Custom as the source of law

In all societies of the world, custom has enjoyed very high place in varying degree
in the regulation of human conduct. In fact, it is one of the oldest sources of law
making. Customs arise whenever a few human beings come together, as no
association of human beings can exist permanently without adopting consciously
or unconsciously, some definite rules governing reciprocal rights and obligations.1
This type of law is created by the people themselves, by their unconscious
adoption of a certain rule of conduct whenever the same problem arises for
solution and its authority is based on nothing but its long continued use and
recognition by the people.

Law based on customs is known as customary law. In fact custom is one of the
most fruitful sources of law. Custom is to society what law is to state. Each is the
expression and realization to the measure of men’s insight and ability of the
principles of right and justice.2 When custom is regarded as the source of law it is
because of its widespread usage and acceptance. People accept customs easily than
laws as they support the existing society and timeline. However, the importance of
customs as a source of law continuously diminishes as the legal system grows. The
reason being that with the emergence and growing of the state, custom is largely
superseded by the legislation as the source of law.

1
Vinogradoff, Collected papers (Oxford, 1928) p.420
2
Nomita aggarwal, Jurisprudence (legal theory) p.86 (Central law publications, Allahabad, 5 th edition ,2005 )
 Meaning of the term ‘Custom’
The word custom is derived from an old French word ‘Coustume’. The word
custom literally, grammatically or ordinarily means; tradition, practice, usage, way,
convention, ceremony, ritual etc.

A custom is a continuing course of conduct which may by the acquiescence or

express approval of the community observing it, has come to be regarded as fixing
the norm of conduct for members of society. When people find any act to be good
and beneficial, apt and agreeable to their nature and disposition, they use and
practice it from time to time, and it is by frequent use and multiplication of this act
that the custom is made. Custom is a rule of conduct which is spontaneously
observed by the society as a tradition, habit and usage, but not in pursuance of law.

The chief characteristic of the custom is that, it is a generally observed course of

conduct. The best illustration of the formation of such habitual course of action is
the mode in which a path is formed across a common. One man crosses the
common, in the direction which is suggested either by the purpose he has in view,
or by mere accident. If other follow in the same track, which they are likely to do
after it has once been trodden, a path is made.3 Custom may be considered as a fact
and as a law. As a fact, it is simply the frequent and free repetition of acts
concerning the same thing; as a law, it is the result and consequence of that fact.

Various Definitions of Custom

3
V.D Mahajan, Jurisprudence and legal theory, p.225,(Eastern Book Company, Lucknow, 5th edition, 1987)
Custom has been defined by various jurists as per their notion, understanding,
philosophy, views and opinion. The different jurists also defined custom on the
basis of source, validity, practice, history &utility. Some of the important
definitions of custom are as follows:
1. Salmond: - “custom is the embodiment of those principles which have
commended themselves to the national conscience as principles of justice and
public utility”.

2. Austin: - “custom is a rule of conduct which the governed observe

spontaneously and not in a pursuance of law set by a political superior”.

3. Allen: - “custom as a legal and social phenomenon grows up by forces inherent

in society, forces partly of reason and necessity and partly of suggestion and
limitation.”

4. Harprasad v. Shivdayal. In this case the judicial committee of the Privy Council
observed, custom as a rule which in a particular family or in a particular district or
in a particular sect, class or tribe, has from long usage obtained the force of a law.

5. Holland: - “a generally observed course of conduct.”

6. 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.”

Origin of Custom
Custom is the oldest form of law making. A study of ancient law shows that in
primitive society, the lives of people were regulated by customs which developed
spontaneously according to circumstances. It was felt that a particular way of doing
things was more convenient than others. When the same thing was done again and
again in a particular way, it assumed the form of custom. Holland rightly points out
that custom originated in the conscious choice by the people of the more
convenient of the two acts. Imitation also must have played an important part in the
growth of customs.4

According to Savigny, the main founder of German historical school, custom is

essentially a product of natural forces associated with the popular spirit of
acceptance b the people. When people repeat the same action (conduct) again and
again, it assumes the form of ‘habit’ and when habit continues to be in practice for
long time, it becomes custom.5

Tracing the origin of custom as a source of law, Vinogradoff 6 succinctly observed:

“Neither succession, nor property, nor possession nor contract started from direct
legislation or from direct conflict. Succession has its roots in the necessary
arrangements of the household on the death of the manager,(i.e. ‘Karta’ in ancient
Hindu law), property began with occupation, possession is reducible to defacto
detention, the origins of the contract go back to the custom of barter. Disputes as to
the rightly in primitive society were pre-eminently disputes as to application of
non-litigious customs”

4
V.D Mahajan, Jurisprudence and legal theory, p.226,(Eastern Book Company, Lucknow, 5th edition, 1987)
5
N.V.Pranjape, Studies in Jurisprudence And Legal Theory, p.305, (Central Law Agency, Allahabad, 8 th edition, 2016)
6
Vinogradoff, Historical Jurisprudence ,p.44, (Oxford University Press, London ,Volume 1, 1920)
A study of ancient society shows that law making was not the business of the
kings. Law of the country was to be found in the customs of the people. The people
were accustomed to a particular way of living and doing things and that was to be
found in the customs of society. The king was anxious to rule the people according
to the popular notions of right and wrong and those were to be found in their
customs. Later on, the same custom was recognized by the sovereign by putting his
imprimatur on it. In this way that custom was transformed into law. Custom was
vague in the beginning but it became definite and concrete with the passage of
time. It became a rule of law when was recognized by the sovereign. Sometimes it
was adopted by the legislature in its enactments. Sometimes it was recognized by
courts in their decisions. The judicial decisions in Hindu law are based on the
customs of the Hindus. Custom is considered as transcendental law.

According to Salmond7, the importance of custom diminishes as the legal system

grows. In countries like England, It has been almost entirely superseded by
legislation and precedent. Even the common law of England was originally based
on the customs of the country. The travelling judges went from place to place to try
cases and based their decisions on the customs prevailing in the various parts of the
country. As they gave similar decisions in similar cases in all the parts of the
country, a law common to whole country came into existence and this came into
existence and this came to be known as common law. It is true that the common
law of England grew out of decisions given by the travelling judges but the
decisions of the travelling judges were originally based on the customs of the
country.

Position of custom in various Ancient legal systems

7
John William Salmond, Jurisprudence, (Stevens and Haynes, London, 4th edition, 1913)
In most of the legal systems in the world, particularly in the ancient legal systems,
customs 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 Hindu law. The commentators
and the text writers have by and large included the prevalent customs in their
writings. The Smiritis have strongly recommended that customs be followed.
Manu declared that it is the duty of the king to decide all cases according to the
principles drawn from local usages, customs and family traditions should be
followed as they are followed before. Narada also says that custom decides
everything and overrules the sacred law. Vrihaspati and Ashya were also in favour
of unqualified acceptance of custom even when they were in conflict with written
laws. Some of the Smiritis underlined the significance of customs by saying that
suppression of customs would give rise to rebellion and resentment.

Under the British regime also importance and validity of the native customs
remained unpaired and when law was enacted on any matter generally local
customs were saved expressly. The importance of custom in Hindu law was also
recognized expressly by their lordships of the Privy Council in Collector of
Madura v. Mootoo Ram lingam8. It was observed that in Hindu law the clear
proof of usage will outweigh the written text of law, which means that if customs
is proved to be established on a point of Hindu law , then the courts are bound to
follow it even though it may be inconsistent with some express text in
Dharamsastras or the commentaries.

Binding Force of Custom

8
(1868) 12 MIA 397 at p.436
There are many reasons why custom is given the force of law:

1. Custom is the embodiment of those principles which have commended

themselves to the national conscience as principles of truth, justice and
public policy. The very fact that any rule has the sanction of custom raises a
presumption that it deserves the sanction of law also.
2. Another reason is that the existence of the established usage is the basis of a
rational expectation of its continuance in the future. Justice demands that
this expectation should be fulfilled and not frustrated. The observance of a
custom may not be ideally just and reasonable, but it cannot be denied that
it brings stability and certainty in the legal order.
3. Sometimes a custom is observed by large number of persons in society and
in course of time the same comes to have the force of law. Reference may be
made in this connection to the custom of giving three days of grace on bills
of exchange.
4. Custom rests on the popular conviction that it is in the interests of society.
This conviction is so strong that it is not found desirable to go against it.
5. According to Paton: “Custom is useful to the law giver and codifier in two
ways. It provides the material out of which the law can be fashioned- it is
too great an intellectual effort to create law de novo. There is inevitably a
tendency to adopt the maxim ‘Whatever has been authority in the past is a
safe guide for the future’.