Custom as source of law

customs are regarded as one of oldest source of law as there was no codification of laws in those times, most of law are unwritten and these customs played in vital role in shaping the law through human conduct in the society. Thus, it can be stated that a practice which is conventionally followed by a group of people or a specific society can be termed as tradition or custom.

”custom as uniformity of habits or conduct of people under like circumstances” – Dr.Allen

“custom is generally observed course of conduct” – T.E. Holland

“custom is rule of conduct which the governed observe spontaneously and by law settled by political superior” – Austin

Kinds of custom

customs are boardly classified into conventional and legal custom, and legal custom are further divided into i) general custom and ii) local custom

Conventional custom

conventional custom can be defined as usage or a well established practice, conventional custom has binding authority only on parties agreed upon either expressly or implied, but not in eyes of law or legislature. when two parties enter into contract or agreement, the parties are bound by the terms of contract but not by the law, a conventional custom must be bind to morality and public policy.

Legal custom

Legal customs are those which have binding authority on all irrespect of contract or agreements as said under conventional custom, these legal customs are considered as operative per se. Legal customs are 2 kinds i) general custom and ii) local custom

i) General custom 

customs prevails throughout the nation and must be followed by the citizens. Keeton opined that general custom must not be reasonable but also must be followed and accepted as to become source of law and must not conflict with statutory laws.

For example, elder male member of the family inherits the property of deceased kartha is well known custom in india before the enactment of hindu succession act.

ii) Local custom

this type of custom is practised only in particular localities unlike general custom these customs prevails only in certain locality or region. local custom must be practiced by the people voluntarily not merely by the fear of the force of the state and such customs must not contrary to existing laws. if custom of particular territory assert their customary right over others such are not regarded as local custom.

Requisites of valid custom

A valid custom must satisfy certain conditions which are laid down by the law

1. Reasonableness :

A custom must be reasonable meaning it must not oppose norms of justice and public utility, a custom can be made invalid if it conflicts to right and reason for enforcing such custom must not cause harm to the public rather than doing good. The fundamental aspect of custom to be reasonable is that it must be followed since its inception.

In the case tripti desai, bhumata brigade leader filed a petition on bombay high court regarding the entry of woman into inner sanctum of hindu shani temple in maharashtra, an woman organisation was lead by tripti desai regarding the tradition and custom of entry of woman into inner sanctum of shani temple. Finally bombay high court ruled in favour of tripti desai breaking 400 years old tradition and custom. To be noted that this tradition and custom was unreasonable on the ground that it is opposing the gender equality i.e.., right to equality.

2. Consistency :

A custom must be consistent with the statute law or act by the parliament, customs must bloom out of the statutory laws but must not be inconsistent with such statute laws. if custom practiced and followed, it may held invalid if finds inconsistent with existing laws.

3. Observance :

a valid custom must be compulsorily observed but must not be exemption to anyone, there must not be any gap in observance of custom since its inception. In Hamperton vs. Hono, a custom is not observed for a long time and hence can’t be regarded as valid custom.

4. Antiquity :

custom must have been practiced from the time immemorial, the english law had setup the time frame for time immemorial i.e.., the custom must exist since 1189 A.D (rule of king richard I) and shall be held legally valid. however in india this was not recognised, only condition is that must be in existence from ancient time (no specific time frame mentioned).

5. Certainty :

to prove the certainty of custom, custom must be exist and observed continuously. uncertain, ambiguous and transitory cannot give rise to any customary right.

Custom Vs. Prescription

custom is tradition or practiced by a group of people whereas prescription is custom confined to particular person and his ancestors. simply a custom is carried in particular place and prescription on the other hand followed by an individual person and hence defined as personal custom.

1. custom can be regarded as source of law whereas prescription is defined as source of right.

2. custom is in existence from time immemorial, prescription exists statutory prescribed time

3. custom confines to particular place, locality or territory, but whereas prescription confines to particular person or his ancestors.

4. valid custom must not oppose to norms of justice and public policy, but prescription sometimes may conflicts with public policy.

Theories of custom into law

jurists and writers expressed their views on transformation of custom into law and there are 2 theories in this regard – i) Historical Theory and ii) Analytical Theory

i) Historical Theory :

exponents of historical school like savigny, henry maine, blackstone and others support that custom is consciousness of the people, savigny opined that custom laws can modify or even revoke the statutory laws and whereas sir henry maine stated that custom are rising out of judgements

the critics of this theory states that customs gives significance to precedent and a custom cannot repeal statue law but a statute law can repeal a custom.

ii) Analytical Theory :

exponents of analytical theory was john austin, according to him custom laws has binding authority not by its existence but on state recognition and he opined that custom are historical source. Thus it can be stated that custom laws become legally valid upon state recognition or by act of parliament.

Holland also holds the same view as austin but holland opined that custom to be binding authority must fulfil the requirements like reasonableness, antiquity..etc.,