Lecture 5 etn teat tae eee na 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 desites 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 Brows 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 recognised custom is supported by the courts, and an apparatus of coercion. ee : Custom is not necessarily linked to any sense of justice. The existence of custom may be justified by expediency or power relations in a community.Lectures in Jurisprudence The obvious example of a custom, which kas no element of justice in ini ae importance of custom diminishes with the growth of a legal System since custom is superseded by legislation and precedent. Nevertheles, custom is useful to the framers of law in two ways: @ it provides the material out of which the law can be fashioned by saving the incellectus| 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 immemorial 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. (i) 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 people’s 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 eatly 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 codily the civil law and criminal law, but the religious personal laws wert left untouched by the British. Even after independence, the Hindu penond dar lane fared and codified, leaving the perso independence. The tribals in Indio ote cies a4 Bier, were Fe their customary laws. It is, thus, cl i seo mostly governed, by is sll a factor to be reckoned with ever iy influence of custom koned with even in a modern legal system.Sources of Law Il: Custom Kinps oF Customs Custom is usually divided into legal, and converitional. Legal custom is one whose authority is absolute, and which in itself and proprio vigore 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 indirectly 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 parts—namely, 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. 65Lectures in Jurisprudence Custom has also been classified into local custom, and general custom of the realm. A local custom prevails in some defined locality only, ang 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 A custom must be reasonable. Malus usus abolendus est. 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 authority—either 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 validicy. Conformity with Statute 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.’ 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 fc i a nea the last requirement of a legal custom relates to the length '§ which it has been established. A custom, to have the force 66Sources of Law III: Custom of law, must be immemorial. A custom is said to be immemorial when its origin is so ancient that the beginning of it 7 t rond human memory, and no testimony is available as to a time when sah = on it did not exist. In addition to the aforesaid requirements, : 4 : . 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, ifthe 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, wwe 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. a Both prescription and custom are essentially governed by similar a les 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 a 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, oie for 20 years confers a prescriptive right. Thus, when i: Lea a tea enjoying a right for 20 years, he now has an absolute tite ins evidence of user.