Custom as a Source of Law

Dhanya K A
SLS Hyderabad
Custom as a Source of Law
• Oldest source of Law making
• Custom- a continuing course of conduct which by the acquiescence or
express approval of the community observing it, has come to be
regarded as fixing the norm of conduct for members of society.
• Habitual course of conduct observed uniformly and voluntarily by the
people.
• Custom means Achara or usage or traditionally followed long practice
by the members of the society.
Definitions of Custom
• Salmond: “Custom is the embodiment of those principles which have
commended themselves to the national conscience as principles of justice
and public utility”
• Austin : “ Custom is a rule of conduct which the governed observe
spontaneously and not in a pursuance of law set by a political superior”
• Holland : “ custom as a generally observed course of conduct”
• Halsbury Laws of England : “ 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”
Definitions of Custom
• Herbert Spencer – “ before any definite agency for social control is developed
there exists a control arising partly from the public opinion of 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. This tradition
is called custom.”

• Harprasad v. Shivdayal – Judicial Committee of the Privy Council observed,

custom as 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 law.

• Tanistry case: custom is jus non scriptum and it is evolved by the people in
respect of a place where it is followed. When people find any act to be beneficial
and agreeable to their nature and disposition, they start practising it from time to
time and when it is continued for immemorial time, it obtains force of law
Binding force of Custom
• Custom is the external and visible sign of the national conscience
• Custom – usage continued for a longer period
• Custom - observed by large number of persons in the society
• Custom – popular conviction that it is in the interests of the society
• Whatever has been an authority in the past is a safe guide for the
future.
Kinds of Custom
• Custom can be classified into two types
• Custom without sanction and
• Custom having sanction
• Custom having sanction
• Legal Custom
• Conventional custom
• Legal custom
• General Custom
• Local custom
Custom without sanction
• Non obligatory
• Observed due to presence of public opinion
• Austin – positive morality
Custom having sanction
• Enforced by state
• Backed by sanction
• Two types
• Conventional custom
• Legal custom
Conventional Custom
• Called “ usage”
• Salmond : “ a conventional custom is one whose authority is
conditional on its acceptance and incorporation in agreement
between the parties to be bound by it.”
• A conventional custom is an established practice which is legally
binding because it has been expressly or impliedly incorporated in a
contract between the parties concerned.
Conventional custom
• Development of Conventional Custom – 3 stages
• Established as notorious
• Gets recognition through a judicial decision
• Accepted as a statutory law after codification

Example
Law relating to Bill of Exchange, Sale of Goods
Legal Custom
• Legal Customs are per se binding rules of law
• Legal custom – two kinds
• Local custom and General Custom
Local Custom
• Prevails in some defined locality
• Halsbury defined local custom – “ a particular rule which has existed
actually or presumptively from time immemorial, and has obtained
the force of law in a particular locality, although it is contrary to or not
consistent with the common law of the realm.”
• Practised voluntarily
• Not opposed to any existing local custom
General Custom
• Prevails throughout the realm
• One of the sources of common law of the country
Requisites of a Valid custom
• In order to be valid custom, it must conform to certain requirements
laid down by the law such as
• Custom must be reasonable
• Custom must be Consistent
• Compulsory observance
• Continuity and immemorial Antiquity
• Certainty
Reasonableness
• Malus usus abolendus est i.e a custom must be reasonable
• Useful and convenient to society
• A custom become unreasonable when its enforcement results in
greater harm than if there were no custom at all.
• To ascertain reasonableness of a custom, it must be traced back to its
origin
• Custom not valid if it is repugnant to right and reason and opposed to
public policy and do more mischief than good if enforced.
• Sir Edward Coke – a custom is contrary to reason if it is opposed to
principles of justice, equity and good conscience
Reasonableness
• Salmond – before a custom is denied legal recognition, it must be found
out that the mischief resulting from its enforcement outweighs the harm
that would result from the multiplication of the natural expectation of the
people.
• Raja Varma v. Ravi Varma – Judicial Committee of the Privy Council
observed that a custom permitting not merely the transfer of the
trusteeship but sale of trusteeship of a religious endowment for pecuniary
advantage of the trustee, was clearly unreasonable and bad in law, hence it
was held to be invalid.
• Prof Allen – “ the true rule seems to be not that a custom will be admitted
if reasonable, but that it will be admitted unless it is unreasonable.”
Consistency
• In conformity with statute law
• Not contrary to Act of Parliament.
• A custom should necessarily yield where it conflicts with a statutory
law
• Rule observed as a positive principle of law in England and countries
like India which Follow English Law
• If an enacted law comes first, it can be repealed or modified by a later
custom and vice versa
Consistency
• Savigny – customs and statute are put on the same level with respect
to their legal efficiency and customary law may complete, modify or
repeal a statute, it may create a new rule and substitute it for a
statutory rule which it has abolished.
• In India custom must not be opposed to statute law
• According to Coke – “ no custom or prescription can take away the
force of an Act of Parliament.”
• According to Windshield – “ the power of customary law is equal to
that of statutory law. It may, therefore, not merely supplement but
also derogate from the existing law.”
Compulsory Observance
• Custom observed as a right.
• Followed by all concerned without recourse to force and without the
necessity of permission of those who are adversely affected.
• obligatory or binding rule of conduct.
Continuity and Immemorial Antiquity
• Custom must be immemorial – old or ancient and not of recent origin
• Blackstone – “ A custom in order to be legal and binding, must have been
used so long that the memory of man does not run to the contrary. If any
one can show the beginning of it, it is no good custom.”
• In England it has set 1189 A.D, the year of accession of King Richard I as the
year to constitute the antiquity of a custom.
• In India, no such time limit prescribed
• Custom has been in existence from the ancient time.
• Justice Rankin – long existence of a custom gives it the force of a right to
make it legally recognisable.
Certainty
• Custom is being observed continuously and uninterruptedly with
certainty.
• Custom must be certain in respect of
• Its nature
• Its locality
• The persons whom it is alleged to affect

Guruswamy Raja v. Perumal – Justice Pandalai ruled that here cannot be a

custom relating to shadow of trees because it is so uncertain, ambiguous and
transitory that it cannot give rise to any customary right.
Theories regarding the transformation of
Custom into Law
• Customary law came into existence by popular acceptance and
practice.
• Two theories regarding the question as to when custom is
transformed into law.
• Historical Theory
• Analytical Theory
Historical Theory
• Main exponents – Savigny, Puchta, Blackstone and Sir Henry Maine
• Historical School – law was primarily the expression of the legal
convictions and practices of the community.
• Law exists because of the common consciousness of the people and
customary observance is not the cause of law but the evidence of its
existence.
• Savigny – Law has its existence in the general will of the people
( Volksgeist)
• Henry Maine – Custom as a formal source of Law
Historical Theory
• James Carter – “ what has governed the conduct of men from the
beginning of time will continue to govern to the end of time. Human
nature is likely to undergo radical change and law will for ever
continue to be custom.”
• Puchta – custom was a condition precedent of all sound legislation.
• According to Henry Maine – Custom is conception posterior to that of
Themistes or judgments.” He suggests that the origin of custom lies in
the decision of Themistes which were the awards dictated to the King
by Greek Goddess of Justice.
• Jethro Brown – custom is posterior to judicial Decision
Historical School - Criticism
• Erroneous to think – custom gives authority to precedent and statute
law
• Custom needs to fulfil certain essential requirements to become a
valid custom.
• Dr. Allen – All customs cannot be attributed to the common
consciousness of the people.
• J C Gray – Custom being local nothing to do with the national will.
• Great laws were brought into existence against the will of the masses.
Analytical Theory
• John Austin – Custom as a historical material source
• Custom derives its binding force not from its nature but by state
recognition.
• Adoption by parliament or validity established by a judicial decision.
• Austin- Custom only persuasive - Court’s discretion to resort to
custom for deciding a case when no other measure is available for
guidance.
• Austin – Customary Law is nothing but judicial law founded upon
anterior custom
Analytical Theory
• Holland – custom becomes law a law when it is adopted as law by
state recognition when fulfils certain requirements.
• Judges also consider custom as a law when valid requirements are
satisfied.
• Legal Material Source of Law
Analytical Theory
• Dr Jethrow Brown criticised Holland – precedent itself get scrutinised
on the ground of reasonableness and may be over-ruled by higher
superior court.
• Salmond – although the difference between the application of
precedent and custom is based on reasonableness, onus of proving
unreasonableness of custom lies on the party impugning it. Custom is
a legal material source of Law
• Gray – custom is one source of law but it is certainly not the only
source of Law.
• To establish Law, recourse to other sources such as statutes, precedents,
opinion of experts, custom, morality etc is also important
Criticism – Analytical and Historical theory
• Dr Allen – Criticised Austin by saying custom is firstly and essentially a Law.
( custom is enforced as it is already Law)
• Customs are recognised because they are treated as law by the community
as a whole

• Historical Theory – custom arises out of convenience or the needs of the

people not acceptable.
• May be imposes by ruling authorities

• Neither of the theory not true independently – but has some truth in each
of them.
• True nature of custom as a source of law – sociological school
Custom as a Source of Law – Sociological
School
• Before state came into existence, societies were governed by
customary practices.
• “Custom is to society what law is to the state”
Importance of Customary Law
• Importance is receding
• Custom played important role in the development of Law
• Modern period – most of the material contents of the developed
systems of Law are drawn from ancient customs.
• Courts resort to ancient custom to remove inconsistency or ambiguity
in the existing law
• Still important