CUSTOMARY

LAW
INDEX
 CUSTOMARY LAW

There are various sources of law. One of the main sources of law is customs.

Customary laws are defined variously by some authorities as:

 Traditional common rule or practice that has become an intrinsic part of the
accepted and expected conduct in a community, profession, or trade and is
treated as a legal requirement1

 According to one definition, “custom” is a “rule of conduct, obligatory on

those within its scope, established by long usage. Are valid custom must be
of immemorial antiquity, certain and reasonable, obligatory, not repugnant
to Statute Law, though it may derogate from the common law.2

 “customs that are accepted as legal requirements or obligatory rules of

conduct; practices and beliefs that are so vital and intrinsic a part of a social
and economic system that they are treated as if they were laws” 3

 “Established patterns of behavior that can be objectively verified within a

particular social setting. The modern codification of civil law developed out
of the customs, or customs of the middle ages, expressions of law that
developed in particular communities and slowly collected and written down
by local jurists. Such customs acquired the force of law when they became
the undisputed rule by which certain entitlements (rights) or obligations
were regulated between members of a community.” 4
1
www.businessdictionary.com

2
Osborne’s Concise Law Dictionary, Ninth Edition (Sweet and Maxwell, 2001)

3
Black’s Law Dictionary, 8th edition, 2004

4
http://en.wikipedia.org/wiki/Customary_law
 Principle Sources of Indian Law – Customs
Customs can be described as a cultural idea that defines a regular pattern of behavior, which is
considered a characteristic of life in a social system. They are one of the earliest sources of law.

Principal Sources of Law – Customs

Studies on ancient societies show that the lives of the primitives were dictated by the customs which
developed during that time period because of the circumstances. When a certain activity is
performed in a certain way, many times, it becomes a custom. Customs have played a major role in
forming ancient Hindu Law.

Customs can be broadly classified into:

 Without sanctions

Customs without sanctions are those which are not obligatory and are followed due to the pressure
of the society. It is referred to as ‘positive morality’

 With sanctions

Customs which have sanctions are those which are enforced by the ruling body. It is these customs
that we will be dealing with in the law. These are again divided into two types –

1. Legal Customs

Legal Customs act as strict rules that are meant to be followed by everyone and action is taken
against anyone who breaks them. They are recognised by the courts and are part of the law. Again,
there are two aspects to legal customs, which are:

Local Customs – Local customs are those types of customs which exist in a certain geographical
locality and are thus part of that place’s culture. It is specific to that place alone. However, when
certain communities migrate, they take their customs with them. And so, local customs are then
further divided into two parts – geographical local customs and personal local customs.

General Customs – A general custom is a custom that is not specific to a single locality, but rather
it is followed by the whole nation or country. They are also part of the law.5

2. Conventional Customs
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A conventional custom is an established ‘usage’ which is considered legally binding because it has
been incorporated in an expressly stated or implied contract. Before a court of law treats a
conventional custom as legally binding, certain prerequisites have to be fulfilled. Those are :

 It must be shown that the convention is clearly established and also that the contracting
parties are fully aware of it. There is no fixed period before which a convention must be
observed before it is recognized as binding.

 The convention cannot alter the general law of the land.

 It must be reasonable.
Similar to legal customs, conventional customs can be divided into general or local conventional
customs.

Requisites of a valid custom

A custom will only be considered a valid law with a binding force if these requirements are
fulfilled:

 Immemorial (Antiquity) – A custom must be ancient or immemorial so that it may be

considered as a valid binding custom.

 Certainty – The custom has to clearly defined, it cannot be vague and confusing.

 Reasonable – A custom must be within bounds of reason for it to be considered legally

binding. Therefore, custom would be considered unreasonable if it opposes principles of
justice, equality and good conscience.

 Compulsory Observance – For a custom to be considered valid, it must have been observed
since ancient times without any interruptions and must be considered by the people following
it as a binding rule of law.

 Conformity with Law and public morality – A custom must not go against public policy
and law of the land. If the law makes it forbidden, it will not be considered a valid custom.

 The unanimity of Opinion – Only a universally accepted custom will be considered valid.

 Peaceable Enjoyment – When everyone follows and enjoys the custom in a peaceful
manner, only then will it be considered valid.

 Consistency – There should be consistency between customs. Two customs that have
opposing viewpoints cannot be considered valid.

How customary law is made

Customary law is based on the traditions of the
community concerned. Like common law, it has
developed over the centuries. But it is important
to be cautious in relying on historical records to
determine what customary law is, because pre-
independence accounts of customary law often
distorted its meaning. Customary law changes
over time. Flexibility and the ability to change
over time is an important feature of customary
law. Traditional authorities have the right to
make new customary law, and to amend and
repeal existing customs. But customary law
must be considered in the community context. It
is sometimes referred to as “living law” because
the current practices of a particular community
must be considered in order to understand the
community’s customary law properly.6
The position of customs in various legal
system
6

www.lac.org.
Roman law:
Customs played a major role in the legal system of ancient Rome before codification,
after the codification of law their importance were decreased as customs became a
secondary source of law. Test of reasonableness and antiquity was fixed to make a
custom a law.

Hindu Law:
Most of the law in Smritis and Commentaries are customs. They have given great
importance to customs and said that customs should be followed. After British started
codification of law, their importance was decreased.

Mohammedan Law
It is said by many jurists that customs were not expressively disapproved by the
Prophet Mohammad. It was on the basis of customs that Sunnis interpreted many
provisions of law, especially the law of divorce and inheritance.

French Law
French system does not give such importance to customs

English Law
They have played a major role in molding English law. They are known as ‘Common
Law’ in English law. Common law is a customary law and thus they can neither be
against God, nor against law of reason, and they are always believed to be good and
necessary. The common law according to 19 and 20th-century jurists are “Judge-
th

made law”7

Advantages and Disadvantages of customary law

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  Advantage: Customary law is often the most accessible kind of law for people who live
in rural areas. Customary court proceedings are usually conducted in local languages, and
the principles involved are often easy for members of the community to understand.
There are limited costs to cases in community courts. It is usually not necessary to
involve lawyers.

 Disadvantage: Customary law has not historically treated men and women equally. Even
now, in some communities, women need assistance from a male relative to bring a case
to a customary court.

 Advantage: Customary law usually aims to find a solution which everyone involved can
accept and understand so that the community can live together peacefully. The
proceedings are often more informal than proceedings in other courts, and they often
involve flexibility and negotiation.

 Disadvantage: Because the procedures in customary courts are informal, they may not
always follow the principles for fair hearings. Also, because of customary law’s
flexibility, it may be harder to make sure it is applied in a similar way to people who have
committed similar wrongs. The details of some customary law rules may differ from
community to community, even in the same ethnic group.

 Advantage: Customary law does not split criminal cases and civil cases. A single
customary law proceeding will often result in a payment which is partly a punishment for
wrongdoing and partly compensation for the damage done to the person who was
wronged.

 Disadvantage: The payment of compensation may not be sufficient to protect members

of the community from further harm by a person who is reckless or violent. Punishing
wrongdoing by means of compensation means that rich people can simply buy their way
out of trouble. Also, compensation may go to the family of the wronged person rather
than to the individual who actually suffered the harm directly. 8

EXAMPLES OF CUSTOMARY LAW

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www.lac.org.
There are various examples of customary law:

 Customary law is found majorly in areas of marriage, property, inheritance.

 Merchant law and bills of exchange laws come from the custom of the
merchants.

 India’s Constitution provides protection of tribal indigenous communities

and their customs through Articles 244, 244-A, 371-A, and the Fifth and
Sixth Schedules. The Fifth and Sixth Schedules provide for a system of
“Scheduled Areas” or tribal regions, which are designed to protect the
interests of listed indigenous communities or “Scheduled Tribes.”

 Customary Hindu practices in marriage and divorce that are outside the
traditional norm are also recognized under Indian law. Traditional Hindu law
recognizes eight forms of marriage, of which three—Brahma, Asura, and
Gandharba—are the most prevalent. However, a marriage in a form “which
is out of practice or obsolete is not necessarily prohibited by Hindu law.”

 The so-called “Law of Nations” is a customary law. It comes from the

customary exchanges between nations over time, and those customary
exchanges may be based on historical relations, diplomacy or conflict. So
customary international law is different from "international treaty law"
(which are actual agreements or treaties between nations about obligations).

 In Hong Kong, the law recognizes any Chinese customary wedding (which
essentially involves only a banquet in a public place and no ‘marriage’
ceremony) held before 1971 as a legally valid marriage.9

9
www.quora.com