Often times, the term “Custom” and “Customary Law” are defined under the same umbrella, and as such, people find it difficult to point out areas of differences between the two. These differences are taught in most law schools in the world today because customs and customary laws play important role in the legal system of every nation. Consequent upon that, In this work, I am going to clarify you on the differences between Custom and Customary Law. But before we go into that, I will explicitly explain what those terms mean and how they are defined by courts.
Also see: Characteristics of customary law
What Is a Custom?
In Dakum v Dapal (1988) 10 NWLR (PT.571) 573 at 583 Paragraph H, the Court of Appeal defined a Custom to mean a rule in a particular district which has from Long usage obtained the force of Law in that district.
For example, in Agbani Community, the rule is that no body should be on the road from 1am to dawn. This rule, from it’s long usage in Agbani community, qualifies as their Custom. But it does not automatically qualify as a Customary Law.
Also see: How to prove customary law in court
What Is a Customary Law?
In Nwaigee v Okere (2008) ALL FWLR (PT 413) at 870, the Supreme Court per Niki Tobi JSC defined a Customary Law as a Law emerging from the tradition, custom and usage, and practice of people in a given community which, by common adoption and acquiescence on their part and by long and unvarying habit, has acquired to some extent, elements of Compulsion and force of law with which it has acquired over the years by constant, consistent and community usage
In simple words, this means that a Customary Law is the custom, rules, tradition, ethos and culture which concern the relationship of members of a community.
This definition doesn’t seem to establish a clear-cut distinction between a Custom and a Customary Law, and as such it is important to consider the distinction that exists between them.
Also see: Validity Test of customary Law
Differences Between a Custom and a Customary Law
1) Every Customary law is a Custom, but not every Custom is a Customary Law.
2) A Customary law is automatically the custom of the people, whereas a Custom is not a Customary Law except it fulfills the validity tests of a Customary Law.
3) A Customary Law is a usage and practice which is socially recognized, while a custom is a usage and practice, which may or may not have social recognition.
4) The violation of a Customary Law will result in a penal action, while the violation of a custom may or may not result in any sanction.
5) A Customary Law may or may not be codified, while a Custom can never be codified.
In conclusion, the differences between a Custom and Customary Law is albeit, but slight. The major qualification for a Custom to become a Customary Law is if it passes the validity tests of a Customary Law. Where it fails the validity of a Customary law, such custom does not qualify as a Customary Law and the thin line is drawn between the Custom and the Customary Law of the land.