Custom as A Source of Law in Scotland1
| Author | J. T. Cameron |
| DOI | http://doi.org/10.1111/j.1468-2230.1964.tb01029.x |
| Date | 01 May 1964 |
| Published date | 01 May 1964 |
CUSTOM
AS
A
SOURCE
OF
LAW
IN
SCOTLAND’
IN
the nature of things, the problems raised by admitting that
custom may be a source of law are likely to be similar in all
systems. There
will
probably be, too,
a
substantial similarity
between the rules of different jurisdictions. To require that
a
custom should be uniform, certain and notorious, for example, is,
in
a
sense,
only
to require that
it
should exist as a custom; without
these qualities
a
custom could not reasonably be treated as
a
source
of law. Nevertheless, the particular way in which
a
problem arises
and
is
disposed of may be affected by historical accident
or
other
legal principle. Thus, while
it
can be said that the law of Scotland
and that of England in relation to the place of custom as a source
of law are substantially similar, and in some respects identical, in
other respects the jurisdictions differ.
On
many questions, the
authorities in the two systems are interchangeable; on others, they
are not. In particular,
it
will be contended that the case
of
Goodwin
v.
Robarts
deals with
a
problem which does not arise,
or
arises in a different way, in Scotland. The precise extent to
which custom may exclude, modify
or
supplement the common
law requires to be considered; here, too, the jurisdictions may
differ, since
it
can be argued, not without force, that Scots law
never recognises a custom contrary to
or
different from the general
common law.
It
is convenient to begin with a sketch of the English rules
on
custom, partly because certain necessary distinctions are made more
sharply there than
in
Scots law, partly because the nature of the
problems which arise can more clearly be seen there. In theory,
the entire common law is customary law. The subject which
Bracton proposed to himself was the
“
lex et consuetudo Angliae,”
and this theory has persisted.
It
is certainly true that much of
the material from which the common law was developed was custo-
mary law. Nevertheless the artificiality of the theory is obvious,
for the rules of the common law were drawn from other sources as
well as custom, and were developed by the courts without much
1
This article originally stemmed from
a
certain dissatisfaction with the
presentation of the Scots rules
on
custom in modern textbooks, especially
Green’s
Encyclopaedia
of
the Law
of
Scotland,
Vol.
5,
p.
354
et seq.
and
Gloag and Henderson,
Introduction
to
Scots Law,
6th ed., pp.
9
and 472 in
which
Goodwin
v.
Robarts
(1875)
L.R.
10 Exch.
337
is
cited
as
an
authority
for Scots law. It is hoped, however, that the results
of
investigating the
Scots rules will be of interest, from
a
comparative point of view, to
a
wide1
audience.
2
(1875)
L.R.
10 Exch.
337;
(1876)
1
App.Cas. 476.
806
MAY
1964
CUSTOM
AS
A
SOURCE
OF
LAW
IN
SCOTLAND
307
consultation of the actual practice of the ~ornmunity.~ The theory
does however have one important consequence. A general custom,
a
rule observed throughout England, must already, according to
the theory, be part of the common
If
it
is not recognised
by the common law,
it
can be neither law nor custom. Accordingly,
the ability of general custom to create binding rules
of
law
is
denied, and the theory that the common law
is
itself customary
law is used to prevent the development of new rules of law by
general custom. The law creating power of custom is a limited
one and custom, in this limited role, is something different from
and opposed to the general common law.
“
A custom,” according
to the definition of Halsbury’s
Laws
of
England,
“
is a particular
rule which has existed either actually
or
presumptively from time
immemorial and has obtained the force of law in
a
particular
locality, although contrary to
or
not consistent with the general
common law of the realm.”
It
is true that there
is
a rather
vague requirement that custom should accord with the fundamental
principles of law; nevertheless, custom can displace the law within
a locality. The essential features of custom in this restricted sense
are, first, its existence from time immemorial and second its local
character.’
It
was largely by accident that the arbitrary date
1189
was set down as the limit of
“
time whereof the memory of man
runneth not to the contrary.” However a custom whose long
continued observance as of right is demonstrated will be presumed
to date back
to
1189
unless it is shown that that
is
impo~sible,~
and in practice
it
will often be sufficient merely to show observance
of the custom over a long period of time. The local character of
a custom is however an unalterable requirement. A custom
displaces the general common law;
it
is local common law. Given
these fundamental characteristics,
a
custom which is also certain,
continuous and reasonable possesses the force of law for the area
within which
it
operates.
A firm distinction is made between custom, in the sense of local
common law, and usage. Usage is
a
course of dealing generally
adopted by persons engaged in a particular department of business
life which is
so
notorious that those engaged in that line of business
3
Cf.
Allen,
Lam
in the Making
(6th ed.), pp.
70-71, 126
et
seq.;
Braybrook,
“Custom
as
a
Source of English Law,” Mich.L.R.
71 (1951).
4
“A
custom cannot be alle,ged generally within the Eingdom of England; for
that is the common law
:
Co.Litt.
110b.
5
Halsbury.
Laws
of
England,
3rd ed., Vol.
11,
p.
156.
It
is
convenient to
follow the terminology used in Halsbury,,‘confiniV,g the word
“
custom
”
to
immemorial local custom,
and
the word usage to usage incorporated in
contract, without however claiming that the terminology
has
always been
uniform,
or
that the distinction has always been kept absolutely clear.
6
Cf.
Littleton’s
Tenures,
8.
170,
1
B1.Com.
76.
7
See
authorities cited Halsbury, Vol.
11.
p.
156,
note (g).
R
See
Angus
v.
Dalton
(1677)
3
Q.B.D.
85
at
p.
104,
Halsbury, Zoc.
cit.,
p.
161,
9
See,
e.g.,
Simpson
v.
Wells
(1872)
L.R.
7
Q.B.
214.
note (i).
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