This thesis is a cross-disciplinary study of legal history and customary law. Respect for, and
accommodation of local customary law has been a constant and integral feature of law in
Britain since Anglo-Saxon times. It guided the emergence of the common law, and
continues as a rule of law to the present day. Such respect and accommodation was an
essential principle that permitted the peaceful consolidation of the British realms from its
constituent parts. Continuity of law is a legal presumption whether territories have been
added by conquest, cession or annexation. The principle respect for local legal custom was
one of two schools of thought carried to Britain's overseas colonies; the other was a theory
that local customary law could be extinguished by non-recognition on the part of the British
sovereign or his/her delegates. Nevertheless, customary laws and institutions were explicitly
and implicitly recognized in the colonial period. The doctrine has modern application with
respect to the customary law ways of indigenous peoples wherever the common law has
been extended overseas. Rights under customary law are distinguished from Aboriginal
rights, though there is some overlap between the two. Customary law can only be
extinguished by an express statute, or by clearly unavoidable implication. Legal customs are
not invalid merely for being contrary to the common law. Common law defers to valid
customary law as a matter of constitutional common law. But the common law provides
tests by which courts can identify valid legal custom. Where a valid, unextinguished legal
custom is found, courts are bound by the common law to apply it. Where customary law can
be identified, it binds the servants and agents of the Crown, except when it is inconsistent
with Crown sovereignty itself. / Law, Peter A. Allard School of / Graduate
| Identifer | oai:union.ndltd.org:UBC/oai:circle.library.ubc.ca:2429/12160 |
| Date | 05 1900 |
| Creators | Pesklevits, Richard Dale |
| Source Sets | University of British Columbia |
| Language | English |
| Detected Language | English |
| Type | Text, Thesis/Dissertation |
| Format | 13171708 bytes, application/pdf |
| Rights | For non-commercial purposes only, such as research, private study and education. Additional conditions apply, see Terms of Use https://open.library.ubc.ca/terms_of_use. |
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