Custom (law)

The customary law is unwritten law that can not be established by legislation, but by persistent application of legal concepts or rules that have been accepted by the parties as binding. The customary law is generally equal basis with laws.

Examples of customary law, that is right that is not explicitly covered in legal texts, are the German coat of arms Law and the Right of that in some European countries (such as Sweden ) the right of every man governs, to use the nature, regardless of who the respective land belongs. Especially in international law, customary law plays an important role: Customary international law does not establish legal texts, but where common views of several states and rules for dealing with each other through their years of use ( legally "exercise" ) to unwritten law are.

Customary law, which is localized - for example, the common law of a municipality - is called observance.

• 2.1 customary law in national legal orders 2.1.1 customary law in codified legal systems 2.1.1.1 customary law in the Federal Republic of Germany 2.1.1.1.1 validity as a source of law
• 2.1.1.1.2 official investigative power ( § 293 ZPO)
• 2.1.1.1.3 reference to customary law
• 2.1.1.1.4 Prohibition of criminal liability by virtue of mere common law

• 3.1 General
• 3.2 The common law in the Roman Catholic Canon Law

The customary law in the general source of law teaching

Term

Customary law arises - simply - not by a formal legislative process, but through prolonged, steady, general and uniform exercise ( consuetudo longa ), which is recognized by the parties to be legally binding ( opinio juris ). Customary law therefore does not derive from the written law from, but occurs as its competitor. If there is no opinio juris, it is a mere habit, which alone can create no right. Legally constituted common law the authority of the written law basically the same, unless the law expressly requires after a written regulation.

The customary law is part of the positive law. This right is set by the people for the people. Positive law is divided into common law and statute law. Written law is called enacted law, namely that it has been adopted by state authorities (usually by the legislature, in part by the executive) in a particular form.

Validity

Customary law is recognized in many jurisdictions as an independent source of law. So also in the West German legal system. Great importance has customary law in international law.

Distinction to the case law

The customary law is to be distinguished from the so-called judge-made law prevailing opinion, at the already existing law by the judiciary, so by the judge, is further contemplated and developed, without thereby would be created new law in the strict sense.

Recently, however, a smooth transition of right- continuous forming individual decisions (ie, judge-made law ) on the settled case is ( so if a supreme court, a legal opinion represents permanently ) towards accepted common law sporadically. This reasoning assumes that precedent, so trendsetting preliminary decisions of the highest courts are generally bound with time. A clear distinction between judge-made law and customary law remains nonetheless: While in the case law, the Court ( judicial) remains the authority to alter court decisions and developments due to better insight at any time by checking the common law (which is equal to the written law ), only the legislature ( the legislature) have. Accordingly, it is also in the case law of the highest courts not to the formation of customary law.

For more legal sociological perspective it is argued against a distinction between custom and case law, that it is the judges who decide on the validity of customary law and customary law therefore ultimately " juristic law " (Max Weber) is.

In addition, customary law can sometimes develop from case law or court use, " if it leads to a corresponding actual and constant practice, which is based on the belief that the experienced hikers should be right."

Customary law in secular legal systems

Customary law in national legal orders

Customary law in codified legal systems

Customary law in the Federal Republic of Germany

Of particular importance was the doctrine of the common law in Germany as long as the Roman law because the reception was regarded as customary law -. Principle up to January 1, 1900 especially Georg Friedrich Puchta the doctrine scientifically developed by the common law in the 19th century, where he with his interpretation in particular met with resistance Georg Beseler.

Even in the West German legal system allow customary law justified ( just legally applicable ) is generally recognized rules.

A court has the power to determine the existence and content of customary law of their own motion § 293 ZPO. This is also in the court of appeal.

In some legal standards referenced habits and customs, such as in § 346 HGB and § 242 BGB.

In some ways, the common law - the law otherwise the set is completely equal - especially treated by the legislature. So can not be justified by customary law such as the criminalization of acts in Germany, because Article 103 § 2 of the Constitution demands that the criminality of an act must be determined by law prior to its commission.

Customary law in Austria

Also in Austria is a prerequisite for the formation of customary law a long-lasting, general and uniform exercise ( = application) to certain rules. The exercise must also be based on the conviction that the principles of law rules ( opinio juris ).

In this sense, a set of standards are detectable in Austrian law, for example in Anerbenrecht the application of the principle that the transferee of a farm after the takeover "well- made ​​" must be able to; walk to the right on foreign meadows and fields (only for forests in the Forest Act normalized by law), to collect mushrooms and picking flowers.

§ 10Vorlage: § / Maintenance / RIS Search Civil Code stipulates that on habits only in cases consideration must be taken, in which a law referring to it. The provision is for example on transport habits ( § 914Vorlage: § / Maintenance / RIS Search Civil Code refers to the " exercise of honest services" for the supplementary interpretation of the contract ) or the trade practices ( § 346Vorlage: § / Maintenance / RIS search UGB "Among entrepreneurs is ... to take on the force in business habits and customs into consideration. " )

From a minority opinion in the Austrian jurisprudence ( esp. the representatives of the " Pure Theory of Law " Kelsen ) will deny that it even exists common law in Austria. These representatives justify this by saying that the Austrian Federal Constitution regle only the development of law by law and this regulation be exhaustive, so that - as well as the derivation of the basic norm fail - no room for common law remain. The overwhelming opinion in Austria represents that the federal constitution indeed expressly covers only the development of law through conscious lawmaking, their silence on the issue of customary law but is not to be interpreted as the total rejection. Not § / Maintenance / RIS Search Civil Code against the validity of customary law, but concentrated only its scope: just speak § 10Vorlage.

See also: adverse possession

Customary law in Switzerland

Article 1 of the Swiss Civil Code applies to the common law expressly in the applicable legal sources.

See also: Sociology of Law, Historical School, Pandektenwissenschaft

Customary law in international law

In international law, the common law plays a major role. In international criminal law, the criminal prohibition is founded customary law is not so strict.

Customary law in religious communities

General

The emergence of customary law in religions has led to repeated difficulties or specific problems. In particular, has been repeatedly criticized that "habit" at a donor religion automatically constitute an arbitrary distortion of the original disclosure. It is the but often relied on that old-fashioned ideas would have to be adapted to modern conditions.

For example, reformers of the Catholic Church have the introduction of new sacraments accused, only to discard it in their opinion not authentic traditions.

The Islamic Sunna ( " usual practice " ) and the Jewish Talmud ( "instruction, study " ) are interpretative developments of the scriptures ( Koran or Torah ). On the question of whether the disclosure was not completed or, the Orthodox of Reform Judaism differs.

The customary law in the Catholic Church law

Canon law, the oldest still existing and globally widespread legal system differs in cc. 23-28 Code of Canon Law three types of legal binding customary law: the law- even ( secundum legem ), the illegal ( contra legem ) and the right filling gaps excluding National ( praeter legem ).