LEGAL CUSTOM: ELEMENTS, CLASSIFICATION AND EXAMPLES - ARTE - 2025

The legal practice is the set of rules and principles of behavior that are repeated in our society because they are seen as the precepts to abide by a common awareness regarding their obligation. It is an unwritten right, unlike the regular laws that make up the legal system.

These rules and principles of behavior are passed down from generation to generation through word of mouth. The Romans called them mores maiorum, which means "the customs of the ancestors." In ancient Rome these rules transmitted by voice were safeguarded by the priests, and therefore their use was restricted to the upper class.

At that time, the application of these customs as a regulation was the privilege of a few. The rest of the people were unaware and did not apply these rules passed from one generation to another.

The custom only takes place when there are two factors: one objective, which consists of the repetition of behaviors by members of society for a long time; and another subjective, which includes the necessary legal relevance of complying with what the custom proclaims.

Unlike social customs, custom is mandatory and can be required in court. In Anglo-Saxon legal systems, custom is of great importance and is a central element of Common Law.

Elements of legal custom

From the concept of legal custom, it can already be deduced that it has two determining elements:

Target element

It is an objective element since it can be easily verified through the senses. It refers to generalized behaviors that are carried out constantly over and over again over a long period of time. It is important that the majority of society contemplate such behaviors.

Subjective element

It is about the assumption by the majority of the members of a society that it is necessary to act in a certain way according to a legal obligation, and that if this behavior is not carried out they can be legally sanctioned.

This assumes that there is a general conviction that it is a legal duty, and for that reason each person acts in that way, or has that specific behavior, believing that, otherwise, he or she is in breach of the established rules and is punishable.

A third element raised by some scholars is called the formal element, which means that the custom has government recognition.

This is not really the case, because custom acts independently of any recognition; it is a kind of social conscience.

Classification

There are three kinds of customs:

Secundum legem

It is also known as an interpretive custom, since it applies or develops what is established by a legal norm. It is the law that gives it its validity that empowers it to regulate a specific matter.

Praeter legem

The custom establishes which is the rule applicable to situations that do not have legislation on the part of the jurist or in the case of legal loopholes.

Article 1 of the Spanish Civil Code provides the following: "Custom will only govern in the absence of applicable law, provided that it is not contrary to morals or public order and that it is proven."

Also in article 1287 of the Civil Code it is established that: "The use and custom of the country will be taken into account to interpret the ambiguities of the contracts, supplying in these the omission of clauses that are usually established".

If we look at custom as an essential part of law -that is, of the legal system-, this facilitates a proposal and a different way of explaining filling in gaps with custom or so-called customary law.

Thus, custom as a tool to fill in the gaps in the law would be nothing more than a clear example of self-integration.

Against legem

Custom says the opposite of what the legal norm establishes. Logically, this type of custom is very conflictive and disputed. It is not at all clear that it is applicable and there are very disparate theories on this subject.

This option is not accepted in the codes, since it is based on the basis that the law is above custom, hierarchically speaking.

For many scholars the law is placed in a higher layer than custom and, therefore, it does not make sense to give validity to customs that are contrary to what the law stipulates.

Examples

Examples of customs

-Respect the life of other people and not attempt against it.

-The obligation of parents to ensure the physical and mental health of their children.

-Do not drive vehicles while intoxicated.

-Receive a correct salary and appropriate to social custom for doing a job.

Examples of custom

-Park in forbidden areas of the road network. This fairly widespread custom is punishable by road regulations.

-Do not pay the taxes that correspond to each individual. It is a completely illegal custom, although unfortunately frequent.

-Participate or organize dog fights. They are normally clandestine and illegal because they imply mistreatment of animals.

-Those known as bribes or bribes to members of the forces of order or public officials. It seems that in some sectors, such as construction, this practice has become a custom despite its illegality.

Examples of custom

- Supply by their parents, to minors, of alcoholic beverages or tobacco. It has no legal regulation.

- Pay non-formal debts of any kind even if they are not regulated by law. Clearly, it is a favorable custom that benefits society since there is no regulation that requires the return of the debt, but the custom does contemplate it.

References

1. José Luis Cuevas. The legal custom of indigenous peoples. files.juridicas.unam.mx
2. Hector Estrada (2017) What is custom? Tasksjuridicas.com
3. Cintya Carrasco. Sources of law. Monografias.com
4. Alberto Montoro. (2002) The custom in the legal system. Annals of Law. University of Murcia.
5. Alex Castaño Legal blog (2012) The commercial custom. alexiure.wordpress.com