Subject: Jurisprudence

Submitted By: Tasraat Mostofa

Student ID: 20 LAW 014

Submitted To: Sultana Jahan

Customs and Legislation as Source of Law

Law has been defined in a variety of ways by political scientists. The best definition of law is
provided by Woodraw Wilson. "Those established conventions and principles that have achieved
societal and state acceptance and are enforced by the government's authority and power," he
defines law as. In the words of John Austin, "Laws are the sovereign's command," According to
Holland, "Laws are such general rules as human behavior enforced by a sovereign power to
govern exterior."

The state is a political structure produced by society's citizens. The rules and regulations, as well
as the laws and orders, are in place to ensure that the state's development and discipline are
maintained. For this reason, a law has been enacted. In every sector of social, state, and personal
life, we are involved in the law. Question arises, where does the law come from? How do we
know right from wrong? Social standards and cultural expectations are one sort of "right from
wrong." The other type of "right from wrong" is based on a source that is acknowledged as
having genuine authority to enact and enforce laws in our society.
The origin from which standards of human behavior emerge and gain legal power or binding
character is referred to as the source of law. It can also refer to the sovereign or state that gives
the law its power or validity. Several legal elements have influenced the formation of law. These
elements are regarded as legal sources.

There are numerous legal sources in a legal system but the 3 main origins of law have been
identified by political scientists.

 Customs
 Precedent
 Legislature

1. Customs: Customs are the norms and regulations that have been in place in society for a
long time. With the passage of time, some customs acquire legal status. The majority of
British laws were developed based on customs.
 2. Precedent: Judicial precedent is a source of law that judges can look to for guidance in
future cases based on previous judgements. Previous rulings must be followed in a
binding precedent.
3. Legislature: The legislature is the most important source of law in contemporary times.
The legislature enacts new laws in response to the state's needs.

Custom:

The word ‘custom’ is derived from an old French word ‘Costume’. Some says that the word
‘custom’ is based on Latin word ‘Consuetudo’. In Bengali the word ‘custom’ means ‘reeti’,
‘vyavahar’,‘niom’, or ‘riwaj’. Custom enjoys a very important place in every legal system.

Customs is said to be the earliest legal system. There were no established rules to control society
in ancient times. Instead, there were traditions that consisted of behaviors that were performed so
frequently that everyone followed them without thinking. The king never enacted any legislation.
The laws of the country were thought to be the people's customs. With the passage of time, it
became clear that the customs are hazy and ambiguous. The sovereign's formal
acknowledgement of customs ended the matter. This is the process by which customs became
legislation.

In practically all communities, custom plays a significant role in regulating human behavior. It
is, in reality, one of the earliest sources of legal authority However, as society progresses,
customs fade away, and laws and legal precedents become the primary source of information.
Customary law is a type of law that is founded on custom. It is desirable to define custom, as it is
an essential source of law. Various jurists have defined custom based on their understanding,
philosophy, beliefs, and opinions.

Different jurists defined custom based on its origin, validity, practice, history, and utility.
Salmond says, “custom is the embodiment of those principles which have commended
themselves to the national conscience as principles of justice and public utility”
There is a huge distinction between custom and its usage. Customs acts as a source of law for the
entire community or the territorial section in which it functions if the necessary circumstances
are met.
A use is nothing more than a term added to a contract. A legal custom with legal power is easily
distinct from a conventional custom or usage that does not have absolute authority. A custom is
enforceable regardless of the parties’ consent, whereas usages are only enforceable if the parties'
conditions of agreement do not clearly exclude them. A local custom is limited to a certain
location, on the other hand, usage does not have to be limited to a certain location. As a result, a
"legal custom" should not be confused with "use," which is likewise based on long practice but
does not have a binding or obligatory character, nor can a usage be exercised as a right inhering
in one individual and binding on the other against whom it is asserted. Local customs can easily
differ from the realm's common law, but not from statutory law. However, usage can do so to the
extent that a specific and express contract between the parties can exclude the common law.

Again, there is a huge difference between custom and prescription. Prescription is a long practice
that operates as a source of rights, whereas custom is a long practice that operates as a source of
law. When a pattern of behavior is followed for a long time, it becomes a rule of law known as
custom, but when it becomes a right, it is known as prescription. If local, custom relates to a
certain area, and if broad, it applies to the entire public. Prescription, on the other hand, is
personal and pertains to individuals. In other words, a custom applies to a certain location,
neighborhood, or community as a whole, but a prescription is personal and limited to an
individual or his relations.

Customs are of following kinds:

Legal Customs: Legal customs are those that have the full force of law behind them.
The legal custom is binding on the parties regardless of whether they embrace it. There are two
types of customs: universal and local. General customs apply across the country, whereas local
customs are unique to a single location.
Conventional Custom: The parties to a dispute are bound by a conventional custom only if they
agree to it. These are established procedures that the parties agree to in a written agreement or
contract.

Every custom is unenforceable under the law. Before they may have the power of law, they must
be proven in court, just like anything else. One of the criteria for a valid custom is that it must
have existed since the beginning of time. It must be old or ancient, and not recently created. The
second important judicial test of a valid custom is that it must be reasonable. It cannot be
irrational. It must be beneficial and practical to society. If a party challenges a custom, it must
show that the custom is irrational to the court. That is, the individual challenging the custom
bears the burden of proof. According to Prof. Allen, the custom's unreasonableness, not its
reasonableness, must be proven. As a result, a custom is invalid if it appears to be contrary to
right and reason, and if it is enforced, it is likely to cause more harm than good. A well-
established rule is that a custom should not be incompatible with decency and morality. A
custom must not be incompatible with public policy, justice, equality, or morality.

Continuance is another important criteria of a valid custom. The general rule is that if a custom
has not been observed constantly and uninterruptedly for a long period, it is assumed to have
never existed. It had to have existed and been acknowledged by the community for a period of
time that might be considered reasonable under the circumstances. The general rule is that if a
custom has not been observed constantly and uninterruptedly for a long period, it is assumed to
have never existed.

Peaceable enjoyment is the next standard. If a custom has been contested for a long period in a
court of law or elsewhere, the presumption that it originated by consent, as most customs do, will
be disproved.

Another way to tell if a custom is valid is if it complies with the law. It should not be in violation
of the law. When a custom disagrees with a statutory law, it must be followed. If an enacted
legislation comes first, a later custom can repeal or modify it, and vice versa.
Savigny commented on this subject, stating that customs and statutes are treated equally in terms
of legal efficiency, and that customary law may complete, alter, or repeal a statute, as well as
create a new norm to replace a statutory norm that it has abolished.

A valid custom requires certainty as a precondition. An ancient custom, on the other hand,
cannot be undefined and uncertain. Wilson v. Willes established that a custom must be specific
and not ambiguous. It is impossible to recognize a custom that is ambiguous or imprecise. A
clear proof that custom exists as a matter of fact, or as a legal presumption of fact, must be
presented to the court.

Legislation:

The primary source of law is legislation. While customs are the source of many laws, legislation
is a more formal depiction of rules than customs. Legislation is purposefully enacted, whereas
customs develop organically throughout time. Customs enforcement does not require a separate
agency and does not include formal punishment, whereas legislation does.

The term 'Legislation' originates from the Latin words 'Legis' which means guidelines or rules
and 'latum' which means making.

According to Salmond, “Legislation is that source of law which comprises in the assertion of
lawful standards by a competent specialist.” According To Austin: “Legislation is the command
of the sovereign or the superior authority which must be followed by the common masses backed
by sanctions”.

Legislation can serve a variety of functions, including regulating, authorizing, enabling,

prohibiting, providing funds, sanctioning, granting, declaring, or restricting. Lower bodies may
be given law-making authority by the legislature. Statutory Instruments, Orders in Council, and
Bye-laws are examples of delegated legislation in Bangladesh. Legislation may be challenged for
procedural irregularities, and the legislature typically has the authority to revoke delegated
powers if it sees proper. The Constitution of a state limits the authority of most legislatures. 1
(Mahajan, 2016)

Legislation can serve a variety of functions, including regulating, authorizing, enabling,

prohibiting, providing funds, sanctioning, granting, declaring, or restricting. New laws, such as
Acts of Parliament, are framed by a parliamentary legislature, which also alters or repeals
existing laws. The courts have the authority to interpret statutes, treaties, and regulations, despite
the fact that the legislative has the ability to legislate. Similarly, though parliaments have the
capacity to legislate, the executive is normally in charge of deciding on the legislative agenda. A
bill is normally introduced in Parliament, and after the required number of readings, committee
stages, and modifications, the bill is passed and becomes an Act.
The types of legislation are as follows:

Supreme Legislation: The supreme legislation is that which is enacted by the state's sovereign
intensity. As a result, several other authorities, which are state organs, are unable to control or
monitor it. It is regarded as unrivaled as well as legally powerful.

Subordinate Legislation: Subordinate legislation is legislation enacted by a body other than the
state's Supreme Specialist. It is enacted within the authority of the Supreme Authority.

A body other than the state's Supreme Specialist can enact subordinate law. The Supreme
Authority has the authority to enact it. The reality, legitimacy, and continuity of such law are the
responsibility of the Supreme Expert.

There are five distinct types of subordinate legislation and the following are the details,

1
Executive and judicial power is to be exercised by, respectively, the government and the courts.
- Colonial Legislation: Nations that are not autonomous and are ruled by another state lack
the Supreme authority to enact laws. These countries can fall within a variety of
categories, including colonies, domains, secured or trust territories, and so on. Their laws
are subject to the Supreme Legislation of the state over which they have control. As a
result, it is secondary legislation.

- Executive Legislation: Executive legislation is created when legislative powers are given
to an executive by a designated official. Despite the fact that the official's primary
responsibility is to carry out the laws and maintain the organization, he or she is
constantly reliant on subordinate legislative powers.

- Judicial Legislation: The judicial system has been given the authority to establish and
apply its own laws in order to protect the country's judicial system's transparency. This
will also ensure that no other government organ is involved in the administration of the
state's judicial system.

- Municipal Legislation: Municipalities are given the authority to enact bylaws governing
their neighborhoods. A bye-law enacted by a local governing body governs its own
territory. Municipal corporations, Municipal Boards, Zila Parishads, and other municipal
authorities exist in India. There is a movement to give Panchayats broad authority.

- Autonomous Legislation: The law created by the last is known as the autonomous law,
and the body is known as a self-ruling body, when the Supreme authority grants powers
to a group of individuals to administrate on problems that concern them as a group. A
railway is a self-contained entity. It produces bye-laws for its organization's guidelines,
and so forth.

- Delegated Legislation: It refers to legislation enacted by people or entities to whom

parliament has delegated legislative authority. Delegated legislation can only occur in the
context of empowering or parent legislation. It could be ordered by the government, local
governments, or the courts.
Salmond divides legislation into two categories: supreme and subordinate. The former is derived
from the state's supreme or sovereign power and hence cannot be repealed, annulled, or
controlled by any other legislative authority. However, sovereign authority is reliant. Differences
are,

 The supreme law-making body enacts supreme legislation, while a body enacts
subordinate legislation that is subject to the supreme law-making body.
 The validity of supreme legislation cannot be challenged in the courts. However, the
overall legality of secondary legislation can be questioned.
 It requires due proof that subordinate legislation has been made in accordance with the
statutory authority. But this is not so in the case of supreme legislation.
 Enquiry is needed for subordinate legislation whereas a supreme legislation is free from
such inquires.
 A supreme law is the parent, and subordinate legislation is the child.

As a result, Dias and Hughes claim that conscious law-making by a legitimate power, in other
words the State, is referred to as "legislation," implying that the sovereign is appropriately
viewed as the highest power by the courts.

Abrogative Power: It has the authority to amend or repeal old laws that are not under the control
of several sources.

Effectiveness: It divides the responsibilities of formulating and enforcing laws between the
Legislature and the legal executive.

Declaration: it states that legal principles will be known before they are enacted.

Reliance on Unintentional Legislation: Because legislation is self-contained and emerges as the

authoritative source of law, it is not required to hold up until the initial case of legislation.
Unrivaled in form: In comparison to case law, which is an increase of sense in a significant
amount of needless matter. It is dominating in structure, succinct, clear, effectively available, and
understood.

In addition, when compared to other sources of law, legislation has consistently been seen as a
key wellspring of law. There are two obvious justifications for why legislation is regarded as one
of the most important sources of law. To begin with, it entails the establishment of valid
principles by lawmaking organizations that the State considers to be law. Furthermore, it holds
State power and authority.

In terms of Legislation and Custom as the sources of law, Custom is a system of procedures that
has gradually formed, without express enactment, without any formed authority to announce it,
to apply it, and to defend it, whereas legislation is explicitly and purposefully formed by the
definitive power of the state. Without any kind of guide or direction, custom evolves on its own.
At the time of its enactment, legislation is consciously formed and put into effect. Legislation has
de-jury authority, for example, it has a valid presence; on the other hand, customs are true, for
example, they are matters of fact.

The presence of laws is based on the state's communicated authority, but the presence of customs
is based on the state's inferred authority and the citizens' communicated will.

Again, Legislation exists primarily via law, although customary law is universally accepted
within a given border. Legislation is passed based on imaginary criteria. However, because of its
well-established and long history, customary law is increasingly being implemented. In contrast
to custom, which is the most established sort of law and is followed by a certain sect, legislation
as a source is a long-lasting character of law. Legislation is complete, exact, written in the
structure, and open to the public. Customary legislation, on the other hand, is often unwritten and
difficult to follow. [ CITATION VDM16 \l 1033 ]

Law is involved in people's daily behaviors and activities, It is directly implicated in their lives.
To acquire a comprehensive understanding of the law enacted, it is necessary to comprehend the
numerous sources through which it is enacted.
After doing the study, it can be concluded, and it is also a well-established truth, that no source
of law is comprehensive or appropriate in and of itself; each source has its own significance,
which can change over time as the needs and requirements of society change.

Tasraat Mostofa
Id: 20 LAW 014

References

Teacher, Law. (November 2013). Judicial Precedent is Source of Law.

V.D. Mahajan (2016) Jurisprudence and Legal Theory, 5th edn., India: Eastern Book Company.

N. V. Paranjape (2016) Studies in jurisprudence legal theory, 2020-21 edn., India.