Topic 1.

4: Custom as one of the

Source of Law
AM III
Sources of Law

 Sources literally means ‘a point from which anything originates.

 A source of law means either the manufacture or origin of a law or the
ability to impart a rule or norm the quality of law.
 Source of Law’ have multiple meanings.
 Sources of Law

 Different schools in jurisprudence have different take on the source of law.

 According to Positivists, the source of law is sovereign.
 According to Naturalist, the real sources of law are reason & Justice.
 According to historicist, the real source of law are those customs followed by the people.
Even Savigny, the founder of the historical school, believes that law is found not made.
 According to theologians, the real source of law lies in God.
 According to Dr. Allen, the term “source” is used to connote those agencies by which rules of
conduct acquire the character of law by becoming objectively defined, uniform, and, compulsory.
 Austinian understanding of the source of law, should be accommodative as there is distinction
between lex and jus.
 According to Fuller, the source of law includes material from which judge obtains rules for deciding
the cases. Ex- Legislation, Customs, precedents, writings of jurists etc.
 According to Holland, source of law is used multiple senses. It may denote the material, like
statute/treaties, from which all knowledge is obtained. It may denote the ultimate authority (state)
which plays a vital role giving binding force to law. It may denote the causes which helped the rules
to emerge and acquire the force of law ex- Customs. It may denote the agency or organ through
which state grants legal recognition to rules that were earlier not authoritative in nature ex-
legislation equity.
 Salmond classified the sources of law into two categories:
1. Formal sources - Ultimate Source- From these sources, a rule of law derives its force and validity.
These are those sources which are recognized as such by the law itself and are authoritative. Ex-The
Constitution, Statutes, Court’s verdicts.
( If we look at it from Austin’s perspectives, the sovereign is the source but from the natural law
perspectives, justice and reason are the formal sources)
2. Material sources - From these sources, a rule of law derives the matter but not the validity. Further, we
may classify into two types: Legal (Legislation, customs, precedents etc.) and Historical (Legal writings,
foreign case laws, and juristic opinions).
Unlike legal sources which are sources not only in fact but also in law and are authoritative, the historical
sources are sources in fact only and are unauthoritative. Historical sources operate indirectly and they
do have the potential to emerge as legal source by recognition of law.
 Salmond’s was of the view that “legal sources are the only gates through which new principles can
find entrance into the law and historical sources operate only mediately and indirectly ...they are
merely links in the chain of which ultimate link must be some legal source to which law is directly
attached.”
 Criticism of Salmond’ classification of Sources of Law.
 Allen accused Salmond of underestimating the importance of historical sources.
 Keeton criticized Salmond for his views on formal source of law, which in modem times is the State. In
his view, State cannot be termed as source of law in modem technical sense because it is only an
agency to enforce law.
 According to Keeton, the sources of law is the material out of which the law is eventually carved by
the activity of judges. He classified sources of law into two broad categories: (1) Binding sources of
law e.g. legislation, precedent, and customs; and (2) Persuasive sources e.g. equity principles,
professional opinions, and writings of jurists.
 Custom as one of the Source of Law

1. Custom
 Custom means ‘uniformity of conduct of people under like circumstances.’
 Holland says that custom is a generally observed course of conduct.
 Salmond opines that custom embodies those principles as are acknowledged and approved, not by
the power of the State but by public opinion of the society at large.
 According to Herbert Spencer, before any definite agency for social control is developed thier exists a
control arising partly from the public opinion of the living, and more largely from the public opinion of
the dead.
 Keeton defines “custom 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 court and applied as a
source of law because they are generally followed by the political society as a whole or by some part
of it.”
 According to Halsbury “custom is some kind of special rule which is in actual existence or possibly
followed from times immemorial and which have acquired the force of law in specified territory,
although it may be contrary or inconsistent with the general law of the land.”
 Custom as one of the Source of Law

 Classification of Customs:
1. Custom without sanction: Observed due to pressure of public opinion. In words of Austin, it is ‘positive
morality’.
2. Custom with sanction: Enforced by the state.
Can be further classified into Conventional and legal custom with sanction.
 2.1. Conventional custom is also called ‘usage’, viz. certain trade practices. Its authority is conditional on its
acceptance and incorporation in the agreement between the parties bound by it. Should be reasonable
and be consistent with the statute law. Before becoming a part of the law, such customs pass through three
stages: (i) they should be proved before the court as a question of fact, (ii) the court takes judicial notice of
them and they are established as a precedent, and (iii) the custom is embodied in a statute and takes its final
shape.
 2.2. Legal customs are those which are operative per se as binding rules of law independent of any
agreement between the parties. Legal customs are of two kinds: (i) Local/ special custom, and (ii) General
custom.
 Custom as one of the Source of Law

 Essentials of Customs:
 To acquire the force of law or become a source of law, custom must satisfy the following conditions:
1. Antiquity- A custom cannot be created in a day. It must be of long standing. Unlike England where a custom should
have existed from time immemorial, in India long usage or observance is enough and, thus, even a 20-year old
custom may be recognized.
2. Continuance & Certainty - The custom must have been in use continuously and it should not be vague or indefinite.
3. Peaceable enjoyment-Custom owes its origin to common consent thus without fight it must have been enjoyed
peaceably.
4. Obligatory force - The custom must have been enjoyed “as of right”. Because without this it cannot be said that it
exerts obligato pressure to conform. Refer to Opinio Juris in International Law.
5. Reasonableness - A custom is reasonable if no good legal reason can be assigned against it.
6. Conformity with statutory law - No custom however old or reasonable can stand if it conflicts with a statute or
legislation.
7. Consistent with morality and public policy - Custom must not be inconsistent with morality, public policy and other
customs in some area.
 Custom as one of the Source of Law

 When does a Custom become Law?

 There are two theories in this regard: Analytical and Historical theory.
 According to Analytical theory (John Austin), custom derives its binding force not from its Own nature but by State
recognition. A customary rule may become a legal rule either by recognition through a statute law or by a
precedent.
 Allen criticized Austinian theory of customary law on the ground that the customs are recognized not because the
court or legislature gives them sanctity of law but because they are treated as law by the community as a whole and
people feel themselves bound by them.
 According to Historical theory, law has its existence because of the common consciousness of the people and
“customary observance is not the cause of law but the evidence of its existence”.
 Savigny observed, “customary laws completely modify or repeal a statute; it may create a new law and substitute it
for statutory rule which it has abolished”. Thus, customs give authority to precedent and statute law.