Sources of Law - Custom

Unit 5
 In Indian context, the expression
“sources of law” used in two senses.

In the first- duty is the foundation head

Meaning : of all law

Sources In the second sense- sources of law

of Law means where one must resort to get at
law
Natural law philosophers- law has a
divine origin.
Classification- Sources of Law (Salmond)
 One of the oldest source of law making.

Continuing course of conduct

Custom as
a Source
As the legal system grows, the importance of custom as a source of law
continuously diminishes.

of Law
Roots of custom as a source of law in ancient India may be enumerated
under four distinct stages. (Revelation or the utterances and thoughts of
inspired seers; the utterances of revered sages, handed down by words of
mouth; approved and immemorial usage; equity and good conscience)
 Definition and Nature of Custom
• “Usage observed by a large majority of people as a matter of habit and its
continuance has acquired a legally binding force.”- Legal Glossary published
by Govt. of India 1992
• “A long established practice considered as in written law and resting for
authority on long consent, a usage that has, by long continuance has acquired
a binding force in law.”- Webster’s New International Dictionary 1957
 Dr. Allen: “Uniformity of habits or
conduct of people under like
Definition circumstances.”
and
Nature of Salmond: “Custom embodies those
principles as are acknowledged and
Custom approved, not by power of the
State but by public opinion of
society at large.”
 T. E. Holland: “Custom is generally
observed course of conduct.”
Definition Example of track formed.
and
Nature of Austin: “Custom is a rule of
conduct which the governed
Custom observe spontaneously and not in
pursuance of law settled by the
political superior."
 Origin of Custom

“Custom is essentially a
Human conduct was
product of natural forces
regulated and controlled
associated with popular
by customs.
spirit of acceptance by
(Anthropological study)
the people.” (Savigny)
 Kinds of Custom

Conventional
Legal
Custom
Custom
(Usage)
 Custom and Usage: Distinction
Custom
A custom is binding irrespective of the
consent of the parties.
A custom to be valid should have been
in existence from time immemorial.
Usage
Usages are binding only when they are not
expressly excluded by the terms of
agreement entered into by the parties
There is no requirement in order to be
binding usage.
 Essentials of a Valid Custom

Immemorial Compulsory
Reasonableness Continuity Certainty Consistency
Antiquity Observance
 Custom and Prescription: Distinction
Points Custom Prescription
Source of Law It is a long practice operating as a source of law. It is a long practice operating as a source of right.
v. Right
Immemorial In case of custom, the old rule as to time In case of prescription, the fiction of lost grant
Antiquity immemorial subsists. operates and it is governed by statutory prescribed
time.
Origin It originates from long usage. It originates from wavier of a right.
Requirement as A custom to be valid must be in conformity with It is not so in case of prescription.
to validity the principles of justice and public utility.
Theories Regarding Transformation of
Customs in to Law

HISTORICAL ANALYTICAL
THEORY THEORY
 Historical Theory

Existence of law is due to common consciousness of the people. Customary observance is not the cause
of the law but the evidence of its existence. (Henry Maine)

“Customary laws completely modify or repeal the statute; it may create a new law and substitute it for
statutory rule which it has abolished.” (Savigny)

“Custom is transcendent law.” (Manu)

Crticism
 Analytical Theory

John Austin regarded custom as an historical material source.

Custom derives its binding force not from its own nature but by state recognition.

Custom has only persuasive value.

Holland too holds a view that custom becomes a law when it is adopted as by state recognition.
 Importance of Customary Law
• With the advancement of judicial process, importance of custom is
constantly receding.
• Important role in development of law
• Sole source of law in early times.
• Custom is still effective in modern day (inheritance, succession, contract, sale
of goods, negotiable instruments, etc.)
• Codification of Hindu Law after independence.