18 Define Custom and essentials of a valid custom.
Discuss its importance as a source of law and also
compare with precedents. INTRODUCTION: Custom is a conduct followed by persons in the society. Custom is considered as the most ancient and most important source of law. Source means origin of a thing. It is also considered that law basically comes out from customs. In the past customs were prevailing for the control over the society. Austin was the first person who discarded the value of the custom. But the historical school again gave the importance to custom. The sociological school also gives importance to law with relation to society. In the modern times the precedents i.e. Judge made law and legislation have become over powered to that of customs. As in a case of Maduri v/s Motu Ram Linga. It was held that even custom power over the state. VARIOUS LEGAL SYSTEMS RECOGNIZED CUSTOM AS A SOURCE OF LAW. The followings are the systems which recognized custom as a source of law : 1.Romal Law :- Roman Law is known to be the oldest one in the world. This law is mainly based upon customs of the society. Those customs which were reasonable continued them as law by the Roman jurists. 2.Hindu Law :- Hindu law is also to be considered as the most ancient law. His sources are Vedas, Sutras and Smiriies and these were mainly based on customs. All personal laws of Hindu are based upon custom that is why Lord Warren Hastings and Lord Cornwallis did not attack on customs of Indians. Manu said One should follow the given path of their ancestors. This was nothing but the reorganization of customs. 3.Mohammedan:- Particularly ignored customs for the purpose of law. During th Muslim period in India their customs were protected by State. The British rulers in India also protected customs and personal laws which were based upon customs. The traditions which were not opposed by the prophet Mohammedan were recognized as law. In this way we can say that customs in Mohammedan law also played an important role. 4. English Law :- Which is known as common law and in the shape of un-written and based upon customs and conventions. Customs which were reasonable and not against the public policies were recognized as law under English Law. According to Pollock, The common Law is customary law. Black stol common includes written law and un-written law.” The written law is based upon the general customs. In this way English law also gave importance to the customs as a source of law. CLASSFICATION OF CUSTOMS Mainly the customs are of four types :- 1.National Customs :- Those customs which are related to the nation and are applicable on the country’s people. 2. Local Customs :- Those customs which are related with a particular locality. 3. Family Customs :- Those customs which are related with a family and have application on a particular family. 4. Conventional Customs :- These customs based upon conventions e.g. a bigger part of English Law based on customs and conventions. ESSENTIALS OF CUSTOMS 1. Antiquity :- It means oldness of the customs. The customs must be ancient. There is no limit of time for the antiquity of custom. In India there is no fixation of such time limit. 2. Reasonable :- The customs must be reasonable. It should not be un-reasonable and against the public feelings. 3. Followed :- Customs must be followed by the society. There should be no contradiction in observing customs. 4. Continuity :- Customs must be continuing from the time it was recognized as law. There should not be any break or interruption. If there is break for sometimes it does not mean that the right thing has been lost. 5. Certainty :- Customs must be certain in its nature. 6. Consistency :- There should not any confliction for its reorganization as a law. 7. Peaceful enjoyment :- Custom must be enjoyed peacefully for a long time without an disturbances. 8. Immorality:- Customs should not be against the morality. 9. Public Policy:- It must not be against the public policies or against the will of people. 10. Not against the State of Law:- Customs should not over-ride the legislation . It should not be against the law of the land. WHEN DOES A CUSTOM BECOME LAW. ANALYTICAL VIEW:- Austin and Gray are the supporters of analytical school. They say that a custom becomes law when it is recognized by the sovereign in the sense of positive law only. It means that if a custom has been accepted or adopted or recognized by the sovereign then it will become a law otherwise there will be no value of the custom in judicial system of the society. HISTORICAL SCHOOL:- Sovereign as the supporter of Historical school says that custom is a main source or base of law He says that “ consciousness of the volkgiest is the main source of law.” Custom is superior to Judge made law or legislation. The legislation while making a law recognizes the customs of the society. The courts also while giving the decisions recognized the customs prevailing in the society. CONCLUSION Custom occupies an important place as a source of law even to these days because most of the material contents of developed system of law have been drawn from ancient customs. Custom is one of most fruitful sources of law. According to Analytical school a custom when recognized by State or sovereign becomes law. According to Historical school when state or courts make law they give importance to the customs. So both of the view are combining to each other and are correct for a custom as source of law.