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Custom As A Source of Law

Introduction

Custom is the widely accepted pattern of conduct, followed by the majority of the people from time immemorial. The word custom is perceived to be emanated from the French word ‘Coustume’. There are additional inklings on the origination of the word custom, which provides that it might have derived from the Latin words, Consuetudo, Consuetus, Consuescere, or Con + Suescere. However, all these words give one overarching meaning that is accustomed or becomes accustomed to. In general parlance, the custom is the long-established unwritten laws (Jus non scriptum) that have befitted to be followed as it acquired binding quality. Thereon, it is considered as a Source of Law as it was outrightly supported by sanctions and had a greater prevalence across societies worldwide.

Through the eyes of John Salmond, Custom is the embodiment of those principles which have commended themselves to the national conscience as principles of justice and public utility. Salmond was of a view that the custom itself is a law and is of two types,

  1. General Custom- the custom that is not specific to a locality, rather stretches to the whole of the country, e.g. Common law in England.
  2. Local custom- The custom that is limited to a certain geographical locality or community, e.g. Tribal Customary law.

Though customs can be anything that explains the habitual pattern of people, there are essentials that determine its validity and force of law; they are as follows

  • Immemorial antiquity
  • Certainty and devoid of ambiguity
  • Continuous
  • Reasonable
  • Compulsory
  • Not in conflict with public policy or statutory law.

Customs are the by-product of prolonged adoption of certain rules that fixes the societal standard of behaviour through people acquiescence or express approval. It can be a right enjoyed through long-established practice rather than positive law.

What is the Source of Law?

It is common knowledge that the Source of Law is the Origin of Law. The expression ‘Source of Law’ has various explications, positivists use this term to denote the sovereign who makes the law are the source. Jurists of the historical school of the law argue that the law is not the mere command of the sovereign but found by the people through their consciousness (Volksgeist theory). Pursuant to their perception, the source of law is nothing but the custom. Prof. Fuller through this work “Anatomy of the Law” imparts that the prudence of judge and judicial activism results in the establishment of new rules, such rules can be the source of law. Likewise, different jurists fathom out the Source of Law in a different sense, they are as follows,

Jurists Sources of law Exposition
Austin
  1.  Sovereign
  2. Historical documents
  3. Determinants of rules that later on acquire the force of law (Custom, legislation, adjudication, equity, etc.)
The primary source of law is a sovereign authority that makes the law; besides, the origin of law can be from codes from which the traces of precept can be identified and the general rules that brought the law into existence.
Salmond 1.     Formal Sources

·       Will of the State

2.     Material Sources

·       Historical Sources

·       Legal Sources

There are two main sources of law- formal and material. Formal sources are the sources from which the law derives its validity, such authority is the will of the state manifested in statutes and precedent. Material Sources are subdivided into Historical Sources and Legal Sources. While the former has no binding value, the latter includes agreements, customs, and legislation.
G.W Keeton 1.     Binding Sources

2.     Persuasive Sources

He classifies the sources of law into two. In which Binding Sources incontrovertibly have to be followed by the court, which includes legislation, customs, and judicial precedent. Whereas, Persuasive sources come into force only in the absence of binding sources, which comprises expert opinions, foreign precedents, and others principles.
Rupert Cross 1.     Literary Sources

2.     Historical sources

The original documentary sources that confirm the existence of a rule of law are referred to as Literary Sources. Such legal reports can be a source of law. Withal, original, mediate or immediate sources by which the legal history is ascertained are the source of law.  (Scholarly works of prominent jurists)
 

 

C. K. Allen

Definitions of Source of Law
He uses it to denote the agencies through which the rule of conduct has been exalted as law by becoming fixed, uniform, and compulsory.
Vinogradoff It is the process by which the rule of law is evolved.

Can Customs be the Source of Law? 

Origin of Customs

The law is found and not made, is the kernel premise of Historical School of jurisprudence, which connotes the rule of law, not the rule of men or authority. If the law is found, it must have been used so long; thereon habits and usage become a custom. But, the primary question here is how customs have emerged? T. Holland elucidates how customs were originated from the conscious choice made by people in accordance with their personal conveniences. He further went on to explain that before a custom is formed, there was no juristic reason for choosing one option rather another, the persuasive determinant was religious expediency or scruple. Sir Henry Maine describes the three developmental stages of customary law as,

  • Stage 1: Command of the sovereign
  • Stage 2: Those commands were instilled into common people, which later turned into a custom as it become part and parcel of their everyday living.
  • Stage 3: Knowledge of customs was limited as its pattern and dimensions were studied by minorities especially religious leaders viz. priest.
  • Stage 4: priest with a sound understanding of customs had written down the same in papers to obviate ambiguities.

Definitions of Custom: Views of Jurists

  1. Austin considered custom as a rule of conduct which the governed observe spontaneously and not in pursuance of law set by a political superior. Since Austin emphasized command of the sovereign is law, thereby he considered authority who makes law become a source of law, his views were always perceived to be contrary to customary law.
  2. Herbert Spencer defined custom as before any definite agency for social control is developed there exists a control arising partly from the public opinion of the living, and more largely from the public opinion of the dead. Thus, the custom is something that is passed down in society for generations. It can be a tradition, usage, or prescription.

Kinds of Custom

custom

1. Non-Binding Customs

These are those customs attached with no sanctions and are non-obligatory in nature. Though it is not mandatorily to be pursued, the long-standing practice inculcated people with the fear that if they don’t abide by it, they will end up facing social consequences from their own community. For instance, all the Hindu temples in India have an entrance restriction for women that they are not allowed to enter the temple during their menstrual period. Likewise, there is an old tradition that many temples are still following is the prohibition of women between the ages of 10 to 50 from entering the temple premises. Although these kinds of traditions are not backed by any reasonable law or sanction as it is being a discriminatory practice that violates Article 14 of the Indian Constitution, the majority of women themselves acquiesce to it because of social pressure. Thereby, non-binding customs can be called social customs.

2. Binding Customs

These are those customs backed by sanctions and enforced by the state. A custom acquires legal character only if it satisfies the essentials that determine its validity/recognized by the court of law. Binding Customs are enforceable as it regulates the social relations of the people. Intestate succession and inheritance of property can be the best example of Binding customs. Further, Binding Customs are categorised into Legal customs and Conventional customs.

(a) Legal Customs: The customs, which are recognised by the court of law, become a part of law of the land, and operate as binding rule of law are Legal customs. These customs are certain and absolute. For instance, if a Hindu marriage is not solemnized i.e. performed without any customary ceremonies and rituals will not be considered to be a valid marriage. Children born of such wedlock may happen to carry the title of illegitimate children.

  • Local Customs: Customs that prevail within a specific geographical area will be called local customs. Sometimes, it may not confine to a locality that is to a village, town, or district, as these customs travel with the families or sections to whichever place they go.
  • General Customs: These customs prevail throughout the territory of the state/country and become the law of the land. Back then, the general customs were considered to be the sole source of British common law, but not precedents and statutes transcend customs in being the source of law.

(b) Conventional Customs: The conditions binding on the parties to the contract/agreement are Conventional Customs. According to Salmond ‘, A conventional custom is one whose authority is conditional on its acceptance and incorporation in an agreement between the parties to be bound by it.’

Why And How Is Custom Binding?

Whenever there is a discussion on the Source of Law, the bone of contention would be whether the laws were made by the king or emerged as a consequence of the social interaction of people to regulate the mechanism of fairness and liberty. According to Vinogradoff, the command of the king or sovereign authority was never a source of law at first instance rather it was the principles habitually used by people. Later, the imprimatur was granted by the sovereign. The way customs came into being as a strong and definite rule of law has a long track record.

Customs are bestowed with the same force as a law, because if a prolonged practice is prevailing in a society, which is not contrary to the public policy and does not propagate any discriminatory notions, why should it has to be amended or extinguished when it is truly the depiction of the collective interest of the society. India accepted many customs; a majority of Indian personal law recognises the usages, practices, and beliefs of the diversified population of the Indian subcontinent viz. Hindu Marriage Act, 1955, Muslim Personal Law (Shariat) Application Act, 1937, Hindu Succession Act, 1956, Hindu Minority and Guardianship Act, 1956, and Hindu Adoptions and Maintenance Act, 1956, etc.

When Does A Custom Become Law?

Historical Theory

Karl Von Savigny, Puchta, Sir Henry Maine, and Blackstone are the main exponents of this theory. As far as Savigny is concerned, custom per se is a law, his disciple Puchta supplemented that customs are independent of the laws of the king/ sovereign. Both are of a similar view that custom has its own legitimacy i.e. carries its justification with itself, it does not need the recognition of any external bodies or authorities or even state, and law is solely based on custom. Even if ever states happen to be in a position of accrediting customs, they are left with no other option but to accept it as they are not competent enough to challenge the authenticity of customs. Sir Henry Maine regarded customs as a source of formal law. This theory argues that the custom is derived from the consciousness of the general population and not of an individual’s will. However, the same was criticized by Paton as “The growth of most of the customs is not result of any conscious thought but of tentative practice”.

Analytical Theory

The Proponents of this theory were Austin, Gray, Holland, Salmond, and Jeremy Bentham. Views of Austin were contrary to historical theory as he sought to disprove the statement custom is per se law. Austin argued that unless and until a custom is recognised by the legislation or approved court of law, it cannot become a law. Gray considered precedents as the only source of law. Holland upheld the pivotal role played by the state in exalting custom to law. He believed that the custom is a law or source of law, but only to the extent to which it gets the recognition of the sovereign. Gray conceded the perceptions of the Historical theory supporters that custom is the source of law, but has to be embodied in a judgment. Thereby, the custom is one of the sources of law, not the only source of law.

Conclusion

The approaches of both the theories, historical and analytical cannot be rejected as immaterial to the status quo, because customs with long-standing traditions are still holding their relevance. The bedrock source that led to the formation of an effective legal system is custom. But, all customs are not law, to become a law it must be proven in court. As held in the case of Venkata Subba Rao v. Bhujangyya,[1]a custom must have been in use for a long that man’s memory runneth. In the case of Robinson v. Mollett,[2]it was held that if a custom in question is proved to be unreasonable it cannot be enforced, it was added that the validity of a custom relies on its reasonableness as to whether or not it is in accordance with fundamental principles of right and wrong. Prof. Allen opined that the true rule appears to be that a tradition will be accepted unless it is absurd, rather than if it is reasonable. Likewise, other cases that did shed light upon the essence of legal enforceability of customs are Keshav Hargovan v. Bai Gandi(morality),[3] Muhammad Hussain Faroki v. Syed Mian Saheb (Continuity),[4] and Mohammad Baqar and Ors. v. Naim-Un-Nisa Bibi (Compliance with existing statutes).[5]In extenso, as emphasised by the theories, the custom is one of the most significant sources of law, but not the only source of law.

References:

[1] AIR 1960 AP 412.

[2] (1875) LR 7 HL 802.

[3] (1915) 17 BOMLR 584.

[4] (1942) 1 MLJ 564.

[5] AIR 1956 SC 548.

Snegapriya V S

A third-year student of law at Vellore Institute of Technology (VIT School of Law), budding first-generation lawyer cum legal researcher with multiple publications in various web journals and portals on different subject matters of law in issue. Being a zealous-natured person with thoughts enrooted in epistemophilia has boosted my passion for research writings by interpreting diversified legal facets. As a perceptive observer and reader, I pay greater attention to the overlooked legal fields where divergent challenges might arise, that include cyber law, environmental law, consumer law, and several constitutional provisions. Besides, I prioritize construing legal problems with social psychology. My dream and vision are to catch myself as a skilled legal adroit.

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