Difference between revisions of "Custom"

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(Preliminary)
 
(Added "time immemorial")
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To be a source of law, a '''custom''' had to meet certain criteria. <br>
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To be a source of law, a local '''custom''' had to meet certain criteria. <br>
 
It had to be
 
It had to be
 
* clear, certain, and consistent
 
* clear, certain, and consistent
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* in conformity with any applicable [[statute]]s (otherwise these overrode the custom)
 
* in conformity with any applicable [[statute]]s (otherwise these overrode the custom)
 
* continuously held since "time immemorial"
 
* continuously held since "time immemorial"
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'''Time immemorial''', ''per se'', meant a time antedating any legal history. However, for clarity, this was taken by reference to a particular voyage of the [[King]] of [[England]] to [[France]]. In 1275/6, again to avoid compication, this was finally fixed to have been at the beginning of the reign of [[Richard I]] in 1189. <br>
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This had the additional effect that a claimed custom could thereafter be defeated simply by showing that its exercise would hve been impossible at that time -- for example a claimed customary right of grazing on land which, on enquiry, proved to have been underwater at or since 1189.

Revision as of 00:42, 13 October 2004

To be a source of law, a local custom had to meet certain criteria.
It had to be

  • clear, certain, and consistent
  • reasonable
  • obligatory and exercised as of right
  • geographically local
  • in conformity with any applicable statutes (otherwise these overrode the custom)
  • continuously held since "time immemorial"

Time immemorial, per se, meant a time antedating any legal history. However, for clarity, this was taken by reference to a particular voyage of the King of England to France. In 1275/6, again to avoid compication, this was finally fixed to have been at the beginning of the reign of Richard I in 1189.
This had the additional effect that a claimed custom could thereafter be defeated simply by showing that its exercise would hve been impossible at that time -- for example a claimed customary right of grazing on land which, on enquiry, proved to have been underwater at or since 1189.