Custom in Jurisprudence
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, which 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.
- Why has custom been regarded as an important source of law
- Reasons for acceptance of customs as a source of law
- Views of historical school of law in regard to the place of custom in the list of sources of law
- Views of analytical school in regard to the place of custom in the list of sources of law
- Kinds of custom
- General custom
- Conventional custom
- Views of analytical school in regard to custom as a law
- Views of historical school in regard to custom as a law
- Essentials of a valid legal custom
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 which 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 main 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 cannot be understood without reference to the past, and to understand the true source of law we must go back to the days when society was in its infancy. In early time it was only customary rules which were the only kind of laws known to the people and which had the people sanction.
Views of analytical school in regard to the place of custom in the list of sources of law
According to the analytical school, custom is not 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 is why they started the fiction that they were not introducing our new law but they were giving to the English people merely their own customary laws.
Kinds of custom
Customs are of two kinds (1) legal and (2) conventional. The first kind consists of custom which is operative per se as a binding rule of law, independently of any agreement on the part of those subject to it. The second kind consists of custom which operates only indirectly through the medium of agreement, express or implied, whereby it is accepted and adopted in individual instances as conventional law between the parties.
The legal custom is one whose legal authority is absolute. It possesses the force of law proporio vigore. The parties, affected may agree to a legal custom or not but they are bound by the same. Legal customs are of two kinds (1) local and (2) general. Local customs apply only to a locality and a general custom applies to the whole country.
Local custom is one which prevails in some definite locality and constitutes a source of law for that place only. Every local custom must satisfy certain conditions. It must be reasonable. It must conform to the statue law. It must have been observed as obligatory. It must be of immemorial antiquity.
A General custom is that custom which prevails throughout the country and constitutes one of the sources of the law of the land. There was a time when common law was considered to be the same as the general custom of the realm followed from ancient times. There is no unanimity of opinion on the point whether the general custom must be immemorial or not.
A conventional custom is one whose authority is conditional on its acceptance and incorporation in the agreement between the parties to be bound by it. A conventional custom is an established practice, which is legally binding because it had been expressly or impliedly incorporated in a contract between the parties concerned.
Views of analytical school in regard to custom as a law
The great advocates of the analytical theory are Austin, Holland, Gray, Allen and Vinogradoff. According to Austin one of the main priests of analytical school, custom is a source of law and not law in itself. Custom are not positive laws until their existence is recognized by the decisions of the courts. A custom becomes law when it is enforced by the state. It is not every custom that is binding. Only those customs are valid which satisfy the judicial test. The sovereign can abolish a custom. A custom is law only because the sovereign allows it to be so.
Austin’s view of custom
According to Austin, a custom is a rule of conduct which the governed observe spontaneously and not in pursuance of law settled by a political superior. Austin’s view is based on two propositions-the first preposition is that it is not every custom that is binding but only those which are valid-the validity being determined by judicial recognition. A custom when so recognized are only social customs or merely rules of positive morality. The second proposition is that a sovereign or a legislature very often abolishes customs and is, therefore, superior to them. A custom is law only because a sovereign allows it to be so.
Holland’s views about custom as a law
According to Holland, customs are not laws when they arise but they are largely adopted into laws by state recognition the existence of a custom. English courts require that not only the existence of a custom be proved but it should also be proved that the same is reasonable. The legislature can also abrogate customs whether partially or wholly. To quote Holland, “Binding authority has thus been conceded to custom, provided it fulfils certain requirements the nature of which has also long since been settled and provided it is not superseded by law of a higher authority. When, therefore, a given set of circumstances is brought into court and the court decides upon them by bringing then within the operation of a custom, the court appeals to that custom as it might to any other pre-existent law. It does not proprio motu then for the first time make the custom a law; it merely decides as a fact that there exists a legal custom about which there might up to that moment have been some questions, as there might about the interpretation of an Act of Parliament.”
Views of historical school in regard to custom as a law
There are different and divergent views regarding custom, as a source of law. As per the historical school of jurisprudence, law is essentially the product of normal forces associated with the spirit of each particular people and nothing is more representative of these revolutionary processes than the autonomous customs which are found to exist in each community, and which are indigenous as its flora or fauna. Custom carries it own justification in itself because it would not exist at all unless some deep seated need of the people or some quality of temperament gave rise to.
Essentials of a valid legal custom
Certain tests or essentials have been laid down by the jurists which a custom must satisfy for its judicial recognition. Some of the essentials of a valid custom are
- Antiquity: A custom to be recognized as law must be proved to be in existence from time immemorial.
- Continuity: It must have been practised continuously. If a custom is disturbed for a considerable time, a presumption arises against it
- Reasonableness : A custom must be reasonable. For declaring a custom inapplicable on the ground of unreasonableness, it will have to be shown that it is obviously opposed to reason.
- Conformity with statute law: A custom, to be valid, must be in conformity with statute law. It is a positive rule in most of the legal systems that a statute can abrogate a custom.
- Consistency: Custom must not come into conflict with the other established customs. There must be set in opposition to the other custom.