ALIGARH MUSLIM UNIVERSITY

CENTRE MURSHIDABAD

SUBJECT- JURISPRUDENCE

TOPIC- CUSTOM AS A SOURCE OF LAW

SUBMITTED TO: SUBMITTED BY:

MISS. SHAGUFTA MOHD DANIYAL SIRAJ
MAÁM

ASSISTANT PROFESSOR 18BALLB55

GL0749
 ACKNOWLEDGEMENT

I would like to express my special thanks of gratitude to my teacher

“SHAGUFTA MA’AM’’ who gave me the golden project of
JURISPRUDENCE on CUSTOM AS A SOURCE OF LAW who also helped
in completing my project.

I came to know about so many new things I am really thankful to them. Secondly i
would also like to thank my parents and friends who helped me a lot in finalizing
this project within limited time frame.

MOHD DANIYAL SIRAJ

18BALLB55
 CERTIFICATE

This is to certify that MOHD DANIYAL SIRAJ Student of 18BALLB has

successfully completed their JURISPRUDENCE project on Custom as soruce of
Law under the guidance of SHAGUFTA MA’AM.

SHAGUFTA MA’AM MOHD DANIYAL SIRAJ

 CONTENT
• INTRODUCTION

• DEFINITION

• ORIGIN OF CUSTOM

• USAGE OF CUSTOM AS SOUCE OF LAW

• TYPES OF CUSTOM

• ESSENTIAL OF VALID CUSTOM

• THORIES OF CUSTOM

• CONCLUSION

• WEBLOGRAPHY
Introduction
In ancient times when there were no laws, the people were governed by the customs prevalent in
their particular community. Those customs were taken seriously by the community and were
enforced and implemented on each and every community of that particular sect. Customs is a very
authentic and binding source of law, because of the historic value they have.

Custom is a significant wellspring of law and it is attractive to characterize the equivalent. Custom
has been characterized by different legal advisers according to their idea, getting, theories, views and
beliefs. According to Salmond, “custom is the exemplification of those standards which have
complimented themselves to the national still, small voice as standards of equity and open utility”.

According to Austin, “custom is a standard of direct which the sovereign watch suddenly and not in
the compatibility of law set by a political superior. According to Halsbury law “A custom is a
specific principle which has existed either really or hypothetically from time immemorial and has
received the power of law in a specific territory, though in spite of or not steady with the general
precedent-based law of the community”.

Definitions

John Salmond
“Custom is the embodiment of those principles which have commended themselves to the national
conscience as principles of justice and public utility.”

For Salmond, a valid custom has absolute legal authority which as the force of law in itself. He
divides Customs into two:

1. General Custom – A general custom has the force of law throughout the territory of a state.
For example, the Common Law in England.
2. Local Custom – The local custom are those which operate have the force of law in a
particular locality. The authority of a local custom is higher than that of general custom.

C.K. Allen

C.K. Allen defines custom as “legal and social phenomenon growing up by forces inherent in
society—forces partly of reason and necessity, and partly of suggestion and imitation.”

J.L. Austin
“Custom is a rule of conduct which the governed observe spontaneous and not in pursuance of law
settled by a political superior.”

Austin’s ideas were often seen in contravention to customary law because for him, the political
superior was the only source of law and customs were not ‘real law’. They needed the assent and
command of the Sovereign to be considered law.
Robert 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 Customs
In primitive societies, there was no external authority over people, yet people organized themselves
in cohesive groups with a mechanism for fairness and liberty.

People developed rules and regulations through spontaneous reaction to their circumstances as well
as a coordinated conscious decision to arrive at them.

Eventually, people started recognizing traditions, practises, rituals which were prevalent in a certain
territory or group, and saw how they formed a systematized approach to social regulation.

In Britain, Jurists and legislators started studying these patterns, recording their prevalence, usage
and applicability. These came to be known as customs, which were then formalized and put into
legislation in the Common Law of England.

There are two philosophers with alternate views as to how customs originate.

Sir Henry Maine

According to Sir Henry Maine, “Custom is conception posterior to that of Themistes or judgments.”
Themistes were judicial awards which were dictated to the King by the Greek goddess of justice. He
explained, “Themistes, Themises, the plural of Themis, are the awards themselves, divinely dictated
to the judges.

He described the development in distinct steps. These are:

1. Law by rulers under divine inspiration

At the first stage, law was given by rulers who sought divine sanction for their commands. They
were believed to be messengers of God, laying out the law for the people.

2. Developing of Customs
Gradually, as people get into the habit of following the dictates of their rulers, they develop into
customary law, and becomes a part of people’s daily living.

3. Knowledge of law in the hands of priests

The knowledge of customs and practises is then studied by a minority, primarily religious people.
This is possible due to the weakening of the power of the rulers over people. Priests study customs,
recognize patterns, understand their relevance and formalize customs.

4. Codification
The last and final stage is that of codifying these laws. Priests study customs meticulously and put
it on paper. This code is then promoted and spread to newer areas and territories.

T. Holland

According to Holland, “custom is a generally observed course of conduct”.

Holland says that custom originated in the conscious choice by the people of the more convenient of
the two acts.

For Holland, customs grow through imitation. In early political societies the king or the head of the
society did not make laws but administered justice according to the popular notions of right and
wrong, whichever were enshrined in the course of conduct pursued by people- in general. What was
accepted by the generality of the people and embodied in their customs was deemed to be right and
which was disapproved by them or not embodied in their customs was deemed to be wrong.

Usage of Custom as a source of law

Merely attaching the antiquity clause (i.e. a particular has been followed from time immemorial)
doesn’t make it binding. Some of the differences between the application of usage and custom are as
follows:

• A customary custom or use which does not have outright authority is obviously discernable
from a legitimate custom having a power of law.
• A custom shall be binding if it is not proved that a particular sect is out of its scope and have
no agreement regarding the same.
• In the event that custom is a local custom, it is limited to a specific area then again, the
utilization need not be kept to a specific region because it would be followed locally.
• In that capacity, a ‘legitimate custom’ can’t be comprehended in the feeling of ‘use’ which is
additionally founded on time immemorial yet it has not procured authoritative or required
character nor a user can be practised starting at right inhering in one individual and official
on the other against whom such use is guaranteed.
• Custom to be substantial have been in usage from time immemorial. Use of late inception
can be given impact by the courts on the ground that parties had contracted with reference to
the use.
• Local custom can undoubtedly criticize from or precedent-based law of the domain, yet not
from drafted statute law. Utilization, notwithstanding can do as such to the extent to which it
is conceivable to avoid the precedent-based law by explicit and express contract between the
gatherings
• In the event that in a specific case, customary law can’t be prohibited by express
understanding, it can’t be rejected by use moreover. Be that as it may, custom can supersede
the precedent-based law.
• On satisfying the essential conditions, a customs works as a wellspring of law either for the
whole network or the regional segment wherein it works. Utilisation just adds a term to its
usage.
• A trade use need not build up relic, consistency, and reputation, which are so necessary on
account of custom.
 • A custom emerges out of its own power, though use does not appear out of its own power but
rather is emerging out of an agreement between the gatherings. At the end of the day, a
lawful custom has its very own free stand and isn’t an animal of understanding, then again a
customary custom or use does not exist or emerge out of any lawful specialist autonomously
possessed by it it is formed out of mutual understanding between the people

Types of Custom
Customs can be mainly classified into two types which are as follows.

• Customs without sanction

• Customs with sanctions

Further, these customs relating to sanction can be classified as follows:

• Legal Customs
• Conventional Customs

Legal Customs have been further classified as follows:

• General Custom/ Customs for all

• Particular Custom/ Local Custom

Customs without Sanctions

These are those customs which are merely non- directory. They are altogether seen because of the
nearness of the general public beliefs which is contrary to the views expressed by Austin in his
positivist theory.

Customs having Sanctions

These are the customs which have been implemented by the State. These customs are
upheld by authorization by the different courts in their pronouncements.

Further, these customs have been classified as follows.

Legal Customs
The legal customs are those whose legal authority is absolutely unequivocal. These customs work
as the coupling rule of law. They have been perceived by the courts and have turned into a piece of
the tradition that must be adhered to. They are upheld by the courts in their judicial pronouncements.
It is again classified as under.

Local Custom/ Particular Custom

A local custom is that which is practised in some characterized locality, that is, to an area, town or
then again a zone. Be that as it may, they don’t infer land locality as it were. Some of the time,
certain groups or families take their customs with them wherever they go. They also are called local
customs. Consequently, in India local customs might be separated into two classes; Land local
custom‘ and individual local custom. These customs are law just for a specific locality, sects or
family.

General Customs/Customs for all

A general custom is what wins all through the nation and comprises one of the wellsprings of the
rule that everyone must follow. As indicated by Keeton, ‘a general custom should likewise fulfil
certain conditions on the off chance that it is to be a wellspring of law’. It must be sensible, pursued
and acknowledged as official and ought not to be in contravention with the resolution law of the
nation and must be in presence from the time immemorial.

Conventional Customs

A conventional custom is likewise called “use”. It is a setup whose authority is contingent on its
acknowledgement and the organization in the agreement between the gatherings bound by it. In
basic words, a conventional custom is a contingent and condition is that it will tie on the parties
just, on the off chance that it has been acknowledged and consolidated by them in their agreement.

A conventional custom is authoritative on the parties not in light of any legitimate specialist, but
since of the way that it has been explicitly or impliedly incorporated in an agreement between the
parties so concerned. In the case of Asarabulla v. Kiamtulla, the Privy Council ruled that where the
terms of the agreement are in contravention to the formed contract or agreement enforceable by law
then, the same shall not be enforced by the law.

Essentials of Valid Custom

In order to enforce a valid, there are some essentials and grounds which will qualify as a valid
custom and therefore could be recognized by judiciary and legislature. The grounds of valid custom
as follows.

Antiquity

The primary trial of a legitimate custom is that it must be prevalent from time immemorial. It must
be old or old and must not be of the ongoing source. Manu stated, “Immemorial custom is
supernatural law”. Days of ancient times imply in the Civil law in the frameworks inferred
consequently and initially implied in England and additional time is so remote that no living man
can recollect it or give proof concerning it.

In England, a custom must be at the time of the rule of Richard I King of England”. That is in
England the time period for a valid custom is 1189, for a custom to be viewed as substantial. The
year 1189, was the main year of the rule of Richard I. In any case, the English principle of
‘immemorial inception‘ is not followed in India. In Gokul Chand v. Parvin Kumari, the Supreme
Court ruled and denied to measure the validity of Custom from 1189 AD but stated explicitly that it
must be of ancient and historical times.

Reasonability/No Arbitrariness

The second significant legal trial of a legitimate custom is that it must be reasonable. It must not be
unreasonable. It must be helpful and advantageous to the general public. On the off chance that
any parties face difficulties in a custom, the parties must fulfil and convince the court that a
particular custom is unreasonable. This means the weight of evidence lies upon the individual who
challenges the custom. To find out the reasonableness of custom it must be followed back to the
season of its inception. The unreasonableness of custom must be great to the point that its
authorization results in more prominent damage than if there were no custom by any means.

A custom ought to be viewed as adequately reasonable when it isn’t against the fundamental
guideline of profound quality of the law of the state wherein it exists, standards of equity,
morality and arbitrariness. It must not be generally rash, unforgiving or poorly arranged.

The Bombay High Court, in Narayan v. Living, held that a custom allowing a lady to forsake her
better half at her pleasure and marry again without mutual agreement to be shameless and arbitrary
on one spouse. The topic of reasonability is one of law for the court. The standard which the courts
apply has been characterized by the Divisional Court of the King’s Bench in Produce Brokers co.
vs Olympia oil and coke co., considered grounds of valid customs as “reasonable and legitimate
and for example, sensible, genuine and impartial men”.

Continuance

A custom must be followed with consistency and in continuity from its inception. If it is proved
otherwise that there were a break and a pause by a particular community in the following the custom
in a court of law, then the court may have the discretion to get the custom annulled. Therefore a
custom must be followed in consistency and continuity. In Hampton v. Hono, it was ruled that if a
custom is not practised for a significant amount of time, then it would cease to exist as a valid
custom.

Certainty

The most important test of a valid and essential custom is that a particular custom must be specific
and less from ambiguity. If a particular custom is ambiguous, vague and not understandable by the
parties then the particular custom will be declared as null and void by the court, the same was ruled
by Privy Council in Wilson vs. Wilson.

Not opposed to Public Policy

Another test for the legitimacy of custom is that it ought not to be against public policy. This test
might be incorporated into the trial of reasonability, as it is extensive term and it might incorporate
public policy also. In Buldano vs Fasir, a custom, where a woman was allowed to remarry again
during the lifetime of her husband was held to null and void by the court as it was against public
policy.

Juridical Nature

A custom must be of a juridical nature. A custom must refer to legal relations. A mere voluntary
practice not conceived of as being based on any rule of right or obligation does not amount to a legal
custom.
No analogical deductions

Custom can’t be stretched out by analogy. It must be set up inductively, not deductively and it can’t
be built up by earlier techniques. It can’t involve hypothesis yet should dependably involve reality.
In like manner, one custom can’t be inferred and deduced from another custom. Custom in
contravention to fundamental rights will be declared as null and void.

Theories of Customs

Historical Theory

As indicated by this school, custom contains its own legitimacy, since it would not exist at all except
if some profound needs of the general population or some local nature of societal needs offer
validity to it.

The development of law does not depend upon the subjective will of any person. It because of the
knowledge of the communities and civilizations that have existed throughout history.

Custom is achieved from the common conscience of the general population. It springs from an innate
feeling of right. Law has its reality in the general will of the people. Savigny calls it “Volkgeist”.

Analytical Theory

Austin was the main proponent of the Analytical theory. For him, Customs did not have any legally
binding force in themselves. Their legal character is always subject to the assent of the Sovereign.
For him, customs were merely reflection of law, and were not ‘real law’. Customs need the
modification and the approval of judges, jurists or rulers for them to have any binding force on
people. This is in consonance with his idea that all law is the ‘Will of the Sovereign”.

Conclusion

In the beginning periods of the general public, the customs were the most significant, and in some
cases, the sole wellspring of law. The customs lie in the establishment of the entirely legitimate and
lawful framework. They appear with the presence of the general public. Custom is the continuous
practice with regards to the primitive society.

Custom is a standard or practice which is trailed by the general population from time immemorial.
Customs are supported and are fused and exemplified in legitimate standards. The impact of custom
can be followed in any legitimate and legal framework. Custom is a valid and authoritative source of
law but the only condition is that it must be valid and a lawful custom.
WEBLOGRAPHY
1.www.legalservicesindia.com

2.blogipleaders.in

3.https://ccsuniversity.ac.in