CUSTOM

The traditional view of the development of the common law tends to adopt an overly romantic view as regards its emergence. This view suggests that the common law is no more than the crystallisation of ancient common customs, this distillation being accomplished by the judiciary in the course of their historic travels around the land in the Middle Ages. This view, however, tends to ignore the political process that gave rise to this procedure. The imposition of a common system of law represented the political victory of a State that had fought to establish and assert its central authority. Viewed in that light, the emergence of the common law can perhaps better be seen as the invention of the judges as representatives of the State and as representing what they wanted the law to be, rather than what people generally thought it was.

One source of customary practice that undoubtedly did find expression in the form of law was business and commercial practice. These customs and practices were  originally constituted in the distinct form of the Law Merchant but, gradually, this became subsumed under the control of the common law courts and ceased to exist apart from the common law.          

Notwithstanding the foregoing, it is still possible for specific local customs to operate as a source of law. In certain circumstances, parties may assert the existence of customary practices in order to support their case. Such local custom may run counter to the strict application of the common law and, where they are found to be legitimate, they will effectively replace the common law. Even in this respect, however, reliance on customary law as opposed to common law, although not impossible, is made unlikely by the stringent tests that have to be satisfied The requirements that a local custom must satisfy in order to be recognised are as follows:

• it must have existed from time immemorial, that is

• it must have been exercised continuously within that period;

• it must have been exercised peacefully and without opposition;

• it must also have been felt to be obligatory;

• it must be capable of precise definition;

• it must have been consistent with other customs; and

• it must be reasonable.

Given this list of requirements, it can be seen why local custom is not an important source of law.

  

LAW REFORM

At one level, law reform is a product of either parliamentary or judicial activity, as hasbeen considered previously. Parliament tends, however, to be concerned with particularities of law reform and the judiciary are constitutionally and practically disbarred from reforming the law on anything other than an opportunistic and piecemeal basis. Therefore, there remains a need for the question of law reform to be considered generally and a requirement that such consideration be conducted in an informed but disinterested manner.

            Reference has already been made to the use of consultative Green Papers by the Government as a mechanism for gauging the opinions of interested parties to particular reforms. More formal advice may be provided through various advisory standing committees. Amongst these is the Law Reform Committee. The function of this Committee is to consider the desirability of changes to the civil law which the Lord Chancellor may refer to it. The Criminal Law Revision Committee performs similar functions in relation to criminal law