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XI. What is Law, Custom, Practice, Usage?

Law

Law (from the late Old English lagu of probable North Germanic origin) in politics and
jurisprudence, is a set of rules or norms of conduct which mandate, forbid or permit
specified relationships among people and organizations, intended to provide methods for
ensuring the impartial treatment of such people, and provide punishments of/for those
who do not follow the established rules of conduct.

Law is typically administered through a system of courts in which judges (sometimes


with the aid of a jury or lay magistrate or a judge) hear disputes between parties, and
apply a set of rules in order to provide an outcome that is just and fair. The manner in
which law is administered is known as a legal system, which typically has developed
through tradition in each country.

The Philippine Legal System

In the Philippines the world’s three major legal systems meet: Roman Civil Law and
Canon Law of the Catholic Church introduced through Spain, English Common Law
through the United States and Sharia Law of the Islamic world. These displaced
customary law but failed to obliterate it fully.

Custom

In law, custom, or customary law consists of established patterns of behavior that can be
objectively verified within a particular social setting. Generally, customary law exists
where
 a certain legal practice is observed
 the relevant actors consider it to be law (opinio iuris).

Customary Law

Customary laws are systems of law that have evolved largely on their own within a given
country and have been adapted to meet the needs of the particular culture. Note that
customary law may also be relevant within jurisdictions following another legal tradition
in fields or subfields of law where no legislative enactment exists.

For example, in Austria, scholars of private law often claim that customary law continues
to exist, whereas public law scholars dispute this claim. In any case, it is difficult to find
practically relevant examples.

Customary Law and Codification

The modern codification of civil law developed out of the customs, or coutumes of the
middle ages, expressions of law that developed in particular communities and slowly
collected and written down by local jurists. Such customs acquired the force of law when
they became the undisputed rule by which certain entitlements (rights) or obligations
were regulated between members of a community.

Practice

The form, manner, and order of conducting and carrying on suits and prosecutions
through their various stages, according to the principles of law and the rules laid down by
the courts.

Usage

The act of using; mode of using or treating; treatment; conduct with respect to a person or
a thing; as, good usage; ill usage; hard usage. Usage refers to long-continued practice;
customary mode of procedure; custom; habitual use; method.

Usage and Custom

Usage and Custom as here compared, agree in expressing the idea of habitual practice;
but a custom is not necessarily a usage. A custom may belong to many, or to a single
individual. A usage properly belongs to the great body of a people. Hence, we speak of
usage, not of custom, as the law of language. Again, a custom is merely that which has
been often repeated, so as to have become, in a good degree, established. A usage must be
both often repeated and of long standing. Hence, we speak of a "new custom," but not of
a "new usage." Thus, also, the "customs of society" is not so strong an expression as the
"usages of society."

"Custom, a greater power than nature, seldom fails to make them worship." Locke.
"Of things once received and confirmed by use, long usage is a law sufficient." Hooker.

In law, the words usage and custom are often used interchangeably, but the word custom
also has a technical and restricted sense. Long-established practice, considered as
unwritten law, and resting for authority on long consent; usage.

Usage is a fact. Custom is a law. There can be no custom without usage, though there
may be usage without custom.

Civil Law vs. Common Law

The civil law system is a codified law that sets out a comprehensive system of rules that
are applied and interpreted by judges. It is by and large the most commonly practiced
system of law in the world, with almost 60% of the world's population living in a country
ruled on the civil law system.

The most important difference to common law is that normally, only legislative
enactments are considered to be legally binding, but not precedent cases, unless a similar
matter has been decided upon by a superior court. However, as a practical matter, courts
normally follow their previous decisions. Furthermore, in some civil law systems (e.g. in
Germany), the writings of legal scholars have considerable influence on the courts.

The common law is an Anglo-Saxon legal tradition, based on judicial decisions that
create binding precedent. The common law system is currently in practice in Ireland,
United Kingdom, Australia, New Zealand, South Africa, Canada (excluding Quebec), and
the United States (although Louisiana uses both common law and Napoleonic civil law).
In addition to these countries, several others have adapted the common law system into a
mixed system. For example, Pakistan, India and Nigeria operate largely on a common
law system, but incorporate a good deal of customary law and religious law.

References:

Coquia, J. R. Legal Profession: Readings and Materials. Manila: Rex Book


Store , Inc. 2003

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