Custom as a Source of Law
Abstract The following article tries to establish the fact that the Customs are the most important source of law. It defines customs and gives information about its types and what are the requisite of a valid custom, how are they recognized and why are they recognized? In ancient days the customary laws were the only laws as they were practiced by the people. With the passage of time and modernization of society the customary laws are seen as orthodox laws and are fast receding to the statutory laws, but still the laws that are passed by the parliament has its root in the customary laws |Page Electronic copy available at: http://ssrn. com/abstract=1958646 Custom occupies an important role in regulation of human conduct in almost all the societies. In fact it is one of the oldest sources of law making, though only a few people are likely to concur with the classical Greek poet Pindar’s maxim, “Custom is the king of all”. A custom may be defined as a continuing course of conduct which by the acquiescence of express approval of the community observing it, has come to be regarded as fixing the norm of conduct for members of society 1.
At its inception the English common law derived all its rules from a single source. Sir Carleten Kemp Allen notes 2 ‘ Blackstones “ general customs” and “customs of the realm” are those fundamental principles in legal relationship which for the most part are not to be found in any express formulation, but are assumed to be inherent in our social arrangements. These are, in short, the common law itself ’. Salmond is of the opinion that custom embodies those principles which are acknowledged and approved, not by the power of the state but by the public opinion of the society at large.
Thus he states ‘custom is the embodiment of those principles which have commanded themselves to the national conscience as principles of “justice” and “public utility’ 3. Jhon Austin was of the view that no folkway regardless of the fact how respected it is or how much is it followed can influence the law. He was of the view that only those conventions and folkways recognized by the sovereign through some judicial act or legislative disposition might be certified as a customary source of law. Kinds of Custom: 1. Conventional custom
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It is an established practice whose authority is conditional based on its acceptance and incorporation between the parties bound by it. When two parties enter into a contract generally all the terms of the contract are not set expressly and a large part of it is implied. The intention of the parties entering into an agreement can be gathered by the customary law prevalent at that time The convention custom has three stages of development. In the first stage it should have attained the status of usage. In the second stage it gets recognition through some judicial decision, and presumes the form of a precedent.
After this it is finally accepted as a statutory law. 1 Dias & Hughes: Jurisprudence,(1957) p. 34 2 Allen C. K. : Law in the making 3 Fitzgerald P. J. : Salmond on jurisprudence 2|Page Electronic copy available at: http://ssrn. com/abstract=1958646 The first section of the Indian contract act, 1872 recognizes the customs that are prevalent in the trade Legal Custom These are those which are operative per se as binding rules of law independent of any agreement between the parties. These, are of two types: 3 • Local Custom
Halsbury’s defined local custom as “ a particular rule that has existed actually or presumptively from time immemorial and has obtained the force of law in a particular locality although contrary to or not consistent with the common law of the realm. ” 4 So it can be said that a local custom prevails in a small locality. Bigamy in India is allowed in some tribal parts on account of the local custom prevalent at those places. • General Custom A general custom prevails throughout the country and is the main source of the common law of the country.
The custom of prohibiting the remarriage of widow in most of the communities of India, before its abolition was a general custom in the country. A general custom is prevalent is usually practiced by all the people living in the country, and is practiced throughout the land. There were many customs but it is not necessary that all are the customs are accepted. For the customs to be accepted as a valid customs it should have some requisite characteristics: 1. Reasonableness A custom must be reasonable.
It must be understood that the authority of any custom is never absolute, but it is authoritative provided it confers to the norms of justice and public utility. A custom shall not be valid if it is repugnant to right and reason and is like to do more mischief than good if enforced. The true rule seems to be not that a custom to be admitted if reasonable but that it will be admitted unless it is unreasonable. The custom of recognizing the channel of the river or the stream as the boundary between two villages irrespective of the change in the path cannot be said as unreasonable and hence it was held as a valid custom 5. Halsbury: Laws of England, Vol. X. p. 2 5 Ram Dhan Lal v. Radhey Shyam, 1951 SCR 370 3|Page 2. Consistency A custom to be valid must be in conformity with statutory law. In other words it must not be against any act of Parliament. A custom should necessarily yield where it is against any law, but in many cases there can be some exception to the law or some modifications can be made to it due to any custom. 3. Compulsory observance A custom to be legally recognized as a valid custom must be observed as a right.
It means the custom should be followed by all concerned without the use of force. It must be regarded not only an optional rule but as an obligatory rule or binding rule of conduct. If a custom is left to the choice of the individuals, then it is not a costmary law. If the observance of a custom is suspended for certain time than it is assumed that the custom was never in existence 6. 4. Continuity and immemorial Antiquity A custom to be valid should have been in existence from time immemorial.
To quote Blackstone “A custom in order to be legal and binding, must have been used so long that the memory of man runneth not to the contrary, if anyone can show the beginning of it, it is no good custom” 7 English law has made an arbitrary limit to the legal memory. It has been fixed as 1189 A. D. - the year of accession of King Richard 1 to the throne which means, if any custom has its roots back to 1189 AD or backwards would be regarded as a valid custom. This time limit was applied in the case of Simpsons v. Wells 8. However in India the limit of 1189 A. D. is not valid 9.
In India no definite year has been laid down to determine the antiquity of a custom. It need not to be beyond human memory 10. 5. Certainty Not only a custom should be practiced from time immemorial but, it should also be observed continuously and uninterruptedly with certainty. A custom cannot said to be valid from time immemorial unless its certainty and continuity is proved beyond doubt. Theories regarding transformation of custom into law Customary law has not only been established by legislatures or professionally trained judges, but it has come into existence because of popular acceptance and practice.
There are two popular theories in this regard (1) Historical theory and, (2) Analytical theory 6. Hamperton v. Hono, (1876) 24 WR 603 7. Blackstone: Commentaries, p. 76 8. (1872) 7 QB 214 9. Gokul Chandra v. Praveen Kumari, AIR 1952 SC 926 10. Mst. Subbhani v. Nawab, ILR 1947 PC 21 4|Page 1. Historical Theory The main components of the historical theory school, namely, Savigny, Blackstone and Henry Maine have suggested that law has its existence because of the common consciousness of the people and the customary observance is not the cause of law but the evidence of its existence.
Savigny observed, ‘customary laws completely modify or repeal a statute; it may create a new law and substitute it for statutory rule which it has abolished’. Maine regarded custom as ‘formal source of law’. James Carter also supports historical view and is of the opinion that ‘What has governed the conduct of men from the beginning of time will continue to govern to the end of time. Human nature is not likely to undergo radical change and law will forever continue to be custom’11. Criticism Dr.
Allen points out that all the customs cannot be contributed to the common consciousness of the people. For instance, a ruling class quite often imposes custom on the governed. It does so for its own interests rather than the interest of the people. The customs in India such as untouchability cannot be contributed to any kind of common consciousness. Therefore any custom cannot be a source of law it should not be again public sentiments. 2. Analytical Theory The main supporter of analytical theory is John Austin who regarded custom as a historical material source.
He points out that custom derives its binding force not from its own nature but by state legislation. It means custom becomes a law when it is adopted by an act of parliament or its validity has been established by any judicial decision. He further states that custom only has persuasive value. Customary practices have to be recognized by court before it can become law. Being of persuasive nature it is recognized as historical material source of law. Austin thus concludes that “Customary law is nothing but judicial law founded upon anterior system. 2” Criticism Dr. Allen has criticized Austinian theory of customary law and pointed out that the fallacy of the Austinian doctrine is in supporting that custom is not law until it has been so pronounced by a court. He observed that the truth is exactly the reverse of it. According to him, ‘custom is firstly and essentially a law. Custom is enforced by courts because it is already a law, it does not become a law only on enforcement of court. 13’ 11 Carter James: Law, its Origin, Growth & Function, p. 20 12 Austin: Province of Jurisprudence, (1945) p. 165 13 Allen C. K. : Law in the making, pp 84 5|Page CONCLUSION Of all the various sources of law The Customary Laws are definitely the most significant source of law. In the ancient days in the absence of any legislative laws the customary laws were only the prevalent law. These are very important as these are already followed by the people and it is the very reason why many of the customary laws are even recognized today. These customary laws had the approval of the public opinion.
There is no doubt that with the development of the judicial process and with the modernization of the society, the importance of custom is receding. When states came into existence they immediately gave recognition to the customs prevailing at that time and thus they were recognized as valid laws. But with time customary laws have receded to the statutory laws. The laws relating to sale of goods, inheritance of property, succession, property, contract, sale of goods etc. have all evolved from the customary laws. The codified Hindu laws are nothing but the codification of the prevalent customary laws with some exceptions.
It would be wrong on the part of any one to say that the customary laws need recognition from the court. The customary laws are always recognized since they are always in practice. Most of the customary laws that were just in nature and were good for the society have been recognized by the parliament or the court. These laws can be sometimes invalidated if it appears that these are against the public policy and justice. One of the most important reasons why the customs are important source of law is that it that it is highly practiced in the society.
So, if any new law is made that is contrary to the practiced customs and traditions, will not be accepted by the society. This may lead to chaos and anarchy in the society. So any law that is passed takes into consideration the customs and traditions prevalent in the society at that time. The state by its legislation only validates the existing customs. It may in some exceptional cases also modify or nullify some of the customs if it is for the welfare of most of the people of the society. So in this way the state makes laws mainly based on the customs that are good for the society 6|Page
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