The legal value of custom in positive law

a comparative study of African and European law

Abstract

This article aims to address the legal value of custom in positive law, thus seeking to make a comparative study of custom at the level of African and European law, having in this way, selected in the European system - Brazil, Portugal and France, and as for the African system - Mozambique, Angola and South Africa. This theme is related to the need to understand what is the legal value of custom in positive law? since it has always been studied that the law is the source of law par excellence, as well as taking into account and considering the fact that, in the national legislation, Article 4 of the CRM emphasizes legal pluralism, underlies the existence of different ethnic groups in the national order, thus emphasizing the role of custom, however this has not been materialized, so we seek to understand its value in positive law, using comparative law. Since it is quite broad to discuss Europe and Mozambique, we have selected a few countries to study, without, however, intending to exhaust the subject, but rather to allude to its relevance for achieving justice in the different legal systems. This study is in the field of comparative public law and was written as an assessment question for the doctoral module in public law, in the subject of comparative public law, with the aim of comparing African and European custom, from a doctrinal perspective, seeking to review the existing literature, raising awareness throughout the world. We used bibliographical research and the comparative-deductive and hermeneutic methods to produce this article. As a source of law, we have custom, which is still very important not only in Africa, but throughout the world, as one of the pillars for the realization of justice. In this sense, we cannot deny the existence of different ethnic groups that govern different societies, emphasizing the need for states to value custom, allowing the autonomy of society in the management of social problems, that is, the need to seek to achieve legal pluralism.

Key words: custom. African law. positive law. comparative law. legal pluralism.