From The Student Room

TSR Wiki > Study Help > Subjects and Revision > Revision Notes > Law > Custom in Common Law

---

As we have seen the basis of Common Law was custom. The itinerant justices set out by William the Conqueror examined the different local practises of dealing with disputes and crime, filtered our the less practical and reasonable ones, and ended up with a set of laws which were to be applied uniformly throughout the country. As Sir Henry Maine, a nineteenth-century scholar who studied the evolution of the legal systems has pointed out, this did not mean that the custom itself was ever law - the law was created by the decisions of judges in recognising some customs and not others.

Contents 1 When can Custom be a source of Law? 1.1 Time immemorial 1.2 Reasonableness 1.3 Certainty and clarity 1.4 Locality 1.5 Continuity 1.6 Exercised as of right 1.7 Consistency 1.8 Obligatory 1.9 Conformity with a statute 2 Comments

When can Custom be a source of Law?

To be regarded as conferring legally enforceable rights, a custom must fulfil certain criteria.

Time immemorial

It must have existed since 'time immemorial'. This was fixed by a statute in 1275 as meaning since at least 1189. In practise today claimants usually seek to prove the custom has existed as far back as living memory can go, often as calling the oldest inhabitant as a witness. However, this may not always be sufficient.  In a dispute over the right to use local land in some way, for example, if the other side could prove that the land was under water until the seventeenth or eighteenth century the right could not have therefore existed before 1189.

Reasonableness

A legally enforceable custom cannot conflict with fundamental principles of right and wrong, so a customary right to commit a crime, for example, could never be accepted.

Certainty and clarity

It must be certain and clear. The locality in which the custom operates must be defined, along with the people to whom rights are granted and the extent of those rights. In Wilson v Willes (1806) the tenants of a manor claimed the customary right to take as much turf as they needed for their lawns from the manorial commons. This was held to be too vague, since there appeared to be no limit to the amount of turf which could be taken.

Locality

It must be specific to a particular geographical area.  When a custom is recognised as granting a right, it grants that right only to those specified. Custom is only ever a source of local law.

Continuity

It must have existed continuously. The rights granted by custom do not have to be exercised continuously since 1189, but it must have been possible to exercise then since then.

Exercised as of right

It must have been exercised peaceably, openly and as of right. Customs cannot create legal rights if they are only exercised by permission of someone else. In Mills v Corporation of Colchester (1867) it was held that a customary right to fish had no legal force where the right had always depended on the granting of a licence, even though such licences had traditionally been granted to local people on request.

Consistency

It must be consistent with other local customs. For example, if a custom is alleged to give the inhabitants of one farm the right to fish in a lake it cannot give another farm the right to drain the lake. The usual course where conflict arises is to deny that the custom has any force, though this is not possible if it has already been recognized by a court.

Obligatory

Where a custom imposes a specific duty, that duty must be obligatory - a custom cannot provide that the Lord of the Manor grants villagers a right of way over his land only if he likes them, or happens not to mind people on his land that day.

Conformity with a statute

A custom which is in conflict with a statute will not be held to give rise to law.

Comments