• Ms. Jyoti sharma

Understanding 'Customs' as a source of law.

Customs as a source of law

Customs is one of the oldest source of law-making. It occupies an important place in regulation of human conduct in almost all the societies.


According to Mannu, the roots of custom as a source of law in ancient India may be enumerated under four distinct stages as stated below;

  1. Revelation, or the utterances and thoughts of inspired seers (Rishi-Munis),

  2. The utterances of revered sages, handed down by words of mouth from generation to generation,

  3. The approved and immemorial usages of the people,

  4. That which satisfy sense of equity and good conscience and acceptable to reason.

In this regards, Salmond observed that a custom to a society is what a law is to state. It is an expression and realisation of principles of rights and justice.


Definition and Nature of custom

Custom can be defined as a usage which is observed by the majority of the people as a matter of habit and its long continuance acquired a binding force in law. When people find any act as good and beneficial to them, they start practicing it. After it gets approval and acceptance from the society as whole a custom evolve.


According to Webster’s New International Dictionary- “A long established practice considered as in written law and resting for authority on long consent, a usage that has, by long continuance has acquired a binding force in law.”


In words of Herbert Spencer- “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 public opinion of the dead. Thus it is a tradition passing on from one generation to another that originally governed human conduct. This tradition is called Custom.”


Austin defined custom as a rule of conduct which the governed observe spontaneously and not in pursuance of law settled by the political superior.


Keeton defines custom as those rules of human actions, established by usage and regarded as legally binding by those to whom the rules are applicable, which are adopted by courts and applied as a source of law because they are generally followed by the political society as a whole or by some part of it.


Origin of custom

As Savigny stated- “custom is essentially a product of natural forces associated with popular spirit of acceptance by the people. When people repeat the same action again and again, it assumes the form of ‘habit’ and when habit continues to be in practice for a long time, it become custom.” It emerged as result of mutual agreement between the society. As a law tries to regulate the human behaviour in present society, in the same way custom also used to manage and control the human conduct in earlier societies. It is also regarded as the ‘oldest unwritten code of law of humanity’.

Reasons for recognition of Custom

As discussed above that customs are not laws when they arise, but when they are largely adopted by state and sanctioned, they become law. But it’s not always necessary that every custom will be become law. State not necessarily recognise all the customs prevailing in a society as a law. For instance, there is a practice among Hindus that the male relatives of deceased shave off their head as a mark of condolence, but a man doesn’t follow this custom, the court is certainly not going to punish him.


Before state came into existence, society used to govern by the customary law. Prior to the codification of civil and criminal law, then topics like succession, marriage, adoption, contract, punishment and procedure for the same were decided according to the customary law. But the customary law become weak when the legislation enactment was done on the any particular topic.


Shruti and Smritis emphasised on more on the importance of Duties than to rights. According to Manu, custom is a direct evidence of law. he argued that it is a practice of good men which necessarily involves an element of reasonableness. It should not be opposed to public policy. In order to maintain a good social order, law must include the habitual practices of society which are reasonable and not opposed to public policy.


Kinds of Customs

There are two kinds of customs:- 1) Conventional Customs 2) Legal Customs.

  • Conventional Customs:

Conventional custom is also called ‘Usage’. Its legal authority is conditional on its acceptance and incorporation in the agreement between the parties to be bound by it. It is legally binding because it has been expressly or impliedly incorporated in a contract between the parties concerned.


It passes through three different stages:

  • It must be established as a ‘usage’ and the same must be proved from the evidences,

  • In second stage, it get recognition from judicial decision and set in the form of precedent,

  • Lastly, it becomes a statutory law after its codification.


Conventional custom may be either local or national. In order to get a status of law, it must fulfil the following conditions:

  1. It should be old enough to be in general knowledge of the people.

  2. It should not be inconsistence with the general law of land.

  3. It should be reasonable. To be reasonable it must be in conformity with morality and public policy.

  4. It need not necessarily be confined to a particular area. It may relate to any trade or commercial dealing which may be national or even international.


  • Legal Customs:

Legal customs are those which are operative per se as binding rules of law independent of any agreement between the parties. Its legal authority is absolute. Parties are always bound by the legal customs. Legal customs has been divided into two parts- a) Local Custom, b) General Custom.


  1. Local Custom- Halsbury defined local custom as “a particular rule which has existed actually or presumptively from time immemorial, and has obtained the force of law in a particular locality, although it is contrary to or not consistent with common law of the realm.” In simple words, local customs are those customs which prevail in a particular community or locality and constitute the source of law for that particular area only. It should be valid, reasonable, certain, continuous, permanent, voluntary and should not be contrary to the existing law of the land.

  2. General Custom- it prevails throughout the country and constitute one of the source for the common law of land. For example, the custom of prohibiting widow re-marriage was a general custom in the country before any statutory enactment in this regard. It should also conforms certain conditions same as local custom. Keeton stated that for bring a source of law, it must conforms to certain conditions. Along with reasonableness, it must be accepted as a binding. It shall prevail as long as it is in consistence with the common law of land. If it becomes repugnant to the law of land, it will fail to be a custom.


Essential of Valid Custom:

  1. Reasonableness- A custom should be reasonable. It must be helpful and advantageous to all the sections of the society. It should conform to norms of justice and public utility. Whether a custom is reasonable or not, shall be the discretion of judges. It shall be reasonable if it repugnant to right and reason. In this regard, Allen says, it is the unreasonableness of the custom which must be proved and not its reasonableness. There used to be a custom which prohibited entry of women in the inner sanctum of a Hindu Shani temple of Shingnapur, to which Bombay High court held that it is unreasonable and discriminatory against women. So, it can’t be termed as a valid custom.

  2. Consistency- For a custom to be valid, it should not be repugnant to the statute law. It is a positive rule in most legal systems that a statute can abrogate a custom. For example- Abrogation of child marriage and designated it as an offence by the legislator. Also, custom must not come into conflict with other established customs. There must be set in opposition to the other custom. In this context, the Shayara Bano case can be taken into consideration where court held the custom of triple talaq in Muslim community as invalid because it was inconsistence with the constitutional provisions which is the law of land in India.

  3. Compulsory Observance- Custom should not be treated as an optional rule but as an obligatory or binding rule of conduct. if a practice is left on individual choice, it can’t be regarded as a customary law. Thus, there should be a compulsory observance of the custom by society as a whole.

  4. Exercised as a matter of right- Custom must be enjoyed openly and with the knowledge of the community. It should not have been practised secretly. A custom must be proved to be a matter of right. A mere doubtful exercise of a right is not sufficient to a claim as a valid custom.

  5. Continuity and immemorial Antiquity- A valid custom should have been continuously in existence from the time immemorial. In the words of Blackstone, “if anyone can show the beginning of a custom, it is not a good custom.” In Indian case law, Baba Narayan v. Saboosa, it was decided that though the existence of a custom from unknown (immemorial) time is not deemed necessary to give it legal validity, but it should be continuously in existence for a long time. The long existence of a custom gives it the force of a right to make it legally recognisable. If the observance of a custom is suspended for a long time, it would be assumed that such a custom was never in existence. In Hampton v. Hono, it was decided if a custom is not practised for a significant amount of time, it would cease to be a valid custom.

  6. Certainty- A valid custom must be certain and uninterrupted. In case of Guruswamy v. Perumal, the court held that a custom can’t be regarded as a customary law if it is uncertain, ambiguous and transitory.


Theories regarding transformation of Custom into Law:

As discussed earlier, customs are not evolved by any legislator or jurists, but it has come existence by the practice and acceptance by the society as a whole to that practice. Philosophers have given rise to two theories regarding transformation of custom into law and being accepted as a source of law.

  • Historical Theory

The propounders of this theory opined that custom gives authority to precedent and statute law & independently they don’t have any base. The main exponents of this theory are Savigny, Blackstone and Henry Maine. They have suggested that law has its existence because of the common consciousness of people. Their views are as follows:


Savigny- “Customary laws completely modify or repeal a statute; it may create a new law and substitute it for statutory rule which it has abolished.”


Sir Henry Maine- “Custom as a formal source of law.” He suggested that custom has evolved from the decisions of ‘Themistes’ which are the awards dictated to the king by Goddess of justice or in simple words, its origin lies in judicial decisions.


Criticism:

  1. Customs evolved from the habitual practices of society and judges only recognise them as an official rule. It doesn’t seem correct to say that custom have come into existence through judicial decisions.

  2. A custom is itself not binding until and unless it satisfies certain conditions. It will be incorrect to say that custom gives authority to statutory law as advocated by Savigny.

  3. All the customs can’t be termed as common consciousness of people.

  • Analytical Theory

This theory seems quit opposite to Historical theory. The Main exponents of this theory are John Austin and Holland.


John Austin- He regarded customary law as a historical material source. According to him, a custom can’t be considered as a binding on the people until and unless it is approved by the state or legislators. He opined that customs have only persuasive value. It may guide a judge on some points if there is no particular law on that point. It shall be the discretion of court to resort to custom for deciding a case when no other ‘measure’ is available for guidance.


Holland- He also held that custom becomes a law when it is adopted as law by state recognition. He observed that binding authority is conceded to custom by state as soon as it fulfils certain conditions such as reasonableness, continuity, compulsory observance etc. For him, Custom is a legal material source of law. Principles of equity, justice and good conscience played a vital role in moulding custom into legislation.


Criticism:

Austinian theory supposes that customs are not law until they are recognised by the state. Dr. Allen criticises his doctrine. He argued that state recognise custom because it is already a law, it doesn’t become law only on enforcement by the court. Most of the customs are recognised not because the court or legislature gives them sanctity of law, but because they are treated as law by the community as whole and people feel bound by them. So, the Austinian view in this regard is not correct.


In an ultimate analysis, it may be concluded that neither of these theories can be treated as wholly correct. Custom came into existence with the origin of state. Societies were governed by the usage and custom before the state came into existence. They had the same force and authority which law has in the modern legal system. A custom will be termed as law whenever it fulfils the requirements for the test of its validity. If a custom is continuously in existence from a historical time and fulfills the requirement of being treated as a ‘law’, such custom shall be a legal custom.


Conclusion

Custom was the sole source of law in earlier societies. With the emergence of state, customs were started to be recognised as law and got the binding force in society. In India, the personal law of Hindus, which has been codified after independence in 1955, is primarily based upon the customary law. Thus, the importance of custom is very significant in moulding our legal system.


But with the emergence legislation and precedent as sources of law, the usefulness or efficacy has been reduced comparatively. Legislation has gained importance over customary law in modern time. Sometimes, the validity of custom is tested on being outdated and irrational. For instance, in the Sabarimala case, the ban on entry of women aged between 10 to 50 in Sabarimala temple was argued as irrational and baseless. In pursuance of this, our Supreme Court also held this custom as invalid and unconstitutional.

To some extent, custom is losing its significance as a source of law in modern society but still exert some influence in personal law. Whenever there is no statutory law on any point concerned, judges have to look into the customary law for their guidance and decide the case accordingly. Customs might be losing their significance in the present legal system but it will always be used as a tool for guidance for judges in case of ambiguity. It has contributed to the development of law and thus, its significance is being experienced even to this day.

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