Essentials of Valid Custom

In order to enforce a valid, there are some essentials and grounds which will qualify as a valid custom and therefore could
be recognized by judiciary and legislature.
The ground of valid custom as follows.
• Antiquity
The primary trial of a legitimate custom is that it must be prevalent from time immemorial. It must be old or old and must
not be of the ongoing source. Manu stated, "Immemorial custom is supernatural law". Days of ancient times imply in the
Civil law in the frameworks inferred consequently and initially implied in England and additional time is so remote that
no living man can recollect it or give proof concerning it.
In England, a custom must be at the time of the rule of Richard I King of England". That is in England the time period for
a valid custom is 1189, for a custom to be viewed as substantial. The year 1189, was the main year of the rule of Richard
I. In any case, the English principle of 'immemorial inception' is not followed in India. In Gokul Chand v. Parvin Kumari,
the Supreme Court ruled and denied measuring the validity of Custom from 1189 AD but stated explicitly that it must be
of ancient and historical times.
• Reasonability/No Arbitrariness
The second significant legal trial of a legitimate custom is that it must be reasonable. It must not be unreasonable. It must
be helpful and advantageous to the general public. On the off chance that any parties face difficulties in a custom, the
parties must fulfil and convince the court that a particular custom is unreasonable. This means the weight of evidence lies
upon the individual who challenges the custom. To find out the reasonableness of custom it must be followed back to the
season of its inception. The unreasonableness of custom must be great to the point that its authorization results in more
prominent damage than if there were no custom by any means.
A custom ought to be viewed as adequately reasonable when it isn’t against the fundamental guideline of profound quality
of the law of the state wherein it exists, standards of equity, morality and arbitrariness. It must not be generally rash,
unforgiving or poorly arranged.
The Bombay High Court, in Narayan v. Living, held that a custom allowing a lady to forsake her better half at her
pleasure and marry again without mutual agreement to be shameless and arbitrary on one spouse. The topic of
reasonability is one of law for the court. The standard which the courts apply has been characterized by the Divisional
Court of the King’s Bench in Produce Brokers co. vs Olympia oil and coke co., considered grounds of valid customs as
“reasonable and legitimate and for example, sensible, genuine and impartial men”.
• Continuance
A custom must be followed with consistency and in continuity from its inception. If it is proved otherwise that there were
a break and a pause by a particular community in the following the custom in a court of law, then the court may have the
discretion to get the custom annulled. Therefore a custom must be followed in consistency and continuity. In Hampton v.
Hono, it was ruled that if a custom is not practised for a significant amount of time, then it would cease to exist as a valid
custom.
• Certainty
The most important test of a valid and essential custom is that a particular custom must be specific and less from
ambiguity. If a particular custom is ambiguous, vague and not understandable by the parties then the particular custom
will be declared as null and void by the court, the same was ruled by Privy Council in Wilson vs. Wilson.

• Not opposed to Public Policy

Another test for the legitimacy of custom is that it ought not to be against public policy. This test might be incorporated
into the trial of reasonability, as it is extensive term and it might incorporate public policy also. In Buldano vs Fasir, a
custom, where a woman was allowed to remarry again during the lifetime of her husband was held to null and void by the
court as it was against public policy.
• Juridical Nature
A custom must be of a juridical nature. A custom must refer to legal relations. A mere voluntary practice not conceived of
as being based on any rule of right or obligation does not amount to a legal custom.
 • No analogical deductions
Custom can’t be stretched out by analogy. It must be set up inductively, not deductively and it can’t be built up by earlier
techniques. It can’t involve hypothesis yet should dependably involve reality. In like manner, one custom can’t be inferred
and deduced from another custom. Custom in contravention to fundamental rights will be declared as null and void.

Conclusion
In the beginning periods of the general public, the customs were the most significant, and in some cases, the sole
wellspring of law. The customs lie in the establishment of the entirely legitimate and lawful framework. They appear with
the presence of the general public. Custom is the continuous practice with regards to the primitive society.
Custom is a standard or practice which is trailed by the general population from time immemorial. Customs are supported
and are fused and exemplified in legitimate standards. The impact of custom can be followed in any legitimate and legal
framework. Custom is a valid and authoritative source of law but the only condition is that it must be valid and a lawful
custom.
THEORIES REGARDING TRANSFORMATION OF CUSTOM INTO LAW

The following are two myths about the turn of custom into law:

HISTORICAL THEORY- Karl Von Savigny, his disciple Puchta, Blackstone, and Sir Henry James Summer Maine are
the main proponents of this philosophy. As per Savigny, custom is rule of law in and of itself. He argues the rule is
founded on tradition. A tradition holds its own rationale. As per Puchta, the custom is free of specified constraints. It
exists independently of any policy resolution or acknowledgment. Sir Henry Maine considers custom to be the basis of
structured legislation. “Custom is spiritual legislation,” as per Manu. J.C. Gray also claims that certain laws were enacted
not only against the will of the citizens, but against the desires of the vast majority of everyone. Allen has found out that
not all customs can be linked to popular awareness.
This philosophy holds that the creation of law is not based on the subjective will of any person. People’s collective
consciousness gives way to tradition. It stems from an internal sense of social justice. The common the will of people is
what gives legislation its life. Paton rejected the empirical hypothesis, stating that “the development of most traditions is
not the product of any deliberate thinking but of preliminary practise.”

ANALYTICAL THEORY- Austin is the most prominent proponent of this philosophy. Custom, he says, is not
legislation in and of itself, but rather a basis of law. A tradition would not become a statute if it is not recognised by laws
and authorised by the courts. Gray also claims that the real view would be that the rule is determined by the courts. Law is
developed from laws, rulings, traditions, and morals. Customs are not ruling as they occur, as per Holland, and they are
generally incorporated into rules by State approval. A custom is only a rule to the degree that it is approved by the king,
and only from the moment it is sanctioned. Custom, as per him, is a legitimate substance and a basis of legislation.
Salmond agrees with this point of view. Gray also acknowledges that tradition is a foundation of rule, but it is not the only
basis. Allen opposed the Empirical principle, saying, “Customs evolve by behaviour, and it is thus an error to evaluate its
value exclusively by the aspect or convey punishment conferred by courtrooms or any predetermined power.”
CONCLUSION
In the early days of the normal community, customs have been the most important, or in some circumstances, the only
source of legislation. The customs are found in the creation of a completely valid and legal system. They are visible in the
eyes of the public. In terms of tribal civilization, custom is the ongoing norm. A custom is a norm or procedure that has
been followed by the wider populace since prehistoric times. Customs were endorsed, merged, and illustrated in legal
codes. Custom’s effect can be tracked under every valid and lawful context. Only other prerequisite for tradition to be a
true and rightful basis of law is that it be true and legal.

As a result, it can be found that Customs seem to be a very significant priority of the government, with ancient origins in
the oldest and perhaps most basic of cultures that remain relevant today. Society is constantly developing newer traditions,
which may eventually become meanings or customs. We rely on customs and are regulated by people, whether we realise
it or not. The English Common Law could be viewed as a formalization of current customs, and it is in this context that
the value of getting the correct customs in community is highlighted.
 LL.M IInd Sem
Jurisprudence II (L- 2002)
Legislation
Introduction
The Legislation word has been derived from two Latin words legis and Latin
[latum]. Legis means ‘law’ and latum means ‘to make’. Legislation means ‘the
making of Law’ in general sense, Legislation can be defined as ‘the
promulgation of legal rules by an authority which is competent to do so.’ In
the strict sense of the, Legislation means the statutory law passed by the
legislature [parliament or state]
Definition
Bentham: -Legislation implies both the process of law making, as well the law
evolved as a result of such process
Austin: - Legislation includes those activities which result in the making of a
new law, or amendment, transformation or addition of new provisions in the
existing law ‘
Gray: - Legislation means the formal utterances of the legislative organ of the
government.
Classification of Legislation: -
1)Supreme Legislation: -Legislation is supreme when it emanates from the
supreme Legislation authority in the state. the e is no other authority in the state
that can control it. Such Legislation cannot be repealed, amended, modified or
controlled by any authority other than the supreme legislative authority.
2)Subordinate Legislation :- Subordinate Legislation ,as opposed to supreme
Legislation ,is that which comes from any authority other than the sovereign
power .Legislation is subordinate when it emanates from any authority other
than the supreme Legislation authority in the state .It is made under the power
delegated by the supreme legislative authority .It existence, validity and
continuity depend upon the supreme legislative authority
Kinds of Subordinate Legislation
1) Colonial Legislation:-It means implies the law made by an imperial country
for its colony .The british colonies enjoyed very limited law making power
.The laws made by the colonies were subject to scrutiny by the British
parliament .however ,in the modern era ,almost all countries are independent
and enjoy the power to make laws for themselves .
2) Autonomous Legislation :-The supreme authority can confer power on a
group of people to legislate on the matter which are of concern to them as a
group .The law made by that group in the exercise of such power is called
autonomous Legislation .the group as such is known as an autonomous body
.for example the state can empower universities ,companies ,corporations,etc.
3) Judicial Legislation :-Power are conferred upon the superior courts to make
rules for the regulation ,of their own procedure e in India ,both the supreme
court and the high courts have been entrusted to make rules for regulating the
practice and procedure of the courts .the supreme court and high court regulate
their own procedure under articles 145 and 227.
4) Executive Legislation :-The supreme authority can allow the executive
authorities to frame certain rules and by laws and the power to issue certain
notifications .the rules ,by laws ,notifications, etc ,issued or made by the
executive in pursuance of this power conferred by the supreme authority are
known as executive Legislation. They also have the force of law.
5) Municipal Legislation :-The supreme authority can allow municipal bodies
to frame rules and make by laws for areas falling within their jurisdiction for
some purposes like property tax ,town planning ,public health, Sanitation etc
.The law made by the municipal bodies in the exercise of such power is called
municipal Legislation .there are various municipal bodies working in India for
example: municipal corporation, municipal council , panchayats ,block samiti
,etc.
Delegated Legislation
Delegated Legislation can be defined as the enactment of law by any authority
other than the supreme legislature .it denotes the rules ,regulation ,orders
,notifications, by laws or directions made by the subordinate authorities under
the power delegated to them by the supreme legislature authority, like the
legislature [parliament or state ] .in other word ,when the function of
Legislation is entrusted to some other organs ,the law made by such organs is
called delegated Legislation .
Necessity of Delegated Legislation
1. Lack of time
2. Lack of technical knowledge
3. Emergency
4. Flexibility
5. Local matters
6. Experience
7. Experimentation
Deficiencies of Delegated Legislation
1. Excessive delegation
2. Less time for scrutiny
3. No Responsibility
Delegated Legislation in India: -The Indian constitution has established a
welfare state. Which mandates that state shall legislate on innumerable
activities touching human lives in order to promote “the maximum happiness
of the maximum number of people”.
Sub Delegation: -When the parliament gives the power to a subordinate authority
to supplement the law by rules, such power can be exercised by that
subordinate body only. When that subordinate authority further delegates its
power to some other authority, it is known as sub delegation
Control over Delegated Legislation: -
1. Procedural Control: - There are some procedural controls which are
imperative in order to keep a consistent check over the exercise of power by
the subordinate authorities. these controls are necessary in order to prevent
them from misusing their power
2. Parliamentary Control: - Parliamentary con troll over delegated
Legislation becomes necessary in order to enable the members of parliament
to scrutinize, discuss and alter the rules enacted by the subordinate authorities.
The parliament is the ultimate watchdog over the subordinate Legislation and
executive authorities. It keeps a check on the misuse of power by the
subordinate authorities.
3. Judicial Control: - The supreme court of India and all high court are also
empowered to be exercise control over delegated Legislation. Delegated
Legislation may be assailed on any one of the following three grounds: -
Firstly, that it is ultra-vires the enabling act.
Secondly that it is ultra-vires constitution.
Thirdly That it is not made in accordance with the procedure prescribed by
the enabling act.
The first two are the instances of substantive ultra-vires. Where as the third is an
instance of procedural ultra-vires.

For further clarification you may reach us via

E-mail- sudeshcm@gmail.com
Mob- 7409496868
Smt. Sudeshna
Assistant Professor
I.L.S. , CCSU Meerut
Precedent: Source of Law
• Decision of a court of law—especially of a court of last resort—which explicitly or implicitly lays down
a legal proposition constitutes a general and formal source of law.
• The doctrine of precedent provides the evidence of what the law is on a particular time
• It means the employment of past decisions as guides in the molding of future decisions.
• Salmond – “the making of law by the recognition and application of new rules by the courts themselves
in the administration of justice.”
• Gray- “precedent covers everything said or done, which furnishes a rule for subsequent practice.”
• Keeton- “A judicial precedent is a judicial decision to which authority has in some measures been
attached.”
Note:
- It is purely constitutive in nature and never abrogative.
- It is the duty of the judges not to make law where there is a settled rule of law.
- Basic idea is to fill the legal vacuum.
- Precedent may be authoritative or persuasive.

What is the Justification of Precedent?

According to Alexander, we can discover three models of precedents.
1. Natural Model:
This model argues that past decisions naturally generate reasons for deciding cases in the same way as previous
one as equality and reliance are important reasons.
Equality requires that all men are to be treated alike in like circumstances.
Reliance is appealed to as a justification because "not upsetting expectations is a value that courts should take
into account.
Criticism is that it offers little leeway to creativity.
Also, it doesn't mean that no departure from such enunciated law is possible. But if decisions differ, some
discernible distinction must be found bearing an intelligible relation to the difference in result.

2. The rule model:

Under this model, the precedent court has the authority "not only to decide the case before it but also to
promulgate a general rule binding on courts of subordinate and equal rank".
It is these rules on which actors justifiably rely.
Criticism is that it gives tremendous power to precedent court in relation to the constrained court.

3. The result model:

According to this model, the result reached in the precedent case, rather than any rule explicitly or simply
endorsed by the precedent court is what binds.
The result model requires the court constrained by precedent to answer an unanswerable question.
What would be a correct decision in a world in which the precedent court's incorrect decisions were correct?
The underlying assumption is that judges are entitled to make law in much the same sense in which the
legislator is empowered to create law.
However, this assumption is disputed as one English judge is of the view that: "The decisions of courts of
justice ... do not make a law properly so-called (for that only the King and Parliament can do); yet they have a
great weight and authority in expounding, declaring, and publishing what the law of this kingdom is... "
They are, at most, only evidence of what the laws are, and are not, of themselves, laws. They are often
reexamined, reversed, and qualified by the courts themselves, whenever they are found to be either defective or
ill-founded, or otherwise incorrect
Lord Mansfield remarked in the eighteenth century: 'The law of England would be a strange science if indeed it
were decided upon precedents only. Precedents serve to illustrate principles and to give them a fixed certainty."
All these statements suggest that, in the opinion of their proponents, it is not the precedent itself, but something
behind it or beyond it which gives it its authority and force.
The agency which validates a judicial decision, according to this view, is not the will or fiat of the judges, but
the intrinsic merit of the principle, or the reality of the custom which has become embodied in the decision.
This position is basically incompatible with the view that a precedent form a source of law, unless the latter
term is used in a loose and untechnical sense.

ADVANTAGES OF THE DOCTRINE OF PRECEDENTS

- It shows respect to one ancestors' opinion as they were based on some reasons which we may or may not
understand them.
- Precedents are based on customs, and therefore, they should be followed.
- As a matter of great convenience, it is necessary that a question once decided should be settled and should
not be subject to re-argument in every case in which it arises
- Precedents bring certainty in the law.
- Precedents bring flexibility to law. Judges mold and shape the law according to the changed conditions and
thus bring flexibility to law.
- Precedents guide judges and consequently, they are prevented from committing errors which they would
have committed in the absence of precedents.

Disadvantages

- There is always a possibility of overlooking authorities. It is very difficult to trace out all the relevant
authorities on the very point.
- Sometimes, the conflicting decisions of superior tribunal throw the judge of a lower court on the horns of a
dilemma.
- Sometimes extremely erroneous decision is established as law due to not being brought before a
superiorcourt.
Arguments/Points And Opinion Of The Jury:
Chief Justice Truepenny: (Guilty)
Textualism:

• In this extraordinary case, the course followed by the jury and trial judge was not only fair and wise,
but also was the only one open to them under the law
• The language of our statute is well known and it permits no exception in this case. However, our
sympathies may lead us to make allowance for the men.
• Principle of executive clemency suits this case to mitigate the rigors of the law.
• At the discretion of the executive and chances of clemency being provided.

Justice Foster: (Innocent)

Natural Law:

• The positive law (enacted laws of the Commonwealth) is inapplicable to this case, instead it is governed
by what ancient writers in Europe and America called the law of nature.
• Positive law is asserted on condition of men's coexistence in the society, in this case, as it is not so, the
law is irrelevant.
• Maxim: cessante ratione legis, cessat et ipsa lex should be applied here which means when the reason
for law ceases, the law itself ceases.
• If the event of the case had been taken place a mile beyond the territorial limits of the Commonwealth,
no one would pretend that law would be applicable.
• When Roger Whetmore was killed by defendants, they were in a state of nature.
• If the lives of ten rescue workmen could be sacrificed for five explorers, then why not save four lives at
cost of one?
• Positive law should be interpreted reasonably in the light of its evident purpose.
•

Cases cited by him:

• Commonwealth v. Staymore: In this case, the defendant was convicted under a statue according to
which it is a crime to leave car parked in certain areas for more than two hours. The defendant had
attempted to remove his car but because of an ongoing political demonstration, he couldn't do so. His
conviction was set aside by the Court.

• Fehlar V. Neegas: In this case, the word not in the statute had plainly been transposed from its
intended position.

No one was able to prove how this error occurred, nevertheless since its interpretation was going against the
object of the preamble. The court refused to accept it and instead rectified its language.

• The statute has never been applied literally. Centuries ago, it was established that killing in self-defense
is excused but there is nothing in the statute that suggest the same.
• Statute wasn't intended to apply to the cases of self-defense.
Justice Tatting: (Recuse)
Uncertainty:

• Unable to dissociate his emotional and intellectual sides

• On the emotional side, found himself torn between sympathy and disgust feeling.
• Contradicted Foster's theory of the law of nature.
• Pointed out that Foster ignored the fact that Whetmore withdrew later.
• Example against Foster's self-defense point:
Suppose Whetmore had concealed a revolver and on seeing that the defendants were about to eat
him, if he had shot them, then based on Foster's reasoning, he would be considered as a murder as he
would be denied the excuse of Self-defense because the other men were acting out of necessity
• Object of the law is to provide an orderly outlet for retribution and also to the rehabilitation of the
wrongdoer, and not just deterrence.
• Doctrine being taught in the law schools- the statue concerning murder requires a willful act.
• Recognized the relevance of the precedents cited by Foster concerning the displaced not and the
defendant who parked overtime
• Indicating ignorance of Foster, referred to the case: Commonwealth v. Valijean:
In which the defendant was indicted for theft of a loaf of bread, and he pleaded starving condition as a
defense. The court refused to accept it. Thus, raising a question- If hunger cannot justify the theft of
food, then how can it justify killing and eating of a man?
• If those men had known their act was deemed by law to be murder, they would have waited for few
days before carrying out their plan. During that time some unexpected relief might have come.
• Agreed to the fact that element of deterrence in the present case would be less than what is normally
involved in application of the criminal law.
• Various possibilities against Foster's exception point:
What if Whetmore would have refused from the beginning to participate in the plan? Would a majority
be permitted to overrule him? What if no plan was adopted at all and the others simply decided to kill
Whetmore by giving a reasoning that he was in the weakest condition, What if the plan was followed
but based on a different justification that since others were atheists and Whetmore should die as he
was the only to believe in an afterlife.
• Called Foster's arguments- intellectually unsound and his approach- rationalization/
• A matter of regret that the prosecutor found the indictment of murder suitable for the defendants. If
there was a provision in the statute making it a crime to eat human flesh that would have been a more
appropriate charge, if no other charge is suitable to the facts of this case, it would have been wiser to
not have indicted them at all.
• He wasn't able to resolve the doubts that bothered him regarding the laws of this case, thus he
declared withdrawal.

Justice Keen: (Guilty)

Positivism-Textualism:

• Made a point that under their system of government, it's not a question for them whether the
executive clemency should be extended to the defendants, it's for the Chief Executive.
• He disapproved of the opinion of the CJ Truepenny in which he mentioned to insist the executive to
decide or provide clemency as it is not the role of judiciary.
• As a private citizen stated that if he were the Chief Executive, he would pardon all the men, as they
have already suffered a lot.
 • In the discharge of duties as judge, decision must be controlled entire by the law of the
Commonwealth.
• The question in the case is not whether what they did was right or wrong, wicked or good. Instead, the
sole question is whether the defendants, within the meaning of the statute, willfully took the life of
Roger Whetmore.
• Failure to distinguish between the moral and the legal aspects of this case.
• Including him, other judges did not like the fact that the written law requires the conviction of these
men. Unlike his brothers, he respects the obligation of an office that requires him to put personal bias
out of his mind.
• Mentioned that Foster didn't admitted that he was driven by a personal dislike of the written law.
• Focused on knowing the purpose of the statute and added that neither he nor foster knew it.

Justice Handy: (Innocent)

Legal Realism-Common Sense:

• Only disappointed as no one raised the question of the legal nature of the bargain struck in the cave-
whether it was unilateral or bilateral and whether Whetmore's withdrawal couldn't be considered as a
revoke of the offer prior to the action taken.
• What we as officer need to do with the defendants is a question of practical wisdom, to be exercised in
a context, not of abstract theory, but of human realities.
• Government is a human affair, and men are ruled not by word on paper or by abstract theories, but by
other men.
• Believes that all the government officials will do their jobs best if they treat forms and abstract
concepts as instruments. A good administrator is one who accommodates procedures and principles
to the case at hand, and selecting from among the available forms, the most suited ones to reach the
proper result.
• The most obvious advantage of this method is that it permits to accomplish our daily tasks with
efficiency and common sense.
• A great newspaper chains made a poll of the opinion on the question, What do you think the Supreme
Court should do with the Speluncean Explorers? In response to this, about ninety percent expressed a
belief that the defendants should be pardoned or let off with a kind of token punishment. This could
be known without the poll, on the basis of common sense, or even by observing that in the Court
ninety percent of the men shared the common opinion.