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:
- 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:
- 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.
- 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
- The third phase of development relates to the practice of the custom
from the time that is immemorial to the humans.
- 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:
- 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.
- 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:
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
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.
- 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
- 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.
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
Written By: Manav Puri