What Is the Difference between Law and Customs

Custom, in English law, an old rule of law for a particular place, as opposed to the common law of the country. It has its origins in the Anglo-Saxon period, when local customs formed most of the laws concerning family rights, property and inheritance, contracts and personal violence. The Norman conquerors granted the validity of customary law and adapted it to their feudal system. After the great upheavals of the 13th and 14th centuries, when English law was enshrined in law under the crown, the “customs of the empire” became the common law of England. Since then, a local custom outside the common law is considered valid if: (1) it has been practiced peacefully and continuously since time immemorial, for as long as the living testimony can remember; (2) is adequate, secure and burdensome; and (3) is limited to a specific location. With the cultural uniformity of modernity, habit retains its validity as a legal force, but in practice it has lost ground to the common law. When the legendary Roman Empire flourished, it became a common local proverb of the “Via trita via tuta”.[2] The well-known Latin maxim, recognized by both the Indian and International Court of Justice, explains in detail the principle of “well-trodden paths, safe paths”. Principle used by P.J. Fitzgerald[3] to explain the concept of ancient customs as an important source of law. In other words, the “precedents” were used and accepted by the English courts of the day, not because they considered them law in themselves, but because they considered these precedents for evidence to be “what the law is”. According to Professor Duxbury[24]: Thus, common law itself was understood as customary law (derived from common custom), but there was also this other category of law – local customs applied by local and royal courts to be binding in a place – which was customary law but not customary law. “The common law cannot be generally maintained in the kingdom,” Coke insisted in the late 1620s, “for it is the common law.” [25] With respect to the common law – the heart and substance of the Coca-Cola theory was – nothing but customary law, which by definition and otherwise to the knowledge of judges was the common law, and therefore there was no reason for lawyers to mention it in pleadings. The point manifests itself in the writings and works of Sir Henry Finch,[26] when he wrote around the same time, he stated that merchant custom was a common custom – a part of the common law and not something that merchants had to demonstrate.

According to Finch, it was “not a good” legal technique “to claim that there is custom among merchants throughout the empire” with regard to the recognition of bills of exchange, because “what is customary throughout the empire is customary law, not customary law.” [27] Finally, laws generally deal with matters vital to the life of society. while customs have more to do with the ordinary and the familiar. The custom of the 4th of July fireworks is meant to inspire patriotism and commemorate our nation`s independence, but it is not crucial to the functioning of our society. However, preventing young children from using fireworks inappropriately is designed to protect them and their neighbors from potential damage if fireworks are misused. The reason we don`t have to worry about not participating in some of these gestures is that they are cultural customs rather than formal laws. To be more precise, customs are widely accepted expectations of behaviors specific to a particular place, time, or society. Laws, on the other hand, are formal sets of rules that govern the behavior of a group of people. (vi) Law is more idealistic than custom.

The law tends to be more idealistic than customs. It is the offspring of the mind and directed towards goals that go far beyond the actual practice of society, habit is the experience of the product and deals mainly with the daily routine of life. The law reforms customs and abolishes those that do not agree with changing conditions, for example, the Hindu Code Bill aims to reform and abolish many Hindu customs concerning marriage, divorce and inheritance. Customs can also disappear without official suppression or recognition by a society. However, laws disappear only if they are abolished by a recognized authority. Some laws can no longer be enforced, but they still exist technically. If a police officer looks away while children are playing with firecrackers, it is not because the law no longer exists, but because the agency responsible for enforcing that particular rule has decided not to do so. Just as the formal enactment of a law is necessary for it to enter into force, its formal repeal must also be demanded.

None of these events are necessary for customs. [17] See, for example, Coke, 1 Institute (Co. Litt.) 254a (“our books are the best proofs of what the law is”); Matthew Hale (d. 1676), The History of the Common Law of England, ed. C.M. Gray (Chicago 1971), 45 (“judicial decisions” are less than a law, but they are more evidence of it than the opinion of individuals); also Jones v Randall (1774) Lofft. 383, 385 (Lord Mansfield) (“The precedent, though proof of law, is not a law in itself”). Sir W. Blackstone[31] also stipulated that the laws of England could be divided into two classes, the lex scripta and the lex non scripta.

The lex scripta were the written or legal laws, while the lex non scripta or unwritten law included not only general customs,[32] but also certain special customs peculiar to certain parts of the kingdom.[33] These lex non scripta were then incorporated into legal laws, since laws were enacted specifically with such unwritten laws (specific to some places) in mind; This established the fact that customary law is a very important source for customary and legislative laws and also paved the way for codified laws, later as a whole. As a result, the law is more flexible and adaptable than custom. The former can be introduced, amended or deleted relatively easily, while the latter is difficult to reform. The law tends to be more idealistic than a custom that is the experience of the product and deals primarily with the daily routine of life. The law reforms customs and abolishes those that do not keep pace with changing conditions. Law generally deals with matters vital to the life of society, while the subject of custom is more ordinary and familiar. Customs duties fade and disappear without formal abolition or recognition by any authority, but laws disappear only when they are abolished by a recognized authority. Just as the formal enactment of a law is necessary for it to enter into force, its formal abolition is necessary to end its binding influence.

This shows the obvious inclination of English jurors to unwritten, rather uncodified laws of a very ancient era. Therefore, it can be summarized that there are always two types of laws, namely unwritten laws or customs and written laws or statutes. But it is important to remember that unwritten customs laws do not mean that they are not written anywhere; but simply means that they were not written as “laws” in a code of laws, they were not codified; But, of course, it had been documented in one way or another: as in a court proceeding, in a judgment or in a legal writing.