Talk:Custom (law)

"In Canada, customary aboriginal law has a constitutional foundation and for this reason has increasing influence." What?? Aboriginal law in Canada? —Preceding unsigned comment added by Winedrauv (talk • contribs) 00:03, 13 November 2008 (UTC)

custom(law) is a thing that tells you what kind of laws there are in Togo. The laws aren't that stricked. You can get away with almost anything.

This article disagrees with itself

"In any case, it is hard to find any practically relevant examples. In the Scandinavian countries customary law continues to exist and has great influence."

Which is it? Relevant or not? If you're going to edit these things, make sure you fix it so it isn't directly contradicting something else in the article.

I am not qualified to select which one is correct. Someone who is please take care of this. Andy Christ 19:21, 22 June 2007 (UTC)

Done, to some degree. The Merryman book is really good for civil law tradition stuff, especially if you're from a common law tradition state. I was reluctant to take out the bit the previous contributor included about Austrian private and public law scholars, but figured the general was better than the specific and uncited in this case.

I did leave the bit about Scandinavian states because Merryman notes that theirs is a separate tradition from both civil and common law and I really have no idea if the statement is true or not. At the very least, however, it appears that the statement does not contradict the rare use of custom in civil law tradition states.IMHO (talk) 22:41, 8 June 2008 (UTC)

Always inferior

I wanted to explain the partial reversion of the edits by Fhusis- I reverted the portion dealing with custom under civil law traditions, but left the section on Canada (which I really don't know anything about. The information I have, mostly Merryman, but not exclusively, as well as consistency with the principles of the civil law tradition, indicates that custom is always inferior. It makes sense as it would put far too much power in the hands of judges (a very bad thing in the perception of civil law states).

As far as the deleted consitutional reference, this can be taken one of two ways, neither of which seemed appropriate. First, it could mean that being included in the constitution means it is no longer inferior to statutes or regulations. My understanding is that custom as a source is included in the constitution, but the hierarchy is not changed. I could be wrong and it could be by statute, but I don't believe so. Second, it could mean that specific customs could become superior if included in the constitution. The problem there is that, in that case, what was a custom is now superior because it constitutional (a "super statute"). In other words, it is the consitutional process that makes it superior, not its evolution as custom.

At any rate, I'll also point out that that paragraph does not make any statement about how custom is handled in Canada as Canada is a common law state, not a civil law state. IMHO (talk) 18:06, 15 September 2008 (UTC)

No customary law in scandinavia

I am a swedish lawyer and I have to say that the swedish legal system is not a customary one. It is true that the scandinavian countries have similar legal systems that are different from continental Europe but it is still civil law in that 1) the law is codified 2) there is no stare decisis. I should add that in some legal areas, custom is a factor in deciding the outcome of a trial. An example would be that in a certain field of business or insdustry there is a commmon contract used by allmost all businesses, the regulations of this contract could start to have effect on all contracts signed in the same kind of industry (eg construction). Would this be custom law? —Preceding unsigned comment added by Winedrauv (talk • contribs) 00:01, 13 November 2008 (UTC)

I don't know if your example is considered custom in the sense of a source of law. Common law systems don't recognize custom as such, but would consider evidence of the type you describe above to determine the intent of the parties in a contract. Also, customs within an industry can be considered in determining what constitutes negligence, most often in tort, but again it's not labelled as a source of law and is not necessarily legally binding. Now that you bring it up, I would like to see an example of a local version of recognized custom, as opposed to an internationally recognized customary norm. Perhaps you have access to some text, possibly buried in an unused section of the library, that details one of these rare examples? IMHO (talk) 21:32, 13 November 2008 (UTC)

While there's no formal stare decisis in Sweden (or the rest of the Nordic countries for that matter), there is a lot of uncodified law. Just take the law of property (sakrätt), for instance. There's no codified statute in Sweden that regulates property as such. You can argue over whether that's customary law or not, but you really can't say that the law of property is codified in Sweden; there's no codified statute for, e.g., omsättningsskydd (I have no idea what that's called in English). If you look at a lot of other jurisdictions down on the Continent, I think you'll find that a lot of the stuff Nordic lawyers just take for granted is actually written down in the various Codes.

The only Swedish example I can think of is the Allemansrätt (lit. everyman's right) usually refered to as the freedom to roam. However; that was made constitutional in 1994 so I guess it doesn't qualify as customary law any longer. I don't know wether the same kind of change has ocurred in the other countries having similar laws. (Norway plus I think Finland, Iceland and Scottland have some similar laws as well even if they are not Scandinavian countries). —Preceding unsigned comment added by Softwiki (talk • contribs) 14:46, 9 February 2009 (UTC)

In this particular respect I don't think being Scandinavian or not is really the point. If you look at it historically, Sweden and Finland are a lot more closely related that Sweden and Norway in terms of law. Finnish and Swedish law are both basically grounded in the same Code of Laws of 1734, whereas Norway and Denmark share a similar amount of legal history (most of which I cannot recall right now). Swedish and Finnish law are usually called East Nordic law, Norwegian and Danish law is called West Nordic law (Think: if it has a separate administrative judicature -> East Nordic). Anyways, the actual content of the allemansrätt is not regulated in Swedish constitutional law; the allemansrätt as substantive law is still customary.

Custom in torts

Where is this magical R v Boomsdale case from? Could the person who posted it please include a citation or at least which country's legal tradition it is from? I'm finding it impossible to track down. Or are you referring to something that's analogous to the implication of terms by custom into contracts? In that case, there would be any number of cases you could refer to. Jasmeen Malhotra (talk) 05:48, 18 July 2009 (UTC)

Inconsistent with map

In image:LegalSystemsOfTheWorldMap.png, the only countries marked as having customary law are Mongolia and Sri Lanka, both not mentioned here. The ones mentioned (Kyrgyzstan, Somalia and to some extent Canada and unspecified Scandinavian and African countries) are not marked in the map. I am aware that a lossless visualization is impossible, but here there's no overlap at all between the map and the text.--87.162.30.35 (talk) 23:04, 28 October 2009 (UTC)

common law

what is the difference between the tow? 98.206.155.53 (talk) 18:17, 18 March 2011 (UTC)