Difference between custom and law

While ordinarily a law is written, consciously made, and enacted by Congress, a custom is unwritten, spontaneous, and comes from society. Moreover, a law is superior to a custom as a source of right. While the courts take cognizance of local laws, there can be no judicial notice of customs, even if local. (Paras, 2008 commenting on Article 12 of the New Civil Code)

The Philippines is a civil law country. Therefore, laws have to be in written form. There is no express requirement under the 1987 Constitution that laws be written but this can be inferred from the reading requirements under Article VI thereof. In fact, Section 26 says:

"No bill passed by either House shall become a law unless it has passed three readings on separate days, and printed copies thereof in its final form have been distributed to its Members three days before its passage, except when the President certifies to the necessity of its immediate enactment to meet a public calamity or emergency. Upon the last reading of a bill, no amendment thereto shall be allowed, and the vote thereon shall be taken immediately thereafter, and the yeas and nays entered in the Journal."

The enrolled bill doctrine is another proof that laws have to be in written form. According to the Supreme Court of the Philippines, "The signing by the Speaker of the House of Representatives, and, by the President of the Senate, in open session, of an enrolled bill, is an official attestation by the two houses of such bill as one that has passed Congress. It is a declaration by the two houses, through their presiding officers, to the President, that a bill, thus attested, has received, in due form, the sanction of the legislative branch of the government, and that it is delivered to him in obedience to the constitutional requirement that all bills which pass Congress shall be presented to him. And when a bill, thus attested, receives his approval, and is deposited in the public archives, its authentication as a bill that has passed Congress should be deemed complete and unimpeachable." (G.R. No. L-23475)

READ: 4 EFFECTS OF THE PRESIDENT SIGNING A BILL.

Despite the fact that this is a civil law society, the Civil Code of the Philippines still recognizes the existence of customs and their probative value in court. This is why, under Articles 11 and 12 thereof, it is said: "Customs which are contrary to law, public order or public policy shall not be countenanced. A custom must be proved as a fact, according to the rules of evidence." ( Articles 11 and 12 of the New Civil Code of the Philippines)

READ: CUSTOMS UNDER CIVIL LAW (ARTICLES 11, 12).

Customs being an exception to the general rule, there is a need to allege and prove. There is no judicial notice of the existence of customs.

Judicial notice is the automatic recognition by a court of a set of facts. For example, under the Rules of Court, the courts shall take mandatory judicial notice of the laws in the Philippines and the official acts of the President. In other words, there is no need to prove the court that a certain law exists because it will automatically recognize that there is such a law. On the other hand, a custom does not have the same status of a law in this respect.

READ: WHAT'S JUDICIAL NOTICE? UNIVERSAL NOTORIETY RULE.

READ: MANDATORY JUDICIAL NOTICE.

Judicial notice is the cognizance of certain facts that judges may properly take and act on without proof because these facts are already known to them. In some cases, even if such facts are not actually known to them, courts ought to know them by virtue of their official functions. Put differently, it is the assumption by a court of a fact without need of further traditional evidentiary support. The principle is based on convenience and expediency in securing and introducing evidence on matters which are not ordinarily capable of dispute and are not bona fide disputed.

Going back to customs, as a general rule, they cannot be the source of rights or obligations. However, if they become relevant in determining or deciding a case, any person who alleges the existence of a custom must satisfy the court by showing competent and relevant proof. However, even if there is proof, if such custom is contrary to law, public order or public policy, the same cannot be countenanced.

READ: CUSTOMS UNDER CIVIL LAW (ARTICLES 11, 12).