Basic Elements to Establish

“Custom”
As the Valid
Source of Law

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 Introduction

Custom is a habitual course of conduct observed uniformly and

voluntarily by the people concerned. When people find any act to
be good and beneficial, which is agreeable to their disposition, they
practice it and in course of time by frequent observance and on
account of its approval and acceptance by the community for
generations, a custom evolves.

The best illustration of formation of such habitual courses of

action, says Holland is the mode in which a path is formed across a
lawn. One man crosses a lawn, in the direction which is suggested
either by he has in view or by more accident or for reasons of
convenience. If this process continues in the sense that for a period
of time others follow the same track and for similar reasons,
eventually what emerges is a clear foot path across the lawn with
green grass on either side.
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 Almost in an identical manner custom comes into existence. A certain
rule or practice is followed by someone for reasons or convenience etc.
others, without being obliged to do so follow the same rule. Eventually
the rule or practice becomes a habitual course of conduct in the society
giving rise to a custom.

Custom is one of the oldest forms of law making. Imitation plays on

important role in the growth of custom. Custom was so important in
early society, that sir Henry Maine points out, even a sovereign like
Maharaja Ranajit Singh could not think of changing & disregarding a
custom.

In most of the legal system of the world custom has played an

extremely significant role as a source of law.
According to Salmond, custom is the embodiment of these principles
which have commanded themselves to the national conscience as
principles of justice & unity.

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 Kinds of Custom

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 Essentials of a valid Custom

A custom must be;

 Ancient i.e. must have an immemorial antiquity
 Continuous
 Reasonable
A custom must not be;
 Immoral: There is no fixed test to judge the morality of a custom
which is to be judged by the community
 Contrary to Justice, Equity and Public Policy
 Contrary to Statutory Law

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 Binding Force of Custom

 Custom embodies the principles of right and justice, which is

acknowledged and approved not by the power of the state,
but by the public opinion of the society at large.

 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.

 Custom is observed by a large number of persons in society &

in course of time the same comes to have the force of law.

 Custom rests on the popular conviction that it is in the

interests of society.
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 Theories Regarding Transformation of custom into Law
There are two Theories regarding transformation of custom into
law; they are:
Historical Theory
&
Analytical Theory

I. Historical Theory:
According to the theory the growth of law does not
depend upon the arbitrary will of any individual and upon any
accident. It grows as a result of the intelligence of the people.
Custom is derived from the common consciousness of the people
which springs from inner sense right. Law has its existence in the
general will of the people; Savigny gave it the name of Volkgeist.

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 II. Analytical Theory:

According to Austin custom is a source of law and not law

itself. A custom becomes law when it is embodied in an act of
legislature or its existence is recognized by the decision of the
courts.

Only those customs are binding or valid which satisfy the

judicial act. A custom is law only because the sovereign allows
it to be so.

Gray considers customs and morality as sources of law

According to Holland customs are not laws unless they are
adopted into laws by state recognition.

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 Conclusion

The very fact that any rule has the sanction of custom raises a
presumption that it deserves the sanction of law also. Custom is the
external and visible sign of national conscience and as such is accepted
by the courts of law as an authoritative guide as quoted by Salmond
"Custom is to society what law is to state".

Custom which fulfils the prerequisites of its validity and the binding
force i.e. the reasons why custom is given the force of law and the
theories regarding transformation of customs into law are the elements
to establish custom as a valid source of law.

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 References:

 Fitzgerald Patrick John(Ed.), Salmond on Jurisprudence, Sweet &

Maxwell, 1966, London

 Mahajans V.D.,(Reprint-2010), Jurisprudence & Legal Theory,

Eastern Book company, Locknow, India

 Agrawal Nomita, (2012), Jurisprudence ( Legal Theory), Central

Law Publication, Allahabad, India

 Dhyani S.N., (Reprint-2011), Fundamental of Jurisprudence -

The
Indian Approach, Central Law Agency Allahabad, India

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