Planeación y ordenamiento territorial

In the evolution of the human society, it appears to be beyond doubt that custom arose first, law came later. Law denotes a more definitive organisation of human society with some kind of power structure established. Customs arise whenever a few human beings come together, as no association of human beings can exist permanently without adopting consciously or unconsciously, some definite rules governing reciprocal rights and obligations. [Vinogradoff, Collected Papers 420. As Paton observes, “Indeed custom is coeval with the very birth of the community itself”. Jurisprudence 143 (2nd ed. 1951). Even a primitive tribe may have a legal order long before it has developed a state (1941) 55 Harv. L.R.. 66-7]. It also looks to be axiomatic that, to start with, law was built upon custom. One example which immediately comes to mind is that of the English common law which in its origin was built upon custom and which later absorbed into itself the customs of the mercantile community to give to the common law world the modern Mercantile Law. [Paton, Jurisprudence 148 (2nd ed.1961). "Mercantile Law, perhaps, provides one of the most interesting examples of custom". Keeton, The Elementary Principles of Jurisprudence 77, 81 (2nd ed. 1949)]. The Twelve Tables of Rome were based upon customs of the people [Maine, Ancient Law 18(1946)].

Custom is regarded as a source of law by the Western jurists, though they assign importance to it to a varying degree depending upon their approach and outlook. Austin having defined 'law' as the command of a political superior or definite human authority addressed to political inferiors and enforced by a penalty or sanction, held that custom becomes a law only when it receives judicial or legislative recognition. [According to Austin, nothing is entitled to the name ‘Law’ which does not possess all the attributes of state-created and state-enforced law and so, on this approach, logically, one shall have to say that customary law is not law at all, or that it is 'imperfect' or 'inchoate' law]. This excludes from the pale of law those customs which exist with all the force of law but have not come before the courts unlike those which through accident have come before the courts and have been recognised there. The rigours of the Austin's theory have been mitigated by other Analytical Jurists following Austin. Holland, though practically adopting

Austin's definition of law, nevertheless, holds that courts do not proprio motu for the time make custom a law, that they merely decide as a fact that there exists a legal custom about which there might have been some question up to that time, just as there might be about the meaning and interpretation of an Act of Parliament, and the observance of a custom is not the cause of law; but is evidence of its existence [Holland, The Elements of Jurisprudence 53, 55, (8th ed. 1896)]. Courts give operation to customs not prospectively from the date of such recognition, but also retrospectively; so far implying that custom was law before it received the stamp of judicial authentication. Allen also disagrees with Austin's thesis. He regards custom as "self-contained, self-sufficient, and self-justified law" and says that the function of the court is "declaratory rather than constitutive" [Allen, Law in the Making 67, 125-151 (5th ed. 1951)]. When a custom is proved in a court by satisfactory evidence, the function of the court is merely to declare the custom operative law. Thus custom does not derive its inherent validity from the authority of the Court. The difficulty in the way of accepting this view is the veto which a court wields to declare a custom invalid on the ground of unreasonableness.

The Historical Jurists attached a much greater importance to custom. They held that all early law was customary, and that the function of legislation is limited to supplementing and redefining custom. According to Savigny, the real bases of all positive law is to be found in the general consciousness of people (Volksgeist). The source of law is not the command of the sovereign, not even the habits of a community, but the ‘instinctive sense of right possessed by every race’. Since this consciousness is invisible, it is to be discovered by the external acts which manifest itself in usages, manners and customs. Custom is thus evidence of law whose real source lies deeper in the minds of men. As a necessary consequence it follows that custom, as the external evidence of law in the abstract, possesses the force of law before it is received by the courts, and not as a result of this process. According to Savigny, the acts required for the establishment of customary law ought to be plural, uniform and constant. They may be judicial decisions, but these are not indispensable for its establishment, although some have thought otherwise; the authors of the acts must have performed them with the consciousness that they spring from a legal necessity. [Kantorowicz, "Savigny and the Historical School of Law", (1937) 53 LQR. 326. Thibaut seems to concede to each class of persons a power of establishing the law by their own will, but he mentions certain restrictions to narrow down the power materially. "Custom is, for the people that has established it, a mirror in which that people may recognise itself", says Puchta. To Puchta, custom was only self-sufficient and independent of legislative authority but was a condition precedent, of all sound legislation]. Of course, the flaw in this theory is that there are customs which are not based on an instinctive sense of right in the community as a whole, but on the interests of a strong minority, for example, slavery. Though it is also true that not all customs are consciously created, growth of much customary law is not the result of conscious thought, but of tentative practice.

The fact, however, remains that for those on whom a custom operates, it is finding by itself whether or not the stage ever comes when it is debated or discussed in a court. In the consciousness of the followers of the custom, it has a obligatory force. Take the examples of

India; here for long before the advent of the British, customs were observed by the people, and were enforced not by the courts but by the village or community panchayats; the Government did not interfere with the prevalent norms. When the British system of Justice came, these very customs came to be pleaded before the courts which enforced them. In such a situation, custom did not become effective for the first time after judicial recognition. It was there already in full force, the difference was that instead of the panchayats it came to be enforced by the courts. Thus the Analytical Theory does not very much fit the Indian condition.

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