CUSTOM AS A SOURCE

OF LAW
SUBMITTED TO PROF . HARTEJ SINGH
 CUSTOM

•The word ‘custom’ is derived from an

old French word ‘Coustume’. Some say
that the word ‘custom’ is based on Latin
word ‘Consuetudo’, some say 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’.
 CUSTOM
A usual, habitual practice, or typical mode of behavior.
A long-established tradition of a society.
A long-established collective habit of a society.
A long-established convention of a society.
An established way of doing things.
A specific practice of long standing.
A widely accepted way of behaving or doing something that is specific to a
particular society, place, or time.
A body of usage, practices, or conventions that regulate social life.
 CUSTOM

Custom is a habitual course of conduct observed uniformly and voluntarily

by the people.
Custom occupies an important place in regulation of human conduct in
almost all the societies.
Custom is one of the oldest sources of law-making.
With progress of the society custom gradually diminished and legislation
and judicial precedents become the main source.
Custom is created by the people, by their unconscious adoption of a certain
rule of conduct whenever the same problem arises
 DEFINITIONS OF CUSTOM

1. Salmond: - “custom is the embodiment of those principles which have commended

themselves to the national conscience as principles of justice and public utility”.
2. Austin: - “custom is a rule of conduct which the governed observe spontaneously and
not in a pursuance of law set by a political superior”.
3. Allen: - “custom as a legal and social phenomenon grows up by forces inherent in
society, forces partly of reason and necessity and partly of suggestion and limitation.”
4. Holland: - “a generally observed courseof conduct.”
5. Keeton: - “customary law may be defined as those rules of human action established
by usage
 DEFINITIONS OF CUSTOM CONTD…
6. Harprasad v. Shivdayal. Case - Custom is a rule which in a particular family or
in a particular district or in a particular sect, class or tribe, has from long usage
obtained the force of a law.
7. Halsbury laws:-A custom is a particular rule which has existed either actually or
presumptively from time immemorial and has obtained the force of law in a
particular locality, although contrary to or not consistent with the general common
law of the realm.”
8. Herbert spencer: - According to him, “before any definite agency for social
control is developed there exists a control arising partly from the public opinion of
the living, and more largely from the public opinion of the dead.” Thus it is
tradition passing on from one generation to another that originally governed human
conduct
 CUSTOM, AS A SOURCE OF LAW

Custom is some kind of special rule which is followed from time

immemorial. Law based on custom is known as customary law.

Custom, as a source of law, involves the study of a number of its

aspects: its origin and nature, its importance, reasons for its
recognition, its classification, its various theories, its distinction
with prescription and usage, and the essentials of a valid custom.
 CUSTOM AND USAGE: A DISTINCTION
CUSTOM USAGE
• Is binding irrespective of the consent of the • binding only when they are not expressly excluded
parties. by the terms of agreement entered into by the
parties.
• If a custom is local, it is confined to a
particular locality. • Usage need not to be confined to a particular
locality
• A custom to be valid should be in existence
• A usage, may not to be of immemorial antiquity.
from time immemorial
• Usage, however, can do so to the extent to which it
• A local custom can easily derogate from or is possible to exclude the common law by specific
common law of the realm, but not from and express contract between the parties
statute law.
• Common law cannot be excluded by express
• Custom can override the common law agreement, it cannot be excluded by usage also.
 ESSENTIALS OF A VALID CUSTOM
Antiquity: Custom must be long-standing practices, ( Hindu Law does not fix
any particular period to judge the antiquity of a custom, English Law has the
fixed year 1189 A.D. (accession of Richard – I) to determine the antiquity of a
custom. )
Opinio necessitates / Compulsory Observance as a Right –It is the second
requisite of a valid custom.
Opinio Juris, a shortened phrase frequently used in legal proceedings, of the
Latin maxim opinio juris sivene cessitatis, which means “an opinion of law or
necessity” is the belief that action was carried out as a legal obligation. Opinio
Juris denotes a subjective obligation, a sense on behalf of a state that it is
bound to the law in question.
 ESSENTIALS OF A VALID CUSTOM CONTD…

Continuity and Uniformity: The validity of custom is also

determine by its characteristic of being followed continuously for a
longer time.
It must also be uniformly applicable to the places where it is
observed. If a custom is discontinued for a time and then comes
into force again, such custom will be presumed to never exist at all.
From the fact that a custom must be uniform, it follows that it
must be consistent. Consistency implies solidarity between customs
existing together at a time.
 ESSENTIALS OF A VALID CUSTOM CONTD…
Reasonableness - A custom to have a force of law must be reasonable, that is it
must be rationally accepted by a prudent man. In the words of Sir John W.
Salmond “The true rule is that custom, to be deprived of legal efficacy, must be so
obviously and seriously repugnant to right and reason, that to enforce it as the law
would do more mischief than that which would result from the overturning of the
expectations and arrangements based on its presumed continuance and legal
validity.”
Certainty: A custom should be certain and definite in regards to nature,
applicability, and acceptability. It should not be vague or uncertain. When the
validity of custom is questioned it should be able to answer affirmatively in the
aspects of being followed in its true essence, its applicability over people of such
locality, and its conformity
 ESSENTIALS OF A VALID CUSTOM CONTD…
Adherence to the law of the land: The custom, which is in operation in a
particular society, must be in compliance and conformity with the legal and
constitutional principles existing in that society. The rule of the law of the land is
considered to be of utmost significance and is upheld by the courts. If the custom is
contrary to the principles laid down in the Constitution, it must be dispensed with.
The most famous example of this essential is the practice of Triple Talaq among
Hanafi Sunni Muslims.•
Not opposed to public policy, morality, or express enactment: A custom which
hinders morality or peace, oris against public health and safety cannot claim its
validity on the above grounds as well. Also, it must not be expressly prohibited by
any statute or enactment. The question of judging the morality of custom is left to
the conscience of court keeping in mind the needs of the society.
 CLASSIFICATION OF CUSTOMS
Customs without Binding Obligation : They do not exercise the compulsion of law.
Some customs form a part of our daily social lives. Thus they are called social
customs. Though they may be lacking legal enforceability, they have societal sanctions
attached to them and non-observance of such customs may lead to a possibility of
socially outcast.
Customs with Binding Obligation : They have enforceability of law and are backed by
legal sanctions. They are obligatory. Such customs acquire legal character if they
satisfy certain standards or tests laid down by courts.
They regulate the social relations like the obligation of marriage and the upbringing of
children, the transmission, succession, and inheritance of property after death, or the
modes of consummating and fulfilling agreements. Further divided into legal and
conventional customs.
 TYPES OF CUSTOMS

Legal Custom – Customs taking up the form of law, have binding rules of conduct, not
merely based on faith and conviction. Its non-compliance amounts to a breach of duty.
 According to Salmond, Legal Customs have a legal obligation in itself or proprio vigore.
 Legal Customs are divided into General and Local Customs.

a) General Customs prevails throughout the country and constitutes one of the sources of
the law of the land. It is observed by all the members of society.
b) Local Customs are confined to a particular locality and constitute a source of law for
that locality only. It may be tribal customs, personal local customs, geographical local
customs, and community customs
 CONVENTIONAL OR TRANSVENTIONAL CUSTOM

 According to Salmond, A conventional custom is one whose authority is conditional on its acceptance and
incorporation in an agreement between the parties to be bound by it.
 A conventional custom or usage comes into practice due to it being followed for a long period and arising
out of a contract between the parties; it does not have any legal character in itself. Thus it is an established
norm that is legally enforceable, not because of any legal authority independently possessed by it, but
because it has been expressly or impliedly incorporated in a contract between the parties concerned.
 Conventional custom may also be divided into two types—General Conventional Customs and Local
Conventional Customs. Former is extensively practiced throughout the realm; whereas the latter is limited
to a particular place or a particular trade oraction. Customs as a Source of Hindu Law Custom is viewed
as a wellspring of Hindu law.
 From the soonest period custom is viewed as the most elevated 'dharma'. As characterized by the Judicial
Committee, custom means a standard which in a specific family or in a specific class or region has from
long use acquired the power of law
 CUSTOM IS A GUIDELINE SOURCE
• Customs are close to the Shrutis and Smritis, however use of custom beats the
Smritis. It is better than composed law.
• Indian Courts perceive three kinds of customs
• A) Local custom: These are customs perceived by Courts to have been pervasive in a
specific district or region.
• B) Class custom: These are customs which are followed up on by a specific class.
Eg. There is a custom among a class of Vaishyas such that renunciation or deserting
of the spouse by the husband annuls the marriage and the wife is allowed to wed
again during the life-season of the husband.
• C) Family custom: These are customs which are official upon the individuals from a
family. Eg. There is a custom in groups of old India that the oldest male individual
from the family will acquire the bequests.
 CONCLUSION
 The customs were the most important, and in some cases, the only source of law,
during the early times of the public.
 The customs are based on the construction of a completely legal and acceptable
framework. They appear when the general public is present. In terms of primitive
society, custom is a continuous activity. A custom is a standard or practise thathas been
followed by the general public from the dawn of time.Customs are encouraged,
merged, and exemplified in legal standards. In any lawful and legal system, the effects
of custom can be observed. Custom is a valid and authoritative source of law but the
only condition is that it must be valid and a lawful custom. However, with the advent
of colonial rule and introduction of formal legislative laws, customary regulations
gradually receded to the background.