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Analysis Of Customs As A Source Of Law: India

The sanction of a legal custom is certain and absolute. Legal custom is operative per se regardless of any agreement of participant parties contrary to the custom. They are unconditional and absolute in their function and take up the form of law. They are obligatory rules of conduct on not based on faith or convention.

A custom must be in conformity with basic morality, the prevailing understanding of justice, health and public policy. If it is not reasonable in its origin or practise, it cannot be considered a valid custom. For example, Sati was an accepted custom once, but with the modern moral understanding, it is reprehensible, and therefore it cannot be considered a custom today.

This, however, does not mean that every custom must be perfect in its morality or ethical concerns, or contain eternal wisdom, it just needs to be relevant to contemporary times, useful and capable of being legislated on. No custom can be in contravention to the existing law of the land. Any practise, however widespread and accepted, if found in violation of any statute of a said territory cannot be considered a custom.

The paper tries to analyse the impact of customs as a source of law in judicial and legislative proceedings and finds and analyses the value of customs as a source of law in India.

Prior to the uniformization and codification of laws. However, it's the customs or personal laws as we call them that guided various religions, and also different caste and tribes within the religion. Since ancient times the framing of all properties laws are exclusively for the advantage of man, and women is treated as subservient, and dependent on male support.

The right to property is important for the freedom and development of a human being. And irrespective of how much a religion might try to justify the giving of lesser property rights to a woman, it's unfair and absolutely uncalled-for in today's society as well as the society in which such laws existed and were passed on through generations.[1]

Customs are the earliest sources of law and form the basis of the English Common Law system as we see it today. They can be described as cultural practices that became definite and backed by obligation or sanction simply by virtue of widespread practice and continue presence.

In primitive societies, there was no external authority over people, however people organized themselves in cohesive groups with a mechanism for fairness and liberty.

People developed rules and regulations through spontaneous reaction to their circumstances as well as a coordinated conscious decision to arrive at them.

Eventually, people started recognizing traditions, practices, rituals which were prevalent in a certain territory or group, and saw however they formed a systematized approach to social regulation.

In Britain, Jurists and legislators started studying these patterns, recording their prevalence, usage and applicability. This came to be known as customs, which were then formalized and put into legislation in the Common Law of England. [2]

Objectives of the study
The objective of this paper is to know what a custom is and when is it a law. The judicial acceptance of custom and conditions. What are the types of custom and theories of custom and reason for accepting custom?

Research Problem
Custom can simply be explained as those long established practices or unwritten rules which have acquired binding or obligatory character. In ancient societies, custom was considered as one of the most important sources of law; In fact it was considered as the real source of law. With the passage of time and the advent of modern civilization, the importance of custom as a source of law diminished and other sources such as judicial precedents and legislation gained importance.

Research Questions
  1. What is a custom and when is it law?
  2. What are the conditions to become a law?

Research Methodology
The subject matter of my research is, "Analysis of customs as a source of law: Comparative study between UK and India" My study is based totally on "DOCTRINAL METHOD." There are many concepts or doctrines in this challenge. And additionally this venture contains maximum of the issues related to this subject matter.

This undertaking is really primarily based on studies methodology. The source materials are secondary. I even have used secondary assets like books, articles, and journals, and Internet-based research.

Literature Review

John Salmond
"Custom is the embodiment of those principles that have commended themselves to the national conscience as principles of justice and public utility." For Salmond, a valid custom has absolute legal authority that as the force of law in itself.

He divides Customs into two:
  1. General Custom - a general custom has the force of law throughout the territory of a state. For example, the Common Law in England.
  2.  Local Custom - the local custom are those that operate have the force of law in a specific locality. The authority of a local custom is above that of general custom.
C.K. Allen
"Legal and social phenomenon growing up by the forces inherent in society-forces partly of reason and necessity, and partly of suggestion and imitation."

J.L. Austin
"Custom is a rule of conduct which the governed observes spontaneous and not in pursuance of law settled by a political superior."

Austin's ideas were often seen in contravention to customary law because for him, the political superior was the only source of law and customs were not 'real law." They needed the assent and command of the Sovereign to be considered law.

Robert Keeton
"Customary law may be defined as those rules of human action established by usage and regarded as legally binding by those to whom the rules are applicable, which are adopted by the courts and applied as source of law because they are generally followed by the political society as a whole, or by some part of it."[3]

Custom is a habitual course of conduct observed uniformly and voluntarily by the people concerned. When people fine any act to be good and beneficial, that is agreeable to their disposition, they practice it and in course of time by frequent observance and on account of its approval and acceptance by the community for generations, a custom evolves.

In all societies of the world, custom has enjoyed a very high place in varying degree in the regulation of human conduct. Customs arise whenever a few human beings come permanently without adopting consciously or unconsciously, some definite rules governing reciprocal rights and obligations. Custom is to society what law is to the state.[4]

The Custom as a source of law is very important all told legal systems as a result of it's absolutely that they appeared before the law. They came with the society. They're considered the founding stone of the legal system and basis of law. Later, the expansion of society leads to diminishing value of customs.

Customs consists of rules of conduct that are usually observed. According to Salmond, 'custom is the embodiment of those principles which have commended themselves to natural conscience as principles of truth, justice, and public utility.' A custom may be legal custom or a conventional custom. Legal customs are those customs that are having the force of law.

Conventional customs are those that a party agrees that they will be binding on them. A legal custom may be general legal custom or a local legal custom. General legal custom is observed generally whereas a local legal custom is observed locally in a particular area. A conventional custom is distinguished as usage.

There are certain conditions that must be satisfied before a court treats the conventional custom as incorporated in the contract:
  1. It should be shown that convention is clearly established and fully known. It means both parties were aware of the custom.
  2. Conventions cannot alter the general law of the land.
  3. They must be reasonable. The most function of these conventions is to throw light on such rights and liabilities on which the contract is silent.
The courts of law in administrating justice should accept these rules because what custom is to society is a law to state. Customs are an important source of law because they exist as established usage, they're nothing but usage and habits.

Difference between customs and Usage
Usually, a conventional customs are referred to as usage but there are a certain distinction between them.
  1. Customs is bound on parties even if there's no express contract between parties and parties cannot deny it, on the other hand, usage will be bound on parties if it's expressively said by the parties.
  2. For a custom to be valid it should exist from time immemorial, however it's not in the case of usage.

The relation between Custom and Prescription
The prescription was a species of custom in ancient time. It was said to be personal custom. Therefore it was limited to rights of a particular person and its predecessors. It was different from the local custom which was related to a particular place and not a particular person.
  1. Once a course of conduct is practiced for an extended time, if it provides rise to rule of law, it's referred to as custom. If it provides rise to the correct, it's referred to as Prescription
  2. For a custom to be valid it needs to exist from time immemorial, in case of Prescription it's not the case.
  3. Custom originates from long usage, prescription originates from the waiver of rights.
  4. Custom extends to a particular place of community, Prescription is confined to the personal right
  5. .For a custom to be valid it must be in conformity with the principle of natural justice, it's not in case of prescription.

Analytical Theory:

Customs can't be law unless accepted by the sovereign. According to him, customs become law only after recognition from the state. He says that custom is a source of law and not the law in itself. His theory of law 'command of sovereign backed by sanction' doesn't fit customs in it unless it's accepted by the state. Custom will become 'positive law' only if accepted by the state, before that it's just 'positive morality'. So this implies that state is superior to that customs and its state's will whether to accept a custom or not.

Customs isn't law unless approved by judges. He puts the court in the center of the legal system. According to him, the law is what judges declare. Customs, legislation precedents all are sources of law and they cannot become law unless and until they're accepted by judges. In deciding cases, judges look toward legislation and precedents, only when they're not there they look into morality. Only in the certain matter of cases, they look into customs and therefore they're of very less importance. Thus according to him, customs aren't law unless they commend themselves to the reason of the judge and he recognizes them in judgment.

Criticism of Analytical theory
Both the views are exaggerated. Customs doesn't become law unless they're accepted by the state and recognized by it's true to a certain level. However it's many shortcomings.
  1. Many customs are non-litigious and hence don't come in front of the court, but still, society follows them and treat them as customs.
  2. In most of the cases, the customs are recognized not with the assumption that this recognition gives them the sanctity of law however with this assumption that they're law and they are treated so.

Historical view
He said that recognition by the state isn't necessary. Further, he said that customs per se is law. He said that customs arrived because it was the necessity of the people and thus have the explanation in itself to become the law. 'Custom is a badge and not a ground of origin of positive law'. They embody the principle of justice that the society recognizes. The state has no option however to accept them. Judges while interpreting the law act as the representative of people. And thus the validity of customs doesn't depend on acceptance. Thus, customs are law from the very inception.

Criticism of historical school
  1. Customs haven't always been come into force because there was need or necessity of them. Many a time they have been forced by the ruling class of society
  2. There are several customs that are very technical and complicated that common conviction might have never thought of them.
  3. The state being the superior authority have the power to abrogate them.

Origin of Customs
There are the different opinion of different jurist regarding the origin of customs. Some believe that they originate from the common consciousness of people. Many that they came into existence because of necessity. Some say that it came into force because of imitation, a man's nature to imitate the action for a long time becomes a custom.

There are 2 philosophers with alternate views as to how customs originate.

Sir Henry Maine
According to Sir Henry Maine, "Custom is conception posterior to that of Themistes or judgments." Themistes were judicial awards that were dictated to the King by the Greek goddess of justice. He explained, "Themistes, Themises, the plural of Themis, are the awards themselves, divinely dictated to the judges.

He described the development in distinct steps. These are:
  1. Law by the rulers under divine inspiration
    At the primary stage, law was given by the rulers who sought divine sanction for their commands. They were believed to be messengers of God, laying out the law for the people.
  2. Developing of Customs
    Gradually, as people get into the habit of following the dictates of their rulers, they develop into customary law, and becomes a part of people's daily living.
  3. Knowledge of law in the hands of priests
    The knowledge of customs and practices are then studied by a minority, primarily religious people. This is a possible due to the weakening of the power of the rulers over people. Priests study customs, recognize patterns, understand their relevance and formalize customs.
  4. Codification
    The last and final stage is that of codifying these laws. Priests study customs meticulously and put it on paper. This code is then promoted and spread to newer areas and territories.

T. Holland
According to Holland, "custom is a generally observed course of conduct."

Holland says that custom originated in the conscious choice by the people of the more convenient of the two acts.

For Holland, customs grow through imitation. In early political societies the king or the head of the society didn't make laws. However administered justice according to the popular notions of right and wrong, whichever were enshrined in the course of conduct pursued by people- in general. What was accepted by the generality of the people and embodied in their customs was deemed to be right and which was disapproved by them or not embodied in their customs was deemed to be wrong.

Formation of Customs

Custom generally originates in imitation following upon invention. It's formed when a person does a thing in a particular method, and that thing is imitated by others.

The reason that customs are obeyed
Customs are obeyed because people feel that it embodies principles of justice and public utility. The real sanction behind custom is public opinion. Before the emergence of state individuals used to follow customs because of the public opinion. Later when the state came into existence it accepted many of the customs and enforced and took the role of administration of justice.

When the state came into existence, its role wasn't to legislate and it accepted the already accepted customs. When the state took the role to legislate on different matters, customs got the statutory recognition.

Authority of customs
It is to be noted that customs are law, not because it has been declared by the court, however because it'll be thus recognized according to fixed principles of law. If in a court customs are proved by satisfactory evidence that they exist, the court will just declare them operative. Thus the sanction of the court simply gives declaratory value and not constitutive value.

Customs to Law
According to Austin's theory, customs become law when they are recognized by the state. However the state doesn't recognize every law, it recognizes only those law that according to it fulfil certain conditions such as antiquity, reasonableness. Only those customs are recognized by the state that meets a certain level of general reception and utility.

Reason for recognition of customs
  1. They're primarily common consciousness of people and therefore they should be accepted by the court as an authoritative guide.
  2. If a custom for a long time has decided rights and liabilities of a person, and created expectations, if it's not opposed by the people it should be accepted by the court

Changing role of custom
It has already been told that customs were of great importance before the state came into existence. Before the state. Customs was the sole recognized source of law. When the state came into existence, it played a very less role to legislate laws and it mainly recognized most of the customs.

Customs has been recognized more or less in almost all the systems. English common law is the product of a judicial decision of the King's courts.

It is further to be noted that with the passage of time, Customs have decreased in value. The state took the responsibility to legislate on different matters. Therefore legislated laws became the primary source of law and legislation and precedents now have more importance than customs.[5]

Types of Customs
There are two broad categories into which customs can be divided. These are customs without binding obligation and customs with legally binding obligations.

Customs without binding obligation
These customs aren't enforceable by law, however are still prevalent in society and have societal sanctions attached to them.

For example, each society has some customs concerning the way to dress, how to address elders or how to conduct marriages etc. These are not legally binding however can still have powerful sanctions attached to them. For example, if a person comes to a funeral wearing colourful clothes, he will be ostracized and alienated by others around him.

These customs, though not binding, hold tremendous importance in society and should be followed uniformly for efficient functioning of society.

Every one of these customs are pursued because of the fear that non-recognition of such customs may lead them to be socially outcaste. Such customs are non-authoritative as in they are not mandatory to pursue. Individuals follow them due to the social pressure of society. At the point when a custom of this sort is abused, society typically responds by demonstrating social dismay or ostracization; but it has no sanction in the true sense of the term. Such customs can be called as 'Social Customs'.

Customs with binding obligations
In this classification those customs are discussed which in an objective and stringent sense are viewed as the particular obligations and commitments of men. Such customs could direct the commitment of marriage and the upbringing of children, the transmission of property etc.

Such customs don't relate to the circle of social conventions, outward propriety, or style; rather, they are worried about the genuine business of society, the work that must be practiced in request to verify and ensure necessary conditions for community living.

Customs under this category have sanctions that are more stringent than the previous category. If these customs gain widespread acceptance, they acquire legal character. On violation of these customs, adequate penalty is incurred by the violator as per the statute that governs the particular custom.

These can be further divided into Legal Customs and conventional customs.
Legal Customs
The sanction of a legal custom is certain and absolute. It's negative in its operation, in the sense that, if the custom isn't followed, certain desired consequences would not crop up. for example, if you do not follow the custom of marriage properly, that marriage will be considered void and any children born out of that marriage will be thought-about illegitimate.

Legal custom is operative per se regardless of any agreement of participant parties contrary to the custom. They are unconditional and absolute in their function and take up the form of law.
They are obligatory rules of conduct on not supported religion or convention.

According to Salmond, Legal Customs have legal obligation in itself or proprio vigore. He divides legal customs further into General and local Customs which are discussed earlier.

Conventional Customs
According to Salmond, 'A conventional custom is one whose authority is conditional on its acceptance and incorporation in agreement between the parties to be bound by it.'

A conventional custom or usage is a practice which comes into practice due to it being followed for a long period of time and arising out of a contract between the parties; it doesn't have any legal character in itself. Thus, a usage or conventional custom is an established norm which is legally enforceable, not because of any legal authority independently possessed by it, however because it has been expressly or impliedly incorporated in a contract between the parties involved.

Conventional custom may, again, be divided into two types-General conventional
Customs and local conventional Customs. General conventional Customs are extensively practiced throughout a particular territory; whereas local conventional Customs are limited to a particular place or to a particular trade or transaction.

Requisites of a valid Custom
A custom should be in conformity with basic morality, the prevailing understanding of justice, health and public policy. If it's not reasonable in its origin or practice, it cannot be considered a valid custom. For example, Sati was an accepted custom once, however with the modern moral understanding, it's reprehensible, and thus it can't be considered a custom today.

This, however, does not mean that every custom must be perfect in its morality or ethical concerns, or contain eternal wisdom, it just has to be relevant to contemporary times, useful and capable of being legislated on.

Conformity with statute law
No custom can be in contravention to the existing law of the land. Any practice, however widespread and accepted, if found in violation of any statute of a said territory can't be considered a custom.

It should be clear and unambiguous as to what the custom is and how it's practiced. A custom can solely hold up in a court of law when it's not indefinite or uncertain. It needs to be absolute and objective in theory and in action.

A custom should be according to the general principles of Law that form the basis of every law or statue which exists. These principles form the basis of ideas like Justice, fairness and liberty, and every custom should be in consonance with these.

It is necessary for the custom to have been followed for time immemorial. The practice should be thus ingrained in society, that legislating it seems like the only natural step. Recent or modern practices can't be custom until they become firmly established in society.

A custom should not be interrupted or its practice should not be distributed. It needs to be continuing for time immemorial without any interruption.

Must be peaceful in its practice
Any custom advocating or calling for violence, implicitly or explicitly, `cannot be considered a custom.

Must not be against Public Policy
Whatever the public policy may be of the state the custom is operating in, has to be conformed to.

Must be general or Universal
According to Carter, "Custom is effectual only when it's universal or nearly so. In the absence of unanimity of opinion, custom becomes powerless, or rather doesn't exist."[6]

Why has custom been regarded as an important source of law?
Custom is one of the oldest forms of law making. In primitive societies human conduct was regulated by practices which grew up spontaneously and were later adopted by the people. What was accepted by the generality of the people and embodied in their customs was deemed to be right. So, custom has played an extremely significant role as a source of law, till other sources of law like legislation and precedent acquire prominence. Customs have been the most potent force in molding the ancient law.

Reasons for acceptance of customs as a source of law
According to Salmond
Salmond has pointed out two reasons for the recognition of customs as a source of law. Firstly, custom is frequently the embodiment of those principles that have commanded themselves to the national conscience as principles of justice and public utility. Secondly, the existence of an established usage is the basis of a rational expectation of its continuance in the future. Salmond adds, ''justice demands that, unless there is good reason to the contrary , men's rational expectations shall, so far as possible, be fulfilled rather than frustrated.

According to Keeton
Keeton observes that the most reason for the admission of custom as a source of law seems to be that before state organs undertook the task of framing laws for the community, this was done by the people themselves, and the rules elaborated by habit were enforced in popular courts. Thus, rules elaborated by habit were enforced in popular courts. Thus, the state in advancing its authority takes over and enforces customary rules, first formulated by the people themselves for their own regulation.

Views of historical school of law in regard to the place of custom in the list of sources of law
According to Savigny and the German historical school, customs is in itself an authoritative source of law. According to them the present can't be understood without reference to the past, and to understand the true source of law we should go back to the days when society was in its infancy. In early time it was only customary rules that were the only kind of laws known to the people and that had the people sanction.

Views of analytical school in relevance the place of custom in the list of sources of law
According to the analytical school, custom isn't an authoritative source of law at all. Austin points out that as far as English law is concerned the so-called English customary law is purely on invention of the English judges. because they were afraid of offending the conservative instincts of the English people, that's why they started the fiction that they weren't introducing our new law however they were giving to the English people merely their own customary laws.[7]

Customs can be described as a cultural idea that defines a regular pattern of behaviour that is considered a characteristic of life in a social system. They're one of the earliest sources of law. Customs are important for maintaining balance and peace in a society. Even today, customs are a basis of a large number of laws.

Therefore, it can be seen that Customs are a very important source of law that have their historical roots in the earliest and most primitive of societies, and still hold relevance. Society is constantly in the process of establishing newer practices which might in due time turn into usages or customs.

We depend on customs and are governed by them, knowingly or not. English Common law can be interpreted as a systematization of existing customs, and therein lies the importance of having the right customs in society.

In the early stages of the society the customs are the most important, and in some cases, the sole source of law. The customs lie in the foundation of all the legal system. They come into existence with the existence of the society. Custom is the repeated practice of the primitive society. Custom is a rule or practice which is followed by the people from time immemorial. Customs are rationalised and are incorporated and embodied in legal rules.

The influence of custom can be traced in any legal system. In Roman law the creative rule of the magistrates, in English law that of equity judges, and a galaxy of great writers on law from Bracton to Blackstone, in Hindu law that of the Smritikars, the Commentators and the Privy Council decisions have materially affected the form as well as substance of the customs. Custom is a valid source of law. But it must be a valid custom.

The various factors which make a custom valid and binding are 19 immemorial antiquity, reasonableness, continuity, peaceful enjoyment, and certainty, conformity with public policy and statutes, and morality.

  1. Customs is an Important Source of Law (Jul. 17, 2019),
  2. D Rai, Customs as a Source of Law ( Jul. 8, 2019),
  3. D Rai, Customs as a Source of Law ( Jul. 8, 2019),
  4. Custom in Jurisprudence (Sep. 28, 2014),
  5. Custom as a source of law | Theory for recognization of Custom (Jun. 29, 2018),
  6. D Rai, Customs as a Source of Law ( Jul. 8, 2019),
  7. Custom in Jurisprudence (Sep. 28, 2014),

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