Position of Custom in various Ancient Legal Systemswitied accept of unqualiies Cain Madura v. Mootoo Raralingam,” I Collector © was observed Geum Cole f fa Hinds oe etmcan iat if a custom is proved (0 be wbich comet 19 eihe cours are bound {0 follow it even th aio custom, Le, URF, occupies 30 oof of usage will utweigh the writ In Muslim law tusiom does not command any Hedaya says ihe earned but a transaction sanctioned by custom legally if it de in violation of a rule of law derives logy however, be opposed t0 a clear text of Koran or of an authentic « Tn Roman law also, custom played a very important part. However, the value of custom diminished afier the promulgation of the Code the XII Ta | ‘Thereaficr custom acquired a secondary position as compared to the legislation of the imperial regime.* (i ‘in England, in the words of Chief Justice, Coke, ‘customs are of tte main triangles of the laws of England’. In the seventeenth century Hale emphasized the importance of customs. Blackstone,* writing in the eightecath fi i om ¢ Diarmasara wines po dou propounded diferent tieorics of the validity of came ancient Hinds lew The process of ints ton with the law has alos Wen fing om te Hindu uriss were liberal in their atte towards recognising and accepting fom eg, the eaght form of marrage wk were recognised by Dharmaasts ‘tien fen dhgh some of the Son we jctonable’ (MP. Iai, op. cit, p (6B) 12 MIA 397 at p. 436, also io Blyoh Rom Singh v. Blyoh Upar Singh 1) MIA 373 at p. 390 3. The point nas mae still more speci sto Deb ¥ Beerchunder, (W859) 12. MIA, SD), ‘where i was observed. dat where custrn was proved Wo exist wk! oust the encral lan, which Iowever, will repute all ther thi ss ts Sa 4. Prophet Mohansned during his own lie time recognised Bre bis exp mary law, We t the Arabs, for Aiher ype he was sent ta be dil a express disapyrebae for those Unger pee among the Ana. Afr hf death his companions mcopised mary customs which ete et imorsseat wie secig ef amie faith The Hs ened toe exe sry Law of ream Arabian ct, tev a god de! tom te cuter po St ew fase stl cater wae ies ined pt at mp: eneily conser to We pono homscees seurtelon i is now relegated wo an ; Corer fir tthe Han, formative stages the Musi. bw When, however, the principles ferior position. Though the Muslin og in Ara acd Wo a0 46 a source of law on the principle “reat whatever good in the ee of Gas eter restion coming ater fi Lei 5 ain Jurispradence, $5. 136. 137 (1988 on © er For details sce GT. Saker R ‘ ammertaries the Laws of Eaglad (6th ed) py G7-08 sal png ot thove possibl y fran the Aanreasons for acceptance of Customs 1¢ main reason for the that before state org nity, this was done by were enforced im popular courts.* re the Norman congu ty of customs administered in the loral comm n became known it was the task of the king coherent body of rules w 5 saicment of Blackstone Pollock, A First Book of Jurispradencs (6° Ba) Par Chap. 4 Trach. is dhe expression and allo = me he principles of right and. is © ms Se ee we tn weorpers Omen are oS tr , Cbodios tem a scxnowteage PN appre, 00 UY S at the society = nee 6. Keeton, op. tt1 he unweit parts of the Kingsort e British comttom Pottock aution.’ Th tonal vew ha th and 20th cen age made law’, tn vest i geass (OF acceptance of Cass a as a source of Law. Firstly, comon inciples which have comman n be accepted ‘by the ‘comts. as : ni national custom is the ex Pie vance in the future, Salmond adds,* "ju 7 cason to the contrary, 1 a 7 Mvsie, be fulfilled rather dhan frustrated. Even Hi yst and reason able even if it cam be shown that the . ad Tana en even if ater en mah form e asa) Svisdom of the joicaure, i may yet be wie © » ished practic raming Jaws for the community, this, Was done by the people them raming ed by abit wee cfr in popula oat’ Tf rue of English law which, before the Norman conquest, was mad ely of customs administered in the local courts of Shire. Al 1 oe sk of ae ies 8 we comm uct was the Ole wach became own #8 "He Smo! A First Book of Jripradence (6% BA et, Aa . seed oO gw i ei ah ts aT a ne pn te om oe nod ad approved, not by the fembodics them as acknowledés cane opiaina of te saclay uM” 5. Supra, P 6 Keeton, op. cit, »» 7it JURISPRUDENCE cunom of the realm’, Ths, (he sta, 0 advan England or the, Univers od enforces customary rules, first formulated by ge i aa eles for their own regulation people themseh ‘The place of custom among the sources of law nce of opi There is a diver: the list of source Views of Historical school of Iaw.—According to Savigny and the erm cat hoa canom in inci? on authortaive source of tw German Hiner ‘pe preent cant be undetstlond. withOw refTence 1 th According fo rnd ie uve wae Ia we must go back 10 the day wen society wat i nd of ws known 10 the people and. wich Rad th wich were ee rue basis of positive aw" says SAVIN," Bas i custom, in the uniformity of a continuing and therefore lasting manner of we recognise the belicf of the people as its common root and one iametrcally opposed to bare chance. Custom is therefore the badge and not the ground of positive law. ‘Analytical school’s view.—According 10 this school custom is not an authoritative source of law at all. Austin points out that as far as English law fs concerned the so-called Fnglish customary law is purely on invention of the English Judges. Because they were afraid of offending the conservative instincts of the English people, that is why they started the fiction that they ‘were not introducing our new law but that they were giving to the English people merely their own customary laws. When this is how the so-called English customary law originated. Austin asks, how can any one say that custom is an authoritative source of law at all ? Therefore, Aust ‘customary law at any rate in English law is nothing more than judicial law and it is quite likely that a judge may and accept a rule of custom on which to base his decision in any particular case that comes before him. For Austin, custom by itself has no independent legal authority and it gets that authority only after it is thus incorporated into a decision. n points out Neither the view of Savigny nor that of Austin can be accepted as correct, Legal custom is different from social custom and before a custom is recognised as legal and therefore binding, it has to satisfy certain tests which the state has laid down. Legal custom, as such is stil occupying a place in the list of sources of law under most ‘of the legal systems of the world Present Position of Customs in India In Moder times, legislation is the most important source of law However, importance of custom has a fee orem amanance of custom has not been diminished altogether. In India Tas tora aces sil couny a very important place and ther importance administration of law and law as valuable in. theCUSTOM AS A SOURCE OF Lay tice! Articles 25, 26 and 28 of the i me protection of such customary practices of Magnant (0 the concept of secularism and law concerning marriage. Constitution of India indi emoeratic socialism, tly, guarantee ich are no ae The exis Hind cession, adoption, ete, S ime customary features of old Hindu law ot ae hel ee ecessar) PY OUT SOcial reformers? =” MEM A SUI considersd asta Kinds of Custom All customs which have the force of law aially distinct in their mode of operation, The are of two kinds which are st kind consists of custom operative per se as ab which nding rule of law, independently of any Wrreement on the part of those subject to it. The second kind consists fystom which operates only indirectly through the medium of agreement, xpress or implied,’ whereby it is accepted and adopted in individual instances cessveational Hew between the pertes. ‘These’ two (Hits of somone distinguished as— (1) Legal, and 2) Conventional rh aa or ‘be maintained and pi =e. HI the aa ec rghes and privileges and by sts se te cee pe Supreme Count of Tiare at Fort Wiliam 8 ave full pow ey ear wn trie a 7 ie in the case of Gertus (the : ‘ sad uages of Mota cs abitant of Hindustan who 18 8 porwugese. word for ‘gentle and Te Menus ae where nly one ot A et ot 1861 5 Vic. Chap, 104) icable 1 Supe ort Act of 1861 28 ark 2 psn of din wich er hy awe). The Mish Acts of Parliament or 4s w be established under ee at Se 1 jecide scoring © UME. Sapeme Cour Te vs were ane MM mas Td Gey Ca Se ag tg a ee as mivay stall, wate age eg 10 the personal Iw of ind succession 10 ierianes pay, dace HST reonlg # m3 of oi tow 10 we the PAS atic Pa Ses et 9 OS 8 Covert A over oe eal near 96-130 arate or cox BAIE HS angh NLP Jom, op. Pena umle a sens prevail resumed oS consi 3. Certain customs Tr they may Dre cartile cio passage of time Toran mH. 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WON wiasks ante ae go WI aN “Woys up TuauTeIed nan eB nals omy Oa a ene mod pamdsyy 4 OF Agomne wy MUPE YOY . = I © uodn sonst ang. aping ypstin xoLagur Jo. SUNCP pnt eeu, snl 30 une: © Ajaraur ai 3° Bee 20. Diet POV camnaed tenet SY perp ung ‘union “sone Fo 8K! (eoIpaf ‘ani eastsop v st 1wPo72! 19403 quays eens 20h IMU Un iy Napanaid mown Teas 40209 "pul aD Jo spso® for uoIstoop IF satan dain Sant aTNE 8 20 as anbaaeey M2 AU0P Io pres SIENNA SOME stoyeag 2 EE 30 selarexo Mt se ¥ stweow yuopazard ¥ rs se, SS rt sor 9 Sa1aey yu; 3u M1 50 yy te Be sxanod a > Das v 5 nou ayy yoy away SY INaaaD aaLand Campbell otrated he above view very strony in the ease of mith. eh? He ssPRUDENCE a Appeal urt of Criminal AP Cone ot sree ES sand by the decisions of House of Lords ha oer ne Cour of Appeal is abso! 1 orn ecto “ded by Pull B of the Court of Appa, se i oon a ce Fa Oe Oa ak Bristol Acrople shed but followed the views at ud in Yours ¥ ne Funds on wich it a ; not discuss the grounds on SINED “ig Velazquez Ld. v. Inland Revere Lord. Coren-Hard Conmissioners that this Court, upon a q When there has best ® he Court, whalever ils OWA YiewS may I se eecision. There wouk! otherwise be 10 Final te, 10 depart in ‘the law rh Gear of Appeal is however not bound by is own decisions in following three cases (> The Court is bound 1 refuse 10 follow 2 dec ‘overruled cannot. in its opinion stand which, though not expres with decision of the House of Lords. >) The Court is not bound to follow a decision of its own if it is he decision was given per incurium ¢.g., where a satisfied th { which would have effected statute or a rule having statutory effect he decision was not brought to the attention of the earlier cour. () The Court is not bound by its own decision in case there are two conflicting decisions of its own. Like Court of Appeal, Court of Criminal Appeal is also bound by the decisions of House of Lord: Jecisions. Count of Criminal Appeal is not bound by the decision of Court of Appeal as both are Coun of Coordinate jurisdiction. The Court of Criminal Appeal, however an disregard iis own previous decision if it is found that it has, misconst for mis-applied the law and may again reconsider its prev nd by the decisions of House of Lords, Courts of lecisions. Similarl and of its own previow High Courts are bo Appeal, Court of Criminal Appeal anki by its own previow county Courts and the Magistrates’ Courts are bound by the d of Lords, Court of Appeal, Court of Criminal Appeals, High Courts ai its own decisions isions of House Position of Precedent in India Under anciem Hindu law the doctrine of precedent was recognised by Mind Tawgivers, Manu, the renowned law-giver of Hindus, advocated th Te7O.of Prsbdent in onder to sete doubiful poims of law. He said “i 1 Ww it should be with respect to (points of) the law which have not_been Aspecially) mentioned, (the answer is), that which Brahmans (wh 1 Soro, Cine (1980) 2 KB 643 emoplane Co. Lid. (194) KB 718, 4. See Mang 5. See Ning \. King, (1943) 2 AN ER 25) ere| on MAT 30 [DANOS ¥ sv NOLULWTSIOS’ ewatano‘clegated legislative powers are also possi by te jam cer ave the power of making rls foe the equation of thie coms Known as jail legislation and i ieee fomry and_ exis 18 Sm such as changes it izmosiion of mpst 43 etrol f exchange, aM moyen plc wl ries tat the provsot Of aw shoul a or ts enforcement YeCoTE> woe. Delegated Tersiaion © mCn. CHAPTER 4 88 Tenn Rep Pure 4 * THEORY OF Law N THE WORDS of elsen (1881-1973) ret, Das the pure Te marks the spear # development 12 al positivism. It also marks — approaches that characterised the 2 or tneccinah eel w aongnt to expel ideclogies ofevery dos Oth century Ths law, austere in its abstraction aa description and sat of fact, he iKelseni Started his cho nettie ae Menta picture of a theory of law must deal with Tcettain premises. Accordin | jg it ought to be. In this, he agreed as itis actualy laid eoefansee point got him the title of “positivist”. a and insistence on ths ished from the law itself. Law consists ony of law must beds Biles and the function of a theory of law ee single, ordered pattern, Kelsen evolved his See Ren | study of the legal material actually availble ato fer it as a way of regarding the entire legal Ce eee the pattern and shape into which ifalls. on oe I rections ‘lopment in ‘ welt opening of the aoe ot dierent According to Kelsen, a theory of law should be uniform. It should. be'spplicable to all times and in all places Kelsen advocated general | jurisprudence. He arrived at generalisations which hold good over 2 very wide area. Ay Kelsen writes that a theory of law must be free from ethics, politics, sociology, history etc. In other ‘words, it must be pure. Ifa theory sto be general, it has to be shorn of all variable factors. Itis true’ that Kelsen ciology ete: but his did not deny the value of ethics, politics, history, 5 a view was that a theory of law must keep clear of those considerations. » Jurisprudence, p- 488.