by scholars. It can only be understood through the cases where the courts have held some customary laws/practices to be in breach of the repugnancy doctrine. See the following cases: Laoye v. Oyetunde ((1944) AC 170; EsugbayiEleko v. Officer Administering the Government of Nigeria (1931) AC 662 at p. 673; Lewis v. Bankole (1908)1 NLR 81 at 99 – 102; Dawodu v. Danmole (1958)3 FSC 46; Edet v. Essien (1932)11 NLR 47;
Re EffiongOkon Ata (1930)10 NLR 65; Mariyama v. SadikuEjo (1961) NRNLR 81 among others.
The repugnancy test thus constitutes a limitation on the validity of customs as a source of law. Where the custom is barbaric, contentious or out of tune with modern expectation, the court will be inclined to hold that such custom breaches the repugnancy test/doctrine.
The second test often applied by the court to test the validity of customary law is the incompatibility test. According to Section 26(1) of the Lagos State High Court Law, any customary law that is incompatible either directly or by implication with any law for the time being in force shall not be applied by the court. Similar provisions will be found in other High Court laws of various regions/states. The scope of ‘any law for the time being in force’ is debatable. Some have argued that it includes English law: see Re Adadevoh (1951)13 WACA 304 at 310, where the West African Court of Appeal stated obiter that ‘any law in force’ included ‘the rules of the common law as to the unenforceability of claims contrary to public policy.’ See also Adesubokan v. Yinusa (1971) NNLR 77 where it was held that ‘any law’ in section 34(1) of the High Court Law of the Northern States included the received English statutes of general application. See further: Rotibi v. Savage (1944)17 NLR 77.
The third and the last test is that of public policy. In other words, any custom to be applied by the court must not be contrary to public policy. The application of customary law has been precluded in many cases on the ground of being contrary to public policy. See section 14(3) of the Evidence Act; Re Adadevoh (supra); Alake v. Pratt (1951)13 WACA 304 and Cole v. Akinyele (1960)5 FSC 84.
The above are the limitations to the validity of custom.
Self-Assessment Exercise (SAE) 3
With the aid of decided cases, explain the repugnancy doctrine.
Colonial elements in Repugnancy cases
There is no disputing the fact that what was held to be repugnant to natural justice, equity and good conscience during the colonial era would mostly be determined by the colonial masters’ perception of repugnancy. This was a very big mistake since one could not appreciate a people’s culture except he is part of that culture. Hence, some of the customs that were held to be repugnant or that were deemed to be barbaric and outrageous may not be so when placed within African culture and customs of that time.
Self-Assessment Exercise (SAE) 4
Examine all the above cases to which you have been referred on repugnancy doctrine and bring out the colonial elements in some of them.
CONCLUSION
This unit has taken you through the fabric of custom as one of the sources of law. It has also examined the importance, types and other salient issues on customs.
SUMMARY
We have studied the following:
- Savigny’s Volksgeist theory of law and custom
- Types of custom
- Limitation to validity of custom
- Colonial elements in Repugnancy cases
REFERENCES
Dias, R.W.M., Jurisprudence, 4 th ed. (Butterworth & Co. (Publishers) Ltd, Boston)
- 218 – 256 FunsoAdaramola, Basic Jurisprudence, 3 rd ed., Raymond Kunz Communication, Lagos, 2004, 254 – 288
J.M. Elegido, Jurisprudence, Spectrum Law Publishing, Ibadan, 1994, 243 – 285 Obilade, A.O., The Nigerian Legal System, (Sweet & Maxwell, London) p. 55 –