Redefining Customary Law: Insights from Common Law System

In Malaysia, the custom is recognised as a source of law, whether in written or unwritten laws. Regarding unwritten law, Article 160 (2) of the Federal Constitution of Malaysia provides that customs are enforceable as long as they possess the force of law. However, there remains uncertainty regarding the extent to which the Federal Constitution recognises specific customs as law. Consequently, it is the responsibility of Malaysian courts to fill these gaps and determine whether a particular custom meets the requisite threshold to be acknowledged as customary law. To date, Malaysian courts have not established definitive criteria for determining this. Thus, this article seeks to address that gap by critically examining the criteria developed through judicial experience within the broader common law system for legitimising customs as valid sources of law and by comparing these criteria with the Malaysian legal framework. Ultimately, this study aims to contribute to a more transparent and coherent legal framework that better integrates customary law into Malaysian jurisprudence.