JURISPRUDENCE & LEGAL THEORY

PROSENJIT PAUL
STUDENT I’D: 23304024
 CUSTOM
IT IS DESIRABLE TO DEFINE CUSTOM BECAUSE IT IS A
SIGNIFICANT SOURCE OF LAW. SALMOND CLAIMS
THAT CUSTOM IS THE PHYSICAL MANIFESTATION OF
THE MORAL STANDARDS THAT HAVE PROVEN TO BE
JUST AND USEFUL TO SOCIETY AT LARGE.
 ACCORDING TO CARTER….

✓ The easiest way to define custom is as the

consistency of behavior among all people
in similar situations.
✓ Custom is an accepted behavior pattern.
 ORIGIN OF CUSTOM

❑ oldest method of creating laws.

❑ According to an analysis of ancient law, norms that
spontaneously evolved in response to conditions
governed people's lives in prehistoric civilization. One
method of carrying out tasks was seen to be more
practical than another.
❑ When Something Is Done In A Specific Way Over And
Over Again, It Takes On The Form Of Custom. Holland
Correctly Notes That The More Practical Of The Two
Acts Was Deliberately Chosen By The Populace As
The Origin Of Custom.
❑ Imitation Also Must Have Played An Important Part In
The Growth Of Customs.
 Opinion of the vinogradoff:
❖ Clearly, social customs themselves did not
develop from a meeting or court. They
developed gradually in the homes, and daily
relationships between clans and magistrates
only developed later, after the tradition had
already taken hold, adding to the sanction of
widespread acceptance the express
formulation of judicial and expert authority.
 Binding force of custom

There are many reasons why custom is given the

force of law:
➢ Antiquity, reasonableness, morality, continuation, peaceful
enjoyment, consistency, conformity with statute law,
certainty and obligatory force are some of the judicial tests
that have evolved for customs, to be legally recognized by the
courts and to gain the binding power of law.
➢ Basis of rational expectation……expectation
should be fulfilled
➢ Observed by large number of people