How Customary Law Works

Generally, customary laws are unwritten, flexible, and universally acceptable among the subjects (indigenous peoples) and have no uniform body of the application. Since these laws are unwritten, they don't exist in a single reference document. For example, in Nigeria, a particular village's customary law dictates that only men can inherit their parents' estate or property. Note that all members of society respect this law even though it's unwritten.

Since customary laws are essentially dynamic (not static), such laws are always open to the custodian's interpretation and broad application as time passes. Thus, those who practice specific customs are “obligated to translate customary law into binding law.”

Even though some indigenous communities may be close and share ties, the customary laws binding them may differ since such laws are not uniform or blanket. Hence, the custodians may allocate customary laws governing land rights differently amongst various peoples according to social issues, marital status, or gender.

Real-World Example of Customary Law

In 1987, the New York Times newspaper reported a legal court case in Kenya that had gripped the nation and that the judges determined based on customary law's merits. According to The New York Times article, a Nairobi court had issued a precedent-setting ruling, ordering that the Luo relatives bury SM Otieno's body, one of Kenya's top trial lawyers before his death in 1986.

The judges ruled that the Luo relatives were free to bury Otieno’s body in his Siaya ancestral home according to Luo customary rites. Interestingly, Ms. Virginia Wambui, who was Mr. Otieno’s widow (a member of the rival Kikuyu tribe), sought to bury her husband's body in their urban Upper Matasia Ngong home near Nairobi. The widow argued that the prominent lawyer led a modern lifestyle, shunned tribalism, and disassociated himself with the traditional Luo tribal customs.

To many Kenyans, the three-judge bench Court of Appeal's ruling signaled the African customary law's victory over Western culture. The judges felt that it was inconceivable to separate an African man from his tribe's customs and traditions regardless of his ties with Western modernity. Notably, the Luo trace their kinship and descent through the father (and not the mother). Like SM Otieno, former US President Barack Obama’s father was born of the Luo tribe in Western Kenya.

Significance of Customary Law

Most customary laws relate to long-established community standards. Many indigenous peoples accept and respect customary laws; judges have determined many court cases in modern times using these laws.

Those who use such laws accept them as a universal way of life. Hence, if you are a member of a specific community, customary law is genuine law.

Customary Law vs. Customary International Law

We should not confuse customary law with customary international law. Essentially, customary international law is a component of international law. The term refers to international commitments or obligations that arise from well-established international practices rather than formal, written treaties and conventions.

Examples: laws against slavery and piracy; the granting immunity for visiting heads of state; and the doctrine of non-refoulment.