You are on page 1of 12


Advantages and

Submitted to: Submitted by:

Dr. Ajay Ranga Dishant Mittal
Roll no. : 130/15
Bcom LLB
2nd Semester

I take this opportunity to express my profound
gratitude and deep regards to my teacher Dr. Ajay
Ranga for his exemplary guidance and constant
encouragement through out the course of this
assignment on the topic ' Advantages and
disadvantages of custom as a source of law'.
Also I would like to express my special thanks of
gratitude to my director Mrs. Sangeeta Bhalla who
gave me this opportunity to do this wonderful

Dishant Mittal

1. Meaning of Custom
2. Importance of custom as a source of law
3. Kinds of Custom
4. Essentials for valid Custom
5. Advantages of Custom
6. Disadvantages of Custom
7. Conclusion

In early stages of the society the customs are the most important,
and in some cases, the sole source of law.

Custom is a habitual course of conduct observed uniformly and

voluntarily by the people concerned. When people fine any act to be
good and beneficial, which is agreeable to their disposition, they
practice it and in course of time by frequent observance and on
account of its approval and acceptance by the community for
generations, a custom evolves. In all societies of the world, custom
has enjoyed a very high place in varying degree in the regulation of
human conduct. Customs arise whenever a few human beings come
permanently without adopting consciously or unconsciously, some
definite rules governing reciprocal rights and obligations. Custom is
to society what law is to the state.

Doctor Allen said, "Custom as the uniformity of habits, or conduct of

people under life circumstances."

Salmon said, "Custom embodies those principles which are

acknowledged and approved not only by power of state but by public
opinion of society at large."

Why has custom been regarded as an important

source of law?
Custom is one of the oldest forms of law making. In primitive
societies human conduct was regulated by practices which grew up
spontaneously and were later adopted by the people. What was
accepted by the generality of the people and embodied in their
customs was deemed to be right. So, custom has played an

extremely significant role as a source of law, till other sources of law

like legislation and precedent acquire prominence. Customs have
been the most potent force in molding the ancient law.

Kinds of custom
Customs are of two kinds (1) legal and (2) conventional. The first kind
consists of custom which is operative per se as a binding rule of law,
independently of any agreement on the part of those subject to it.
The second kind consists of custom which operates only indirectly
through the medium of agreement, express or implied, whereby it is
accepted and adopted in individual instances as conventional law
between the parties.

I. Conventional Custom:- A conventional custom is also called

"usage". It is an established practice whose authority is conditional
on its acceptance and incorporation in the agreement between the
parties bound by it. Conventional custom is legally binding 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. The development of
customs essentially involves three stages. Firstly, it must be so well
established as to have attained the notoriety of a usage. In its
second stage, a custom gets recognition through a judicial
decision. In its third stage of development the conventional
custom is finally accepted as a statutory law after its codification.
II. Legal Custom:- The legal custom is one whose legal authority is
absolute. It possesses the force of law proporio vigore. The parties,
affected may agree to a legal custom or not but they are bound by
the same. Legal customs are of two kinds (1) local and (2) general.
Local customs apply only to a locality and a general custom applies
to the whole country.

Local Custom
Local custom is one which prevails in some definite locality and
constitutes a source of law for that place only. Every local custom
must satisfy certain conditions. It must be reasonable. It must
conform to the statue law. It must have been observed as obligatory.
It must be of immemorial antiquity.

General Custom
A General custom is that custom which prevails throughout the
country and constitutes one of the sources of the law of the land.
There was a time when common law was considered to be the same
as the general custom of the realm followed from ancient times.
There is no unanimity of opinion on the point whether the general
custom must be immemorial or not.

Essentials for valid Custom

Certain tests or essentials have been laid down by the jurists which a
custom must satisfy for its judicial recognition. Some of the
essentials of a valid custom are:-

Antiquity:- A custom to be recognized as law must be proved to be

in existence from time immemorial.

Continuity:- It must have been practiced continuously. If a custom

is disturbed for a considerable time, a presumption arises against it.
It is the discontinuance of the right, for however small time, that
ends the custom.

Reasonableness:- A custom must be reasonable. For declaring a

custom inapplicable on the ground of unreasonableness, it will have
to be shown that it is obviously opposed to reason.

Conformity with statute law:- A custom, to be valid, must be in

conformity with statute law. It is a positive rule in most of the legal
systems that a statute can abrogate a custom.

Consistency:- Custom must not come into conflict with the other
established customs. There must be set in opposition to the other
custom. It is, therefore that one custom cannot be set in opposition
to the other custom.

Peaceable enjoyment:- The custom must have been enjoyed

peaceably. If a custom is in dispute for a long time in a law court, or
otherwise, it negatives the presumption that it originated by consent
as most of the customs naturally might have originated.

Obligatory force:- The custom must have an obligatory force. It

must have been supported by the general public opinion and
enjoyed as a matter of right. If a practice was maintained by stealth
or by something of that sort, it cannot become a custom.

Advantages of Custom
1. Custom is more flexible than written law:- As custom
is the habitual course prevailing in the society. It is not written in
book or in any arthshastras or in any old religious books. But our
law is codified which means it is in written form. Like Constitution
of India, Civil Procedure Code, Indian Penal Code etc. are
regulating our society. But sometimes when there is need of new
law or to amend existing law according to the present society for
this amendment is to be done in the respective Act. The process
of amendment is not easy and flexible. It is very rigid. For
amendment, amendment bill is to be passed in Lok Sabha and
Rajya Sabha and are to be approved majority present and votting.
It is very long process. But in custom there is no need of such
amendment to develop a new law because it is not codified. As it
is developed by society independently without any permission. To
develop a new custom it is practiced by the people of the society
frequently and then custom come into existence.
2. Custom implements legislation:- As we know custom is
an important source of law. Custom is the sole source of law in
ancient times. Before making any law it is keep in mind the
prevailing custom regarding it. Custom will always remain the
important part of society. For example:- as in earlier times it is
custom in Hindu marriages that seven rounds to be taken against
the holy fire as this is considered to be auspicious, but with
passage of time now it is become law for valid Hindu marriages
seven rounds are to be taken against the holy fire, under Hindu
Marriage Act. Any custom which is followed over by many years
and is good for society is always considered in legislation while
making law on it. Like prohibition of dowry system.

3. Custom is found as reflection to the true needs of

the community:- As customs are followed over many years
by society or by a particular community. They reflect the true
picture of society. As these customs are developed by the society
so they reflect their true needs. For Example:- in earlier times
women were not allowed to work or to go outside, but then
Some of the ill practices against women have been eliminated by
the open minded and great Indian people who raise their voices
for the discriminatory practices against women. In the recent
years, various constitutional and legal rights have been
implemented by the government of India in order to eliminate ill
practices and gender discrimination against women.

Disadvantages of Custom
1. Customary rules develop very slowly:- Custom is a
habitual course of conduct observed uniformly and voluntarily by
the people concerned. Firstly it is a practice which is followed by a
person then by a group of people and then by a community and
by the society at large. Any particular conduct imitated by a
group of people for a long time becomes custom. It is not a hard
and fast rule or a law which is can be followed when passed by
parliament. It is the practice of people which is to be followed
continuously over a period of time. So that's why custom rules
develop very slowly. For example:- earlier in weddings it is
common to give dowry by woman parents, but it takes the shape
of evil as brides are forced to suicide due to insufficient dowry,
then to end this many people started to oppose against dowry
system, and stop to give dowry, now law has been passed that
giving or taking dowry is an offence. This is how custom develops
very slowly.
2. Customary rules are often ambiguous:- Though there
are some rules of law which are, undoubtedly based on the
common conviction of the people, the majority of the rules are so
complicated and technical that the common conviction might
never have thought of them. Sometimes, these customary rules
have been imposed upon the people by the ruling class.
3. Customary law forms no formal legal system:- The
importance of an organized court system is usually thought to be
uniformity of application, regardless of the source of law. A
society without courts might have a good deal of local variation in
what is expected or tolerated of its citizens, and perhaps would
be completely infeasible in a densely-populated area such as a

city. It also would be subject to the possibility of mob rule.

Courts enforce constitutions, which is to say limitations on the
state as opposed to individuals. It is also used to refer to law that
has formed through the weight of custom or common opinion,
often a local procedure of some sort, but a few international-law
concepts such as piracy are also within this category.

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

 Dr. B.N. Mani Tripathi, Jurisprudence Notes