Custom: Sources of Law | Jurisprudence - CLAT PG PDF Download

Custom as a Source of Law

Definitions of Custom by Various Thinkers

• John Salmond: Custom is the embodiment of principles accepted by the national conscience as just and useful. He categorizes customs into General Custom, applicable throughout a state, and Local Custom, applicable in a specific locality.
• C.K. Allen: Custom is a legal and social phenomenon arising from societal forces of reason, necessity, suggestion, and imitation.
• J.L. Austin: Custom is a spontaneous rule of conduct observed by the governed, not imposed by a political superior. Austin viewed customs as inferior to law set by the political authority.
• Robert Keeton: Customary law consists of rules established by usage, regarded as legally binding, and adopted by courts as a source of law due to widespread adherence by society.

Origin of Customs

• In primitive societies, customs emerged as a means of organizing communities without external authority. People developed rules through spontaneous reactions and conscious decisions, recognizing prevalent traditions and practices.
• Over time, these customs were studied and formalized by jurists and legislators in Britain, becoming part of the Common Law.
• Sir Henry Maine's View: Customs originated after the concept of Themistes, divine judgments. Law began with rulers under divine inspiration, evolving into customs followed by people. Priests later studied and codified these customs.
• T. Holland's View: Customs developed through the conscious choice of the more convenient act, growing through imitation in early political societies where justice was administered based on popular notions of right and wrong.

Types of Customs

• Customs without Binding Obligation: These customs are prevalent in society but are not enforceable by law. Examples include societal norms about dress, addressing elders, or conducting marriages. Violating such customs may lead to social ostracism, but there are no legal sanctions. These customs are often referred to as 'Social Customs.'
• Customs with Binding Obligations: These customs are seen as obligations and commitments, governing aspects like marriage, child upbringing, and property transmission. They have legal character and strict penalties for violations. These can be further divided into:
• Legal Customs: These customs have certain and absolute sanctions. They operate regardless of any agreement contrary to the custom. For instance, not following marriage customs can render the marriage void.
• Conventional Customs: These customs derive their authority from acceptance and incorporation in agreements between parties. They are legally enforceable due to their inclusion in contracts. Conventional customs can be General or Local, depending on their geographical or contextual application.

Requisites of a Valid Custom

• Reasonability: A custom must align with morality, justice, health, and public policy. It should be relevant and useful in contemporary times.
• Conformity with Statute Law: A custom cannot contradict existing laws. If it violates any statute, it cannot be considered a valid custom.
• Certainty: The custom must be clear, unambiguous, and definite. It should not be open to interpretation or uncertainty.
• Consistency: A custom should be consistent with general legal principles such as justice, fairness, and liberty.
• Antiquity: The custom should have been followed for a long time, deeply ingrained in society. Recent practices cannot be considered customs until they are firmly established.
• Continuity: The practice of the custom should be uninterrupted and consistent over time.
• Peacefulness: A custom advocating violence cannot be considered valid.
• Public Policy: The custom must align with the public policy of the state where it operates.
• Generality or Universality: Custom is effective only when it is universal or nearly so. Lack of widespread acceptance renders a custom powerless.

Theories of Customs

• Historical Theory: Custom gains legitimacy from deep societal needs and knowledge of communities throughout history. Savigny refers to this as "Volksgeist".
• Analytical Theory: Proposed by Austin, this theory argues that customs lack legal binding force unless approved by the Sovereign. Customs reflect law and require modification by judges or rulers to be binding.