INDEX

1. Introduction
2. Background
3. Sources of Law : A Brief
4. Custom
5. Origin of Custom
6. Binding force of custom
7. Theories regarding transformation of Custom into law
- Historical Theory
- Analytical Theory
8. Kinds of Custom
- Legal Custom
Local Custom
General Custom
- Conventional Custom or Usage
9. Requisites of a Valid Custom
10. Custom and Prescription
11. Conclusion
INTRODUCTION
Why should there be a special study of jurisprudence? Every one knows why there
should be a study of law. It is obvious, for instance, that in order to draw up a will, or to
enforce claims arising out of an agreement, one has to know the law. Some lawyers will
say that they must attend to the actual rules of law and to the requirements of their
clients and have no time to read books on general topics. But the craftsman’s point of
view can hardly be carried very far. Even in pleading as to the rescission of a contract
you may have to rely on considerations of morality and of public utility. It will, I suppose,
be conceded that a wide range of culture and knowledge is desirable in the case of the
legislator and of the judge; but then barristers and solicitors prepare the way for judicial
decisions and deal with the same elements of right as the judges, although their
arguments are presented from more one-sided points of view. Some practising lawyers
will nevertheless—as Leslie Stephen has put it—consider all theory of law with “serene
indifference”; if so, they will have to be left to their own devices. Jurisprudence
addresses itself to those who study law as a part of a system of knowledge.
The subject has an interest of its own apart from any consideration as to immediate
utility. Law is one of the great departments of human thought and of social activity. As
such, it claims the attention not only of the jurist but of the student of social science, of
the philosopher and, in a wider sense, of every educated man. We may systematize our
knowledge of the world from two different points of view: either by reducing complex
phenomena to their causes and ascertaining, as far as possible, the laws of their
recurrence, or by using our knowledge as a guiding light for our actions. In the first
direction, when we study things as they are, there arise theoretical sciences, such as
mathematics, physics, economics. In the other direction, when we study the means of
making things as we want them to be, we have to turn to applied sciences, such as
engineering, medicine, law. Comparing laws with medicine, we may say that both aim at
providing a rational background for a vast body of practical precepts; both are
indispensable for the intelligent exercise of an art; both derive their teaching from the
application of various sciences to the concrete problems of health and disease, of civil
intercourse and crime. The physician combines for a specific purpose doctrines, of
physics and chemistry, of biology and psychology; the lawyer draws on the study of
logic, of psychology and of social science in order to co ordinate and explain legal rules
and to assert rights. Our enumeration of the sciences on which the lawyer has to rely
may seem scanty at first sight. Why is ethics not mentioned among them, why not
history and philosophy? As to ethical doctrines, they are, of course, closely related to
jurisprudence, but they present themselves to jurists chiefly in their practical aspect as
influencing conduct.

In this sense the data of ethics form a most important chapter of psychology, as the
operations of the mind bearing on conduct. Of the connection between history and
jurisprudence we shall have to speak on many occasions. It may be sufficient to state
now that history cannot be contrasted with the theoretical study of law because it
provides one of the essential elements of legal method. As for philosophy, its influence
is all-pervading and is bound to make itself felt. In the treatment of any subject: it forms,
as it were, the atmosphere for all scientific studies. At the same time it cannot and
ought not to direct the investigation of any particular point, for the very reason that it
aims at a synthesis of all. Every jurist is left to face the problems of law in his own way,
and by such help as he can derive from those branches of special knowledge which have
a direct bearing on legal questions. And these are logic, psychology and social science.
BACKGROUND
The Law of the State or of any organized body of men is composed of the rules
which the courts, that is, the judicial organs of that body, lay down for the
determination of legal rights and duties. The difference in this matter between
contending schools of Jurisprudence arises largely from not distinguishing between the
Law and the Sources of the Law. On the one hand, to affirm the existence of nicht
positivisches Recht, that is, of Law which the courts do not follow, is declared to be all
absurdity; and on the other hand, it is declared to be an absurdity to say that the Law of
a great nation means the opinions of a half-a-dozen old gentlemen, some of them,
conceivably, of very limited intelligence.

The truth is, each party is looking at but one side of the shield. If those half-a- dozen old
gentlemen formed the highest judicial tribunal of a country, then no rule or principle
which they refuse to follow is Law in that country. However desirable, for instance, it
may be that a man should be obliged to make gifts which he has promised to make, yet
if the courts of a country will not compel him to keep his promise, it is not the Law of
that country that promises to make a gift are binding. On the other hand, those six men
seek the rules which they follow not in their own whims, but they derive them from
sources often of the most general and permanent character, to which they are directed,
by the organized body to which they belong, to apply themselves.

Of the many definitions of the Law which have been given at various tunes and
places, some are absolutely meaningless, and in others a spark of truth is distorted by a
mist of rhetoric. But there are three theories which have commended themselves to
accurate thinkers, which have had and which still have great acceptance, and which
deserve examination. In all of them it is denied that the courts are the real authors of
the Law, and it is contended that they are merely tile mouthpieces which give it
expression.

LAW AS THE COMMAND OF THE SOVEREIGN

The "first of these theories is that Law is made up of the commands of the
sovereign. This is Austin's view. "Every Positive Law," he says, "obtaining in any
community, is a creature of the Sovereign or State, having been established immediately
by a subject individual or body, as exercising rights or powers of direct or judicial
legislation, which the monarch or supreme body has expressly or tacitly conferred.

In a sense, this is true the State can restrain its courts from following this or that
rule; but it often leaves them free to follow what they think right; and it is certainly a
forced expression to say that one commands things to be done, because he has power
(which he does not exercise) to forbid their being done.
Mr. A. B., who wants a house, employs an architect, Mr. Y. Z., to build it for him.
Mr. Y. Z. puts up a staircase in a certain way; in such a case, nine times out of ten, he
puts it up in that way, because he always puts up staircases in that way, or because the
books on construction say they ought to be so put up, or because his professional
brethren put up their staircases in that fashion, or because he thinks to put it up so
would be a good building, or in good taste, or because it costs him less trouble than to
put it up in some other way; he seldom thinks whether Mr. A. B. would like it in that way
or not; and probably Mr. A. B. never thinks whether it could have been put up in any
other fashion. Here it certainly seems strained to speak, as Austin would do, of the
staircase as being the "creature" of Mr. A. B.; and yet Mr. A. B. need not have had his
staircase put up in that way, and indeed need never have had any staircase or any house
at all.
When an agent, servant, or official does acts as to which he has received no
express orders from his principal, he may aim, or may be expected to aim, directly at the
satisfaction of the principal, or he may not. Take an instance of the first--a cook, in
roasting meat or boiling eggs, has, or at any rate the ideal cook is expected to have,
directly in view the wishes and tastes of her master. On the other hand, when a great
painter is employed to cover a church wall with a picture, he is not expected to keep
constantly in mind what will please the wardens and vestry; they are not to be in all his
thoughts; if they are men of ordinary sense, they will not wish to be; he is to seek his
inspiration elsewhere, and the picture when done is not the "creature" of the wardens
and vestry; whereas, if the painter had adopted an opposite course, and had bent his
whole energies to divining what he thought would please them best, he would have
been their "tool," and the picture might not unfairly be described as their creature.
Now it is clear into which of these classes a judge falls. Where he has not
received direct commands from the State, he does not consider, he is not expected to
consider, directly what would please the State; his thoughts are directed to the
questions—What have other judges held? What does Ulpian or Lord Coke say about the
matter? What decision does elegantia juris or sound morals require?
It is often said by hedonistic moralists that, while happiness is the end of human
life, it is best attained by not aiming directly at it; so it may be the end of a court, as of
any other organ of a body, to carry out the wishes of that body, but it best reaches that
object by not directly considering those wishes.
Austin's statement that the Law is entirely made up of commands directly or
indirectly imposed by the State is correct, therefore, only on the theory that everything
which the State does not forbid its judges to do, and which they in fact do, the State
commands, although the judges are not animated by a direct desire to carry out the
State's wishes, but by entirely different ones.

"A LAW" AND "THE LAW"

In this connection, the meaning of "Law," when preceded by the indefinite is to

be distinguished from that which it bears when preceded by the definite, article. Austin,
indeed, defines the Law as being the aggregate of the rules established by political
superiors; and Bentham says, "Law, or The Law, taken indefinitely, is an abstract and
collective term; which, when it means anything, can mean neither more nor less than
the sum total of a number of individual laws taken together. But this is not, I think, the
ordinary meaning given to "the Law." A law ordinarily means a statute passed by the
legislature of a State. "The Law" is the whole system of rules applied by the courts. The
resemblance of the terms suggests the inference that the body of rules applied by the
courts is composed wholly of the commands of the State; but to erect this suggestion
into a demonstration, and say:--"the Law," "the Law" consists of nothing but an
aggregate of single laws, and all single laws are commands of the State,--is not
justifiable.

It is to Sir Henry Maine that we owe the distinct pointing out that Austin's theory
"is founded on a mere artifice of speech,” and that it assumes courts of justice to act in a
way and from motives of which they are quite unconscious. ...Let it be understood that
it is quite possible to make the theory fit in with such cases, but the process is a mere
straining of language. It is carried on by taking words and propositions altogether out of
the sphere of the ideas habitually associated with them.
Austin's theory was a natural reaction against the views which he found in
possession of the field. Law had been defined as "the art of what is good and equitable";
"that which reason in such sort defines to be good that it must be done"; "the abstract
expression of the general will existing in and for itself'; "the organic whole of the
external conditions of the intellectual life." If Austin went too far in considering the Law
as always proceeding from the State, he conferred a great benefit on Jurisprudence by
bringing out clearly that the Law is at the mercy of the State.

LAW IN THE CONSCIOUSNESS OF THE PEOPLE

 The second theory on the nature of Law is that the courts, in deciding cases, are,
in truth, applying what has previously existed in the common consciousness of the
people. Savigny is the ablest expounder of this theory. At the beginning of the System
des heutigen romischen Rechts, he has set it forth thus: "It is in the common
consciousness of the people that the positive law lives, and hence we have to call it
Volkrecht
...it is the Volksrecht, living and working in all the individuals in common, which
begets the positive law, so that for the consciousness of each individual there is, not by
chance but necessarily, one and the same law.. The form, in which the Law lives in the
common consciousness of the people, is not that of abstract rule, but the living intuition
of the institute of the Law in its organic connection ...When I say that the exercise of the
Volksrecht in single cases must be considered as a means to become acquainted with it,
an indirect acquaintance must be understood, necessary for those who look at it from
the outside, without being themselves members of the community in which the
Volksrecht has arisen and leads its continuous life. For the members of the community,
no such inference from single cases of exercise is necessary, since their knowledge of it
is direct and based on intuition.
Savigny is careful to discriminate between the common consciousness of the
peop1e and custom: "The foundation of the Law," he says, "has its existence, its reality,
in the common consciousness of the people. This existence is invisible. How can we
become acquainted with it? We become acquainted with it as it manifests itself in
external acts, as it appears in practice, manners, and custom: by the uniformity of a
continuous and continuing mode of action, we recognize that the belief of the people is
its common root, and not mere chance. Thus, custom is the sign of positive law, not its
foundation.

OPINIONS OF JURISTS

Savigny is confronted by a difficu1ty of the same kind as confronted by Austin.

The great bulk of the Law as it exists in any community is unknown to its rulers, and it is
only by aid of the doctrine that what the sovereign permits he commands, that the Law
can be considered as emanating from him; but equally, the great bulk of the Law is
unknown to the people; how, then, can it be the product of their "common
consciousness"? How can it be that of which they "feel the necessity as law"?
Take a simple instance, one out of thousands. By the law of Massachusettes, a
contract by letter is not complete unti1 the answer of acceptance is received. By the law
of New York, it is complete when the answer is mailed. Is the common consciousness of
the people of Massachusettes different on this point from that of the people of New
York? Do the people of Massachusettes feel the necessity of one thing as law, and the
people of New York feel the necessity of the precise opposite" In truth, not one in a
hundred of the people of either State has the dimmest notion on the matter. If one of
them has a notion, it is as likely as not to be contrary to the Law of his State.
Savigny meets the difficulty thus: "The Law, originally the common property of
the collected people, in consequence of the ramifying relations of real life, is so
developed in its details that it can no more be mastered by the people generally. Then a
separate class of legal experts is formed which, itself an element of the people,
represents the community in this domain of thought. In the special consciousness of this
class, the Law is only a continuation and peculiar development of the Volksrecht. The
last leads, henceforth, a double life. In its fundamental principles it continues to live in
the common consciousness of the people; the exact determination and the application
to details is the special calling of the class of jurisconsults."
But the notion that the opinions of the jurisconsults are the developed opinions
of the people is groundless. In the countries of the English Common Law, where the
judges are the jurists whose opinions go to make up the Law, there would be less
absurdity in considering them as expressing the opinions of the people; but on the
Continent of
Europe, in Germany for instance, it is difficult to think of the unofficial and
undeterminate class of jurists, past and present, from whose writings so great a part of
the Law has been derived, as expressing the opinions of the people. In their reasonings,
it is not the opinions of the people of their respective countries, Prussia, or
Schwartzburg-
Sonderhausen, which guide their judgment. They may bow to the authority of statutes,
but in the domain of Law which lies outside of statue, the notions of Law, if they exist
and are discoverable, which they are mostly not, of the persons wrong whom they live,
are the last things which they take into account. What they look to are the opinions of
foreign lawyers, of Papinian, of Accursius, of Cujacious, or at the elegentia juris, or at
“juristic necessity.”
The jurists set forth the opinions of the people no more and no less than any
other
specially educated or trained class in a community set forth the opinions of that commu-
nity, each in its own sphere. They in no other way set forth the Volksgeist in the domain
of Law than educated physicans set forth the Volksgeist in the matter of medicine. It
might be very desirable that the conceptions of the Volksgeist should be those of the
most skillful of the community, but however desirable this might be, it is not the case.
The
Volksgeist carries a piece of sulphur in its waistcoat pocket to keep off rheumatism, and
thinks that butchers cannot sit on juries.
Not only is popular opinion apart from professional opinion in Law as in other
matters, but it has been at times positively hostile. Those who hold that jurists are the
mouthpieces of the popular convictions in matters of law have never been able to deal
satisfactorily with the reception of the Roman law in Germany, for that Law was brought
in not only without the wishes, but against the wishes, of the great mass of the people.
JUDGES AS DISCOVERERS OF THE LAW

A third theory of the Law remains to consider. That theory is to this effect: The
rules followed by the courts in deciding questions are not the expression of the State's
commands, nor are they the expression of the common consciousness of the people,
but,
although what the judges rule is the Law, it is putting the cart before the horse to say
that
the Law is what the judges rule. The Law, indeed, is identical with the rules laid down
by the judges, but those rules are laid down by the judges because they are the law,
they
are not the Law because they are laid down by the judges; or, as the late Mr. James C.
Carter puts it, the judges are the discoverers, not the creators, of the Law. And this is
the
way that judges themselves are apt to speak of their functions.

ONLY WHAT THE JUDGES LAY DOWN IS LAW

This theory concedes that the rules laid down by the judges correctly states the
Law, but it denies that it is Law because they state it. Before considering the denial, let
us look a moment at the concession. It is a proposition with which I think most
Common-Law lawyers would agree. But we ought to be sure that our ideas are not
colored by the theories or practice of the particular system of law with which we are
familiar. In the Common Law, it is now generally recognized that the judges have had a
main part in erecting the Law; that, as it now stands, it is largely based on the opinions
of past generations of judges; but in the Civil Law, as we shall see hereafter, this has
been true to a very limited extent. In other words, judicial precedents have been the
chief material for building up the Common Law, but this has been far otherwise in the
systems of the Continent of Europe. But granting all that is said by the Continental
writers on the lack of influence of judicial precedents in their countries to be true, yet,
although a past decision may not be a source of Law, a present decision is certainly an
expression of what the Law now is. The courts of France today may, on the question
whether a bank endorsement of a bill of exchange passes title, care little or nothing for
the opinions formerly expressed by French judges on the point, but, nevertheless, the
opinion of those courts today upon the question is the expression of the present law of
France, for it is in accordance with such opinion that the State will compel the
inhabitants of France to regulate their conduct. To say that any doctrine which the
courts of a country refuse to adopt is Law in that country, is to set up the idol of nicht
positivisches Recht, and, therefore, it is true, in the Civil as well as in the Common Law,
that the rules laid down by the courts of a country state the present Law correctly.
The great gain in its fundamental conceptions which Jurisprudence made during
the last century was the recognition of the truth that the Law of a State or other
organized
body is not an ideal, but something which actually exists. It is not that which is in accor-
dance with religion, or nature, or morality; it is not that which ought to be, but that
which
is. To fix this definitely in the Jurisprudence of the Common Law, is the feat that Austin
accomplished. He may have been wrong in treating the Law of the State as being the
command of the sovereign, but he was right in teaching that the rules for conduct laid
down by the persons acting as judicial organs of the State are the Law of the State, and
that no rules not so laid down are the Law of the State.
The Germans have been singularly inappreciative of Bentham and Austin, and, as
so often happens, the arrival at a sound result has been greatly hampered by nomencla-
ture. Ethics is, in Continental thought, divided into two parts, one dealing with matters
which can be enforced by external compulsion, and the other with those which cannot.
The former of these is called Rechtslehre. According to Kant, Moral philosophy (Meta-
physik der Sitten) is divisible into two parts: (1) the metaphysical principles of Jurispru-
dence (Rechtslehre), and (2) the metaphysical principles of ethics (Tugendlehre). Juris-
prudence has for its subject-matter the aggregate of all the laws which it is possible to
promulgate by external legislation. All duties are either duties of justice (Rechtspflict) or
duties of virtue Tugendpflicht). The former are such as admit of external legislation; the
latter are those for which such legislation is not possible. Rechtslehre, that is, deals not
only with the ru1es which the State has actually imposed upon conduct, but also with all
conduct which can be potentially subjected to such rules; and this has tended to
obscure
the distinction between the rules which have actually been laid down from those which
might have been laid down. But of late years, the Germans, in their own way, have been
coming round to Austin's view; and now the abler ones are abjuring all nicht
positivisches Recht.

QUESTIONS NOT PREVIOUSLY DECIDED

To come, then, to the question whether the judges discover preexisting Law, or
whether the body of rules that they lay down is not the expression of preexisting Law,
but
the Law itself. Let us take a concrete instance: On many matters which have come in
question in various jurisdictions, there is no doctrine received, semper, ubique, et ab
omnibus. For instance, Henry Pitt has built a reservoir on his land, and has filled it with
water; and, without any negligence on his part, either in the care or construction of his
reservoir, it bursts, and the water, pouring forth, floods and damages the land of Pitt's
neighbor, Thomas Underhill. Has Underhill a right to recover compensation from Pitt?
In England, in the leading case of Rylands v. Fletcher, it was held that he could recover,
and this decision has been followed in some of the United States--for instance, in
Massa-
chusettes; but in others, as, I believe, in New Jersey, the contrary is held.
Now, suppose that Pitt's reservoir is in one of the newer States, say Utah, and
sup-
pose, further, that the question has never arisen there before; that there is no statute,
no
decision, no custom on the subject; the court has to decide the case somehow; suppose
it
should follow Rylands v. Fletcher and should rule that in such cases the party injured can
recover. The State, then, through its judicial organ, backed by the executive power of
the
State, would be recognizing the rights of persons injured by such accidents, and, there-
fore, the doctrine of Rylands v. Fletcher would be undoubtedly the present Law in Utah.
Suppose, again, that a similar state of facts arises in the adjoining State of
Nevada, and that there also the question is presented for the first time, and that there is
no statute, decision, or custom on the point; the Nevada court has to decide the case
somehow; suppose it should decline to follow Rylands v. Fletcher, and should rule that
in such cases the party injured is without remedy. Here the State of Nevada would
refuse to recognize any right in the injured party and, therefore, it would
unquestionably be the present Law in Nevada that persons injured by such an accident
would have no right to compensation.
Let us now assume that the conditions and habits of life are the same in these
two adjoining States; that being so, these contradictory doctrines cannot both conform
to all ideal rule of Law, and let us, therefore, assume that an all-wise and all-good
intel1igence, considering the question, would think that one of these doctrines was right
and the other wrong, according to the true standard of morality, whatever that may be.
It matters not, for the purposes of the discussion, which of the two doctrines it is, but let
us suppose that the intelligence aforesaid would approve Ryland v. Fletcher, that is, it
would think the Law as established in Nevada by the decision of its court did not
conform to the eternal principles of right.
The fact that the ideal theory of Law disapproved the Law as established in
Nevada would not affect the present existence of that Law. However wrong
intellectually or morally it might be, it would be the Law of that State-to-day. But what
was the Law in
Nevada a week before a rule for decision of such questions was adopted by the courts
of
that State? Three views seem possible: first, that the Law was then ideally right, and
contrary to the rule now declared and practised on; second, that the Law was then the
same as is now declared practised; third, that there was then no Law on the matter.
The first theory seems untenable on any notion of discovery. A discoverer is a
discoverer of that which is, --not of that which is not. The result of such a theory would
be that when Underhill received the injury and brought his suit, he had an interest
which
would be protected by the State, and that it now turns out that he did not have it, --a
contradiction in terms.

NO LAW PREVIOUS TO DECISION

 We have thus to choose between the theory that the Law was at that time what
it
now is, and the theory that there was then no law at all on the subject. The latter is cer-
tainly the view of reason and common sense alike. There was, at the time in question, ex
hypothesi, no statute, no precedent, no custom on the subject; of the inhabitants of the
State not one out of a hundred had an opinion on the matter or had ever thought of it;
of
the few, if any, to whom the question had ever occurred, the opinions were, as likely as
not, conflicting. To say that on this subject there was really Law existing in Nevada,
seems only to show how strong a root legal fictions can strike into our mental processes.
When the element of long time is introduced, the absurdity of the view of Law
preexistent to its declaration is obvious. What was the Law in the time of Richard Coeur
de Lion on the liability of a telegraph company to the persons to whom a message was
sent? It may be said that though the Law can preexist its declaration, it is conceded that
the Law with regard to a natural force cannot exist before the discovery of the force. Let
us take, then, a transaction which might have occurred in the eleventh century: A sale of
chattels, a sending to the vendee, his insolvency, and an order by the vendor to the
carrier
not to deliver. What was the Law on stoppage in transitu in the time of William the
Conqueror?
The difficulty of believing in preexisting Law is still greater when there is a
change in the decision of the courts. In Massachusetts it was held in 1849, by the
Supreme Judicial Court, that if a man hired a horse in Boston on a Sunday to drive to
Nahant, and drove instead to Nantasket, the keeper of the delivery stable had no right
to sue him in trover for the conversion of the horse. But in 1871 this decision was
overruled, and the right was given to the stable-keeper. Now, did stablekeepers have
such rights, say, in 1845? If they did, then the court in 1849 did not discover the Law. If
they did not, then the court in 1871 did not discover the Law.

COURTS MAKE EX POST FACTO LAW

All this brings us to the reason why courts and jurists have so struggled to main-
tain the preexistence of the Law, why the common run of writers speak of the judges as
merely stating the Law, and why Mr. Carter, in an advance towards the truth, says of the
judges that they are discoverers of the Law. That reason is the unwillingness to
recognize the fact that the courts, with the consent of the State, have been constantly in
the practice of applying, in the decision of controversies, rules which were not in
existence and were, therefore, not knowable by the parties when the causes of
controversies occurred. It is the unwillingness to face the certain fact that courts are
constantly making ex post facto law.
The unwillingness is natural, particularly on the part of the courts, who do not
desire to call attention to tile fact that they are exercising a power which bears so
unpopular a name, but it is not reasonable. Practically in its application to actual affairs,
for most of the laity, the Law, except for a few crude notions of the equity involved in
some of its general principles, is all ex post facto. When a man marries, or enters into a
partnership, or buys a piece of land, or engages in any other transaction, he has the
vaguest possible idea of the Law governing the situation, and with our complicated
system of Jurisprudence, it is impossible it should be otherwise. If he delayed to make a
contract or do an act until he understood exactly all the legal consequences involved,
the contract would never be made or the act done. Now the Law of which a man has no
knowledge is the same to him as if it did not exist.
Again, the function of a judge is not mainly to declare the Law, but to maintain
the peace by deciding controversies. Suppose a question comes up which has never
been
Decided--and such questions are more frequent than persons not lawyers generally sup-
pose, --the judge must decide the case somehow; he will properly wish to decide it not
on whim, but on principle, and he lays down some rule which meets acceptance with
the
courts, and future cases are decided in the same way. That rule is the Law, and yet the
rights and duties of the parties were not known and were not knowable by them. That is
the way parties are treated and have to be treated by the courts; it is solemn juggling to
say that the Law, undiscovered and undiscoverable, and which is finally determined in
opposite ways in two communities separated only by an artificial boundary, has existed
in both communities from all eternity. I shall recur to this matter when we come to
consider the topic of Judicial Precedents.

LAW AND THE NATURAL SCIENCES

It may be said that there are reasons, based on the highest welfare of the human
race, why the Law should be so or otherwise, and that it is one of the functions and
duties of a judge to investigate those reasons; that he is an investigator as much as, in
his sphere, was Sir Isaac Newton; that he may make mistakes, just as Newton did; and
yet that troth is largely discovered by his means. But the difference between the judges
and Sir Isaac is that mistake by Sir Isaac in calculating the orbit of the earth would not
send it spinning round the sun with an increased velocity; his answer to the problem
would be simply wrong; while if the judges, in investigating the reasons on which the
Law should be based, come to a wrong result, and give forth a rule which is discordant
with the eternal verities, it is none the less Law. The planet can safely neglect Sir Isaac
Newton, but the inhabitants thereof have got to obey the assumed pernicious and
immoral rules which the courts are laying down, or they will be handed over to the
sheriff.

DECISIONS AS CONCLUSIVE EVIDENCE OF THE LAW

It is possible to state the facts in the terms of discovery by use of a device

familiar enough in the Common Law. We may say that the rule has always existed, and
that the opinions and consequent action of the judges are only conclusive evidence that
such is the rule; but this is merely a form of words to hide the truth. Conclusive evidence
is not evidence at all; it is something which takes the place of evidence and of the thing
to be proved, as well. When we say that men alone conclusively presumed to know the
Criminal Law, we mean that men are to be punished for certain acts without regard to
whether they know them to be against all the world, we mean that all the world are (sic)
bound by a registered deed whether they know or not of its existence.
Rules of conduct laid down and applied by the courts of a country are
coterminous with the Law of that country, and as the first change, so does the latter
along with them. Bishop Hoadly has said: "Whoever hath all absolute authority to
interpret any written or spoken Laws, it is he who is truly the Law-giver to all intents and
purposes, and not the person who first wrote or spoke them"; a fortiori, whoever hath
all absolute authority not only to interpret the Law, but to say what the Law is, is truly
the Law-giver. Entia non multiplicanda. There seems to be nothing gained by seeking to
discover the sources, purposes, and relations of a mysterious entity called "The Law,"
and then to say this Law is exactly expressed in the rules by which the courts decide
cases. It is better to consider directly the sources, purposes, and relations of the rules
themselves, and to call the rules "The Law."
There is a feeling that makes one hesitate to accept the theory that the rules
followed by the courts constitute the Law, in that it seems to be approaching the Law
from the clinical or therapeutic side; that it is as if one were to define medicine as the
science of the ru1es by which physicians diagnose and treat diseases; but the difference
lies in this, that the physicians have not received from the ruler of the world any
commission to decide what diseases are, to kill or to cure according to their opinion
whether a sickness is mortal; whereas, this is exactly what the judges do with regard to
the cases brought before them. If the judges of a country decide that it is Law that a
man whose reservoir bursts must pay the damage, Law it is; but all the doctors in town
may dec1are that a man has the yellow fever, and yet he may have only the German
measles. If when a board of physicians pronounced that Titius had the colic, ipso facto
Titius did have the colic, then
I conceive the suggested definition of medicine would be unobjectionable.
To sum up. The State exists for the protection and forwarding of human
interests, mainly through the medium of rights and duties. If every member of the State
knew perfectly his own rights and duties, and the rights and duties of everybody else,
the State would need no judicial organs; administrative organs would suffice. But there
is no such universal knowledge. To determine, in actual life, what are the rights and
duties of the State and of its citizens, the State needs and establishes judicial organs, the
judges. To determine rights and duties, the judges settle what facts exist, and also lay
down rules according to which they decide legal consequences from facts. These rules
are the Law.
“Our course of advance... is neither a straight line nor a curve. It is a series of dots and
dashes. Progress comes per saltum, by successive compromises between extremes, compromises
often between "positivism and idealism.

It comes down to this. There are certain forms of conduct which at any given place and epoch are
commonly accepted under the combined influence of reason, practice and tradition, as moral or
immoral. ... Law accepts as the pattern of its justice the morality of the community whose conduct it
assumes to regulate. In saying this, we are not to blind ourselves to the truth that uncertainty is far
from banished. Morality is not merely different in different communities. Its level is not the same for
all the component groups within the same community. A choice must still be made between one
group standard and another. We have still to face the problem, at which one of these levels does the
social pressure become strong enough to convert the moral norm into a jural one? All that we can
say is that the line will be higher than the lowest level of moral principle and practice, and lower
than the highest. The law will not hold the crowd to the morality of saints and seers. It will follow,
or strive to follow, the principle and practice of the men and women of the community whom the
social mind would rank as intelligent and virtuous.”

- Benjamin N. Cardozo
The Paradoxes Of Legal Sciences (1928)

Sources of Law: A Brief

Law, as it exists today, is derived from various sources which according to Holland are
Customs, Religion, Equity, Judicial Decisions, Scientific Discussion and Legislation.

Customs:

Customs constitute a very powerful source of law. Social life of people in the primitive
society was regulated according to certain customs, practices, traditions and usages.
Customs originate in imitation.

When a person invents a particular method of doing a thing and is imitated by others, a
custom gradually comes into existence. A custom is formed in much the same way as
path is formed across a field.

These customs and usages had found acceptance in the primitive society because they
were held to be conducive to public order or justice. These customs descended down
from generation to generation.

With the lapse of time, they developed a very strong hold over the psychology of the
people. In modern times when law began to be written down, all these customs had to be
codified amalgamate in the law proper. The best example of customary law is furnished
by the Common Law of England.

Religion:

The influence of religion in early society was especially strong and the social conduct of
the people was regulated according to the religious principles because society in almost
every country was dominated by the priestly class who were law givers.

The Brahmins were the dominating class in the Hindu Community for several centuries.
The Pontiffs held sway in ancient Rome and so did the ecclesiastics in England. Religion
was a necessary supplement to the prevalent customs.

With the passage of time, the religious principles went deep into human psychology. The
modern jurists had to incorporate the religious principles in the body of law.
In India we have got the Mohammedan Law based on the Quran, the Hindu law based on
the Code of Manu and Christian Law based on the Bible. These laws regulate
matrimonial relations and problems arising out of inheritance.

Equity:

Judges in every country have contributed a lot towards the process of law-making. Judges
make new laws in the course of their judicial decisions. They cannot always interpret
different cases according to the existing law. Sometimes a novel ease about which
existing laws are silent may come up before a judge.

The judge cannot dispose of the case without giving any judgment. In such a situation,
the judge will give his judgment by consulting his own sense of justice and fair-play.
Such judgments give rise to the laws of equity which assume the force of well-
recognized law.

In England, there is the Court of Chancery which is the supreme organization for the
administration of equity. The Court is said to be the keeper of the King's or Queen's
conscience and is authorized to remedy injustice according to equity.

The Indian courts have also been authorized to decide cases according to equity in the
absence of positive law on the point. We can conclude with the remarks of Gilchrist that
"equity as a source of law, arises from the fact that the positive law, as thc world
advances, tends to become unsuitable for new conditions.

Equity is an informal method of making new laws or altering old laws; depending on
intrinsic fairness or equality of treatment."

Adjudications or Judicial Decisions:

Adjudication means the decisions of a court. Judges while deciding cases give their own
interpretation to a law. They clarify ambiguities and obscurities and give it a new
meaning and a new spirit.

These decisions especially when they emanate from eminent judges, serve as precedents
for further cases of a similar nature. These judicial precedents or case made-laws are as
good as law proper.

In England, a judicial precedent is cited with as much confidence as an Act of Parliament.

The Common Law of England is mainly judge- made law. It developed through a long
period of time and is based on numerous judgments given in the past by the judges of the
King's Courts.

Commentaries of Eminent Jurists:

Legal authorities and eminent jurists write comments on the existing laws. These
comments arc published in the law books and journals. They are valuable both for the
lawyers and the judges. These comments are referred to during discussions over a
particular case before a court of law.
The judgments are very often influenced by these comments. As for example, the views
of Coke and Blackstone have actually influenced the legal system in England to a great
extent.

Although these comments arc mere legal arguments, yet these opinions cannot be easily
ignored since they throw a flood of light on the spirit in which a particular law should be
interpreted.

As Gilchrist puts it, "The Commentator by collecting, comparing and logically arranging
legal principles, customs, decisions and laws lays down guiding principles for possible
cases. He shows the omission and deduces Principles to govern them".

Legislation:

In modem democratic times every country has its own legislature. These legislatures are
constantly repealing and amending the old laws which have gone out of date. New laws
arc formulated to suit requirements of society. There is an ever-widening scope of
legislative activity.

Legislation is absorbing other sources of laws.. Hence in the words of Woodrow Wilson,
"All means of formulating laws tend to be swallowed up in the one great, deep and
broadening sense, legislation.

" The legislatures codify and systematize the existing law and remove ambiguities,
lacunae and defects as come to their notice. Customs, religion and equity are no longer
important sources of laws.

The judges also have less scope these days of making addition to the law as legislatures
are there to remove the defects in the existing law and to reenact legislation declared null
and void by the courts in a form which is intra vires.

The commentaries of eminent jurists too arc not regarded today as important except that
they may provide suggestions promoting new legislation to Government in certain
specific matters.

Legislatures today are very prolific in enacting new laws as the modem states have
assumed a large variety of functions and have enlarged their sphere of activities.

Oppenheim on sources of law:

In the opinion of Oppenheim, there are not many sources of laws but there is only one
source of law and it is the common consent of community.

According to him, customs, religion, adjudication, equity etc, are not, strictly speaking,
so many sources of laws. Every law is based on the common consent of the people and
this common consent is expressed in different channels variously known as customs,
religion, adjudication, equity etc. These merely mark out the different stages in the
development of law.
“We like to picture to ourselves the field of law as accurately mapped and plotted. We draw our little
lines, and they are hardly down before we blur them. As in time and space, so here. Divisions are
working hypotheses, adopted for convenience. ... So also the duty of a judge becomes itself a question
of degree, and he is a useful judge or a poor one as he estimates the measure accurately or loosely.
He must balance all his ingredients, his philosophy, his logic, his analogies, his history, his customs,
his sense of right, and all the rest, and adding a little here and taking out a little there, must
determine, as wisely as he can, which weight shall tip the scales.”

- Benjamin N. Cardozo
The Nature of the Judicial Process (1921)

CUSTOM
Custom is an important source of law and it is desirable to define the same.

According to Salmond, Custom is the embodiment of those principles which have

commanded themselves to the national conscience as principles of justice and public
utility.

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

According to Carter: “The simplest definition of custom is that it is the uniformity of

conduct of all persons under like circumstances.”
According to Holland, custom 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 others follow in
the same track- which they are likely to do after it has once been trodden- a path is
made.

According to Austin, Custom is the rule of conduct which the governed observed
spontaneously and not in pursuance of law settled by a political supervisor.

According to 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.

According to Halsbury, a custom is a particular rule which has existed either actually or
presumptively from time immemorial and has obtained the force of law in a particular
locality although contrary to or not consistent with the general common law of the
realm.

The Judicial Committee of The Privy Council has defined custom as a rule which in a
particular family or in a particular district has from long usage obtained the force of law.

In the Tamistry case1, Custom was described in these words: “It is jus non scriptum and
made by the people in respect of the place where the custom obtains. For where the
people find any act to be good and beneficial and apt and agreeable to their nature and
disposition, they use and practice it from time to time, and it is by frequent iteration and
multiplication of this act that the custom is made and being used from time to which
memory runneth not to the contrary obtains the force of law.”

ORIGIN OF CUSTOM
Custom is the oldest form of law making. A study of ancient law shows that in primitive
society, the lives of the 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.

“Customs do not concern themselves with right or wrong or reason. But they have to be obeyed; one
reasons all around them until he is tired, but he must not transgress them, it is sternly forbidden.” 

1
30 ER 516.
 ― Mark Twain

When the same thing was done again and again in a particular way, it assumed the force
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 n growth of customs.

According to Maine: “The usages which a particular community is found to have

adopted in its infancy and in its primitive seats are generally those which are on the
whole best suited to promote its physical and moral well-being; and, if they are retained
in their integrity until new social wants have taught new practices, the upward march of
society is certain. But unhappily there is a law of development whichever threatens to
operate upon the unwritten usages. The customs are of course obeyed by multitudes
who are incapable of understanding the true nature of their expediency, and who are
therefore left inevitably to invent superstitious reasons for their permanence. A process
then commences which may be shortly described by saying that usage which is
reasonable generates usage which is unreasonable. Analogy, the most valuable of
instruments in the maturity of jurisprudence is the most dangerous f snares in its
infancy. Prohibitions and ordinances, originally confined, for good reasons to a single
description of acts, are made to apply to all acts of the same class, because a man
menaced with the anger of the gods for doing one thing, feels a natural terror in doing
any other thing which is remotely like it.”

According to Baghot: “The most intellectual of men are moved quite as much by
circumstances which they are used to as by their own will. The active voluntary part of a
man is very small and if it were not economized by a sleepy kind of habit, its results
would be nil. We could not do everyday out of our heads all we have to do. We should
accomplish nothing, for all our energies would be frittered away in minor attempts at
petty improvements. One man, too, would go off from the known track in one direction
and one in another; so that when a crisis came requiring massed combination, no two
men would be near enough to act together. It is the dull traditional habit of mankind
that guides most men’s actions, and is the steady frame in which each new artist must
set the picture that the paints. And all this traditional part of human nature, ex vi
termini, most easily impressed and acted on by that which is handed down.” According
to Trade, imitations is not merely curiosity of psychology, it is one of the primary laws of
nature. Nature perpetuates itself by repetition and the three fundamental forms of
repetition are rhythm, undulation, generation, and imitation.

According to Vinogradoff: “Social customs themselves obviously did not take their origin
from an assembly or tribunal. They grew up by gradual process in the households and
daily relations of the clans, and magistrate only came in at a later stage, when the
custom was already in operation, and added to the sanction of general recognition the
express formulation of judicial and expert authority.”2

A study of ancient society shows that law making was nor the business of the Kings. Law
of the country was to be found in their 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 the society. The King was anxious to the rule the people according to the
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 an imprimatur on it. It was 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
it was recognized by the sovereign. Sometimes it was adopted by the legislature in its
enactments and sometimes it was recognized by the courts in their decisions. The
Judicial decisions on Hindu law are based on the customs of the Hindus. Custom is
considered as the transcendental law. According to Salmond, 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
based originally on the customs of the country. The traveling judges went from place to
place to try cases and based their decisions on the customs prevailing in various parts of
the country. As they gave similar decisions in similar cases in all parts of the country, a
law common to the whole country came into existence and this came to be known as
the common law. It is true that the common law of England grew out of the decisions
given by the traveling judges but the decisions of the traveling judges were originally
based on customs of the country.

According to Ancel: “Writers are in the habit of giving their own interpretations of the
law, which are sometimes contrary to the solutions of the courts, but which the
nevertheless consider as the only real expression law. On many important points…there
exists a doctrine of the courts and of the law writers, which differ from each other even
when not contrary to, the law applied by the courts of Justice. Writers nowadays take
care to state not only their own opinion, but also the opinion of the jurisprudence, but
yet they put forward their solution as the only legal one.”

BINDING FORCE OF CUSTOM

There are many reasons why custom is given the force of the 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. Judges are inclined to
accept those rules which have their favor the prestige and authority of long
acceptance. Custom is the external and visible sign of the national conscience
2
Historical Jurisprudence
 and as such is accepted by the courts of law as an authoritative guide. To quote
Salmond: “custom is to society what law is to the state. Each is the expression
and realization of the measure of mans insight and ability, of the principles of
right and justice. The law embodies those principles as they commend
themselves to the incorporate community in the exercise of its sovereign power.
Custom embodies them as acknowledged and approved, not by the power of the
state, but by the public opinion of the society at large.”
(2) Another reason for the binding force of custom is that the existence of an
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 a 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 grays in 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 fund 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. Psychologically it is easier to secure reverence
for a code if it claims to be based on customs immemorially observed and
themselves true even though historically the claim cannot be substantiated.
There is inevitably a tendency to adopt the maxim ‘Whatever has been authority
in the past is a safe guide for the future’.”

“Customs tell a man who he is, where he belongs, what he must do. Better illogical customs than
none; men cannot live together without them.” 
― Robert A. Heinlein

Theories regarding transformation of Custom into Law

There are two theories regarding the question as to when a custom is transformed into
law. Those are Historical Theory and Analytical Theory.

(a) Historical Theory

According to the Historical theory, the growth of law does not depend upon the
arbitrary will of any individual. It does not depend upon any accident. It grows as a
result of the intelligence of the people. Custom is derived from the common
conscience of the people. It springs from an inner sense of right. Law has its
existence in the general will of the people. To quote Savigny: “Law like language
stands in organic connection with nature or character of the people and evolves
with the people” Again, “the foundation of the law has its existence, its reality in the
common conciousness of the people…. We become acquainted with it as it
manifests itself in external acts, as it appears in practice, manners and custom.
Custom is the sign or the badge of positive law and not is foundation or a ground of
origin.” The view of Savigny is that custom is the type of all law and law is valid and
just only in so far as it makes known and objectifies in concrete forms the true legal
instinct of the community which it purports to govern.

According to Puchta, Custom is not only self-sufficient and independent of state

imprimatur but is a condition to all sound legislation.
According to Arndt: “Customary law contains the ground of its validity in itself. It is
law by virtue of its own nature, as an expression of the general consciousness of
right, not by virtue of the sanction, express, tacit of any legislature.”
James Carter writes: “What has governed the conduct of men from the beginning
will continue to govern it till the end of time. The human nature is not likely to
undergo a radical change and therefore that to which we give the name of law
always has been, still is, and will forever continue to be, Custom.”

The Historical theory has been criticized by many writers. According to Paton, the
growth of most of the customs is not the result of any conscious thought but of
tentative practice. According to Gray: “Not only does Custom play a small part at the
present day as a source of non-contractual law, but it is doubtful if it ever did,
doubtful whether at all stages of legal history, rules laid down by judges have not
generated custom, rather than custom generated legal rules. It has often been
assumed, almost as matter of course, that legal customs preceded judicial decisions
and that the latter have served to give expression to the former but of this there
appears to be little proof. It seems atleast as probable that customs arose from legal
decisions.” According to Jethrow Brown: “That custom is often posterior to judicial
decisions is another fact about which no difference of opinion is possible. Under the
pretence of declaring custom, judges frequently give rise to it.” According to Allen,
all customs cannot be attributed to the common consciousness of the people. In
many cases, customs have arisen on the account of the convenience of the ruling
class. According to Sir Henry Maine: “Custom is a conception posterior to that of
Themistes or judgments.” Themistes were the awards which were dictated to the
King by the Greek goddess of Justice. It is later on that, this custom came into
existence.

The view of Historical school is not balanced. Customs have not always arisen out of
convenience or the needs of people. Sometimes they have been imposed upon the
people by the ruling class. Though there are some rules of law which are based on
the common conviction of the people, the majority of them are so complicated and
technical that the common conviction might never have thought of them. The
Historical jurists did not pay proper attention to the fact that the state has power of
abrogating a custom. They underestimated the creative role of judges and legislators
which are so important in modern times.

(b) Analytical Theory

The great advocates of the Analytical theory are Austin, Holland, Gray, Allen and
Vinogradoff. Customs are not positive laws until their existence is recognized by the
decisions of the courts. A custom becomes law when it is embodied in an act of the
legislature. It 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 writes: “A customary law make take the quality of a legal rules in
two ways: It may be adopted by a sovereign or subordinate legislature and turned
into a law in the direct mode (statute law) or it may be taken as a ground of a
judicial decision, which afterwards obtains as a precedent and in this case it is
converted into a law after the judicial fashion. In whichever of these ways it
becomes a legal rule, the law into which it is turned emanates from the sovereign.”
Austin maintains that custom has only persuasive value. Customary practices have to
be recognized by the courts before they become law. While deciding a case, if the
judge finds that no statute governs the facts of the case, he can seek the help of
custom but he may follow it or not. That depends upon his discretion, customs thus
have only persuasive value and does not become law until it is followed by the
courts. In the words of Austin, “Law styled customary is not to be considered a
distinct kind of law. It is nothing but judiciary law founded upon anterior custom.”

According to Holland, customs are not laws when they arise but they are largely
adopted into laws by state recognition. English courts require that not only the
existence of the 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 them 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 that custom a law; it merely decides as a fact that there exists a legal
custom about which there might upto that moment have been some questions, as
there might about the interpretation of an Act of Parliament.”
According to Gray: “The true view, as I submit, is that the law is what the judges
declare; that salute, precedents, the opinions of the learned experts, customs and
morality are the source of the law; that at the back of everything lies the opinions of
the ruling spirit of the community, who have the power to close any of the sources;
but that so long as they do not interfere, the judges in establishing law have
recourse to these sources. Custom is one of them, but to make it not only one
source but the soul source of law itself, requires a theory which is as little to be
trusted as that of Austin.”

The analytical theory has been criticized by Allen in these words: “Custom grows by
conduct and it is therefore a mistake to measure its validity solely by the element of
express sanction accorded by Courts of Law or by other determinate authority. The
characteristic feature of the great majority of customs is that they are essentially
non litigious in origin. They arise from any conflict of right adjusted by a supreme
arbiter not from any claim of meum against tuum, but from practices prompted by
the convenience of the society and of the individual, so far as they prompted by any
conscious purpose at all. The starting point of all custom is convention rather than
conflict, just as the starting point of all society is cooperation rather than
dissention.” According to Vinogradoff: “It is not conflicts that initiate rules of legal
observance, the practices of everyday directed by the give and take considerations
of reasonable intercourse and social cooperation. Neither their 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 it manager; property began with occupation; possession is reducible to
de facto detentions; origins of contact go back to the customs of barter.”

The analytical theory contains some truth but that is only partial and not the whole
truth. The analytical approach is defective due to many reasons. The bulk of customs
is non-litigious and hence it does not come before the courts. The society regulates
its conduct in accordance with those customs. In most cases, customs are
recognized not with the assumption that that recognition gives them the sanctity of
law but with the assumption that they are law and have to be treated as such.
The correct position lies in a synthesis of the two views and by adopting a
sociological point of view. Customs lie in the foundation of all legal systems. They
come into existence with the existence of society. Custom is to society what law is to
the state. Each is the expression and realization of the principles of right and justice.
Sometimes we can trace some reason, need or convenience behind some custom
but that is not so in every case. It is also not correct that customs are always of local
origin and they arise out of conviction of the people. Sometimes foreign customs of
the ruling class and sometimes international customs, such as the commercial
customs, are adopted and observed. When society develops judicial organs, it
exercises some control over them. With the development of society, many other
forces exercise their influence on customs, e.g., jurists, codifiers, law-givers etc.
Customs are rationalized, systematized and incorporated and embodied in legal
rules. These influences can be traced in any legal system. There was the creative role
of magistrates in Roman law. Equity judges played their part in English law. English
writers from Bracton and black stone made their own contributions. A similar
contribution was made to Hindu law by the Smritikaras and the Privy Council. They
interpreted and moulded the customs. One must appreciate their contributions if
one wants to understand the proper course of the development of customs. In
developed legal systems, courts always exercise some control over customs. Their
function is essentially that of scrutiny. They have to find out how far an alleged
custom is a rule of conduct or is observed and how far it satisfies the tests laid down
for customs. If the court comes to the conclusion that an alleged custom is in
existence and is generally observed and satisfies the tests, its duty is to declare it.
The function of the court is “declaratory rather than constitutive”.
The view of Vinogradoff is that most of the branches of law did not start from
legislation or from any other source. They started from customs. This applies to the
law of succession, property, possession and contract. Customs started in one form
or the other in primitive society. Succession started from the necessary
arrangements of the household on the death of the manager or the head of the
family. Property began from occupation, possession from de facto retention, and
contract from the custom of barter. Those customs do not have the same form and
substance which they had in the beginning. They are no longer customs into laws.
The conclusion is that customs are the basis of most of the laws but those has been
moulded by judges, legislators and jurists in course of time.

KINDS OF CUSTOMS
Legal custom
Customs are of two kinds, legal and conventional. The legal custom is one whose
legal authority is absolute. It possesses the force of law proprio 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, local customs and general customs. Local customs apply
only to a locality and general custom applies to the whole country.

Conventional Custom Or Usage

A conventional custom is one whose authority is conditional on its acceptance and
incorporation in the agreement between the parties to be bound to it. A
conventional custom is an established practice which is legally binding because it has
been expressly or impliedly incorporated in a contract between the parties
concerned. When two parties enter into an agreement, they do not put down in a
black and white all the terms of the contract. The expressed terms of the contract
are merely its framework or skeleton. The contract becomes complete only when we
take into consideration the implied terms. The intention of the parties to the
contract can be gathered from the customary law and other things which can
reasonably be taken to be implied in the contract. The customs of the locality or
trade or profession are taken to be included in the contract. The courts are bound to
take notice of these customs.

In the case of Hutton v. Warren, the Court of Exchequer held that a lease of
agricultural land must be read subject to the custom of the locality that the tenant
was bound to observe a certain course of husbandry and that he was entitled to an
allowance for seed and labor on quitting the land. Baron Parke observed thus: “It has
long been settled”that in commercial transactions extrinsic evidence of custom and
usage is admissible to annex incidents to written contracts in matters with respect to
them are silent… This has been done upon the principles of presumption that in such
transactions the parties did not mean to express in writing the whole of the contract
by which they intended to be bound, but to contract with reference to these knows
usages.”

Certain conditions must be satisfied before a court is entitled to incorporate the

usages into contracts. The usage must be so well-established as to be notorious. This
is necessary because without notoriety, it will be impossible to show that both
parties were contracting in the light of the usage. Another condition is that the
usage cannot alter the general law of the land whether statutory or common law.
The reason is that usage derives its force from its incorporation into an agreement
and can have no power to alter the law than express terms of the contract. The sole
function of such usage is to imply the terms when the contract is silent. The parties
cannot be understood to have contracted in the light of a convention which they
have expressly contradicted. To quote Lord Birkenhead: “The learned judge has in
effect declared that a custom may be given effect to in commercial matters which is
entirely inconsistent with the plain words of an agreement into which commercial
men, certainly acquainted with so well-known a custom, have nevertheless thought
proper to enter”.

There is a process by which conventional usage comes to have the force of law. To
begin with, when a usage begins to emerge, the court will not take the notice of it
unless it is expressly provided in each case. However, in course of time, the usage
becomes sufficiently notorious before the courts for them to dispense with proof in
the particular case and to take judicial notice of it. At this stage, the usage already
acquires the character of settled law. Later on, the legislature may wish to codify or
enact upon the particular branch of law in which this body of usage occurs. The
enactment normally takes the form of a statement of law as it is found in the
decision of the courts. This process has actually been employed in the case of the
Bills of exchange Act, The Marine Insurance Act, and The Sale of Goods Act.

There is a distinction between a custom and a usage. A custom is binding

irrespective of the consent of the parties to be bound thereby. A usage is binding
only when it is not expressly excluded by the terms of the agreement entered into
by the parties. A custom to be valid should have existed from time immemorial but
that is not so in the case of a usage. A usage of a recent origin can be given effect to
by the courts on the ground that the parties had contracted with reference to that
usage. A local custom can freely derogate from the general or the common law of
the realm but not from the statute law. A usage can derogate from the general or
common law to the extent to which it is possible to exclude the common law by
specific and express contract between the parties. If in any particular case, common
law cannot be excluded by express agreement it cannot be excluded by usage also.
However, custom can override the common law.
Legal Custom

Legal custom is of two kinds. It is either local custom or the general custom of the
realm. Local custom is that which prevails in some defined locality only such as
borough or country and constitutes a source of law for that place only. The general
custom prevails throughout and constitute one of the sources of the common law of
the country. The term custom in its narrowest sense means Local custom
exclusively. At the present day, local custom consists for the most part of customary
rights vested in the inhabitants of a particular place to the uses for diverse purposes
of land held by others in private ownership, example, a custom for the inhabitants of
a parish to enter on certain land for the purpose of dancing, games and recreation.

In order that a local custom may be valid and operative as a source of law, it must
conform to certain requirements. It must be reasonable. It must confirm the statute
law. It must have been observed as obligatory. It must be of immemorial antiquity.

A custom must be reasonable. The authority of usage is not absolute but conditional
on a certain measure of conformity with justice and public utility. This does not
mean that courts are at liberty to disregard a custom whenever they are not
satisfied as to its absolute rectitude and wisdom or whenever they think that better
rule could be formulated in the exercise of their judgment. That would deprive
custom of all authority, whether absolute or conditional. The true rule is that in
order to be deprived of legal efficacy, a custom must be so obviously and seriously
repugnant to right and reason that to enforce it as a law would do more mischief
than that which would result from the overturning of the expectations and
arrangements based on its presumed continuance and legal validity.

Another requirement is that a local custom must be in conformity with statute law.
In words of Coke: “No custom or prescription can take a way the force of an Act od
Parliament.”

General Custom
A general custom is that 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. To quote: “The common law of the realm is the common custom of the
realm.” This view held the field up to the end of the 18 th century. However, it cannot
be denied that it is incorrect to regard common law as the embodiment of the
general custom of the land. No doubt common law is partly based on the customs of
England as the traveling judges adopted some of the local customs in their decisions,
but they also used their own discretion in taking help of natural law, Canon law and
the principles of Roman Civil Law.

There is no unanimity of opinion on the point whether the general custom must be
immemorial or not. According to one decision a recent trade usage treating
debentures payable to bearer cannot be recognized as it is against the common law.
In another case, it has been held that an instrument which is transferable by delivery
under a trade usage, though recently developed, is a negotiable instrument. If we
insist that a general custom must be immemorial, the result is that one such a
custom is recognized by the court of law, it cannot be changed or abrogated by new
custom and thus the growth of customary law is checked. The general custom which
forms the part of the law merchant prevents new trade customs of a general nature
from developing.

The view of Salmond is that the general custom must be immemorial. It is true that
trade custom of a comparatively recent growth are occasionally recognized by the
courts but those are exceptions only. The general law is that a general custom
cannot have the force of law until and unless it is also immemorial. According to
Parker, when a general custom is adopted as a precedent, it is accepted as a form of
conventional law. It is adopted because common law provides that an agreement
should be enforced according to its terms. A general custom, once recognized,
cannot be set aside by a later general custom.

According to Keeton, a general custom must satisfy certain conditions if it is to be a

source of law. It must be reasonable. It must be generally followed and accepted as
binding. It must have existed from time immemorial. It must not conflict with the
statute law and the common law of the country.

Requisites of a Valid Custom

(1) A custom to be valid must be proved to be immemorial. According to Blackstone:
“A custom, in order that it may be legal and binding must have been used so long
that the memory of the man runneth not to the contrary. So that if anyone can show
the beginning of it, it is no good custom.”
 According to Littleton: “No custom is to be allowed but such custom as hath been
used by title of prescription, that is to say from time out of mind.” The idea of
immemorial custom was derived by the Law of England from the canon law and by
the canon law from the civil law. English law places a limit to legal memory and fixes
1189 A.D as enough to constitute the antiquity of a custom. Undoubted fully the
year 1189 is an arbitrary limit. If we can trace back a certain custom as being
prevalent from 1189 without interruption, the validity of a custom is established. It
is to be observed that in the case of India, the English law regarding legal memory is
not applied. All that is required to be proved is that the alleged custom is ancient. In
the case of Suhani v. Nawab, the Privy Council observed: “It is undoubted fully that a
custom observed in a particular district derives its force from the fact that it has,
from long usage, obtained in that district the force of law. It must be ancient: but it
is not of the essence of the rule that its antiquity must be in every case be carried
back to a period beyond the memory of man-----still less that it is ancient in the
English technical sense. It will depend upon the circumstances of each case what
antiquity must be established before the custom can be accepted. What is necessary
to be proved is that the usage has been acted upon in practice for such a long period
and with such invariability as to show that it has, by common consent, been
submitted to as the established governing rule of the particular district.” 3 In Baba
Narayan v. Saboosa, Sir george Rankin observed: “In India while a custom need not
be immemorial, the requirement of long usage is essential since it is from this that
custom derives its force as governing the parties’ rights in place of general law.” 4

(2) Another essential of a valid custom is that it must be reasonable. It must be

useful and convenient to the society. If any party challenges a custom, it must satisfy
the court that the custom is unreasonable. To ascertain the reasonableness of a
custom it must be traced back to the time of its origin. The unreasonableness of a
custom must be so great that its enforcement results in greater harm than if there
were no custom at all. Where the courts find a custom in existence which, either by
aberration or by change in law, since its origin, not merely differs from but directly
conflicts with an essential legal principle (including the principle of public policy),
these have power in modern communities to put an end to the custom. According to
Prof. Allen, the unreasonableness of a custom must be proved not its
reasonableness.

(3) Only that custom is valid which has been continuously observed without an
interruption from time immemorial. If a custom has not been followed continuously
and uninterruptedly for a long time, the presumption is that it never existed at all.

(4) The enjoyment of a custom must be a peaceable one. If that is not so, consent is
presumed to be wanting in it.

3
ILR (1941) Lah 154 (PC)
4
(1943) 2 MLJ 186
 (5)A valid custom must be certain and definite. In one case, a customary easement
was claimed to cast on the lands of neighbors the shadow of overhanging trees. It
was held to be vague and indefinite on the ground that the shadow of overhanging
trees was a changing occurrence.

(6) A custom is valid if its observance is compulsory. An optional observance is

ineffective. It is the duty of the court to satisfy itself that the custom is observed by
all concerned and not by anyone who pleases to do so. Blackstone says, “A custom
that all the inhabitants shall be rated towards the maintenance of a bridge, will be
good, but a custom that every man is to contribute thereto at his own pleasure, is
idle and absurd and indeed no custom at all.”

(7) The custom must be general or universal. According to Carter, “custom is

effectual only when it is universal or nearly so. In the absence of unanimity of
opinion, custom becomes powerless, or rather does not exist.”

(8) A valid custom must not be opposed to public policy or the principles of morality.
In Raja Varma v. Ravi Varma, the question for decision was whether a custom
recognizing the sale of the trusteeship of a temple was a valid custom or not. The
Privy Council held: “if the custom set up was one to sanction not merely the transfer
of the trusteeship, but as in this case the sale of a trusteeship is for the pecuniary
advantage of the trustee, they would be disposed to hold that circumstance alone
would justify a decision that the custom was bad in law.”5

(9) A valid custom must not conflict with the statute law of the country. According
to Coke: “No custom or prescription can take away the force of an Act of
Parliament.” A state can abrogate a custom and not vice versa. According to Savigny:
“If we consider customs and statutes with respect to their legal efficacy, we must
put them on the same level. Customary law may complete, modify or repeal a
statute; it may create a new rule and substitute it for the statutory rule which it has
abolished.”

According to Blackstone: “Customs must be consistent with each other; one custom
cannot be setup in opposition to another. For if both are really customs then both
are of equal antiquity, and both established by mutual consent, which to say of
contradictory customs is absurd. Therefore, if one man prescribes that by custom he
has a right to have windows looking into anothers garden, the other cannot claim a
right by custom to stop up or obstruct those windows: for these contradictory
customs cannot both be good, nor both stand together. He ought rather to deny the
existence of the former custom.”

5
ILR 1 Mad 235 (PC)
Custom and Prescription
When a thing is practiced for a long time, it gives rise to a rule of law known as
custom, but if it gives rise to a right, it is called prescription. A custom is a source of
law but a prescription is a source of right. For example in a certain community of a
particular locality, a daughter has priority over collaterals of a third or remoter
degree from time immemorial. It is a local custom and it gives rise to a rule of law. If
X and his forefathers have from time immemorial been grazing cattle on a particular
land belonging to Y, it gives rise to a right in X and it is called prescription. On
account of their similarity, local custom and prescription were both bracketed under
the heading of particular custom and prescription was regarded as a branch of
custom. However, at present local custom and prescription are clearly distinguished
as there are prescriptive rights which do not show any similarity to local custom. The
rule regarding time immemorial had been replaced in the case of prescription.
Uninterrupted enjoyment for 20 years is considered to be enough to acquire a
prescriptory right.
Custom is based on long usage but prescription is based on lost grant and operates
as a source of right. A custom must be reasonable and conform to justice, public
policy and utility, but that is not necessary in the case of prescription. Custom is a
generally observed code of conduct and has the force of law on account of long
usage. Prescription means the acquisition of a right or title by user or possession in
the manner laid down by law. Local custom relates to a particular locality or the
members of a particular class. It is lex loci. Prescription is personal and applies to
persons. While custom must be ancient, prescription requires only a period of 20
years.

CONCLUSION
In primitive society custom was the sole source of law. There was no other
mechanism to perform that function. However, with the passage of time, the
importance of custom began to decline. The judgments of the courts began to cover
some of the fields previously occupied by custom. Later on, legislatures began to
pass laws dealing with subjects previously covered by customs. The law creative
activity of customs is now on decline and has practically exhausted itself. Most of
the customs have become a part of the law of the land. One of the tests of a valid
custom is that it should be ancient. In England, a valid custom must have had its
origin atleast as far back as 1189 A.D. This shows that at present custom cannot be a
living and operative source of law. New situations arise in quick succession. Modern
society is changing at a very rapid pace. What was ten years ago is not the same
today. Modern society cannot wait for generations so that a custom becomes
ancient and is recognized by courts. Custom as a source of law has lost its former
position and importance. Modern man looks to legislature for enacting laws at a
speed which is demanded by the atomic age.