Custom its essentials & its importance as a source of Law

Custom its essentials & its importance as a source of Law

1. Introduction:

Custom is a conduct followed by persons in the society.  Custom is considered as the most ancient and most important source of law.  Source means origin of a thing. It is also considered that law basically comes out from customs. In the past customs were prevailing for the control over the society. 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.  Austin was the first person who discarded the value of the custom.  But the historical school again gave the importance to custom.  

 2. Meaning of Custom:

According to Holland: “Custom is .a generally observed course of conduct.”

3.Custom as a source of Law

Various legal systems recognized custom as a source of law. The followings are the systems which recognized custom as a source of law.

1. Mohammadan Law:- The traditions which were not opposed by the Prophet Mohammad (SAWW) were recognized as law. In this way we can say that customs in Mohammedan law also played an important role.

2. Roman Law :- Roman Law is known to be the oldest one in the world.  This law is mainly based upon customs of the society. Those customs which were reasonable continued them as law by the Roman jurists.

3.Hindu Law :- Hindu law is also to be considered as the most ancient law.  Its sources are Vedas, Sutras and Smiriies  and these were mainly based on customs.  All personal laws of Hindu are based upon custom.

4. English Law :- Which is known as common law and in the shape of un-written and based upon customs and conventions.  Customs which were reasonable and not against the public policies were recognized as law under English Law. 

3. Kinds of Custom:

Kinds of Custom

(a)Legal Custom:

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

       (i)General Custom

(i)               Local Custom

   (i)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.

(ii)Local Custom:

The local custom 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.

(b)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.

   4. Essentials of a valid customs

(i)     Antiquity :- It means oldness of the customs. The customs must be ancient. There is no limit of time for the antiquity of custom.

(ii)   Reasonable :- The customs must be reasonable. It should not be un-reasonable and against the public feelings.

(iii) Followed :- Customs must be followed by the society. There should be no contradiction in observing customs.

(iv)  Continuity :-  Customs must be continuing from the time it was recognized as law. There should not be any break or interruption.  If there is break for sometimes it does not mean that the right thing has been lost.

(v)   Certainty :- Customs must be certain in its nature.

(vi)  Consistency :- There should not any confliction for its reorganization as a law.

(vii)     Peaceful enjoyment :- Custom must be enjoyed peacefully for a long time without an disturbances. 

(viii)   Immorality:- Customs should  not be against the morality.

(ix)  Public Policy:- It must not be against the public policies or against the will of people.

(x)   Not against the State of Law:-  Customs should not over-ride the legislation . It should not be against the law of the land.\

5. Conditions to treat usage as 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 and land.

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

Example:

      The law of negotiable instruments before it was embodied in the statute was a part of the Law Merchant, which is conventional custom.

6. When does a custom become law?

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

Analytical view:-  Austin and Gray are the supporters of analytical school. They say that a custom becomes law when it is recognized by the sovereign in the sense of positive law only.

It means that if a custom has been accepted or adopted or recognized by the sovereign then it will become a law otherwise there will be no value of the custom in judicial system of the society.

Historical school:- Sovereign as the supporter of Historical school says that custom is a main source or base of law. Custom is superior to Judge made law or legislation. The legislation while making a law recognizes the customs of the society.  The courts also while giving the decisions recognized the customs prevailing in the society.

7.Difference between Custom & Precedents

               Following are some differences between the two:

(i)     Custom is primary source of law. Precedents are the secondary source of law.

(ii)   Custom is given by people in general. Precedents are given by courts.

(iii) Custom is conduct adopted by people of society. Precedents is itself complete certain, reasonable given by a competent court of the country.

(iv)  Custom is based upon the reasoning of common people of the society. Precedents are based upon the reasoning of a individual Judge or very few judges.

(v)   Customs have more value then precedents and cannot be ignored.    It can be ignored if it gives un-justice.

8. Conclusion

               Custom occupies an important place as a source of law even to these days because most of the material contents of developed system of law have been drawn from ancient customs.  Custom is one of most fruitful sources of law. According to Analytical school a custom when recognized by State or sovereign becomes law.  According to Historical school when state or courts make law they give importance to the customs. So both of the view are combining to each other and are correct for a custom as source of law.