Customary Law: 4 Key Features

On this note, we enjoin you to read this article painstakingly. Trust me; I will use the simplest language we can to explain this topic. So don’t worry if you are not a lawyer or law student. Just read carefully and ask yourself questions if you have any.

What is customary law?

Andrew Obasiki, J.S.C defined customary law as the “organic or living law of the indigenous people of Nigeria regulating their lives and transactions. It is regulatory in that it controls the lives and transactions of the community subject to it“. This definition was given in the case of Oyewunmi v Ogunesan [1990] 3 NWLR (PT. 137) 137. Customary law can also be defined as the law which has from long and consistent usage, obtained the force of law.

Following this definition, it should be noted that a custom may only reflect the common usage and practice of the people in a particular matter without having the force of law. In other words, a custom may exist without the element of coercion or sanction. This was why John Austin defined custom as “positive morality, a long as it does not receive judicial pronouncement.” The element of law is important because it is that which in reality carries sanction in the event of breach. Having known this, we will now look at the characteristics of customary law in general.

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Characteristics:

Below are the features:

• Unwritten nature
• Flexibility
• Acceptability
• No uniform body

Okay! That is a list of some of the features. However, to make sure that you fully understand these features, i will quickly explain each of them.

Unwritten nature:

One of the striking characteristics of customary law is that, it is totally unwritten. What this means is that, customary laws are not contained in a single document. For instance, the customary law of a particular village can be that only male children are allowed to inherit the estate of their fathers. This law does not necessarily have to be contained in any document but it will still be recognized my members of the society.

Evidently, the source of customary law is usually the recollection of elders and others whose traditional roles enable them to have special knowledge of the custom and traditions of their people. They make laws based on the usual practics of people in that community.

Flexibility:

The unwritten feature of customary has also made it very flexible. By saying that customary law is flexible it means that the law is dynamic; not static. Apparently, the reason why customary law is dynamic is because it is not contained in any document. Thus, from continuous interpretation of the laws, changes are made by the interpreters of the law.

In the celebrated case of Lewis v Bankole (1909) 1 NLR, it was stated that one of the striking features of customary law is its flexibility; it appears to have been always subject to motives of expediency, and it shows unquestionable adaptability to altered circumstance without entirely losing its character. This was also corroborated in the case of kimdey v military Governor of gongola state and others.

Acceptability:

Another important characteristic is that it is widely accepted by the people who practice it. In fact, if a custom is not widely accepted by those who practice it, then it is not this type of law. There have been cases where the court ruled that where a custom is not accepted it cannot be said to be a customary law. For instance, Bairamian in Owonyin v Omotosho (1961) 1 ALL NLR defined customary law as “a mirror of accepted usage”. By this, Bairamian was trying to say that for a custom to be regarded as a customary law, it must be accepted.

Other authorities such as the Black’s law dictionary, professor Obilade, Taslim Elias etc, has also corroborated their fact that it is the obligation of the people who practice a particular custom to translate it into a binding law.

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No uniform body

The last but not the least feature of customary law you should know is that, it has no uniform body. Yes! Customary law has no uniform body because the custom of a particular society can be different from another even though those societies are very close. The diversity of the people of Nigeria also implies the diversity of their custom.

It is also contended, that the diversity of customs in Nigeria, is the major obstacle to the uniformity of customary law system in Nigeria.

By way of conclusion, i must reiterate that customary law contributes greatly to Nigerian legal system. One way or the other, you will benefit for knowing these things. Hope this article did justice to the topic. Well, if you still have questions to ask on the characteristics, do ask us using the comment section.