Custom, General Principles, and Jurisprudence in Law
Custom and General Principles in Law
Custom (or customary norm) is a legal rule determined by a social collective (territorial, professional, or other) through the generalized, uniform, and continuous observance of a conduct, with the conviction that such conduct is compulsory. This differentiates custom from other social uses and customs of a merely moral character. The importance of custom today is much less than it once was, although it still has some relevance in certain sectors (e.g., rural areas, the business world, and relationships between companies). Custom is a supplementary source of law of the first degree, and recourse to it is only possible when there is no applicable law for the case, provided that the requirements established in Article 1.3 of the Civil Code are met: “Custom shall only govern in the absence of applicable law, provided that it is not contrary to morality or public order and that it is proven.” This is the first important difference with respect to the law, since its content does not need to be proven, while anyone who claims that a court case should be resolved using custom must prove its existence, validity, and content.
General Principles of Law
The general principles of law are those fundamental rules that are basic to the induction of the entire legal system. They preferentially respond to criteria of justice or criteria of a technical character. On occasions, the general principles have been expressly formulated in a written norm (e.g., the principle of good faith), but other times they have not (e.g., the principle of unjust enrichment). In the legal system, their role is twofold: on one hand, they are a supplementary source of law of the second degree, which means that tribunals must apply them when there are no applicable laws or specific customs for the case; on the other hand, they have an informative character for the legal system, which means that tribunals must use the general principles to interpret laws and customs, with the objective of giving them their true meaning. This is deduced from Article 1.4 of the Civil Code, which establishes: “The general principles of law shall apply in the absence of law or custom, without prejudice to their informative character of the legal system.”
Jurisprudence
Jurisprudence is the set of criteria used by tribunals when applying the law, custom, and general principles of law in the resolution of cases submitted for their consideration. Jurisprudence is not a source of law, and tribunals do not have the mission to create law, but to apply it to the specific case. Therefore, jurisprudence does not have a compulsory or binding character for inferior tribunals, nor even for the court itself that developed and established it. As the Constitutional Court has stated, any court may amend its previous jurisprudence, provided that it is adequately motivated (so as not to infringe the principle of equality before the law). However, jurisprudence undoubtedly has an extraordinary practical importance, and it is not common for tribunals to deviate from their own jurisprudence or that of superior tribunals. The greater or lesser importance of jurisprudence depends, logically, on the court that issues it. In Spain, the jurisprudence of the Constitutional Court, the Supreme Court, and certain international tribunals, such as the European Court of Human Rights in Strasbourg, is especially important. The importance of jurisprudence in private law is referred to in Article 1.6 of the Civil Code: “Jurisprudence shall complement the legal system with the doctrine that, in a reiterated manner, the Supreme Court establishes when interpreting and applying the law, custom, and general principles of law.”