Project Report

on
Theories regarding transformation of Custom into law

Submitted as a partial fulfillment of the requirements for B.A.LLB HONS 5 Year

Integrated course

SESSION:2021-2022

Submitted on: 25/06/2022

Submitted by: Submitted to:

Jatin Gautam Dr. Akhil Kumar

Roll No.- 40 Faculty-Jurisprudence

Semester – 6th Section - A

UNIVERSITY FIVE YEAR LAW COLLEGE

UNIVERSITY OF RAJASTHAN,
JAIPUR

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 DECLARATION

I, Jatin Gautam, hereby declare that this project report titled Case “Theories regarding
transformation of Custom into law” is based on the original research work carried out by me
under the guidance and supervision of Dr. Akhil Kumar.
The interpretations put forth are based on my reading and understanding of the original texts.
The books, articles and website etc. which have been relied upon by me have been duly
acknowledged at the respective places in the text.

For the present project which I am submitting to the university, no degree or diploma has been
conferred on me before, either in this or in any other university.

Date:25/06/2022 Jatin Gautam

Roll no.- 40

Semester – 6th Section - A

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 ACKNOWLEDGEMENT

I would like to express my gratitude to those who generously took initiative and helped in the
successful completion of this project. I thank to them for their inspiration and guidance towards
preparation of this report. I thank my esteemed teacher and supervisor, respected Director,
UFYLC, Dept. of law, University of Rajasthan. I am highly indebted and my profound gratitude
to Dr. Akhil Kumar, Faculty, University Five-year law college, University of Rajasthan, Jaipur,
who enabled me to make a project and provided me their stimulus of writing this. I am grateful
to my parents, for their valuable advice, continuous support and guidance through various useful
discussions at different times during the tenure of making this project and their co-operation led
to great learning experience to me.

Jatin Gautam

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 CERTIFICATE

Dr. Akhil Kumar Date: 25.06.2022

Faculty

University Five Year Law College

This is to certify that Jatin Gautam of Semester VI section A of University Five Year Law
College, University of Rajasthan has carried out a study on “Theories of transformation of
customs into law” under my supervision and guidance. It is an investigation report of a minor
project. The student has completed research work in my stipulated time and according to the
norms prescribed for the purpose.

Supervisor

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 TABLE OF CONTENTS
DECLARATION ................................................................................................... 2

ACKNOWLEDGEMENT ..................................................................................... 3

CERTIFICATE ...................................................................................................... 4

CHAPTER 1: ......................................................................................................... 7

CHAPTER 2: ........................................................................................................10

CHAPTER 3: ........................................................................................................13

CONCLUSION: ...................................................................................................17

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Abstract

Customs exist in every society and form an integral part of the societal values and obligations.
It’s a habitual course of conduct not only having importance in social life but also the legal
jurisprudence. The voluntary observance of customary rules by the general population makes it
more adaptable in society. Its legal utility can be understood by examining its validity based on
judicial tests laid down by scholars and courts. Custom as a source of law has been studied by
different schools of jurisprudential thought explaining various views of the exponent jurists.

Objectives

In this study, it is purposed to examine the various facets of Customs and what are the theories
regarding its transformation into law.

Hypothesis

Keeping the objectives in mind following hypothesis have been formulated-

• Transformation of Custom into law is a self-driven process.

Research Question

What do you mean by customs and what are theories related to its transformation into law?

Research Methodology

The researcher has adopted doctrinal method research. The researcher has made extensive use of
the available resources at the library of University Five Year Law College, University of
Rajasthan and also internet resources.

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 CHAPTER 1

INTRODUCTION

Law has acquired its present form by developing throughout many years and centuries. The
origin of law can be traced back to various sources from which it derives its validity. The term
sources of law may refer to the practices and authorities from which the laws derive their force
making it binding. Sources of law form a very important part of legal Jurisprudence. The legal
definition of Source of Law provided by Merriam-Webster is something that provides the
authority for judicial decisions and legislation.1

The sources of law can be classified into two heads that is formal sources and informal also
known as material sources. The former type contains sources from which law derives its validity
like the will of the sovereign, the will of people, will of the state, and judicial decision of courts.
According to Salmond, Material sources are those sources from which law derives its matter.
The material sources are further divided into Legal material sources and Historical Material
sources.

The legal sources are authoritative sources recognized by the law itself which include
Legislations, Judicial Precedents, Customs, and Treaties. And the historical sources are
unauthoritative sources that lack formal recognition and binding value. These are mere historical
significance and help us in understanding the development of law. It includes religion, morality,
opinion of jurists and scholars, beliefs, and local traditions. Customs mean practices that
governed the general code of conduct and every way of acting, thinking, and believing in people
in primitive times. It was usually and widely accepted by particular communities, localities, or
society as established ways of doing things at a particular time. Custom is defined variously by
several jurists and sociologists. In the sociological view, custom may be defined as a cultural
idea that describes a regular, patterned behavior, regarded as a characteristic of life in a social
system. The ways of greeting people, manners of worshipping god are considered some

1
https://www.merriam-webster.com/legal/source%20of%20law.

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examples of customs persisting in a society. These cultural norms differ from society to society
and hold great importance.

Definitions of custom in Jurisprudence:

John Salmond says, “Custom is frequently an embodiment of those principles which have
commended themselves to the national conscience as principles of justice and public utility.”2

For Salmond, a valid custom is backed by the absolute authority of law which is a force of law in
itself. He divides it into two types:

General Custom – A general custom enjoys the force of law throughout the territory of a state,
just like the Common Law in England. Local Custom – The local customs operate in a particular
locality and enjoy the force of law in that society only. The local custom has higher authority
than the general custom.

Definition by C K Allen – “As a legal and social phenomenon growing up by forces inherent in
society—forces partly of reason and necessity, and partly of suggestion and imitation.”3

Edward Sapir, an American anthropologist-linguist described that custom is “is used to apply to
the totality of behavior patterns which are carried by tradition and lodged in the group, as
contrasted with mere random personal activities of the individual.”4

John Austin, a jurist belonging to the Analytical School of law viewed everything in terms of the
political superior as the ultimate authority or the source of law. Thus he defined custom as “a
rule of conduct which the governed observe spontaneously and not in pursuance of law settled by
a political superior.”5

2
Fitzgerald, P.J., M.A., “Salmond on Jurisprudence”, (1997), N. M. Tripathi Pvt. Ltd., Bombay, at p 190.
3
Allen, Sir Carleton Kemp, “Law in the Making”, (1964), Oxford University Press, Ely House, London W.I., at p
111.
4
Mohanti, K.K., “Custom Vis-à-vis Law: Some Reflections on Marriage Customs and Rules Among Caste and
Tribal Communities”, in “ADIVASI: Journal of the Scheduled Castes & Scheduled Tribes Research and Training
Institutes”, Bhubaneswar, Vol. 44, No. 1 & 2, June & December 2004, p 12, at p 12.
5
Tondon, M. P., “Jurisprudence (Legal Theory)”, (2010), Allahabad Law Agency, Faridabad, at p 167.
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According to Section 3(a) of The Hindu Marriage Act, 1955, the term “custom” signify any rule
which, having been continuously and uniformly observed for a long time, has obtained the force
of law among Hindus in any local area, tribe, community, group or family. But the rule should be
certain and not unreasonable or opposed to public policy, and further in case of a rule applicable
only to a family it should not be discontinued by that family;

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 CHAPTER 2

ESSENTIALS OF A VALID CUSTOM

Following are the essentials of a valid custom:

• Ancient / Antiquity: Custom must be long-standing practices, that is, they must be
followed from times immemorial and have been observed for a long time. In India, the courts
decide the question upon a custom on its antiquity based on the circumstances of each case.
Though Hindu Law does not fix any particular period to judge the antiquity of a custom English
Law has the fixed year 1189 A.D to determine the antiquity of a custom.

• Opinio necessitates / Compulsory Observance as a Right – It is the second requisite of a

valid custom. Opinio Juris, a shortened phrase frequently used in legal proceedings, of the Latin
maxim opinio juris sive necessitatis, which means “an opinion of law or necessity” is the belief
that an action was carried out as a legal obligation. Opinio Juris denotes a subjective obligation, a
sense on behalf of a state that it is bound to the law in question.

A component of international law known as customary international law refers to international

obligations arising from established international practices. It results from a general and
consistent practice of states that they follow from a sense of legal obligation and opinio juris is
the second element necessary to establish a legally binding custom. The International Court of
Justice reflects this standard in ICJ Statute, Article 38 by reflecting that the custom to be applied
must be “accepted as law”. As with customary international law, opinio juris is an unsettled and
debated notion in international law.6

• Continuity and Uniformity: The validity of custom is also determined by its characteristic
of being followed continuously for a longer time. It must also be uniformly applicable to the
places where it is observed. If a custom is discontinued for a time and then comes into force
again, such custom will be presumed to never exist at all. From the fact that a custom must be
uniform, it follows that it must be consistent. Consistency implies solidarity between customs
existing together at a time.

6
OPINIO JURIS SIVE NECESSITATIS July 16, 2019, Louis de Gouyon Matignon, Space law, Public International
Law, The United Nations; https://www.spacelegalissues.com/opinio-juris-sive -necessitatis/.
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• Reasonableness – A custom to have a force of law must be reasonable, that is it must be
rationally accepted by a prudent man. In the words of Sir John W. Salmond “The true rule is that
custom, to be deprived of legal efficacy, must be so obviously and seriously repugnant to right
and reason, that to enforce it as the law would do more mischief than that which would result
from the overturning of the expectations and arrangements based on its presumed continuance
and legal validity.”

• Certainty: A custom should be certain and definite in regards to nature, applicability, and
acceptability. It should not be vague or uncertain. When the validity of custom is questioned it
should be able to answer affirmatively in the aspects of being followed in its true essence, its
applicability over people of such locality, and its conformity.

• Adherence to the law of the land: The custom, which is in operation in a particular
society, must be in compliance and conformity with the legal and constitutional principles
existing in that society. The rule of the law of the land is considered to be of utmost significance
and is upheld by the courts. If the custom is contrary to the principles laid down in the
Constitution, it must be dispensed with. The most famous example of this essential is the practice
of Triple Talaq among Hanafi Sunni Muslims.

• Not opposed to public policy, morality, or express enactment: A custom which hinders
morality or peace, or is against public health and safety cannot claim its validity on the above
grounds as well. Also, it must not be expressly prohibited by any statute or enactment. The
question of judging the morality of custom is left to the conscience of court keeping in mind the
needs of the society. There is no such restricted formula to test the morality of custom; the court
adapts itself to the standards of morality of the community, section, tribe or society to which the
custom is sought to apply.

In the case of Balusamy Reddiar v. Balkrishna Reddiar,7 the Madras High Court observed that a
marriage with the daughter’s daughter is illegal as it is abhorrent to public health and morality as
there was such a custom existing in the Reddiar community of Tirunelveli district.

7
Balusamy Reddiar v. Balkrishna Reddiar, AIR 1957 Mad 97.
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Because of the express prohibition by legislation, some customs are given supremacy over the
general laws, and the customs observed in that society are allowed to prevail. Section 5 of the
Hindu Marriage Act, 1955, in the clauses (iv) and (v) give importance to the customs or usages
of the community governing the people in terms of validity of marriage questioned on the ground
of coming within the scope of prohibited degrees of relationship and Sapindas.

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 CHAPTER 3

THEORIES REGARDING TRANSFORMATION OF CUSTOMS INTO

LAW
Analytical School and Historical School of Jurisprudence have expressed their views in this
regard which are as follows:

The analytical school of Jurisprudence traces the development of the law through legal
positivism. It means the law is the command of the sovereign and the law emanates from the
supreme authority/ state. The school considers Customs as general norms or practices followed
in society having no force of law until they are recognized by the sovereign who is the highest
form of authority and hence all sources of power flow from him. Custom is not the law in itself
but it is a source of law. The major exponents of this school are Austin, Holland, Gray, and
Salmond. It is also viewed by Holland that custom does not become law as of their existence;
they become laws when they are recognized to be adopted as laws by the state.

This theory is criticized by various jurists. Vinogradoff criticizing this theory states that It is not
conflicts that initiate rules of legal observance, but the practices of every day directed by the
give-and-take considerations of reasonable intercourse and social co-operation. Neither
succession, nor property, nor possession, nor contract started from direct legislation or direct
conflict. Succession has its roots in the necessary arrangements of the household on the death of
its manager, the property began with the occupation, possession is reducible to de facto
detention, and the origin of the contract goes back to the customs of barter. Disputes as to rights
in primitive society are pre-eminently disputes as to the application of non-litigious customs.8

Historical School of Jurisprudence was founded by the famous jurist, Edmund Burke. This
school of jurisprudence considers the historical development of law, which can be traced by
historical institutions in the form of religion, usages, traditions, and customs. Friedrich Carl Von
Savigny and George Friedrich Puchta are the main exponents of the historical school of law.

The views of the historical school of jurisprudence regarding custom as law are

8
Allen, Sir Carleton Kemp, “Law in the Making”, (1964), Oxford University Press, Ely House, London W.I., at p
71.
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• Law is primarily an expression of practices and customs followed in society.

• According to Savigny, ‘Law was not something that should be made arbitrarily and
deliberately by a lawmaker’.9 It was embedded in the past and the peculiar character of a nation
and the national spirit of people known as Volksgeist.

• The custom carries its justification, it does not need the authority of the state to be
recognized, and hence it is independent of the law of the sovereign.

• Law has existence in the general will of people.

• Customs are embedded in the common consciousness of the people.

This theory is also criticized because most of the customs originate from local social conditions
existing at particular times in society rather than the widespread Volksgeist. Allen, says that
‘Many customs which have taken deep root in society do not appear to be based on any general
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conviction of their rightness or necessity, or upon any real or voluntary consensus lutetium.’
Slavery, for example, was almost the universal practice of the ancient world. It was a custom
based upon the needs not of a popular majority but a ruling minority. Similar was the case in
India of the prevailing practice of Untouchability.

Important precedents on Customs as a Source of Law

1. In the case of Youth Welfare Federation v. Union of India 11 the Andhra High Court held
that “Although the custom is an important source of law in early times, its importance
continuously diminishes as the legal system grows. As an instrument of the development of law,
it has now almost ceased to operate, partly because it has to a large extent been superseded by
legislation and precedent and partly because of the stringent limitations imposed by law upon its
law creating efficacy. Law was either the written statue law or unwritten common or customary
law… Blackstone appears to have concluded the custom as a source leading to the codified law
to seek legal sanction viz., “the municipal law……may; with sufficient propriety be divided into
two kinds; the Lex Non-Scripta, the unwritten or common law or lex scripta the written or

9
Bodenheimer, Edgar, “Jurisprudence: The Philosophy and the Method of Law”, First Indian Reprint (1996),
Harvard University Press, U.S.A., at p 71.
10
Allen, supra note 8, pp 89 – 93
11
Youth Welfare Federation v. Union of India, 1996 (4) ALT 1138.
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written law. The written law includes not only general systems or the common law so-called but
also certain parts of the kingdom and likewise those particular laws that are observed only in
certain Courts and jurisdictions”

• The Supreme Court of India in the case of Madhu Kishwar & Ors. V. State Of Bihar &
Ors,12observed that “Customs are prevalent and being followed among the tribes in matters of
succession and inheritance apart from other customs like marriage, divorce, etc. Customs became
part of the tribal laws as a guide to their attitude and practice in their social life and not a final
definition of law. They are accepted as a set of principles and are being applied when succession
is open. They have accordingly acquired the status of law.

Like in Hindu law, they prefer a son to the daughter and in his absence daughter succeeds in the
estate as a limited owner. Widow also gets only limited estate. More than 80 percent of the
population is still below the poverty line and they did not come at par with civilized sections of
the non- tribals. Under these circumstances, it is not desirable to grant a general declaration that
the custom of inheritance offends Articles 14, 15 and 21 of the Constitution. Each case must be
examined and decided as and when full facts are placed before the Court.”

Judicial tests to Determine the Validity of a Custom

• It has been held by the Supreme Court of India Salekh Chand (Dead) v. Satya Gupta And
Ors13

“Custom must be ancient, certain, and reasonable as is generally said. It will be noticed that in
the definition in Cl. (a) of Section 3 of the Act, the expression ‘ancient’ is not used, but what is
intended is an observance of custom or usage for a long time… Certainty and reasonableness are
indispensable elements of the rule. For determination of the question of whether there is a valid
custom or not, it has been emphasized that it must not be opposed to public policy.”

• In the case of Thakur Gokalchand vs Parvin Kumari14, the apex court upheld that “A
custom, to be binding, must derive its force from the fact that by long usage it has obtained the
force of law, but the English rule that “a custom, so that it may be legal and binding, must have

12
Madhu Kishwar & Ors. V. State Of Bihar & Ors, 1996 AIR 1864, 1996 SCC (5) 125.
13
Salekh Chand (Dead) v. Satya Gupta And Ors, On, 04 March 2008; SLP (Civil) 1380 of 2002.
14
Thakur Gokalchand vs Parvin Kumari , 1952 AIR 231, 1952 SCR 825.
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been used so long that the memory of man runneth not to the contrary” should not be strictly
applied to Indian conditions. All that is necessary to prove is that the usage has been acted upon
in practice for such a long period and with such invariability as to show that it has, by common
consent, been submitted to as the established governing rule of a particular locality.

It was held that where the custom is set up to prove that it is at variance with the ordinary law, it
has to be proved that it is not opposed to public policy and that it is ancient, invariable,
continuous, notorious, not expressly forbidden by the legislature and not opposed to morality or
public policy.15

• Bhimashya And Ors v. Smt. Janabi @ Janawwa – It was laid down that “A custom to be
valid must have four essential attributes. First, it must be immemorial; secondly, it must be
reasonable; thirdly, it must have continued without interruption since its immemorial origin, and,
fourthly, it must be certain in respect of its nature generally as well as in respect of the locality
where it is alleged to obtain and the persons whom it is alleged to affect.16

• The Supreme court of India while reiterating in the above case that, “However, it
connotes some matter which concerns the public good or the public interest. No strait-jacket
formula can be laid down to hold what is for the public good or for the public interest, or what
would be injurious or harmful to the public good or public interest. What is public good must be
in consonance with a public conscience. The observations were quoted with concurrence in the
case of Gherulal v. Mahadeodas.17

15
Mookka Kone v. Ammakutti Ammal, AIR 1928 Mad 299 (FB).
16
Bhimashya And Ors v. Smt. Janabi @ Janawwa, on 11 December 2006; Appeal (civil) 5689 of 2006.
17
Gherulal Parakh v. Mahadeodas Maiya, 1959 AIR 781, 1959 SCR Supl. (2) 406.
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 CONCLUSION

Thus it can be concluded that though the custom is derived from ancient values and practices
which society used to follow in primitive stages and some may still follow the same, and the
importance of such customs have been diminished due to various judicial bars and enactments
given primacy, the customs still hold relevance in studying the historical development of our
society. In English law, various customs and traditions have become part of their unwritten
constitution. Similarly, the common law is also perceived as customary law. Thus ,we can
conclude that process of transformation of customs into law is not a self driven process and at
times need judicial and legislature interference.

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 Bibliography
Book Sources

• Fitzgerald, P.J., M.A., “Salmond on Jurisprudence”, (1997), N. M. Tripathi Pvt. Ltd.,

Bombay, at p 190.
• Mohanti, K.K., “Custom Vis-à-vis Law: Some Reflections on Marriage Customs and
Rules Among Caste and Tribal Communities”, in “ADIVASI: Journal of the Scheduled
Castes & Scheduled Tribes Research and Training Institutes”, Bhubaneswar, Vol. 44, No.
1 & 2, June & December 2004, p 12, at p 12.
• Tondon, M. P., “Jurisprudence (Legal Theory)”, (2010), Allahabad Law Agency,
Faridabad, at p 167.

Web Sources

• https://shodhganga.inflibnet.ac.in/bitstream/10603/74298/9/09_chapter%203.pdf
• https://indiankanoon.org/search/?formInput=custom%20law&pagenum=9
• https://www.merriam-webster.com/legal/source%20of%20law
• https://www.spacelegalissues.com/opinio-juris-sive -necessitates/

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