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Customary law - Essay Example

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This study looks into customary laws, a body of rules unofficial and generally unwritten established through cultural or societal norms. Customary laws apply to international law when the conduct of countries becomes so consistent that it is universally believed to be codified as actual law. …
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Download file to see previous pages This essay discusses that customary laws still reside the basis of new laws in modern societies. For instance in the United States, United Kingdom and other countries custom laws takes the form of common law. Modern legal issues such as the application of commerce laws to the internet in the 1990s, started as customary laws. For custom laws to be applied in the international law it needs to have met three conditions. One it should have widespread recurrence in that many states need to be applying that law in their countries. Secondly, each nation should have a sense of obligation to have the set standard and in enforcing the laws. Third the laws should bring about little dispute among the states internationally to be able to be applied. Customary legal systems tend to the following basic principle in their application. One there should be a strong concern for individual rights. Two; laws enforced by victims backed by reciprocal agreements. Thirdly, standard adjudication procedures must be observed to avoid violence. Four offences treated as torts punishable through economic restitution, five legal changes by means of an evolutionary process of developing customs and norms. Cultural law can be seen to have some advantages for the following reasons. They are flexible and easy to implement to suit the situation at hand. Because most of the customary laws are from the peoples who believe they are normally are easily changed and accepted. The peoples and the community’s cultures are given some sense of recognition by these customary laws hence making them easily acceptable to many people in the world. It also gives assurances to the minorities in the world that their way of life is given some preference in the application of law universally3. Through the application of customary laws, it gives the people a sense of belonging and recognition in the application of the laws. Most customary laws have undergone changes in their content, interpretation, and enforcement. While changing, they can also stagnate if amid their evolution, the people give them a rigid interpretation especially if the customs continue when their social base has changed. A community may justify their continuance or avoidance by stating that its forefathers have ordained them. The customary laws change also when they are codified particularly when the formal system that has a written document as its base recognizes them. Discussion Presently, in a majority of cases, where customary law conflicts with domestic law the latter prevails, the exception being where a national law can be shown to conflict with constitutionally recognized customary rights. In such cases, the aggrieved party will still need the authorities to amend the offending legislation, and to take such remedial measures as may be required to redress any wrong, which has occurred. In some cases, there may be little hope of redress where irreversible exploitation of resources has occurred. Where no constitutional protection exists, communities will forever be dependent upon the goodwill of the national authorities, as legislative action can at any time result in the abrogation of ancestral rights. Customary law and practice may be undermined by adoption of culturally insensitive national laws. Similarly, traditional authority is being eroded as those unhappy with their decisions seek ...Download file to see next pagesRead More
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