Custom in law is the established pattern of behavior that can be objectively verified within a particular social setting. A claim can be carried out in defense of “what has always been done and accepted by law”. Related is the idea of prescription; a right enjoyed through long custom rather than positive law.
Customary law (also, consuetudinary or unofficial law) exists where:
- a certain legal practice is observed and
- the relevant actors consider it to be law (opinio juris).
Most customary laws deal with standards of community that have been long-established in a given locale. However the term can also apply to areas of international law where certain standards have been nearly universal in their acceptance as correct bases of action – in example, laws against piracy or slavery (see hostis humani generis). In many, though not all instances, customary laws will have supportive court rulings and case law that has evolved over time to give additional weight to their rule as law and also to demonstrate the trajectory of evolution (if any) in the interpretation of such law by relevant courts.
Equity to the layman means fairness and justice, but in the legal context its meaning has a much more strict definition. Equity is the name given to the set of legal principles, in jurisdictions following the English common law tradition, which supplement strict rules of law where their application would operate harshly. Equity is commonly said to “mitigate the rigor of common law”, allowing courts to use their discretion and apply justice in accordance with natural law. Lord Selborne highlighted this fact in Wilson v Northampton and Banbury junction Railway Co. when he noted that the purpose of equity is to “Do more perfect and complete justice” than would be reached at using the remedies available at common law. Therefore equity developed as a result of the rigidity and in flexibility of the common law. In practice, modern equity is limited by substantive and procedural rules. There are rules/maxims of equity; Equity as does common must obey the rules of precedent. There are well established principles which govern the exercise of discretion but like all equitable principles are adaptable and flexible to achieve the ends of equity. A common approach of judges is exemplified in the statement in re Diplock’s Estate; the English Court of Appeal said: If the claim in equity exists, it must be shown to have an ancestry founded in history and in the practice and precedents of the courts administering equity jurisdiction. It is not sufficient that because we may think that the ‘justice’ of the present case requires it, we should invent such a jurisdiction for the first time.
As already discussed, equity developed as a result of the rigidity and in flexibility of the common law. The law courts or “courts of law” were the courts in England that enforced the king’s laws in medieval times with the Judges schooled in law rather than in religion. If the decisions of the courts were regarded as unfair, litigants could still appeal directly to the King, who, as the sovereign, was seen as the ‘fount of justice’ and responsible for the just treatment of his subjects. Such feelings were usually phrased in terms of throwing oneself upon the king’s mercy or conscience. Eventually, the king began to regularly delegate the function of resolving such petitions to the Chancellor, an important member of the King’s Council. The early Chancellors were often clergymen or nobles, acting as the King’s confessor and thereby literally as keeper of the King’s conscience. In light of this equity’s early developed around conscience i.e. a person’s sense of what is right and wrong. This is mainly because the chancellors were theologists who were greatly inclined to religion.
Customary laws are derived from the mores, values and traditions of indigenous ethnic groups. Customary law is/was an informal justice system in Africa in which social customs, values or rites were used to judge the populace in due regard to an offence committed outside the given set of norms. One may say that in customary law, one was to be judge and judged by society. Customary law like any other law is relative i.e. defers from tribe to tribe, region to region and country to country. In modern times, they are heavily influenced by other sources, such as Islamic and Christian values, central government administrative policy, pronouncements of superior courts of record (who have jurisdiction to interpret customary law); customary court records where these are kept, and district council and chiefdom bylaws. The most important advantage of customary law is its simplicity, familiarity and relevance. The language used in customary tribunals tends to be the language of the parties involved. This contrasts with the formal judiciary where the language of proceedings tends to be technical English which cannot be understood by the majority of the people of Africa. Procedures used in customary tribunals tend to be simple and clear, unlike the formal judiciary where procedures tend to be complex and archaic. The law applied in customary tribunals can, counter-intuitively be more “modern” and “relevant” than the written law. This happens when the legal framework and laws in the formal legal and judicial sector become obsolete and out of tune with modern jurisprudential and socioeconomic developments and governments are too strained for resources to undertake the vast work involved in legal reform. For example, English laws dating as far back as 1677 are still applicable in Sierra Leone, despite the fact that even in England many such laws have either been updated or struck off the statute books. The customary tribunals will thus be guided much more by existing realities, than by archaic legislative fiat.
The evolution of customary law into what it is today begins with the arrival of colonialism in Africa. During the colonial era, the British applied a dual system of law: in areas under “direct rule” English law applied while in areas under “indirect rule” customary or traditional laws were allowed to continue to apply to native populations under the supervision of the British. English law applied in all areas to people of English descent and to Africans who “opted out” of customary law. In addition, serious offenses against the state, or criminal offenses, were generally dealt with under English law. Common Law systems recognize unwritten rules and norms as part of the law (as opposed to civil law systems that generally require law to be written) and today customary law is increasingly treated as part of the common law. The constitution of Uganda, for example, explicitly states that customary laws are part of the common law of the country.
In Uganda, the reception of English law was given in the Uganda Order- In- Council 1902. The 1902 Order -In -Council formalized colonial rule in Uganda and was the fundamental law of the protectorate. It dealt with several matters significant to the constitution.
Section 15(2) contained the reception clause. This empowered the commissioner to apply any law of the United Kingdom or protectorate in Uganda. Repugnancy clause is very important in relation to introduction of the law of equity in Africa in general and Uganda in particular. The clause recognized native laws and customs subject only whether they were in conformity with the rules of good conscience, natural justice and morality. It was intended to remove those native laws and customs that were seen as backward. However it was a subject test that was applied to the morals and standards of an English person. Many native customs were rendered void.
If the natives were not satisfied with the rulings of the native courts or were the customary law judgment was seen as harsh, unfair and contrary to good conscience, the aggrieved party would seek a remedy in the English court of law in regards to the law of equity. The Equitable maxim of Equity will not suffer a wrong to be without a remedy. This maxim is of major historical significance in that equitable remedies evolved to meet the deficiencies in the common law. For example, specific performance was decreed in relation to contracts; injunctions granted to restrain torts; and equitable accounts ordered where accounts at common law were unavailable.
In R v Amkeyo the question was whether the relationship between the accused and a certain woman was one of marriage. The features of the relationship a) The woman was not a free contracting person b) The woman was treated as a chattel c) polygamous marriage. The court held that the relationship did not fit the idea of marriage. The alleged custom was implicitly repugnant to conscience and morality.