Sources Of Law- Part 2


A custom is a rule which in a particular family or in a particular district or in a particular section, class or tribe, has from long usage obtained the force of law. The dictionary of English law defines custom as a law not written, which being established by long use and consent of our ancestors has been and daily is put into practice. Custom as a source of law got recognition since the emergence of Savigny on the horizon of jurisprudence.

It is an exemption to the ordinary law of the land, and every custom is limited in its application. A study of ancient shows that law-making was not the business of the kings. Law of the country was to be found in the customs of the people which developed spontaneously according to circumstances. It was felt that a particular way of doing things was more convenient than others when the same things were done again and again in a particular way, it is of custom. According to Salmond custom is the legal source of law.

According to Salmond:

Custom is the embodiment of those principles which have commended themselves to the national and national conscience as the principles of justice and public utility.

According to Austin:

Custom is a rule of conduct which the governed observed spontaneously and not in pursuance of law set by political superior.

According to Holland:

Custom is a generally observed course of conduct.

Kinds of Custom: Custom are of two kinds:

I.          Legal Custom

II.        Conventional Custom.

I. Legal Custom: According to Salmond, a legal custom is one whose legal authority is absolute, one which in itself and possesses the force of law:

Kinds of legal Custom:

a.         General Custom.

b.         Local Custom.

(a) General Custom: General customs are those which have force of law throughout the territory. The common law of England is based upon general customs of the realm.

(b) Local Custom: the local customs are those which operate have the force of law in a particular locality. The authority of a local custom is higher than that of general custom.

II. Conventional Custom: A Conventional custom is one whose authority is conditional on its acceptance in the agreement between the parties to be bound by it. There is a process by which conventional usage comes to have the force of law.

Conditions for a valid custom:

Certain conditions must be satisfied before a court is entitled to incorporate the usages into contracts.

i.          The usage must be so well-established as to be notorious.

ii.         The usage must be reasonable.

iii.        Usage cannot alter general law of land.

iv.        A usage should not nullify or very the express term of the contract.

Requisites of Valid Custom: Following are the requisites for a valid custom, treated as law

I.          Immemorial: A Custom to be valid must be proved to be immemorial. According to Blackstone: A custom in order that in may be legal and binding, must have been used so long that the memory of man not to the contrary, so that if anyone can show the beginning of it, it is good custom.

II.        Reasonable: Another essential of a valid custom is that it must be reasonable. The unreasonableness of custom must be so great that its enforcement results in greater harm than if there were no custom at all. According to Prof. Allen: The unreasonableness of custom must be proved and not its reasonableness.

III.       Continuous: A custom must not continuously observed and if it has not been continuously and uninterruptedly observed, the presumption is that it existed at all.

IV.       Peaceable enjoyment: The enjoyment of a custom must be a peaceable one.

V.        Certainty: A valid custom must be certain and definite, if there is any ambiguities in it or it keeps change, it is not a valid custom.

VI.       Compulsory Observance: A custom is valid if its observance is compulsory. An optical observance is ineffective. According to Blackstone: A custom that all the inhabitants shall be rated towards the maintenance of a bridge, will be good, but a custom that every man is to contribute thereto at his own pleasure is idle and indeed no custom at all.

VII.      General Or Universal: The custom must be general or universal. In the absence of unanimity of opinion, custom becomes powerless or rather does not exist. A valid custom must not be opposed to public policy or the principles of morality.

IX. Not Opposed With Statute Law:

A.        valid custom must be conflict with the statute law of the country. According to Coke: No custom or prescription can take away the force of an Act of parliament.

B.        According to Blackstone customs must be consistent with each other, one custom cannot be set up in opposition to another.

Theories of customs

There are two theories regarding the question as to when a question is transformed into law:

i.          Historical theory

ii.         Analytical theory

(i) Historical theory: According to the historical theory, the growth of law does not depend upon the arbitrary will of any individual. It does not depend upon any accident. It grows as a result of the intelligence of the people. Custom is derived from the common consciousness of the people. According to Puchta: Custom is not only self-sufficient and independent of state imprimatur but is a condition to all sound legislation.

Criticism: According to Paton: The growth of most of the customs is not the result of any conscious thought but of tentative practice. According to Allen: All customs cannot be attributed to the common consciousness of the people. In many cases, customs have arisen on account of the convenience of the ruling class.

(ii) Analytical theory: Austin, Holland, and Gray are the advocates of analytical theory. According to Austin: Customs is a source of law and not law itself. Customs are not positive laws until their existence is recognized by the decisions of the Courts. According to Holland: Customs are not laws when they arise but they are largely adopted into laws by state recognition.

Criticism: By Allen: Custom grows by conduct and it is therefore a mistake to measure its validity solely by the elements of express sanction, accorded by Courts of law of by other determinate authority.

Reasons for Custom are given the force of law: Following are the reasons, why custom is given the force of law:

i.          Principles of National Conscience: Custom is the embodiment of those principles which have commended themselves to the national conscience as principles of truth, justice and public policy. According to Salmond: Custom is to society what laws are to the state. Each is the expression and realization of the measure of man, insight and ability, of the principles of right and justice.

ii.         Expectation of continuance: Another reason for the binding force of custom is the expectation of its continuance is the future. Justice demands that this expectation should be fulfilled and not frustrated.

iii.        Observance by a large number of people: Sometimes a custom is observed by a large number of persons in society and in course of time the same come to have the force of law.

iv.        Interests of Society: Custom rests on the popular conviction that it is in the interests of society. This conviction is so strong that it does not found desirable to go against it.

v.         Useful to the law giver: According to Paton: Custom is useful to the law-giver and codifier is two ways. It provides that material out of which the law can be fashioned. There is a tendency to adopt the maxim whatever has been authority in the past is a safe guide for the future.

Aishwarya Says:

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