Jurisprudence and Custom in Law: Doctrine & Elements

Jurisprudence

Jurisprudence: "the criteria (doctrine) applied by the courts in their daily task of interpretation and application of existing law to disputes or conflicts brought to their attention." It is a set of statements and decisions handed down by state courts.

The case law plays a role secondary to the sources of law themselves and, at least formally, cannot be regarded as a source of law. Strictly speaking, case law is the consistent and uniform approach in applying the law by the Supreme Court as the supreme judicial body in most areas, except for provisions concerning constitutional guarantees.

Effectiveness

Jurisprudence is not legally considered a source of law because it does not create standards; therefore it is not listed among the sources in art. 1.1 of the Civil Code (CC). The role of the Constitutional Court is distinct and should not be confused with the role and tasks of the ordinary courts; it is a separate institution and not part of the judiciary in the same sense.

Custom

Custom: the repetition of acts, or repeated conduct over time, accompanied by the belief that a legal standard is being observed. While law is created by the will of representatives of the political community, custom is created directly by the community without the intermediary of those representatives. Thus, customary rules cannot be assumed to originate from any single organ because customary rules evolve directly from social practice.

Hallmarks of Customary Rules

The hallmarks of customary rules are as follows:

• They are genuine legal rules, which helps differentiate them from mere social practices.
• They are produced spontaneously, not by the deliberate reflection characteristic of statute-making.
• They are unwritten rules of law.
• They are characteristic of habit and must be tested in the concrete process (trial) in which their application is intended.
• They operate as a source of law in the alternative, meaning customary legal rules are valid only when there is no statute governing the case.

Elements of Custom

• Material (external or factual) element: the usage itself, that is, the repetition of uniform acts over time.
• Spiritual (internal or psychological) element: the opinio iuris, or the belief that those acts constitute proper behavior — the conviction of the obligation to behave in that manner.