Sources of Law-lecture 7

Legal custom is different from other social customs as its obligatory sanction is complete and uniform. Kinds of custom: 1. Legal custom which is the custom operative per se as a binding rule of law independently of any agreement on the part of those subject to it. Its authority is absolute. 2. Conventional Custom which is the one operating only indirectly through the medium of agreements which is accepted as conventional law between the parties. Its authority is conditional on its acceptance and incorporation in agreements between parties.

Custom, as a source of law, has certain advantages: 1. Custom reflect the true needs of the community. Thus, it is difficult to find a custom contrary to the general will of the community, while legislation, for example, may be imposed by an absolute sovereign. 2. Custom is more flexible than the written law as it develops with the development of social conditions of life. 3. Custom implements legislation. This is because legislation cannot provide all the needed solutions for infinitely variable needs.

Disadvantages of the Custom: 1. Customary rules are often ambiguous. Thus, they are difficult to determine, and often raise complex litigation. 2. Customary rules develop very slowly. Thus, custom may be important to face new circumstances. Once established, customs become rigid and very difficult to change. 3. Custom may not facilitate the evolution of complete harmony in one country due to the existence of different local customs. Thus, individuals in one country will be governed by different customary rules.

1. Custom must be “general”, that is, it should be followed by the majority of individuals in society. There can be also “local custom” where the law applies in a particular locality only, or a “particular” custom followed by a certain group of individuals in society, for example members of a trade or a craft.
2. Custom must have existed for so long time.
3. Custom must be “constant”, that is, its observance must be continuous and unchanged.

Conditions of Custom
4- Custom should not be against the rules of “public policy”.
5- Custom should not run counter to the “written provision of the law”. Once there is a legislative rule of law, resort to custom is not allowed.
6- Custom must have been observed as a right. It means that the custom must be followed openly without the necessity for recourse to force.

Equity
Equity as a source of law is “any body of rules existing by the side of the original positive law of the country founded on distinct principles of reason, or deduced from absolute justice, and claiming to supersede the positive law in virtue of a superior sanctity inherent in those principles”.
Article 1 of the Iraqi Civil Code obligates the Iraqi judge to deduce and apply rules and principles of equity in the decision of cases, when no applicable provision is supplied by legislation, custom, or Islamic law. If such provision is supplied, the judge has no power to refuse its application on the ground that it is unjust or inequitable