Custom as source of Law

Sources of Law
 The term “sources of law” is used in different senses.
 The general meaning of the word “sources” is “origin”.
 C.K. Allen uses it in the sense of agencies through which
the rules of conduct acquire the character of law by
becoming definite, uniform and compulsory.
 According to Holland, the expression “sources of law” is
sometimes employed to denote the quarter whence we
obtain our knowledge of the law, e.g., whether from the
statute book, the reports or esteemed treaties.
 Salmond, an English Jurist, has classified sources of law
into the following categories:
 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.
 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.
Material Sources of Law:
I. LEGAL MATERIAL SOURCES: which are recognized
as such by the law itself. (legislations, precedent,
custom, agreement and professional opinion)
II. Historical Material Sources: These sources are
unauthoritative lacking formal recognition by the law.
They have no legal recognition. (foreign precedent and
Juristic Writings)
Keeton’s classification of the sources of
law has emerged as a critique of
Salmond’s classification. He Classified it
into two categories:
1. Binding sources
2. Persuasive sources
Formal Sources of Law
Custom
Legislation
Precedents
 CUSTOM AS A SOURCE OF LAW
 The word ‘custom’ is derived from an old
French word ‘Coustume’. Some says that the
word ‘custom’ is based on Latin word
‘Consuetudo’, some says that the word
‘Custom’ is derived from the word ‘Consuetus’,
while others say that it is the part participate of
word ‘Consuescere’ which means ‘ accustom’.
It means a usage or practice common to many
or to particular place or class or habitual with
an individual.
 Definitions of Custom

John Salmond
“Custom is the embodiment of those principles
which have commended themselves to the
national conscience as principles of justice and
public utility.”
For Salmond, a valid custom has absolute legal
authority which as the force of law in itself. He
divides Customs into two:
General Custom – A general custom
has the force of law throughout the
territory of a state. For example, the
Common Law in England.
Local Custom – The local custom are
those which operate have the force of
law in a particular locality. The
authority of a local custom is higher
than that of general custom.
J.L. Austin
“Custom is a rule of conduct which the
governed observe spontaneous and not in
pursuance of law settled by a political
superior.”
C.K. Allen
 “legal and social phenomenon growing up by
forces inherent in society—forces partly of
reason and necessity, and partly of suggestion
and imitation.”
Holland:
custom as “a generally observed course of
conduct.”
Robert Keeton:
“Customary law may be defined 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
the courts and applied as source of law, because
they are generally followed by the political
society as a whole, or by some part of it.”
 Origin of Customs
In Britain, Jurists and legislators started
studying these patterns, recording their
prevalence, usage and applicability.
There are two philosophers with alternate
views as to how customs originate.
i. Sir Henry Maine
ii. T. Holland
According to Sir Henry Maine, “Custom
is conception posterior to that of
Themistes or judgments.”
He described the development in distinct
steps. These are:
1. Law by rulers under divine inspiration
2. Developing of Customs
3. Knowledge of law in the hands of priests
4. Codification
T. Holland
According to Holland, “custom is a
generally observed course of
conduct”.
custom originated in the conscious
choice by the people of the more
convenient of the two acts. 
 Customs as a Source of Hindu Law
Custom is viewed as a wellspring of
Hindu law.
 Custom is a guideline source and its
position is close to the Shrutis and
Smritis.
Indian Courts perceive three kinds of
customs:
1. Local custom
2. Class custom
3. Family custom