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Customary law

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All the inhabitants of the world, regardless of sex, culture, origin or age, have rights which must also be respected. In very general terms, law is a type of legal system and on some occasions, the word law is related to customs , in this case we refer to customary law .

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What is customary law?

Customary law is a group of customs , practices and beliefs that peoples have which are recognized and accepted as norms of a certain community, forming part of the social and economic systems of the communities.

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  • Definition
  • Characteristics of customary law
  • Source
  • What is it for
  • Requirements
  • International customary law
  • Customary law by country
  • Importance
  • Examples

Definition

The law customary refers to all the rules that are related to the customs or the traditions of a particular community. It is a type of right that establishes the expression of the culture of the inhabitants of a place. It can be defined as a spontaneous type of law, a manifestation of the actions of individuals that have their origin in the habitual practices that are carried out in society. Another way of defining it can be as the group of social behaviors that are imposed (without there being a written norm) and respected by the inhabitants in social practice .

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This type of rights is formed with the passage of time in the towns mainly by the repetition of the acts which little by little begin to acquire a mandatory character becoming demands of a collective type and, when the customs are managed to impose within the society, come to be considered as a legal necessity becoming a right.

Characteristics of customary law

Among the main characteristics of customary law are the following:

  • This type of right is generally not written in any document.
  • It is not created by legislative bodies
  • It is a right that is born from the actions and beliefs that a people has.
  • It creates and forms so slowly with the passage of time.
  • It tends to be a bit imprecise .
  • It is also known by the name of uses or customs .
  • It is a source of law .
  • It is a strong right and when the inhabitants resort to this type of right, there is no written legal rule that can be applied to a given fact.

Source

In reality, the origin of this type of law is found in customs and these are found in society . Since ancient times, peoples used to establish good behavior based on tradition and custom . Customs are seen as a type of right that is not written and that is also practiced by a people consciously and with consent despite the fact that there is no type of written law.

What is it for

Common law serves to function as a legal system just as written law does. There are two important uses related to this right, which are:

  • Praeter legem : this use of law occurs when custom is used in a subsidiary way with respect to the law. They are norms that despite not being within the written normative codes, can be observed by inhabitants of a society performing a subsidiary function. This helps so that, where positive law cannot be applied , common law applies.
  • Secundum legem : in this case, it can be used when the written law is not clear enough to be able to correctly interpret a specific case. In this case, custom is used to apply the law correctly.

Requirements

For this type of right to be given, several requirements need to be met, which are.

  • Repetitive use : in addition to the fact that it must be given repeatedly, the right must also be presented in a generalized way. It can only be considered as a habit those behaviors that are performed if it is not by everyone, at least by the majority of the population. The type of conduct that is established as a right must have been repeated over time.
  • Awareness of obligation : this requirement includes that all members that belong to a community consider that the conduct has authority in such a way that it cannot be ignored because when this happens, it is considered that a violation of the principles that regulate life has been committed. within the community.
  • Antiquity : the custom must have been practiced for a long period of time.

International customary law

This type of law is composed of a group of norms that arise from a type of practice that has been accepted as a right . It is closely related to human rights and they have a very important function in terms of the resolution of the different armed conflicts that arise in the world since it is a way of being able to ratify the important conventions that are bound by customary law and because in these types of problems, the conventional rights sometimes do not have as much validity.

Customary law by country

Mexico

In Mexico , this type of right is applied mainly in peoples that still keep their indigenous descent as a manifestation of the social order . It is based on rules that have not been written but that have been in communion with the forces of nature and that have then been transmitted from generation to generation, remaining even in the present time.

Spain

In this country, the Organic Law of the Judicial Power has conferred the character of Customary Courts to the Aguas de la Vega courts located in Valencia and to the Council of Good Men located in Murcia. This type of court has the ability to resolve conflicts orally, quickly and publicly. They mainly serve farmers,

Colombia

In Colombia, mainly the Garifota and indigenous peoples are those who apply this type of right, which is based on oral tradition. They are mainly related to the lands and collective uses of the territory, social practices, the lack of documents that prove possession of the lands, which are based on the family and community structure.

Importance

Its main importance lies in the fact that these types of rights are part of the culture of the peoples, they are a means of subsistence for human rights, mainly for indigenous peoples and local communities. They have also been the basis for many of the legal regimes that exist and for the human rights of individuals. They are laws that are attached to the culture and values ​​found in a community, governing all the standards of conduct that are considered acceptable.

Examples

Some examples of common law are:

  • Systems related to patrilineal and matrilineal inheritance.
  • When the usufruct of a land passes into the hands of the children by inheritance.
  • The transfers of land possessions that are based above all on the values ​​of the family.
  • The distribution of the members of a family nucleus and of family roles in a traditional way.
  • When in some mainly indigenous communities, marriage is not allowed between members of different communities and in some cases even between members of the same community.

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