MODULE- 02/ BLBH 125

B.A.LL.B. SECOND SEMESTER

LEGAL METHOD (BLBH 125)

TOPIC- SOURCE OF LAW: CUSTOMS-I

MODULE- 02/ BLBH 125

In the early stages of the society the customs are the most important and in some cases, the sole
source of law. But with the progress society they gradually diminish and legislation and judicial
precedent become the main sources. In every legal system, at all stages of legal development
there are some customs, but in advanced societies they more rationalized and are certain and
definite. Custom, as a source of law may be understood by the study of various viewpoints,
essential of a valid custom and classification of custom.

DIFFERENT VIEWS:

In order to understand the origin of customs, one has to look into different and divergent views
of schools & scholars, and legal system.

JURISPRUDENTIAL & SCHOLARS VIEWS

The one view is of the Analytical school and the other is that of the Historical school. Here these
two views shall be given in brief.

Analytical School

According to Austin, Custom is not law until so declared by the sovereign. As we have already
discussed the theory of Analytical school earlier. Here, in brief, the view of Austin (and Gray),
that a custom becomes law after its recognition by the sovereign shall be given. Austin says that
custom is a source of law and it itself is not law. His definition of law that it is command of the
sovereign does not allow the customs to be included in law. A custom is not positive law unless
it is so declared by the court, or, in other words, it is not law until it has received the judicial
recognition, or it has been embodied in some statute. Its recognition by the court or its
incorporation in the statute puts upon it the implied or the express seal of the sovereign and it
becomes law. The other implication of this view is that the sovereign can abrogate customs and
his authority is superior to them. A custom is law only to the extent to which, and from the time,

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when the sovereign sanctions it. The customs not so sanctioned or declared are only positive
morality. According to Austin, the answer to the question, when does a custom become law,
would be when it is declared so by the sovereign.

According to Gray, Customs not law until approved by judge. He puts the customs with this
assumption that they are law and they have been treated so. Though the court plays a creative
role in rationalizing and shaping them, it draws its raw material from the customs. Therefore, the
view that custom is not law until it receives the recognition of or declaration by the sovereign is
not fully correct.

Historical School

Historical jurists are of the view that they originate from the common consciousness of the
people. Maine, in his theory of legal evolution, says that in the beginning the judgments of the
kings under divine inspiration were the basis of the customs. Customs developed on those
judgments. Ihering supports the same view. He says that people will not impose liability upon
themselves (which the customs sometimes do) by their own will until they are compelled by
courts. Later on, these judgments became customs. But the recent anthropological researches
have exposed the falsity of such assumptions. The origin and development of most of the
customs is not due to any conscious thought on the part of the people. They are the results of
tentative practice. When any problem arose, some solution was found out. It was based more on
the primitive notions than on any logic or principle of justice. Solutions were followed in similar
cases and in this way, it became a custom.

However, the view of the Historical school also is not balanced. Customs have not always arisen
out of convenience or the need of the people. Sometimes they have been imposed upon the
people by the ruling class. 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. The Historical jurists did not pay
proper heed to the fact that the state has the power of abrogating a custom. Importantly, they
underestimated the creative roles of the judges and of the legislators which are so important in
modern times.

SCHOLARS’ VIEW POINTS

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Holland's view

According to Holland, one man crosses the common in the direction which is suggested either by
the purpose; he has in view, or by mere accident. If others follow in the same track, which they
are likely to do after it has once been trodden, a path is made...Before a custom is formed, there
is no juristic reason for its taking one direction rather another, though doubtless there was some
ground of expediency or religious scruple, or of accidental suggestion. A habitual course of
action formed gathers strength and sanctity every year...There can, in fact, be no doubt that
customary rules existed among peoples long before nations or states had come into being. In
primitive times, there was little organized sanction behind these customs as it is in modern state.
It was the necessity and the force of public opinion which ensured their compliance. When the
state comes into being and the society develops, they are rationalized and recognized and grow
as part of the law.

Salmond’s view

According to Salmond, Custom is frequently the embodiment of those principles which have
commended themselves to the national conscience as principles of justice and public
utility…The national conscience may well be accepted by the courts as an authoritative guide;
and of this conscience national custom is the external and visible sign. The existence of an
established usage is the basis of a rational expectation of its continuance in the future. It is
submitted that the ground for the recognition of customs given by Salmond are sound. If the
society has for a long time continued a practice which determined their rights and liabilities, and
aroused expectation, and if it is not opposed to public or reason, there is no wisdom in disturbing
or removing it. It is not necessary that for each and every contingency, there must be an enacted
law. The only requirement is that the law should be definite and clear. It matters little from what
source it has come-by legislation or by any other source.

UNDER VARIOUS LEGAL SYSTEMS

Roman law

In Roman law, customs played a very important part before the Code. But after the promulgation
of the Code, Roman law was less sympathetic to customs. Later on, the influence of customs was

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recognized in the substantive as well as the procedural law. But it was assigned only a secondary
position as compared to the legislation of the Imperial regime. The tests laid down by the Roman
jurists for recognizing a custom as law were reasonableness and antiquity, but they did not fix
any period which must elapse before a custom is to be recognized as law.

Hindu Law

Customs have been the most potent force in moulding is the ancient Hindu law. The variances in
the laws given in several Smritis is said to be due to their incorporating local customs of the
places where they were written. Most of the law given in the Smritis and Commentaries had its
origin in customs. The Smritis have strongly recommended that the customs should be followed
and recognized.

Manu says:

येन अ य पतरोयाता : येन याता : पतामहा :।

तेन यायात सतां माग तेन ग छन न र यते।।४/१७८||

(One should follow the righteous path that has been followed by one's ancestors. By following
that path, one does not suffer.)

Yajnavalkya's view is :-

यि मन दे शे य : आचारो यवहार : कुलि थ त :

तथैव प रपा यौडसौ यदा वंशमु पागत:/२/३४३||

(When a country is conquered, its usages and customs and family traditions should be followed
as they were followed before.)

Brihaspati says :-

दे श जा त कुलानां च ये धमा : ाक व तता:।

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तथैव ते पालनीया : जा : ु यतेड यथा।।

(The law of place, caste or family, which have existed from before, should be followed as before;
otherwise people get agitated).

Mahabharat says

वेदा व भ ना : मृतयो व भभ नासौ म न : य य मत न म नम।

धम य त व न हतं गु हाया, महाजनोयेन गत : स प था :।।

(Different are the Vedas, and so are the Smritis. There is no sage whose opinion is not divergent.
The essence of Dharma is difficult to know. The right path is what which has been followed by
virtuous men)

Narada says :-

यवहारो ह बलवान ् धम तेनावह यते।

(Usage is indeed powerful. It overrides the law).

The various Commentaries which were, later on, written on the Smritis interpreted them in the
light of the local customs. Naturally they became very popular in the respective localities, and
thus, the schools of Hindu law emerged. In this way, customs worked as a reorienting force in
Hindu law.

Under the British regime:

The importance and validity of the native customs remained unimpaired and when law was
enacted on any matter generally they were saved expressly. It was on the basis of some texts that
the Privy Council was led to overstate the importance of the customs in Hindu law. Their
Lordships in the Privy Council observed that in Hindu law the clear proof of usage will outweigh
the written text of the law. The recent legislation concerning Hindus has also saved customs at
most of the places.

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According to Pollock, Customs have played a very important role in moulding the English law.
English law is known as common law. Generally, common law and common customs of the
realm were considered as synonyms. Chief Justice Coke spoke about customs as one of the main
triangles of the laws of England. St. German in his book Doctor and Student wrote: And because
the said customs be neither against the law of God, nor the law of reason, and have always been
taken to be good, and necessary for the Commonwealth of all the realm, therefore, they have
obtained the strength of law, in so much that he that doth against them doth against justice; and
these be the customs that properly be called the common law. In the 17th century, Hale
emphasized the importance of the customs in the same way. Blackstone, writing in the 18th
century, stated that the municipal law of England may be divided into two classes: the lex non
scripta, or unwritten law includes not only general customs or the common law properly so
called, but also the particular customs of certain parts of the kingdom; and likewise those
particular laws that are by custom observed only in certain courts and jurisdiction. Pollock said:
The common law is a customary law...The British constitutional law is described as The Law and
Customs of Constitution. But some writers of the 19th and the 20th century have not agreed to
this view. They say that to treat common law as only a conglomeration of customs is to go far
from the truth.

According to Salmond Common law is essentially judge made law. In other words, Judges gave
a very potent and creative touch to customs and carved them in the form of the common law. The
courts have been continually reconciling, harmonizing and modifying them. In this process, they
have interwoven them into the fabric of common law. Still there are a number of usages in
various manors and boroughs which govern the relation between the citizens and they may be
said to be the common law in the making. Much of the English family law is still customary.
Even in this age of legislation and precedents, customs have not completely lost their creative
efficacy in England. In recent years, many new customs have been recognized and have become
part of the law.

Suggested Books on Legal Method

Allen, C. K. - Law in the Making

Austin, John - The Province of the Jurisprudence Determined

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Dias, R.W.M. - Jurisprudence

Friedmann, W. - Legal Theory

Mahajan, V. D. - Jurisprudence and Legal Theory

Salmond, J.W. - Jurisprudence

Tripathi Mani, B. N. - An Introduction to Jurisprudence