CUSTOM

This article discuss about the custom. How the custom, are being used from the
immemorial time, came into the existence and gain the power of law, or can
custom gain the power of law? If yes, then what type of custom can become the
source of it.
What are custom.
According to Salmond-: Custom is the embodiment of those principles which
have commended themselves to the national conscience as principles of justice and
public utility.
Customary law are rules of human action established by the usage and legally
binded by law.
According to Holland, custom is a generally observed course of conduct. The best
illustration of the formation of such habitual courses of action is the mode in which
a path is formed across a common: one man crosses the com mon 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.
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.
Origin of custom
Custom is the oldest form of law-making. A study of ancient law shows that in
primitive society, the lives of the people were regulated by cus toms which
developed spontaneously according to circumstances. It was felt that a particular
way of doing things was more convenient than others.
When the same thing was done again and again in a particular way it assumed the
form of custom. Holland rightly points out that custom originated in the conscious
choice by the people of the more conven rent of the two acts. Imitation also must
have played an important part in the growth of customs.
According to Maine: “The usages which a particular community is found to have
adopted in its infancy and in its primitive seats are generally those which are on the
whole best suited to promote its physical and moral well-being, and, if they are
retained in their integrity until new social wants have taught new practices, the
upward march of society is almost certain. But unhappily there is a law of
development whichever threatens to operate upon unwritten usage. The customs
are of course obeyed by multitudes who are incapable of understanding the true
ground of their expediency, and who are therefore left inevitably to invent
superstitious reasons for their permanence. A process then commences which may
be shortly described by saying that sage which is reasonable generates usage which
is unreasonable. Analogy the most valuable of instruments in the maturity of
jurisprudence, is the most dangerous of snares in its infancy. Prohibitions and
ordinances, originally confined, for good reasons to a single description of acts, are
made to apply to all acts of the same class, because a man menaced with the anger
of the gods for doing one thing, feels a natural terror in doing any other thing
which is remotely like it.”
Binding force of custom
There are many reasons why custom is given the force of law
(1) Custom is the embodiment of those principles which have commended
themselves to the national conscience as principles of truth, justice and public
policy. The very fact that any rule has the sanction of custom raises a
presumption that it deserves the sanction of law also
(2) Another reason for the binding force of custom is that the existence of an
established usage is the basis of a rational expectation of its continuance in the
future Justice demands that this expectation should be fulfilled and not
frustrated.
(3) Sometimes a custom is observed by a large number of person. In society and in
course of time the same comes to have the force of Law. Reference may be
made in this connection to the custom of giving three days of grace on bills of
exchange.
(4) Custom rests on the popular conviction that it is in the interests of society. This
conviction is so strong that it is not found desirable to go against it
(5) According to Paton: “Custom is useful to the law-giver and codi fer in two
ways. It provides the material out of which the law can be fashioned-it is too
great an intellectual effort to create law de novo. Psychologically, it is easier to
secure reverence for a code if it claim to be based on customs immemorially
observed and themselves true even though historically the claim cannot be
substantiated. There is in evitably a tendency to adopt the maxim ‘Whatever
has been authority in the past is a safe guide for the future.
Theories regarding Transformation of Custom into Law

There are two theories regarding the question as to when a custom is

transformed into law. Those are the historical theory and analytical theory

A) Historical Theory

According to the historical theory, the growth of law does not depend upon the
arbitrary will of any individual. It does not depend upon any accident. It grows
as a result of the intelligence of the people. Custom is derived from the
common consciousness of the people. It springs from an inner sense of right.
Law has its existence in the general will of the people. Savigny gives it the
name of Volkgeist. To quote Savigny: Law like language stands in organic
connection with nature or char acter of the people and evolves with the
people.” Again, “the founda tion of the law has its existence, its reality in the
common conscious ness of the people…. We become acquainted with it as it
manifests itself in external acts, as it appears in practice, manners and custom
Custom is the sign or badge of positive law and not its foundation or a ground
of origin.” The view of Savigny is that custom is the type of all law and law is
valid and just only insofar as it makes known and objectifies in concrete forms
the true legal instinct of the community which it pur ports to govern.

Drawbacks of historical theory

The view of the historical school is not balanced. Customs have not always
arisen out of convenience or the needs of the people. Some times they have
been imposed upon the people by the ruling da Though there are some rules of
law which are based on the common conviction of the people the majority of
them are so complicated and technical that the common conviction might
never have thought of them. The historical jurists did not pay proper attention
to the fact that the State has the power of abrogating a custom. They
underestimated the creative roles of the judges and legislators which are so
important in modern times.

(B) Analytical theory

The great advocates of the analytical theory are Austin, Holland, Gray Allen
and Vinogradoff. According to Austin, custom is a source of law and not law
itself. Customs are not positive laws until their existence is recognized by the
decisions of the courts. A custom becomes law when it is embodied in an Act
of the legislature. It becomes law when it is enforced by the State. It is not
every custom that is binding. Only those customs are valid which satisfy the
judicial test. The sovereign can abolish a custom. A custom is law only
because the sovereign allows it to be so. Austin writes: “A customary law may
take the quality of a legal rule in two ways: It may be adopted by a sovereign
or subordinate legislature and turned into a law in the direct mode (statute law)
or it may be taken as a ground of a judicial decision, which afterwards obtains
as a precedent and in this case it is converted into a law after the judicial
fashion. In whichever of these ways it becomes a legal rule, the law into which
it is turned emanates from the sovereign.” Austin maintains that custom has
only persuasive value. Customary practices have to be recognized by courts
before they become law. While deciding a case, if the judge finds that no
statute governs the facts of the case, he can seek the help of custom but he may
follow it or not. That depends upon his discretion. Custom has only persuasive
value and does not become law until it is followed by the courts. In the words
of Austin Law styled customary is not to be considered a distinct kind of law.
It is nothing but judiciary law founded upon anterior custom
According to Holland, customs are not laws when they arise but they are
largely adopted into laws by State recognition. English courts require that not
only the existence of a custom be proved but it should also be proved that the
same is reasonable. The legislature can also ab rogate customs whether
partially or wholly. To quote Holland: “Bind ing authority has thus been
conceded to custom, provided it fulfils certain requirements the nature of
which has also long since been settled and provided it is not superseded by law
of a higher authority. When, therefore, a given set of circumstances is brought
into court and the court decides upon them by bringing them within the
operation of a custom, the court appeals to that custom as it might to any other
pre existent law. It does not proprio motu then for the first time make that
custom a law; it merely decides as a fact that there exists a legal custom about
which there might up to that moment have been some question,

Drawbacks of analytical theory

The analytical theory has been criticized by Allen in these word “Custom
grows by conduct and it is therefore a mistake to measure validity solely by the
element of express sanction accorded by cours of law or by other determinate
 authority. The characteristic feature of the great majority of customs is that
they are essentially non-litigious in origin. They arise from any conflict of
right adjusted by a supreme arbiter, not from any claim of meum against tuum,
but from practices prompted by the convenience of the society and of the
individual, so far as they are promoted by any conscious purpose at all. The
start ing point of all custom is convention rather than conflict, just as the
starting point of all society is cooperation rather than dissension.” Ac cording
to Vinogradoff: “It is not conflicts that initiate rules of legal observance, but
the practices of everyday directed by the give and take considerations of
reasonable intercourse and social cooperation. Neither succession nor property,
nor possession nor contract, started from direct legislation or from direct
conflict. Succession has its roots in the necessary arrangements of the
household on the death of its manager, property began with occupation;
possession is reducible to de facto detention ; origins of contract go back to the
customs of barter.”

Kinds of customs

Customs are of two kinds

 Legal
 Conventional
The legal custom is one whose legal authority is absolute. It possesses the force of
law pro prio rigore. The parties affected may agree to a legal custom or not but
they are bound by the same. Legal customs are of two kinds, local custom and
general custom.
Legal custom is of two kinds. It is either local custom or the general custom of the
realm. Local custom is that which prevails in some de fined locality only such as
borough or county and constitutes a source of law for that place only. The general
custom prevails through England and constitutes one of the sources of the common
law of the country. The term custom in its narrowest sense means local custom
exclusively. At the present day, local customs consist for the most part of
customary rights vested in the inhabitants of a particular place to the use for
diverse purposes of land held by others in private owner ship, e.g, a custom for the
inhabitants of a parish to enter on certain land for the purpose of dancing, games
and recreation.
A general custom Is that 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 cus tom of the realm followed from
ancient times. To quote: “The common law of the realm is the common custom of
the realm.” This view held the field up to the end of the 18 th century. However, it
cannot be de nied that it is Incorrect to regard common law as the embodiment of
the general custom of the land. No doubt common law is partly based on the
customs of England as the travelling judges adopted some of the local customs in
their decisions, but they also used their own discretion in taking help from natural
law, Canon law and the principles of Roman civil law.
A conventional custom is one whose authority is conditional on its acceptance and
incorporation in the agreement between the parties 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.
When two parte enter into an agreement, they do not put down in black and white
the terms of the contract. There are certain implied terms which c be omitted. The
expressed terms of the contract are merely its frame work or skeleton. The contract
becomes complete only when we t into consideration the implied terms. The
intention of the parties the contract can be gathered from the customary law and
other thing which can reasonably be taken to be implied in the contract. The toms
of the locality or trade or profession are taken to be included in the implied
contract. The courts are bound to take notice of these customs.
Requisites of a valid custom
1) A custom to be valid must be proved to be immemorial. According to
Blackstone: “A custom, in order that it may be legal and binding must have
been used so long that the memory of man runneth not to the contrary. So
that if anyone can show the beginning of it, it is no good custom.
2) Another essential of a valid custom is that it must be reasonable. It must be
useful and convenient to the society. If any party challenges a custom, it
must satisfy the court that the custom is unreasonable.
3) Only that custom is valid which has been continuously observed without
any interruption from time immemorial. If a custom has not been followed
continuously and uninterruptedly for a long time, the presumption is that it
never existed at all.
4) The enjoyment of a custom must be a peaceable one. If that is not so,
consent is presumed to be wanting in it.
5) A valid custom must be certain and definite. In one case, a cus tomary
easement was claimed to cast on the lands of neighbours the shadow of
overhanging trees. It was held to be vague and indefinite on the ground that
the shadow of overhanging trees was a changing occurrence.

Custom and Prescription

When a thing is practised for a long time, it gives rise to a rule of l known
as custom, but if it gives rise to a right, it is called prescription A custom is
a source of law but a prescription is a source of right. For example, in a
certain community of a particular locality, a daughter has priority over
collaterals of the third or remoter degree from time inmemorial. It is a local
custom and it gives rise to a rule of law. If and his forefathers have from
time immemorial been grazing cattle on a particular land belonging to Y, it
gives rise to a right in-X and it is called prescription. On account of their
similarly, local custom and prescription were both bracketed under the
heading of particular cus om and prescription was regarded as a branch of
custom. Prescrip tion was considered as a particular custom confined to an
individual. Both local custom and prescription require the same essentials
to be valid. However, at present, local custom and prescription are clearly
distinguished as there are prescriptive rights which do not show any
similarity to local custom. The rule regarding time immemorial has been
replaced in the case of prescription. Uninterrupted enjoyment for 20 years
is considered to be enough to acquire a right to light and air. Custom is
based on long usage but prescription is based on lost grant and operates as a
source of right. A custom must be reasonable and conform to justice, public
policy and utility, but that is not neces sary in the case of prescription.
Custom is a generally observed course of conduct and has the force of law
on account of long usage. Prescrip tion means the acquisition of a right or
title by user or possession in the manner laid down by law. Local custom
relates to a particular locality or the members of a particular class. It is lex
loci. Prescription is per sonal and applies to persons. While custom must be
ancient, prescrip tion requires only a period of 20 yearand his forefathers
have from time immemorial been grazing cattle on a particular land
belonging to Y, it gives rise to a right in-X and it is called prescription. On
account of their similarly, local custom and prescription were both
bracketed under the heading of particular cus om and prescription was
regarded as a branch of custom. Prescrip tion was considered as a particular
custom confined to an individual. Both local custom and prescription
require the same essentials to be valid. However, at present, local custom
and prescription are clearly distinguished as there are prescriptive rights
which do not show any similarity to local custom. The rule regarding time
immemorial has been replaced in the case of prescription. Uninterrupted
enjoyment for 20 years is considered to be enough to acquire a right to light
and air. Custom is based on long usage but prescription is based on lost
grant and operates as a source of right. A custom must be reasonable and
conform to justice, public policy and utility, but that is not neces sary in the
case of prescription. Custom is a generally observed course of conduct and
has the force of law on account of long usage. Prescrip tion means the
acquisition of a right or title by user or possession in the manner laid down
by law. Local custom relates to a particular locality or the members of a
particular class. It is lex loci. Prescription is per sonal and applies to
persons. While custom must be ancient, prescrip tion requires only a period
of 20 years.

Present Position of Customary Law

In primitive society, custom was the sole source of law. There was no other
mechanism to perform that function. However, with the passage of time,
the importance of custom began to decline. The judgments of the courts
began to cover some of the fields previously occupied by custom. Later on,
legislatures began to pass laws dealing with subjects previously covered by
custom. The law-creative activity of custom is now on the decline and has
practically exhausted itself. Most of the customs have become a part of the
law of the land. One of the tests of a valid custom is that it should be
ancient. In England, a valid custom must have had its origin at least as far
back as 1189 A.D. This shows that at present custom cannot be a living and
operative source of law. New situations arise in quick succession. Modern
society is changing at a very rapid pace. What was ten years ago is not the
same today. Modern society cannot wait for generations so that a custom
becomes ancient and is recognised by court. Custom as a source of law has
lost its former position and importance. Modern man looks to legislature for
enacting laws at a speed which is demanded by the atomic age.