On the Future of Indigenous Traditions - Munin

is distinguished from law, in that it need not to be enforced by the state or by legal
penalties; from convention, in that it need not be exact or rule- guided…” 36
The question then is when does custom become a law, or in other words, are there
certain customs behind making of the laws? The answer is, first that, a custom,
whether good or bad according to Scruton’s interpretation, “to do what is customary is
to act intentionally, and for a specific reason, namely, that is what is done.” However,
with regard to customs being responsible in formation of laws, he further says,
“customs from a background from which law may emerge, as crystallization of settled
expectation.” 37 Thus, we have today the laws and also the customary laws.
In the discussion of customs and customary laws of the historical communities,
indigenous peoples, and groups, generally the use of the term customary system or
customary law needs more clarification both for its literary use as well as in the legal
sense. In a broader sense customary law according to Bekker is, “…an established
system of immemorial rule which had evolved from the way of life and natural wants
of the people, the general context of which was common knowledge, coupled with
precedents applying to special cases, which were retained in the memories of the chief
and his consolers, their son’s and their son’s sons (sic), until forgotten, or until they
become a part of the immemorial rules…” 38
Nevertheless, not all the customary laws of today are ancient, nor are all the
customary laws administered by chiefs. However, this definition gives us a basic idea
of what is generally understood by customary law.
From these explanations we can conclude that the customary system or law is a
certain set of rules and principles agreed with common consciousness which is more
voluntary in nature for its practical applicability by the members of that community.
In other words, custom can be defined as collectively sanctioned behaviour of the
member of the particular community or group which has been transmitted from one
36
Roger Scruton, “Custom”, A Dictionary of Political Thought, London: Pan Book Ltd. with the
Macmillan Press 1982, 110.
37
Ibid.
38
J.C. Bekker, Seymour’s Customary Law in South Africa (Cape Town: Jeta & Co. Ltd, 1989), 11.
32