Fifth. Interest jurisprudence. It interprets the norm taking into account the economic, social or moral interests arising from it, and gives the interest of greater relevance the meaning of the most appropriate standard. This limitation casts doubt on the doctrine that the logic of command must be different from that of law. According to Pau Pedrón, this requirement is surprising because it is imposed mainly on customary law and not on law, and without admitting habit against law, it is difficult to imagine in our society that an immoral habit does not violate a law, so it is useless to demand separately that custom does not contradict morality. It is believed that the custom to be taken into account is that which exists in the place where the business is to be carried out or where it originates, which is important because customs generally change depending on the geographical region. 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. It has therefore been held that, if the judge is aware of the custom, he may apply it ex officio.
In this sense, article 2.2 of the consolidated text of the civil laws of Aragon, approved by Legislative Decree 1/2011 of 22. “The courts will judge the existence of custom on the basis of their own investigations and the evidence presented by litigants.” “Customary law secundum legem is the rule which acquires its character as such and, consequently, its binding character by the express reference of the law. This is the case of rental repairs, defined in Article 1998 of the Civil Code as “those borne by tenants in accordance with the customs of the country”; or the mere legal presumption of proof of `the sale of all goods normally sold in that manner`, a presumption governed by Article 1879(2) of that code. Custom can probably be invoked, but it can in no way contradict the employee`s minimum rights under the Labour Code and other regulations. But, as has already been said, rational ideas of clarity and legal certainty, bulwarks of equality before the law, have led to the rule of law triumphing in modern times over the habit that all civil codes have decisively proclaimed. The origin of customary law is buried in the origins of what we mean by society. However, current doctrine has succeeded in identifying three essential elements for conduct to be considered a habit and produce legal effects: The Constitutional Court states in a above-mentioned judgment with regard to this type of custom: The requirements of customary law according to article 1.3 of the Civil Code are as follows: “Commercial custom has the same authority as commercial law, provided that it does not contradict it manifestly or implicitly and that the facts of which it is composed are public and uniform and are repeated in the place where the services were provided or where the relations to be governed by them were established. Habit is a legal norm manifested in repeated social use. Ulpian defined it as “tacitus consensus populi, longa consuetudine inveterata” (tacit consent of the people, inveterate by long usage). De Castro defined it as “a norm created and imposed by social usage.” These judgments also have a particular value, which goes beyond the normal value as a jurisprudential doctrine, in order to increase the possible direct effect of the judgment against those who were not parties to the proceedings, which has its aspect in the notarial action and the registry, since notaries and clerks have the inclusion in the documents and registration of the terms declared unfair by a decision entered in the register of general conditions.
I would like to ask the Commissioner whether he is aware that the Commission has not yet presented a proposal for a directive. Recruitment. The question of the possible conformity of custom with certain constitutional principles, such as legality or publicity of norms, was raised. In this context, Díez Picazo considers that neither the proclamation of the principle of legality implies the exclusion of a source other than the law, nor the obligation to publish the rules according to the model of the official publication of the written norm should be understood. For Gordillo Cañas, allowing customary law as a source of law could violate the principle of legal certainty enshrined in the Constitution. He agrees with this thesis, contrary to the recognition of the normative value of habit, Pau Pedrón. To be invoked before the civil courts, it must start from the 1st chamber of the Supreme Court, since, as stated in the judgment of the Supreme Court of 26. May 1994 states: “Even on the basis of the unity of the judiciary, the existence of different injunctions prevents the legal doctrine set forth in such different types from being invoked in the order of the civil court, which is governed by different principles”. Article 477(3) LEC focuses on civil law (since there is another rule of particular scope in the administrative field) allows an appeal in cassation because there is an interest in cassation if the judgment under appeal infringes the case-law of the Supreme Court or resolves points and questions on which there is conflicting case law of the district courts or applies rules, that have not been in force for more than five years. provided that, in the latter case, there is no jurisprudential doctrine of the Supreme Court with regard to previous rules of identical or similar content. Kind. 1, 3 CC stipulates that custom is applied in the absence of applicable law, unless it is contrary to morality or public order and is proven.
Autonomous civil rules often use the traditional principles of the corresponding specific civil law in order to avoid the application of complementary state rules that are contrary to them. Habit is therefore what individuals usually do and which is accepted by a community that aims to regulate certain behaviors within the community. It should not be confused with a global interpretation. The latter implies the understanding of cases in a legal provision, which are not expressed in its letter, but contained in its spirit. The analogy does not even apply widely to cases that cannot be resolved with a particular legal principle. Custom is a source, both locally and generally. The Labour Code does not refer to customary law as a source of law, and it should be borne in mind that the Labour Code provides for a number of inalienable minimum rights, as indicated in article 13 of the Substantive Labour Code: in this case, there is a law regulating the matter, But there is a custom that contradicts this law. In dealing with the sources of law, we have seen that the material source of law is social force or power with a creative normative capacity and a formal source, the external way of manifesting positive law. It has also been shown that the material source is the people, through the legislative power of the State, who manifest the law in the form of the law, or directly, who manifest it in the form of custom.
Case law has rejected the analogous application of provisions on the sanction or limitation of rights or legal capacity. For example, the analogous application of civil penalty rules, such as causes of disinheritance or revocation of gifts, will not be pursued. “Practices and usages applicable in substantive law shall be evidenced by documents, copies of final judicial decisions proving their existence and validity or by a series of witness statements.” Customary law is an independent source of law, so it is not necessary for law to recognize it in order to have normative power. Customs is a subsidiary source, as it applies only in the absence of a law (Art. 1, 3 CC) or if the law refers to it. Customary law, based on social practices, i.e. custom, has been present in many disciplines, such as commercial law, for several centuries. Many jurists recognize the importance of “custom” in society, particularly in its influence on legislative reforms related to land management, land tenure and various forms of access to property, to name but a few examples of people`s lives. The Peruvian ancestral family also has an institution that has attracted the attention of social scientists around the world, called “servinacuy” in the imperial Quechua language.
Thus, Peruvian society, with so many cultural differences, preserves “customary” institutions, many of which have not been taken into account by national legislation. In addition, it should be borne in mind that, to date, 47 languages are spoken in Peru, in municipalities that do not all have links with cities and study centres. It is the general situation that led to this study. [1] While, in historical law, the factual and customary character of the legal norm have been attributed to usage, modern doctrine indicates that the Civil Code usually uses the terms usage and custom as synonyms.