On The Legality Of Customary Law

The existence of customary law is taken for granted by the general studies in our academic circle,so they never think more about the concept of customary law which is the premise of their studies.Actually,they mistake other types of law or norms outside of the legal system for customary law,which not only cause severe criticism on the classification of customary law,but also trigger the suspicions about the validity of the concept of customary law.In response to the criticism and suspicions above,this paper tries to develop two justifiable conditions for the strict concept of customary law to satisfy: the one is the authority of law which is used to ensure the nature of law,and the other is to guarantee the nature of convention reflecting in the process of customary law.The authority of law is such the core feature of law that can make customary law differing from other norms outside of the legal system;the latter is devoted to illustrating that the key criterion to distinguish the different types of law lies in the various modes of its generation,while the customary law has the particularity in the mode of generation,so as to build the boundary from others in the same legal system.Authough the scope of customary law is limited to some degree,it doesn’t mean it is invalid.I will argue that there are at least two kinds of customary law which can satisfy the conditions above: the first is Customary LawⅠ which is considered as the sources of legislated law and case law,and the second is created without authorization which we called Customary Law Ⅱ.Then I will draw the conclusion that customary law can be legality and the concept of customary law is still valid.After the justification,I set up three examples to provide some empirical evidences for the goal of this paper.They are the American constitutional conventions in practice,the birth of British common law and the international customary law.