According to Norberto Bobbio, the history of customary law is the history of the functions and effectiveness of rules deriving from customs or social practices in the development of law, and differs from the history of customary doctrine (or the way jurists have judged the effectiveness of customary law). The two histories do not necessarily coincide, as legal theory, especially from codification, seeks to define the limits of customary law. “Custom, which is universal and corresponds to Christian morality, is a right if there is no positive legislation.” But could people`s habits, customs, or practices become right? In principle, custom and law evolve in different and distant domains: that of facts and that of norms. These three conditions are essential for customary law, because if one of them is not met, it is only a non-legal social custom. Habit is “the pattern of behavior that is repeatedly observed in a community and compels members of that community to adhere to it according to the social environment in which it is born and operates.” According to article 1.3 of the Civil Code, for custom to have the character of a source of law, it must not be contrary to morality or public order and must be proved; That is, anyone who invokes the existence of a legal custom is required to prove its existence with the requirements of those customs. When it comes to understanding which customs are “good” or just, one must take into account the requirements of moral rules within social coexistence. Axiology is the branch that determines whether a custom is good or bad. Values cannot change, but morality, the fact of how values rhyme that can change over time; It is morality that allows us to see attitudes that were previously rejected, now accepted, and vice versa. Commercial practice is governed by Article 3 of the Commercial Code: Article 7 of the General Rules of Procedure provides that judges are subject to the rule of law but must take practice into account when making their orders. The EWR emphasizes that habit is the way of acting or behaving or the traditional practice of a community or place. The Constitutional Court, in a judgment already mentioned on this type of custom, states: “Customs and customs applicable under substantive law must be authenticated by documents, copies of final judicial decisions proving their existence and validity, or by a series of witness statements”. Customary law is the source of law, in the absence of law, as stated in article 1.3 of the Civil Code: it is therefore a subordinate source to law, although in some cases law refers to customary law to settle a point.
No practice or habit that violates an existing law can be above that law. This article also regulates how to prove business habits abroad. Thus, according to Chilean common law, “customary law is not a law, except in cases where the law refers to it”. In the same vein, it is resolved in the Commercial Code, according to which commercial customs “replace the silence of the law”, but with a set of requirements and a specific form of proof that are not compatible with the speed of change in modern commerce. In modern societies, customary law seems somewhat archaic. The study of customary law is limited to sources of law that are cornered and limited by law. But customary law had and is fundamental in various jurisdictions. Although the aforementioned customs are deeply rooted, they are illegal because they are all part of the contra legem class prohibited by Article 8 of the Civil Code, as highlighted by the Labour Chamber of the Supreme Court in its judgment 73891 of 3 April 2019 with a presentation by Judge Clara Cecilia Dueñas Quevedo. The rationality of use, since custom must not be contrary to morality or public order (art. 1, 3 CC). This is doubtful, because custom, as a rule of law, cannot be immoral and because it cannot be contrary to public order, since there is no law that provides for it, although it cannot contravene the EC.
In such cases, the law has articulated, at least in part, customs that existed before. However, with the birth of nation-States and codification processes, customary law has in principle been relegated to a subordinate role as a subsidiary source of law. Rafael Durán Sanhueza, a lawyer at Araya y Cía Law Firm, a specialist in insurance and maritime law, said: “Customs plays a major role in maritime law. The Commercial Code recognizes this and its Book III (Navigation and Maritime Trade) stipulates that the custom in this matter may be proved by an expert report, which is added to its accreditation by two judgments and three public documents regulating commercial customs. In addition, he said that in maritime law, the court seized of a case, whether ordinary or arbitrary, had the power to evaluate evidence after sound criticism, which allowed custom to be applied even in cases where the opinion had not been issued. Commercial custom is perhaps the most productive of all, as traders often have the opportunity to do things that are accepted as valid throughout society. Finally, there seems to be a non-normative aspect to legal systems. Why do people obey the law? Most do not do this out of fear of sanctions, but only out of habit. In Colombia, it is customary to use the service contract instead of the employment contract or not to pay overtime or night bonuses; it is customary to recruit workers without enrolling them in the social security system; It is customary to dismiss workers without compensating them. It is common to hire students without salary or social security as if they were interns, etc.
