Introduction
Customs are basically practices which have been there in a
particular community from the time immemorial. There is no
binding on the courts that it should recognize all customs. The
best example of custom as a source of law is that Indian law
considers satpad as an essential part of Hindu marriage and the
same would not be considered as legit if there is no satpad.
Custom in law is the established pattern of behavior that can be
objectively verified within a particular social setting. A claim can
be carried out in defense of "what has always been done and
accepted by law." Related is the idea of prescription; a right
enjoyed through long custom rather than positive law.1
Sources of law means the origin from which rules of human
conduct come into existence and derive legal force or binding
characters. It also refers to the sovereign or the state from which
the law derives its force or validity.
Several factors of law have contributed to the development of law.
These factors are regarded as the sources of law.2
The origin of custom is a question that has been little studied until
comparatively recent times. Prior to the birth of modern
anthropology, the beginning of the community were sought by
abstract speculation and not by field investigation of primitive
communities3
1
[Link]
2
[Link]/cusoms+source/law visited on 6-4-14 at 10:00 am
3
The study is that of [Link], law in making (7 th edition ). Chs,I and ii.
Merits
The evolution of law began before history was recorded with laws
built up one by one as disputes were settled. In fact, the
development of rules in society predates both courts and the
written law. For thousands of years, customary and private legal
systems alone ordered human activities. The power of customary
law is found in the fact that it is reflected in the conduct of people
toward one another. The further a society moves away from
customary and private law systems, the greater the need for laws
coercively enforced by the state. The doctrine of customs as a
source of law includes the following points:-
The costs of customary law creation are relatively minimal. Most
rules of customary law are derived from the observation of
widespread practice followed by individuals in society. In this
context, customary rules are a costless byproduct of the
economic and social interactions of individuals in society. Such
practices are not being carried out with the objective of giving
birth to binding rules of customary law and the legal recognition of
such practices as binding customs adds no cost to the activities
involved. The cost for courts to identify a rule of customary law
may, however, be considerable.
Customs are intangible sources of law and their content does not
enjoy any objective articulation in written law. The identification of
custom thus requires knowledge of past practice and investigation
of the beliefs shared by those who engaged in the practice: a
process that can be costly and difficult to carry out.4
According to scholars doctrine of customs helps in preservation of
the culture of a community. This doctrine is one of the most
important source for continuing the traditional habits which have
been prevalent in the society from time immemorial. Thus helping
the society to continue its discipline
Customary law is recognized, not because it is backed by the
power of some strong individual or institution, but because each
individual recognizes the benefits of behaving in accordance with
other individuals' expectations, given that others also behave as
one expects. Alternatively, if a minority coercively imposes law
from above, then that law will require much more force to maintain
social order than is required when law develops from the bottom
through mutual recognition and acceptance.5
4
[Link] visited on 5-4 -14 at 10:30 am
5
[Link] visited on 5-4-14 at 11:00 am