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An Analysis: Customs as a Source of Law

Custom as a source of law is considered to, be important for not only understanding the people, but also knowing about the progress of societies. It is one of the oldest sources of law, and requires a constant course of conduct, where its principles are recognized, appreciated and acknowledged not only by the power of the state authority but also by the common public opinion. However, even though it is one of the most important sources of law, however, its importance is fading over-time, because of the increasing development and complexities of the societies and the legal systems.

Due to the increasing responsibilities of the state and aspirations of the people has resulted in custom as a source of law being over taken by the legislation as a source of law. Custom can be well-defined as a practice of people, and is moreover an invention of the nature, which is associated with the spirit of respect and acceptance by the people. The custom as a source is entrenched with the fact that these habits are a part of the traditions, followed by their ancestors which is now accepted and practiced by the people.

Types of Customs:

  1. Conventional Customs:
    This kind of custom is known as usage. It is a well-known practice, where its authority is restrictive for its acceptance and integration in the society, through its acceptance by the people. The conventional custom is lawfully binding not because of any legal authority self-reliantly possessed by it, but because it is clearly or impliedly incorporated amongst the people.

    The conventional custom has three phases of development as follows:
    1. The first phase of its advancement, stipulates that it must be established in such a way, that it is recognized widely or its good deeds.
    2. The second phase, states that such a type of custom gets acknowledged by a judicial decision, which assumes it to be a precedent. After passage of these two stages, custom is lastly accepted as a constitutional law after its organization.
    3. The third phase of development relates to the practice of the custom from the time that is immemorial to the humans.
  2. Legal Customs:
    This kind of custom is "Operative Per Se", which means that these customs are self-evident, and are acknowledged and incorporated by themselves, independent of the public opinion.

Further, the legal customs are categorized into two types:

  1. Local Customs:
    Such types of customs are usually prevailed in some defined locality. For a local custom to be valid in nature must be Certain, Continuous in its practice, Reasonable and should not be in conflict with any existing common law or custom. Where the practice of such customs, must be done voluntarily by the people and should not be imposed forcefully on the people by the state authority.
  2. General Customs:
    Such customs prevail throughout the country. It is usually practiced and respected by every person living in the country and is widespread throughout the land. For these customs to be valid in nature, these customs should not only be Reasonable, but should be followed, acknowledged and accepted as binding principles, moreover, its practice must be Immemorial to the beings, must be in conformity with the common laws or rulings of the country.

Essentials of a Valid Custom:

  1. Reasonableness:
    The customs must be reasonable, which stipulates that the people must know that the authorities controlling these customs are not absolute in nature, even though sometimes these may be authoritative in but has always been in conformity to the norms of Justice, equality and publicly helpful. A custom will not be treated as valid if it is objectionable of in conflict to any right or laws and further, it is likely to be more mischief, rather than doing any good.
  2. Consistency:
    The customs should be practiced in conforming with the constitutional laws, in other words, it should not be in conflict or contrary to any law of the land. For any custom to be a binding source of law, it should be the court of law, which is being satisfied that such a practice will be helpful for the people in future.
  3. Compulsory Observance:
    A custom should be legally known, and should be seen as a right for it to be legal. It means that the custom should be followed by all people, without being imposed forcefully by the authority. The rule of conduct of the custom should be compulsory or mandatory, where if its practice is left to the choices of the people then it will not be preserved as a customary law.
  4. Continuity in practice:
    The acknowledgement and exercise of the custom should be uninterrupted and constant, where its existence should be from the time that is long-established or beyond the memory of the human thinking.
  5. Certainty:
    When any path of conduct is experienced for a long time, such an experience or practice of custom gives rise to a rule of law, this law is known as a custom. In order to verify the existence of a custom, it must be revealed that how it is being exercised consistently, continuously, uninterrupted, being certain, and from an immemorial time frame, where all of this, should be proved beyond a reasonable doubt.

It can be seen that, with passage of time, the societies, Judicial systems and processes are rapidly developing and so, the importance of custom as a source of law is retreating or declining. Despite this weakening role of customs in contemporary administrations, it has been the sole source of law in previous eras, having not only the support of authorities but also of the public opinion.

Even though its position is taken over by the Judicial precedents, but it still has a central place in hearts of sources of laws, as most of the contemporary factual contents of this emerging systems of laws, were established from these ancient customs, which were mostly unwritten but still accepted by public at large.

Written By: Manav Puri

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