Legal Sources: Customary Law and Fundamental Principles

Custom as a Legal Norm

Legal custom, a fundamental source of law, embodies established practices recognized as binding legal standards. Its unique characteristics distinguish it from codified law.

Key Features of Legal Custom

• Legal customs are considered true legal standards.
• Their origin is often extra-state, meaning they arise from societal practice rather than direct state enactment.
• They manifest through the continuous and consistent realization of specific conduct.

Elements Constituting Legal Custom

For a practice to be recognized as a legal norm, it must possess both external and internal elements:

• External Element (Usus): This refers to the repetitive and uniform performance of actions over an extended period. It's the observable, consistent practice.
• Internal Element (Opinio Juris sive Necessitatis): Also known as the spiritual element, this is the belief that such repetitive actions are not merely habitual but are legally significant, compelling, and constitute a mandatory conduct.

Requirements for Customary Acts

The repetitive acts forming a legal custom must meet specific criteria:

• Free Actions: The conduct must be performed voluntarily, without coercion.
• Repetitive, Constant, and Continuous: The practice must be sustained over time without significant interruption.
• Uniform: The core essence of these acts must remain consistent.
• Public: The practice must be openly observable, not secretive, and not contrary to existing law.

Proving Legal Custom

The existence of a legal custom must be proven by the party alleging it. This proof can be established through various means, including testimony from parties involved, witnesses, and other valid evidence recognized by law.

Legal custom represents a widespread social practice that, through its consistent application and acceptance, evolves into a rule of law. This rule, born from societal usage, can hold legal force even in areas where statutory law may not explicitly provide for it.

General Principles of Law

General principles of law are fundamental tenets that embody the core rules and ethical foundations of a society. They are considered essential for resolving legal issues and guiding moral conduct within that society.

Nature and Role of General Principles

These principles constitute a genuine source of law, representing fundamental legal standards. While they possess a basic and foundational nature, they primarily serve as a subsidiary source. Their crucial role is to fill gaps within the legal system, providing solutions when specific statutes or customs are absent. It is through this process of addressing legal lacunae that general principles of law emerge and are applied.

Application of General Principles

For general principles to be applied, they must be raised by the parties involved, who must demonstrate their validity, applicability, and the absence of a specific law or custom addressing the issue. Their application often involves analogy, particularly in cases not explicitly covered by existing law but sharing substantial similarity with other regulated situations. This approach relies on the concept of "identity of reason":

• Identity of Reason: As referenced in Article 4 of the Civil Code (CC), this involves the analogous application of rules. When specific legal provisions are lacking for a particular case, but similar cases are regulated, the rules are applied by analogy where an "identity of reason" is appreciated between them.
• Equity: This principle involves the mitigation of the strictness of a rule. It ensures that legal rules are applied in a humane, benign, and softened manner, preventing unduly harsh outcomes.

Conclusion: Harmonizing Legal Sources

In legal interpretation and application, it is crucial to consider overarching legal rules and established covenants. While legislators continuously enact new standards, the legal system inevitably encounters gaps. These gaps are addressed by drawing upon custom and, ultimately, the general principles of law. A comprehensive legal analysis therefore integrates statutory law, customary practices, and fundamental legal principles to achieve justice and coherence.