CUSTOM
Custom is the oldest and most important
source of law.
Custom means 'uniformity of conduct of
people under like circumstances.'
Holland - Custom is generally observed
course of conduct.
Salmond - Custom embodies those
principles as are acknowledged and
approved, not by the power of the State
but by public opinion of the society at
large.
Halsbury - Custom is some kind of special
rule which is in actual existence or possibly
followed from times immemorial and
which have acquired the force of law in
specified territory, although it may be
contrary or inconsistent with the general
law of the land.
Thus, custom can be said to be a tradition
passing from one generation to another
that originally governed human conduct.
ESSENTIALS OF A VALID CUSTOM
To acquire the force of law or become a
source of law, custom must satisfy the
following conditions:-
1) Must be Ancient - A custom
cannot be created in a day. It must
be of long standing. Under English
law, existence of a particular
practice for a substantial period i.e.
since 1189 is presumed to be a
custom unless rebutted. However,
in India long usage or observance is
enough.
2) Must be continuous, certain
and precise - Custom must have
been in use continuously and it
should not be vague or indefinite.
3) Reasonableness - A custom is
presumed to be reasonable if no
good legal reason can be assigned
against it.
4) Conformity with statutory
law - No custom however old or
reasonable can stand if it conflicts
with a statute or legislation.
5) Custom must have obligatory
force - The custom must have been
enjoyed "as of right". It must have
been followed openly, without the
necessity for recourse to force.
6) Consistent with morality and
public policy - Custom must not be
inconsistent with morality, public
policy and other customs in some
area.
KINDS OF CUSTOMS
Custom without
sanction
Conventional
Custom
Custom
Custom having
Local Custom
sanction
Legal Custom
General Custom
Conventional Custom - A
conventional custom is one which is not
automatically binding but becomes
binding only when it is accepted and
incorporated in to the terms of a
contract. A conventional custom is also
called usage. Its authority is
conditional on its acceptance and
incorporation in the agreement
between the parties bound by it.
Legal Custom - Legal customs are
those which are operative per se as
binding rules of law independent of any
agreement between the parties.
Local Custom - Geographical local
(limited to a particular locality) or personal
local (limited to a sect or family)
General Custom - It prevails throughout
the realm and binds all the persons within
a community. It is treated to be part of the
law of the land. It should not be in conflict
with the statutory law.
Thus, a legal custom is binding whether
one accepts it or not but a conventional
custom or usage is binding only when it is
accepted by the parties to a contract.
THEORIES REGARDING
TRANSFORMATION OF CUSTOM IN
LAW
Broadly, there are two views on point
whether custom is law or not.
ANALYTICAL SCHOOL - Jurists such as
Austin opposed custom as a law because it
did not originate from the will of the
sovereign. According to them, Custom
derives it binding force not from its own
nature but by recognition through statute
law or by a precedent.
JOHN AUSTIN said that custom is not law
in itself but it is a source of law. Customary
law is nothing but judiciary law founded
upon anterior (earlier) custom.
HOLLAND also called custom as law when
it is recognized by a court through its
decision.
SALMOND said that a custom becomes a
law when it satisfies the conditions
prescribed by the law which are necessary
for its legal validity.
ALLEN criticized Austinian view of
customary law on the ground that the
customs are recognized not because the
court or legislature gives them sanctity of
law but because they are treated as law by
the community as a whole and people feel
themselves bound them.
HISTORICAL SCHOOL - Jurists like
Savigny consider custom as the main
source of law. Law has its existence
because of the common consciousness of
the people and customary observance is
not the cause of law but the evidence of its
existence.
SAVIGNY - According to him the real
source of law is the will of the people and
not the will of the sovereign. The will of the
people has always been reflected in the
custom and traditions of the society. A
custom carries its justification in itself.
Customs is per se law and it gives
authority to precedent and statute law.
MAINE regards custom as a formal source
of law.