Customs & the development of the law in England & Wales
The law in England & Wales has developed over centuries in a gradual way. There are a number of ways that the law can be amended and develop known as sources of law. The most important sources of law have changed over time and today the most important sources in our legal system are legislation and case law (judicial precedent). European law has also become more important as a source of law over the last 30 years. Here we look at customs as a source of law.
Warwick Mop Fair (pictured left in 1966) began when King Edward III granted a legal charter that it be held in the town centre. Many significant towns in the area also have similar charters including Stratford upon Avon, Southam, Banbury, Tewksbury, Alcester, Evesham, Abingdon and so on. Each year these towns have fairground attractions in their town centres and surrounding streets.
These annual mop fairs could be said to held on the basis of local custom and the right for local people to shut certain roads in the town centre would be upheld by the courts.
Customs are accepted ways of doing things which develop in a community over a period of time.
General Customs
These are very important in the development of the law in England & Wales. After the Norman Conquest the judges appointed by the King to travel around the country making decisions based some of their decisions on the common customs of the time. General customs have now been absorbed into legislation and case law and are not any longer a source of law in our modern legal system.
Local Customs
These are rights which are claimed by an individual or a group on the basis that such a right has always existed in this particular way locally, for example, a right of way or a right to use a road for a particular event each year. These customs are different to the general law as they will only be valid in that particular locality. There are a number of tests which must be met before a local custom can be validated by the courts. (it is very rare for a new custom to be approved by the courts these days)
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The custom must have existed since 'time immemorial'
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The custom must have been exercised peaceably, openly and as of right
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The custom must be definite as to locality, nature and scope
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The custom must be reasonable
Although it is very rare for the courts to recognise a new custom there have been one or two cases in the last few decades.
In New Windsor Corporation v Mellor (1974) the court held that the local authority was not allowed to build on land because the local population proved there was a local custom that they had the right to use the land for lawful sports.
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