‘Customary rights’ refer to established, traditional patterns of norms that can be observed within a particular socio-cultural setting (Thompson, 1991). Sets of customary rights and obligations may be called customary law. Customary rights exist where there is a consensus of relevant actors considering them to be ‘law’.
In practice, today, customary law often coexists with formal state law. Such situation corresponds to legal pluralism. Plural legal systems are particularly prevalent in former colonies, where the law of a former colonial authority exists alongside customary legal systems. Economic transactions (sales, rents, wages and credit) are typically governed by Western-type law while non-economic aspects (family, marriage and inheritance) often remain covered by traditional law.
Legal pluralism also occurs when different laws govern different cultural groups within a country. For example, in India, there are special Islamic courts that address concerns in Muslim communities by following principles of Islamic law. Secular courts deal with the issues of other communities. Legal pluralism also exists to a certain extent in societies where the legal systems of the indigenous population have been given some recognition. Land and environmental conflicts typically occur, and they are often expressed as struggles between customary and state legal systems.
Thompson, E.P. (1991) Customs in common: studies in traditional popular culture. London; Merlin Press.
For further reading:
Diaw, M.C. (2005) Modern economic theory and the challenge of embedded tenure institutions: African attempts to reform local forest policies. In: Kant, S. and Berry, A. (Eds.), Sustainability institutions and natural resources: institutions for sustainable forest management; 43-81. Amsterdam, Springer.
This glossary entry is based on contributions by Willi Haas, Simron Jit Singh and Annabella Musel
EJOLT glossary editors: Hali Healy, Sylvia Lorek and Beatriz Rodríguez-Labajos