LECTURE 1

Sources of Law III: Custom

ORIGIN

AND IMPORTANCE OF

CUSTOM

There are several theories concerning the origin of custom, and

its relationship with the law. A discussion of those theories is not
necessary for our purpose. However, a conclusion which
emerges as a consensus of all the theories and is established by
actual study of primitive communities is that custom is anterior
to Kings and courts. The origin of custom may be traced to the
very inception of the community itself. A community involves
three essential elements: (i) the group; (ii) the existence of the
divergent desires within the group; and (iii) the claims made by
some members against others or against the group. Conflicting
claims and desires within the group naturally generate
problems. If the group is to remain a community, these problems
must be resolved, for which certain norms are required. Even in
a primitive community, a distinction must be made between
what is actually done, and what ought to be done. It may also
become necessary to reconcile the norms of the family, or the
tribe with those of the community. When a problem arises, an
answer must be found. Tact and sense of the merits and
appreciation of the strength of each party, play a greater part
than the desire to find a rule that is just and logically justifiable.
Once a rule is adopted, practice generates conviction. Practice
grows into convention. What makes convention a custom is the
recognition that there is authority behind it. In other words,
custom comes into existence when the community in some way
backs a particular rule. In the modern state, the legally

LECTURE 2
recognised custom is supported by the courts, and an apparatus
of coercion.
Custom is not necessarily linked to any sense of justice. The
existence of a custom may be justified by expediency or power
relations in a community.

Lectures in

Jurisprudence

The obvious example of a custom, which has no element of justice

ltj
slavery.
18

The importance of custom diminishes with the growth of a legal

system since custom is superseded by legislation and precedent.
Nevertheless custom is useful to the framers of law in two ways: (i)
it provides the material out of which the law can be fashioned by
saving the intellectual effort needed to create a law, de novo; and (ii)
psychologically, it is easier to secure obedience to a law if it claims
to be based on a custom immemorially observed. There is inevitably
a tendency to adopt what has been followed in the past as safe
guide for the future.
The main reasons for the reception of Customary Law into the law
of the modern state are:
(i) Custom is frequently the embodiment of those principles,
which have commended themselves to the national
conscience as principles of justice and public utility, and
are embodied in the maxim via trita via tuta, ie, frequented
path is reliable path. The law embodies those principles
that have been acknowledged and approved by the state in
the exercise of its sovereign power. Custom embodies
those principles that have been acknowledged and
approved not by the power of the state, but by the public
opinion of the society at large. It is, therefore, said that
custom is to the society, what law is to the state.
(ii) The existence of an established usage is the basis of a
rational expectation of its continuance in the future. As far
as possible the state tries to fulfill peoples rational
expectations rather than frustrate them. Even in fully
developed legal systems, customs are not totally replaced
by positive law. Customs which are not contrary to the
prevalent mores of the community are either recognised
and incorporated into the law, or are merely tolerated. An
early example of custom gaining statutory recognition is
the Native Rights Act 1865 of New Zealand, which allowed
the aboriginal Maoris to continue to be governed by their
own tribal customs. In India, during the colonial period,
there was an attempt to codify the civil law and criminal
law, but the religious personal laws were left untouched by
the British. Even after independence, the Hindu personal

Lectures in

law alone was reformed and codified, leaving the personal

laws of other major religious communities as they were
before independence. The tribals in India are also mostly
governed by their customary laws. It is, thus, clear that the
influence of custom is still a factor to be reckoned with
even in a modern legal system.

Jurisprudence

KINDS

OF

CUSTOMS

Sources of Law
III: Custom

t
Custom is usually divided into legal, and conventional. Legal
custom is one whose authority is absolute, and which in itself
and proprio vigorc possesses the force of law. It is operative per se
as a binding rule of law, independent of any agreement on the
part of those subject to it.
Conventional custom, which is also called usage, operates
only indirecdy through the medium of agreements, where it is
accepted and adopted in individual instances as conventional
law between the parties. It is an established practice which is
legally binding not because of any legal authority independently
possessed by it, but because it has been expressly or implicitly
incorporated in a contract between the parties concerned. Most
agreements consist of two partsnamely, expressed terms, and
implied terms. It is for the law to supply implied terms
supplementing the terms expressed by the parties. Courts deem
conventions as implied terms of contract, when the following
conditions are satisfied:
(i) The usage must be so well established as to be notorious.
No particular period of longevity, however, is necessary to
satisfy the requirement of notoriety.
(ii)
The usage cannot alter the general law of the land,
whether statutory or Common Law. Usage derives its force
from its incorporation into an agreement and, therefore,
can have no more power to alter the law than an express
agreement.
(iii) The usage should be a reasonable one.
(iv) It need not have any particular scope. Usages may be,
and usually are, limited to a trade or locality, but they
may be common to the whole country or even the world.
(v) The usage will not be enforced in a particular case if it
purports to nullify or vary the express terms of a contract.
Its sole function is to imply a term when the contract is
silent. The parties cannot be understood to have
contracted in the light of a usage, which they have
expressly contradicted.
Law originating in usage normally passes through three
successive historical stages. First is the existence of the usage,
which is a question of fact. Then the courts take judicial notice of

it. Finally, it may be embodied in a statute, and then it assumes

its ultimate form as enacted law.
Once a general usage has received judicial or statutory
recognition, it cannot be altered by the growth of any other later
usage in conflict with it. As Buckland remarks, what is law is not
usage, but the statement of the characteristics which it should
possess.
Custom has also been classified into local custom, and general
custom of the realm. A local custom prevails in some defined
locality only, and constitutes a source of law for that place only.
In order that a local custom may be valid and operate as a
source of law, certain requirements must be satisfied.
REQUISITES OF A CUSTOM

In order to operate as a source of law, a custom must have the

following attributes:
Reasonableness

Malus usus abolendus

A custom must be reasonable.

The authority of usage is not absolute, but conditional upon
its conformity with justice and public utility. It is not meant that
the courts are at liberty to disregard a custom whenever they are
not satisfied as to its absolute rectitude and wisdom, or
whenever they think that a better rule could be formulated in the
exercise of their own judgment. This would be to deprive custom
of all authorityeither absolute or conditional. The true rule is, or
should be, that a custom, in order to be deprived of legal
efficacy, must be so obviously and seriously repugnant to right
and reason that to enforce it as law would do more mischief than
that which would result from overturning the expectations and
arrangements based on its presumed continuance and legal
validity.

est.

Conformity with Statute Law

Sources of Law

A custom must not be contrary to an Act of Parliament. In the

words of Coke, No custom or prescription can take away the
force of an Act of Parliament/

III: Custom

Observance as of Right
The third requisite of the operation of custom as a source of law
is that it must have been observed as of right. However, this
does not mean that a custom must be acquiesced in as a matter
of moral right.
Immemorial Antiquity
The fourth and the last requirement of a legal custom relates to
the length of time during which it has been established. A
custom, to have the force
of law, most be immemorial. A custom is said to be immemorial
when its origin is so ancient that the beginning of it is beyond
human memory, and no testimony is available as to a time when
it did not exist.
In addition to the aforesaid requirements, continuity,
peaceableness, certainty, and consistency with other customs,
are also considered as requisites for a valid custom.
GENERAL CUSTOM

OF THE

REALM

A custom prevailing throughout England since 1189 is considered

as part of the Common Law. The expression general custom of
the realm,* is, therefore, synonymous with Common Law. It is no
longer a living and an operative source of English law. All the
general customs of the realm have been transformed into case
law, which has its immediate source in precedent.
CUSTOM

AND

PRESCRIPTION

Historically, the law of prescription has been regarded as a

branch of the law of custom. A prescription was conceived as a
custom limited to a particular person and his ancestors or
predecessors. It may, therefore, be described as a personal

custom, and may be distinguished from a local custom which was

limited to a place.
The difference between a local custom and prescription will be
clear from the following example. If on the death of an owner
intestate all lands belonging to him have, from time immemorial,
descended to his youngest son, it is a custom, and is the source
of a rule of special and Customary Law. Similarly, if the owner of a
farm and all his predecessors in title from time immemorial have
used a way over the adjoining farm, it is a prescription and is the
source of a prescriptive right of way vested in the owner.
Therefore, we can say that custom is a long practice operating as
a source of law; while prescription is a long practice operating as
a source of rights.
Both prescription and custom are essentially governed by
similar rules of law. The requisites of a valid prescription are in
essence the same as those of a valid custom, namely, it must be
reasonable, immemorial, and consistent with statute law.
Gradually, other forms of prescription not known to the early law
came to be recognised. The requirement of immemorial antiquity
is not insisted on in the case of prescription. In cases of
easements, enjoyment for 20 years confers a prescriptive right.
Thus, when a person has been enjoying a right for 20 years, he
now has an absolute title instead of a mere evidence of user.

Sources of Law
III: Custom

Approaches to Law I: Historical Approach

OVERVIEW

Different people have different ideas about law. Everyone tries to

explain the meaning, nature, and function of law from his own
perspective. This is the reason behind the existence of multiple
theories of law, and different approaches to law. Legal
philosophers who had devoted a lifetime of study and analysis to
the fundamental issues of law, as distinct from any particular
branch of law, have contributed much to our understanding of
law. Textbooks on jurisprudence usually classify these
contributions under theories of law, approaches to law or schools
of jurisprudence. For analytical purposes, we may classify the
theories under several broad titles. However, the truth is that
under every category we find several varied versions and views.
Each theory or approach has been accepted or rejected at
various points in time. Each theory has been criticised, reinterpreted, or modified. Students of law generally feel that the
most difficult part of jurisprudence is the one that deals with
theories of law. While it is true that the task to grasp the
intricacies of various theories of law is not easily accomplished, a
preliminary understanding of the important aspects of these
theories is intellectually well within the reach of an average
student of law. Infact, the syllabus requires study only to that
extent, leaving a deeper and more critical study for those who
are really interested and motivated.
The questions which arise are as to why we should study these
abstract theories and approaches, and in what way does the
study help us in understanding particular branches of law, or in
solving practical problems or law? These are the questions
frequently asked by the law students. It must be understood that

no branch of law can stand in isolation, and no legal problem can

be solved with the help of a readymade rule alone. Each legal
rule and each branch of law must be conceived as part of a legal

Lectures in

system. Various approaches to law, and theories of law help in

Jurisprudence
understanding a legal system.
A word of caution is necessary here. The approaches and
theories, which we will discuss in this and the subsequent
lectures, will help in understanding the nature and function of law
and the legal system. Finally, one may feel that no single theory
provides a totally satisfactory explanation. That is precisely the
reason why it becomes necessary to undertake a study of all
these theories. While each theory offers only a partial view and
has many defects and limitations, an understanding of all the
theories will certainly give a broad vision of law.
Let us begin our discussion with the historical approach. It
considers law in direct relationship with the life of the community.
The central question that this approach raises is as to how did
law evolve? The historical approach believes that law evolved, as
did language, by a slow process, and law, like language, is a
peculiar product of a nations genius. Later, when we discuss the
positivist approaches to law, we will find that Austin defined law
as the command of the sovereign. The historical approach rejects
this definition, and states that the source of law is not the
command of the sovereign, not even the habits of the
community, but the instinctive sense of right possessed by every
race. The real source of law lies deep in the mind of men.
The historical approach comprises inquiries into the past and
evolution, with the object of elucidating the position today. The
inquiry is undertaken mainly to find out the extent to which the
oughts of contemporary laws have been fashioned by the past.
Inquiry into the past, especially into primitive and undeveloped
communities, conducted to discover what law might
appropriately be taken to mean, is known as the anthropological
approach. It is a variant of the historical approach.
There are several factors which paved the way for the rise of
the historical approach. First of all, it was a reaction against the
non-historical assumption of the natural law theory, which we will
examine later. The need for a realistic investigation into historical
truths was recognised. The French revolution, with all its
brutalities, was considered as the culmination of the attempt to
establish a legal system based on reason, without reference to
past or existing circumstances. It was French conquest by
Napoleon that aroused the growth of nationalism in Europe. Since
there was hostility towards everything associated with French,
the idea of codification, which arose in France, was also treated
with hostility, and the historical approach provided a theoretical

Lectures in

foundation to the opponents of codification. The influence of

Jurisprudence
thinkers like Montesquieu,
who maintained that law was shaped
by social, geographical and historical considerations, was another

Approaches to Law I:

significant factor. In England, Edmund Burke echoed this view,

and referred to the
importance
of tradition as a guide to social
Historical
Approach
change.
The most influential and important jurist of the historical school
was Savigny. He warned that reforms which went against the
stream of a nations continuity were destined to fail. The essential
prerequisite to the reform of law was a deep knowledge of
history. Historical research was the indispensable means to the
understanding and reform of the present. Savigny emphasised
that the muddled and outmoded nature of a legal system was
usually due to a failure to comprehend its history and evolution.
The most important contribution of Savigny to the
understanding of law was his theory that the nature of any
particular system of law was . a reflection of the spirit of the
people who evolved it. He called it 4 Volksgeist Puchta, a disciple of
Savigny, asserted that law was the manifestation of a common
conscience. Law grows with the growth and strengthens with the
strength of the people and finally dies as the nation loses its
nationality.
The broad principles of the system are to be found in Volksgeist,
which are manifest in customary rules. It follows that law is a
matter of unconscious growth. Law making should, therefore,
follow the course of historical development. Savigny considered
custom as preceding and superior to legislation. Legislation
should always conform to the popular consciousness. Law is,
thus, not of universal application. It varies with people and ages.
Volksgeist, according to Savigny, is the standard by which laws are
to be justified.
Savigny clearly admitted that Volksgeist only formulated the
rudimentary principles of a legal system, and it did not provide all
the necessary details. As society, and consequently law, becomes
more complex, a special body of persons is called into being
whose business is to give technical, detailed expression to
Volksgeist. These are the lawyers whose task is to reflect accurately
the prevailing geist. In the branches of law the Volksgeist manifests
itself; it would be helpful if legislators took account of traditions
when framing new laws. Even though Savigny maintained that
legislation was subordinate to custom and should conform to
Volksgeist, he did not oppose legislation or reform by way of
codification at some appropriate time in the future. The only
requirement is that codification should be preceded by an
organic, progressive, scientific study of the law.

1
1

Approaches to Law I:

Comments on VOLKSGEIST

Historical Approach

Even those who accept the idea of Volksgeist point at the

difficulties in fixing it with precision. Savigny treated it as a
discoverable thing. However,

1
2

Lectures in

our experience is that even in a small group, people hold different

Jurisprudence
views on different subjects. This is all the more true for a nation.
Some critics go to the extent of saying that the geist does not
exist.
History is replete with examples of transplantation of law in
alien lands. Roman Law was transplanted in Europe. RomanDutch Law was taken to distinct places, and it still survives in
South Africa and Sri Lanka, long after it has disappeared from its
homeland. The reception of English Law in so many parts of the
world, including India, is also an evidence of supra-national
adaptability and resilience. All this is inconsistent with Savingys
idea of Volksgeist, and goes to show that there is some quality in
law other than just popular consciousness.
It has been pointed out that the influence of Volksgeist is only a
limited one. Its influence seems to manifest itself more strictly in
some branches of law than in others. For instance, inspite of the
successful introduction of an alien system of law into India and
Turkey, the indigenous family laws remained practically
unaffected.
Some commentators have drawn attention to the distinction
between the creative influence of Volksgeist, and its adaptative
and abrogative influence. In modern times, the function of
Volksgeist is that of modifying and adapting, rather than creating.
The fact that law is sometimes used deliberately to change
existing ideas and may also be used to further interstate cooperation in many spheres, is not recognised by the historical
school.
Some other limitations of Volksgeist also need to be mentioned.
Many institutions have originated, not in Volksgeist, but in the
convenience of a ruling oligarchy. Slavery is a clear example of
this. In India, the practice of untouchability was started by the
dominant classes. It is pertinent to point out that many customs
owe their origin to the force of imitation, and not to any innate
conviction of their righteousness.
Volksgeist does not adequately explain the existence of local
custom. The question is if law is the product of Volksgeist, how is it
that only some people and not all have evolved a special rule?
Savigny tries to explain this by recognising the existence of inner
circles within a society.
In any modern state important rules of law very often develop
as the result of conscious and violent struggle between conflicting
interests, and not as a result of imperceptible growth. The laws
protecting the rights of workers is a conspicuous example. In India,
the conflict between the landless labourers and the landowners

Lectures in

has seen violent agitation and intervention of law in the form of

Jurisprudence
land reform legislation. Thus, at least in som cases, instead of
being a reflection of Volksgeist, law has in effect shaped
Volksgeist.
.
Roscoe Pound was critical of Savigny s juristic pessimism in
distrus
74

any deliberate attempt

Approaches
to reform
to Law
the law,
I: and in not recognising
the creative work of judges and jurists. Dias observes that Savigny did
grasp valuable truth aboutHistorical
law, but ruined
Approach
it by over emphasis.
Inspite of its limitations, the historical approach has made many significant
contributions to the legal theory. It provided a great stimulus
111
sense of historical perspective in the outlook of lawyers. In England,

the
WQ Q ij
influence of the historical approach can be seen in the writings of
Maine,

Vinogradoff, Pollock, Maitland, and Holdsworth. It clearly demonstrates the

close connection between the Common Law, and the social and political
history of England.
By insisting that law cannot be understood without an
appreciation of the social milieu in which it had developed, the
historical school destroyed the idea of immutable rules of law
discovered by abstract reason. In the place of moral authority
behind law, the historical school substituted social pressure. This
bridged the gap between historical, and sociological schools.
Though the historical school challenges most of the assumptions
of the natural law school, there is one point where both these
theories concur. Both consider formal criteria of validity of law to
be of subordinate importance. Thus, the growing influence of the
historical school indirectly paved the way for the resurgence of
natural law.
In a period when the emphasis was shifting from custom to
legislation and attempts for law reforms through legislations were
in full swing, the historical school demonstrated its perils and
taught the lesson that development should flow within the
channels of tradition. It also demonstrated the connection
between some parts of law and cultural evolution, and the need to
delve into the past sometimes in order to obtain a full
understanding of the law as it is at present.
We have now seen the contribution and limitation of the
historical approach. Now how do we conclude our discussion? We
borrow from Paton who observed: The historical method in
jurisprudence should be supplemented by a critical approach based
on a philosophy of law, in order that true perspective may be
maintained.
There are some other approaches to law closely allied to the historical
approach, which are also generally discussed along with the historical
I
school. We will examine them briefly.

7
5

ANTHROPOLOGICAL APPROACH

Approaches to Law I:

Henry Maine, who is considered to be the greatest representative

of the historicalHistorical
school Approach
in England, inaugurated both the
comparative and

7
6

anthropological approaches
to the study
Lectures
in of law. Instead of stressing the
uniqueness of national institutions, he brought to bear a scientific urge
to unify, classify, and generalise
the evolution of different legal orders.
Jurisprudence
Tracing the pattern of legal development, Maine identified four stages,
(i) law-making by personal command believed to be of divine inspiration;
(ii)
commands crystallise into customs; (iii) the ruler is superseded by a
minority who obtain control over the law; and (iv) revolt of the majority
against oligarchic monopoly and publication of law in the form of a code.
According to Maine, static societies do not progress beyond this point.
However, progressive societies proceed to develop the law by three
methods, viz legal fiction, equity, and legislation. By the use of fiction,
law could be extended or changed to meet the changing needs of society,
while it was pretended that law remained unchanged. Equity was a set of
principles that were conceived to have a higher sanctity than the current
rules of law, and, therefore, could supersede law. Legislation is the direct
law making by the authority of the state. Maine recognised that the
progress of civilisations demanded an increasing use of legislation.
Codification is an advanced form of legislative development, and
represents the stage at which all the preceding phases of development
are woven into a coherent whole.
According to Maine, in early societies the legal condition of the
individual was determined by status. It means that his claims, duties,
liberties etc, were determined by law. The march of progressive society
witnessed the disintegration of status and the determination of the legal
condition of the individual by free negotiation on his part. This is
summarised in Maines famous observation: The movement of
progressive societies has hitherto been a movement from status to
contract.
Maines status to contract theory may be illustrated with reference to
the early Indian society. In the age of ancient codes, such as the Smritis,
family was a unit of the society. Legal conditions of the individual, his
rights, duties, privileges etc, depended on his status in the family.
Subsequent social developments reduced the authority of the pater family
or the karta of the joint family. The rigid dependency of the individual
status gave way to a greater freedom of will and movement. The
individual acquired the capacity to enter into contracts, and to involve
himself in personal obligations. Another example is the position of slaves
who were not recognised as persons by law. Gradually, they acquired
freedom, eventually slavery evolved into contractual relation of employer
an employee. Early history also reveals the denial of many legal rights,
inC*uC^ the right to own property and the right to vote, to women. In
society, a persons status determined his relation to land. However, all are
now things of the past.
Legal scholars have raised doubts about the relevance of Maines
status to contract theory in modern times. Some trends now indicate

even a return to status.

Collective to
bargaining
Approaches
Law I: has reduced the worker to
the status of mere member of a trade union, curtailing his individual
freedom of contract.Historical
The growing
power of employers and the
Approach
standardised forms of contracts, which leave no choice to the employee,
show the swing of the pendulum to the other extreme of making the
worker a slave again. In other fields also a return to status from contract
is becoming visible, eg, standardisation of landlord-tenant relations,
debtor-creditor relations, insurance, supply of services etc. The terms and
conditions of social relations in these fields are now fixed by law, and not
by free contracts.
Fieldwork carried out by anthropologists, notably Malinowski, brought
to light several inadequacies of Maines theory. It revealed that primitive
law was neither as rigid as Maine had thought, nor were people inflexibly
bound by it. Primitive societies exhibited a wide range of institutions, and
considerable latitude was inherent in the conduct of their customary
practices. Even in primitive societies people controlled their destinies.
They were by no means blindly subservient to customs.
Maine was of the opinion that law and religion were indistinguishable in
primitive societies. This assertion has been rejected by Diamond who
says that it is a comparatively recent development. In primitive societies
a phenomenon could be isolated from religion and other social
observances, for which the term law would be convenient. This view
emphasises the secular character of primitive law.
Malinowski held the view that obedience to custom rested on the
reciprocity of services. People did unto others what the law bade them to
do, because they depended on some service in return or as part of this
mutual co-existence. He underestimated the part played by sanction.
Most anthropologists agree that what is called law should be described
in terms of its functions and the attitude of the people towards it, rather
than in terms of form or enforcement.
DIALECTICAL INTERPRETATION

This theory, associated with the great thinker Hegel, distinguishes between
laws of nature, and positive laws. Laws of nature are outside human
consciousness, and can never be improved. They have to be accepted
because they exist. Positive laws, on the other hand, are man-made and,
as such, do not have to be accepted because they exist.
Hegel considered evolution as a process of action and reaction between
opposites, thesis and anti-thesis, which results in their synthesis. The idea
is thesis and its anti-thesis is the idea outside itself, which is nature. The
synthesis is spirit, of which the Volksgeist is possibly an aspect. The
subjective spirit (thought and consciousness) and its anti-thesis, the
objective spirit (legal and social institution) are synthesised in the absolute

Lectures
spirit. Law comes into the category
of in
objective spirit. Law and other social
institutions, according to the Hegelian theory, are the result of free
subjective will endeavouring Jurisprudence
to realise freedom objectively.
BIOLOGICAL INTERPRETATION

Herbert Spenzer advanced a theory of law, drawing parallels between the

social organism, and the biological organism. According to him, the
adaptation of the individual to social conditions is due to heredity. He
inherits a social instinct from his ancestors, including ideas of morality,
obligation, right, and justice. In this manner different sociological groups
evolve differently, and so do their laws and institutions.
Spencer identifies two stages in the process of evolution. In the first,
which is primitive, war and compulsion figure prominently. In the second,
which is advanced, peace and freedom are prominent. Spencer was a
strong individual with a laissez faire approach to government. He denied
the complete absorption of the individual in the state, and maintained that
the duty of government was to secure individual to the greatest possible
extent. With his strong belief in the evolution of law, Spencer naturally did
not have much faith in legislative reform.
RACIAL THEORY

OF

LAW

This theory, which prevailed in National Socialist Germany under Hider, is

based on the following two cardinal principles:
Leadership Principle
The state is a group, and a group has no strength or unity without a
leader. The leader, therefore, becomes the mystical personification of
national unity. Law and the states become the same thing and since the
leader is the embodiment of the state, law is what the leader commands.
This implies the following: (i) unquestioning obedience; (ii) law should
serve political ends; and (iii) nothing, not even reverence for statutes,
should stand in the way of implementing the will of the leader.

Racial Principle

According to this theory, law was inherited by blood. It should (i) save the
ends of the state and its policies; and (ii) help to preserve racial purity, for
the state cannot be strong, unless it is racially pure.
According to this theory, the only international system, which could be
tolerated, was a nordic one, ie, one based on a blood tie. Every state has a
natural privilege and power to prevail over other states, and to take their
land for its own people.

This theory derivedApproaches

inspiration to
from
Lawthe
I: historical school, biological
interpretation, and the Hegelian theory, but in a perverted way. From the
historical school, the Historical
idea that the
roots of law lie deep in the past was
Approach
adopted to lend a nationalist flavour to the racial theory. The biological
theory was used to perpetuate the idea that law was inherited by blood.
The Hegelian theory, which showed how the individual could be integrated
into society, was utilised to suppress individual rights.

GIERKE: A HISTORIAN

WITH A

SOCIOLOGICAL PERSPECTIVE

Gierke, who carried on the survey of the historical school further,

represented a collectivist rather than an individualist approach. To this
extent, his work is closer to that of the sociologists, but his interpretation
of this development on historical lines earns him a place among the frontrunners of the historical schools.
The distinct contribution of Gierke lies in his emphasis on the
significance of associations. Gierke denied that the recognition of an
association as a person depended on the state. According to him, the
reality of social control lies in the way in which autonomous groups within
society organise themselves. He then proceeded to trace the progress of
social and legal development in the form of history of the law, and
practice of associations.
Gierkes critics point out that he never quite succeeded in reconciling
the independence of autonomous bodies with the supreme power of the
state.

Lectures in

Jurisprudence

Approaches to Law I:
Historical Approach

Lectures in

Jurisprudence

the Parliament or the courts for regulation of human conduct. The material
source of law is that from where the matter of law is derived, e.g., custom
which is the product of community practices and traditions. However, all
jurists agree that there are three main sources of law, e.g., custom, legislation
and judicial precedent. An effort is made herein to study custom in this
chapter.

Custom and Its Position in Indian Law

In all societies whether of the West or East, developed or undeveloping,
primitive or modem, custom has enjoyed a respectable place in varying
degree in the regulation of human conduct. It has been considered as the
outward expression of latent principles of justice, social values and moral
norms of each society which it cherished as fundamental in the governance
and administration of justice. With the historical process and gradual
evolution of societies the institution of custom also acquired great potency
and came to be regarded as one of the important sources of law. In England
the entire English law including the law of merchants ; in Germany the
codification of German Civil Code in 1901 is based on German customs. In
India the Hindu and Muslim personal laws have been mostly based on
customs. In ancient India Manu declared that it is the duty of the king to
decide all cases according to principles drawn from local 3 usages. Narada also
says 'custom decides everything and overrules the sacred law'. Likewise
Asahayaone of earliest writers says 'immemorial usage of every country (or
province) handed down from generation to generation can never be overruled
on the strength of the Sastras'. Thus all the ancient Hindu jurists Manu,
Narada, Brihaspati, Katyayana and Yajnavalkya gave to custom . a high place
which even was obligatory on the monarch in administration of justice. The
Muslim law equally recognised customs urfs which have accepted to suit the
needs of different classes of people who embraced Islam. Hedaya says,
'custom does not command any spiritual authority like ijma of the learned, but
a transaction sanctioned by custom is legally operative, even if it be in
violation of a rule of law derived from analogy. It must not, however, be
opposed4 to a clear test of Koran or of an authentic tradition. In modem India 5
in the face of march of legislation over other sources custom has not
altogether

3
4
5

Manu VIII, 3.
See also Jowla v. Dlmrinu Singh, 101.A. 511.
For critical evaluative study of Customsee Jain, M. P., Custom As a Source of Lmo,
3 Jaipur Lew Journal, 96-130 (1963).

JURISPRUDENCEA STUDY OF INDIAN LEGAL THEORY

been abrogated by legislation. Articles 25, 26 and 28 of the

Constitution indirectly guarantees the protection of such customary
practices of a community which of course are not. contrary to the concept of
secularism and democratic socialism. The existing enacted Hindu law
concerning marriage, succession, adoption, divorce, etc., in essence retains
the customary feature of old Hindu law which are still considered useful and
necessary by our social reformers. The contemplated movement of a
uniform civil code as envisaged in Article 44 of the Constitution too cannot
altogether be shorn of principles, values and goals which have been
cherished by the Indian people irrespective of their race, or, religion or
language, etc.
182

CustomMeaning
Jn Sanskrit there are three terms AchqrnJrules relating religious
observances) Vyavahara jthe rules of civil law) and Sadachara (the) usage >of
virtuous men). The word Sndachara6 therefore, has been used for custom
which means The custom" "handed down in regular succession from times
immemorial

a ^ I I ' I

I I

S B .

rv"........................................................................................Vr

among the four chieT castes ( Vama) and mixed races of the
counlry\__Accordingly iJadachdra "or approved'usage only means that it
shoulcTnot be contrary to Pharma. According to Webster^" 'Long established
practice considerecT as unwritten law and resting for authority on long
consent; a usage that has by long continuance acquired a legally binding
force'. As such 'custom' is not to be understood in the sense of 'usage' which
is also based on long practice but has not acquired binding or obligatory
character. Nor a usage can be exercised as of right inhering in one individual
and binding pn the other against whom such usage is claimed. Salmond
says7 'Customary law is that which is constituted by those customs which
fulfil the requirements laid down by law as the condition of their recognition
as obligatory rules of conduct'. Hence a legal custom can be easily
distinguished from social customs and general user in the sense the former
is obligatory, binding accompanied with sanction while the latter ones are
merely the norms of social conduct without being legally binding or
enforceable.

6
7

Quoted by Mayne on his classic work on Hindu Law and Usage 61 (Ed. Aiyer
(1953).
Jurisprudence, 136 (1957).

tentatively, by the action of the legal profession". The high

quality of the Roman system of private law is largely due to the
existence of "an organ of government specially charged with the
duty of watching, guiding and from time to time summing up in a
concise form the results of the natural development of the law".
The law more directly influenced by political changes is most
successfully created "by the direct action of the sovereign power
in the State, whether the monarch or the Legislative Assembly
acting at the instance of the executive". The view of Dr. Friedmann
is that the studies of Bryce serve as a corrective to Savigny's
overemphasis on the law, influenced by the juristic profession, as
compared with the "spontaneous and irregular" development of
law due to economic and social phenomena.11
any,

Estimate of Historical School

The one invaluable contribution which the Historical School has
made to the problem of the boundaries of jurisprudence is that law
cannot be understood without an appreciation of the social milieu
in which it has developed. Historical jurisprudence is a movement
for fact against fancy, a call for a return from myth to reality. In
this sense it cannot be said to be a juristic school, independent of
history, unless it furnishes a method of progress and evolution for
interpreting and developing law. If law evolves, the Historical
School must tell us how it evolves. If it is incapable of that or
refuses to do that, it ceases to be a juristic school since it is
powerless to furnish a creative method.
The view of Paton is that the historical method in jurisprudence
should be supplemented by a critical approach based on a
philosophy of law in order that a true perspective may be
obtained. Evolution is not necessarily progress and one of the best
aids to our own shortsightedness in dealing with the familiar
common law is an acquaintance with many systems. This is well
recognised by those who pursue the historical method today.
Saleilles gives his criticism of the Historical School of Law in
these words: "The Historical School had opened the way; it
remained as if glued to the spot, incapable of using the instrument
of evolution and

"

Legal Theory,

p. 172.

JURISPRUDENCE AND LEGAL THEORY[CHAP.

practice which it had just proclaimed. The reason was that it had in
advance clipped its wings and disarmed itself by declaring that it
506
could not scientifically exert an influence on the development of
the phenomena of law; it could merely wait, register and observe. It
refused to become a method either of creative legislation or
interpretation. The Historical School had abdicated... . To note after
all is not to create. History in its application to the social sciences
must become a creative force. The Historical School had stopped
halfway".

Comparison of Historical and Analytical Schools

According to Dias and Hughes: "The distinction between analytical
and historical jurisprudence is not one of kind, but of emphasis. They
are both analytical in method, the distinction between them being
that in the one case attention is fixed on concepts as they are today,
while in the other case account is taken of a process over a period of
time. Not only does it seem misleading to indicate this distinction by
affixing the term analytical to one, but the distinction itself breaks
down in the case of some concepts, notably ownership, where it is
not possible to understand
their nature at the present
time without reference to their
Analytical School
12
history ".
1. Analytical School confines

Historical School

itself to mature legal systems.

1. Historical School concentrates its

attention on the primitive legal
institutions of society.

2. Law is found and not made.

Law is self-existent.

3. Law is antecedent to the

State and exists even before a
State comes into existence.

4. Law is independent of political

authority and its enforcement.
Law does not become law
merely because of its
enforcement by the

2.Law is an arbitrary
command of the
sovereign.
It is the deliberate product
of legislation.

7. New International Dictionary 650 (1957).