Custom Law: Origins and

Essentials
Customs are a vital aspect of the social fabric and legal systems around the
world. But how does a custom gain legal standing, and what separates a valid
custom from one that is not? In this presentation, we'll explore the essential
elements of a valid custom, the classification of customs, and when customs
become law.

by prashant panwar
Essentials Elements of a Valid Custom
Reasonableness Conformity with Statutory Law

A custom must be reasonable to be admitted into A custom must align with statutory law and can
legal systems. be overridden by legislation.

Morality Certainty

Customs are often based on moral principles. A custom must be certain and not indefinite or
uncertain for legal recognition.
Observance and Continuity

1 Observance

Customs must be followed by all

individuals.
Continuity 2
Customs must be practiced continuously to
be recognized.
Peaceful Enjoyment and Binding Force
Peaceful Enjoyment Binding or Obligatory Force

A custom should have been peacefully enjoyed in A custom must be supported by the opinio
society to be acknowledged as law. necessitatis, meaning that the affected public
treats it as obligatory rather than optional.
Public Policy and Morality
Morality
Customs are often based on moral
principles that have an impact on shaping
the law.
1 Public Policy
A valid custom must align with public
policy, which encompasses the
2 fundamental principles underlying social
laws.
3 Reasonableness
A custom must be reasonable, although
determining what is reasonable is often
subjective.
Classification of Custom

Legal Customs Conventional Customs

Recognized by the courts and function as the law of The authority of conventional customs or usages
the land. depends on their implicit incorporation into contracts.
Legal Customs: General and Local

1 General Customs

Prevalent throughout the state's territory,

general customs constitute a source of
Local Customs 2 common law.
Applicable only to specific localities, such
as cities, villages, or districts. Courts
recognize these customs, even if they
deviate from common law.
When Custom Becomes Law
Analytical Theory
Custom is not law itself but a source of
law and must be recognized by legislation
and approved by the judiciary, according to
John Austin and Holland.
1 Historical Theory
Custom is law itself, based on the common
consciousness of the people, according to
2 Karl Von Savigny and Henry James
Summer Maine.
3 Gray's Definition
The law is what judges declare, and
legislation, precedents, customs, and
morality all contribute to legal sources.