Professional Documents
Culture Documents
JURISPRUDENCE - Anushka Tripathi Ballbsem7
JURISPRUDENCE - Anushka Tripathi Ballbsem7
JURISPRUDENCE - Anushka Tripathi Ballbsem7
SUBMITTED TO SUBMITTED BY
ANUSHKA TRIPATHI
MS.ANCHAL SAHU MAM
ALS SEM – VIII
B.A.LLB (HONS.)
DECLARATION
I Anushka Tripathi, have undergone research of the project work titled “CUSTOM AS A
SOURCE OF LAW”, as a student of jurisprudence hereby declare that- this Research Project is
the outcome of the investigation done by me and also prepared by myself under the supervision
of Anchal Sahu Mam, Amity law School, Raipur. The views expressed in the report are personal
to the student and do not reflect the views of any authority or any other person, and do not bind
the statute in any manner.
ANUSHKA TRIPATHI
SEMESTER – VIII
I feel highly elated to work on the project “CUSTOM AS A SOURCE OF LAW” The practical
realization of the project has obligated the assistance of many persons. Firstly I express my deepest
gratitude towards Anchal Sahu Mam, Faculty, Jurisprudence, to provide me with the opportunity
to work on this research work. Her able guidance and supervision in terms ofher lectures were of
extreme help in understanding and carrying out the nuances of this project.
Some typography or printing errors might have crept in, which are deeply regretted. I would be
grateful to receive comments and suggestions to further improve this project.
ANUSHKA TRIPATHI
SEMESTER – VIII
3. Causes that make society’s laws the force of law. (legislation, customs etc.)
• Salmond, an English Jurist, has classified sources of law into the following
categories:
1. Formal Sources of Law: These are the sources from which law derives its
force and validity. A law enacted by the State or Sovereign falls into this
category.
2. Material Sources of Law: It refers to the material of law. In simple words,
it is all about the matter from where the laws are derived. Customs fall in this
category of law.
However, if we look around and examine the contemporary legal systems, it may
be seen that most legal systems are based on legislations. At the same time, it is
equally true that sometimes customs play a significant role in the legal system of a
country. In some of the legal systems, court decisions are binding as law.
These sources are further divided into two sources: legal sources and historical
sources.
Legal sources: Legal resources that are the sources which are not only in fact but also in
law and officially.
i. Legislation (enacted law)
ii. Precedents (case law)
iii. Customs
iv. Conventional law (based on agreements e.g., local law, treaties etc.)
Historical sources: Historical sources are those sources that are really in fact only and
unauthorized.
• Example:
• Legal writings,
• Juristic opinions,
• Foreign judgements,
• Constitution etc.
1
1880 ILR 4 Bom 545
Importance of custom as a source of law in India:
Custom was the most important source of law in ancient India. Even the British initially
adopted the policy of non-intervention in personal matters of Hindus and Muslims.
After independence and the enactment of the Constitution, the Indian Parliament took many
steps and abrogated many old customary practices by some progressive legislation. Hindu
personal laws were codified and the Hindu Marriage Act, 1955 and the Hindu Adoption
Act, 1955, were adopted. The Constitution of India provided a positive environment for
these social changes. After independence, the importance of custom has definitely
diminished as a source of law and judicial precedent, and legislation has gained a more
significant place. A large part of Indian law, especially personal laws, however, are still
governed by the customs
i. Hindu Personal Laws
ii. Hindu Marriage Act, 1955
iii. Hindu Succession Act, 1956,
iv. Hindu Minority and Guardianship Act. 1956 and
v. Hindu Adoptions and Maintenance Act, 1956
Theories of Customs
Historical Theory
As indicated by this school, custom contains its own legitimacy, since it would not exist at all except if some
profound needs of the general population or some local nature of societal needs offer validity to it.
The development of law does not depend upon the subjective will of any person. It because of the knowledge
of the communities and civilizations that have existed throughout history.
Custom is achieved from the common conscience of the general population. It springs from an innate feeling
of right. Law has its reality in the general will of the people. Savigny calls it “Volkgeist”.
Analytical Theory
Austin was the main proponent of the Analytical theory. For him, Customs did not have any legally binding
force in themselves. Their legal character is always subject to the assent of the Sovereign. For him, customs
were merely reflection of law, and were not ‘real law’. Customs need the modification and the approval of
judges, jurists or rulers for them to have any binding force on people. This is in consonance with his idea that
all law is the ‘Will of the Sovereign”.
Conclusion
Therefore, it can be seen that Customs are a very important source of law, which have their historical roots in
the earliest and most primitive of societies, and still hold relevance. Society is constantly in the process of
establishing newer practices which might in due time turn into usages or customs.
We depend on customs and are governed by them, knowingly or not. The English Common law can be
interpreted as a formalization of existing customs, and therein lies the importance of having the right customs
insociety.