I

I 'V\..

Allin:- i AN<~~~ir~~Hl(Yl&n :f tl'OU) l l\j 'i

bC)'{ IJ,) ~tcnoN /';C 4' 1 ·
1~'j
,
1

_Ci) (To.. the early stages of the societl(_ the customs are the most important, and ·t
m some cas~s _tl~e sole source o~ la~a_u_t_~i~__ the progress of the soci~ty the I
adua unnush._an -- ¤$IS ation an'<r judicial pi'eceaents -hes:,0me -the ili~~.
l.'!ources, every_ eg~__.§.J~ em at all
stages of legal. development-.there ar~~. .
';!!sto~sJ ut in advanc~_d-~societies- the -are._more_rahonal1sed ..ana; -~re ~ ,
and defm~ , . l;?~O~ , ~s a source of law, .io¥ahzes-~ d yJ>La..numher _ol:.Wi,-
:
-~ts !m _and nature,_its ~portance, reasons for its recognition~)ts :
assif1cabon an the ~~~J)tials of a valid custo l.) -· · ~-
-~ -~ / fVc-A-~INl{ o~
The Origin of Customs luJ i oM
Nu VY\ i h i ~ g.:the· o;-~in:oLc.ustoms- there._.are.. d!,fferent and diy~r:gt-:qt xieJ41s.
. . n~. A Jiis~rical jurg t~, -c.(of erfficl!lY,)~•-s.ay:.-th~tJh~r.~c;,tjgjnate from the .c~~on
]r,,,.,J~VV'(:" nsciousness of the eo . le~f One view is that they come into existence due "to
J)'vV>uo1.;w-Jl,!£_e or conv~n- ·me"'s a _fttAt_ m~~---~~~ture -of .imitatim)-fillie_mam _.
c_.a se '"Q. -~ - --~ Q..,,.,,<;.,4§.tP-lll~J .t\D ___arJicular~ gng_qe._t -~ed--12 a . ou · -~(
~ l e lor:~ lon tune pecomes.,:a.i o . ere__ enes o -~ pyt~ _Jtµ1.Sts wh~q,
asser a u 1cia _decisim,1._s__are .the.J,?.~s-o
_ ~--.. . .e ions as the basis-of custo~•-:f: _ - · ·• - ·~..the.OLy_afJ egaLe'l.Qluti_Q~
/ says that_in the ~egmningJ!.1£.J'!4gpi~t~ eJgng~_p nde _ ·v~e in · ·on
-were the ~sis_oUh~ ct@oms . .£.ust,oms developed on those judgment Ih~r_!n
s~ppo~~ e
s~e vie~:.~IJ! J b~t pec;>ple -will . nQt im_pose liability UE._011 ··:
ffi'emselve~..(wbich the customs sometimes .do) by _their-11~9:_will_~t~ tney
~m~Ued by .courts. Later on, t~~J~~-~ e!\~_]>_ecamecusto .__ ,t ~ \gp..§~Y.L
at ~u§._tom often arises fi:omjudkiitLdecis_!?~~~But the . lo 1cal,
resear~es_J1a.Y!t._,expc$ecl tbe falsity of such~assumptions.J~e.alJy speaking, the .
~gin_Md develo ment of most .o -the customs ts _nQt_d·~e to ~ . consci~us ,
9
on. . P.c!!t...Q/_ th~ J?SjipleJ, Th.ey_ are_the _resu ts o tentative practice.
- ~ILcmy problem arose, some-solution was found-out. 1 ·
!.twas based~more..con.Jhe primiti.ve.nmions than C!..1!. ~J~ gic Q! P.rinci_e~
~ . Solutjol)S~~ere foll~ ed in simil~ ~~_g_ in this w_ay jt_became _!_
~ ~~---- . HCl1,u vJ"'~ 1 ,
Holland's view.-Holland2 puts the same thing a ~ e man crosses the

1. The Nature and Sources of the Law.

2. Jurisprudence.
( 184 )
 • CUSTOM
-/ 11, ~~ r~
-.nion in the direction which ·
cou.-•
e_, ')l.,{ '\ +~cl b -e.,
1s suggested •th
I

i ~~ , b~ 185

vieW, or by mere. accident. If others follow . e1 er by the purpose he has in

likely to do after 1t has once been trodd m the_ same track, which they are
· · · · en, a path
fonned, th ere 1s no Junstic reason for 1·ts taking
. 1s made ..... Before a custom is
o d' .
though doubt1ess there was some gro d f _ne 1rection rather another,
of accidental suggestion. A habitual :ur~e :~ped~ency or religious scruple, or
and sanctity every year...There can in f t b action formed gathers strength
existed among peoples long before' nati ac , e no doubt that customary rules
st
primitive times, there was little organise~ns or · at~s ~ad come into being." In j
in a modem state. It was the necessity ~r:eo~ ehind thes~ cus!o~ as it is
ensured their compliance. When the state com or~e of p~bbc op101on which _
develop-s;-tlrey are rahonalized and recognised eds into being and the , society
an gr~w as part of the law.

The reasons for the Recognition of Customs

Salmond's
. · view.-A question may arise
· as to why customs are so
r~ogrused and becom~ par~ of the law, or, are given the force of law. Salmond
.gives
· ·two h' h hfor -1t : First, "Custom is frequently the emb od'iment of those
1 reasons
p~c~p es w ~c . ave commended themselves to the nation·al conscience as
principles of Justice and public utility.. ,.The national conscience may well be
accepte~ by the cou1ts as an authoritative guide; and of this conscience national
:· '

I' '
. \

I
i
custom 15 the external and visible sign". Second, "The existence of an established I'
I '
i
usage is the basis of a rational expectation of its continuance in the future." It is
submitted that_the second ground for the recognition of customs given by
Salmond is stronger that the first. If the society has for a long time continued a I • .

practice which determined their rights and liabilities, and aroused expectation,
and if it is not opposed to public or reason, there -is no wisdom in disturbing or
removing it. It is not necessary that for each and every contingency, there must
be an enacted law. The only requirement is that the law should be_gefjpite apa...,
de~ It matters little from what source it has come:-by legislation or by any
other source. f'7i\ Ph.A/\"' u..,-:.~ ::: ( _&\"'-J~. ~~O'V"- , 1:
\J i
.NJ . o 0 b6~ rJl. (9-<..J e I "'°'""'1 &I~(!/
The Position of Customs in Various Legal Systemsc_c, u olrvtl < 4
_1,y-vh UJ
Roman Iaw.-We find the existence of customs in "'me ancient legal
systems. In Roman law, customs played a very important part before the Code.
But after the promulgation of the Code, Roman law was less sympathetic to
customs. Later on, the influence of customs was recognised in the substantive
as well as the procedural law. But it was. assi~ed only a secon~ary position as
compared to the legislation of the Impenal regime. The tests laid down by the
Roman jurists for recognising a custom as law were reasonableness and
antiquity, but they ·did not fix any period which must elapse before a custom is
to be recognised as law. c.,o JJ"-> 't- C... UJ) tot~ '4.J
Hindu Law.-Customs have been the most potent force in moulding the
ancient Hindu law. The variances in the laws given in several Smritis is said to
be due to their incorporating local customs of the places where they were
written. Most of the law given in the Smritis and the Commentaries had its
origin in customs. The Smritis have strongly recommended that the customs
should be followed and recognised.
I . (·
L.') K .:. c\J, \\ )1J. lt5'"J M ·\ \ .

S
cJ).,\C
-h c,i r\ ""~ \c.lJ.,4,'
("J J.u 1='+c.. ,-ev,.·
) J (
~o ~·. , 1\.I.-.) ·"·'' ,uv-1 o~...dA ,vv--Ju'bh.c.. Ll/.>k· -_.v ,.o,J ' cl
I
,".V-1 ,·•,
 JURISPRUDENCE
186

Manu says:-
Wf fcla4'41dl : 't;:r m'dT : fclar'it;I : I
cA" wmr "ffilt lWf cA" ;r ~11 ~/ct l9l II
(One should follow the righteous path that has been followed by O ,
ancestors. By following that path, one does not suffer.) ne s
Yajnavalkya's view is :-
: 311-iH-<)cllcle;I'<! : JC"i~ffi :
• qRQrc41-s-tn 4~1jq1,,a :II 11
(When a country is conquered, its usages and customs and family
traditions should be followed as they were followed before.)
Brihaspati says :-
vrrfct JC"IHi t aiif : stl®clfcfor : I
~* 41C"i~41 : ~ : ~ I I
(The law of place, caste or family, which have existed from before, should
be followed as before; otherwise people get agitated).
Mahabharatsays :-·
:~ira;rfiAl{I
~ , '1e;i\Jl4lil.:i l@ : Tl'~ :II
(Different are the Vedas, and so are the Smritis. There is no sage whose
opinion is not divergent. The essence of Dharma is difficult to know. The right
path is what which has beett followed by virtuous men) 1
Narada says :- ___ _ _ _ _ _ ,
dJfo ~ t..lj~~ d
cllcle;r41 aC"i411 ti4~.:i,a~hld I
(Usage is indeed powerful. It overrides the law).
The various Commentaries which were, later on, written on the Smritis
interpreted them. in the light of the local customs. Naturally they became very
popular in the respective localities, and thus, the schools of Hindu law emerged.
In this way, customs worked as a reorienting force in Hindu law. Under the
British regime also the importance and validity of the native customs remained
unimpaired and when law was enacted on any matter generally they were
saved expressly. It was on the basis of some texts that the Privy Council was led
to overstate the importance of the customs in Hindu law. Their Lordships in the
Privy Council observed that in Hindu law "the dear proof of usage will
outweigh the written text of the law." 1 The recent legislation concerning Hindus
has also saved customs at most of .the places.
Mohammedan Law.-The genius of the Mohammedan law is considered
to be ho~tile to Mtoms. It give them a very inferior place among the sources of
law. But 1t could not keep itseli free from them. Many Mohammedan jurists said
that the customs which were not expressly disapproved by the Prophet were
g~ ~w. It was on .the basis of such customs that Sunnis interpreted many
p~vis1ons. of the law, especially the law of divorce and inheritance. Customs
infiltrated ~to the fabric of the Mohammedan law through other channels also.
_m such gaibs that they assumed authority. Joseph Schacht, a German
Junst, m his very learned and thought provoking research work, 'Origins of
1. Collector of Madura v. Mootoo Ramlinga, (1868) 12 M.I.A. 397.
Gt btid \IJ.).A} _: u.:-L-cd"' v<:A d_µniv
';u,;'-. \v tl ; .. ctC ( -
 CUSTOM 187

ohanuned~ Jurisp rud ence'' says .th at even the Traditions of the Prophet, .
}lose authonty asf th · thing bu t the -
a source of .law is next only to Koran, are no
~vitlg traditi~ns O 1
e peop e, m ~ther words, the customs of the people, and
li ple in their zeal t~ attach sanctity and authority to them attributed them to
prophet. In India, many sects of Mohammedans in many matters are
governed by local customary law.
th UJlu. , rollod ~- , H<J.L , , u~k, (. l~ ~"' -
I , _--.,

English law; ~oke; St. Ge~an; Hale; Blackstone; ·Pollock.- Customs

}lave played a very important role m moulding the English law. English law is
1c0own as "comm~n law." Generally, common law and common customs of the
.reahn, were consi~ere~ as synonyms. Chief Justice Coke spoke about customs
as 'one of the main tnangles of the laws of England'. St. German in his book
,l)octor and Student' wrote : 'And because the said customs be neither against
the law of God, nor the law of reason, and have always been taken to be good,
and necessary for ,t he Comm~nwealth of all the realm, therefore, they have
obtained the strength of. law, m so much that he that doth against them doth
againSt justice; and these be the customs that properly be called the common
law'. In the 17th century, Hale emphasised the importance of the customs in the
same way. Blackstone, writing in the 18th century, stated that the municipal law
of England may be divided into two classes : "the lex non scripta, or unwritten
law includes not only general customs or the common law properly so called,
but also the particular customs of certain parts of the kingdom; and likewise
those particular laws that are by custom observed only in certain courts and
jurisdiction." Pollock said :1 "The common law is a custom~ _law.-;;."-The British
constitutional law is described_as....'.'..The-1.w- and~ of Constitution". But
some writers ·of the 19th and the 20th century have not agreed to this view. They
·say that to treat common law as only a conglomeration of customs is to go far
from the truth. Salmond says: "Common law is essentially judge made law".
General view.-A cotrect statement about the relation between custom and
the common law is that although the common law is judge made law, the judges
took their material from the customs. In qther words, Judges gave a very potent
and creative touch to customs and carved them in the form of the common law.
Thecourts have been continually reconciling, harmonizing and modifying them.
In this j,rocess, they have interwoven them into the fabric of co°:mon law. Still
there are a number of usages in various manors ~d boroughs which gov~ the
relation between the citizens and they may be said to be the comm~n la_w m the
making. Much of the English family law is still customary. Even m !1'15 age_ of
legislation and precedents, customs have not completely lost their crea!mg
efficacy in England. In recent years many: n~w~ustoms have ~een recognised
l • " h ~ c,JYV'w4. , ... Q..c.u..0 .
and. have become part of the law. - '> .J
-Th re are some legal systems which o not attach so much
French l aw. e h t B t even those
sanctity or authority to customs, such as the Frenc . sys em.. u
customs indirectly exercise their influence as through interpretation, etc. :
.,. Classification of customs PRAw A iASI..E-.
b g·..:~gg · to two classes :- •
The custt>ms in their wider sense may e 1Y.,OA, m . . .
""
(1) Cu~
•·L--·'" ,.,,.nrtlnn_and (2) Customs
1 ~----- --~ .., , a ~
having sanction.
-- __::::~

1. First Book of Jurisprudence.

r
(<-u)~ 0""
Sa.~J;tN\. ' -:2,t) l+cµ. ~~·1)
188 tfJ_ 1
I , JURISPRUDENCE -~
c . . o ~ ~&,-'t~ • .

~ "';":~i:.-~:d: ~~: l'~~~~ Cllw~b~

0

. . .~_:1.: . ~s an_term for them ·is fµ~ siti ve m_oxali~ .

2. ~ ~ Afaving sanction are th9se customs whk are enforced by the
- - It is with_these .customs~.t h~ onc.emecf.here. Tb';;_niay
oe a.i · d_into;.tw--0-classes,.;!--- · _
~
~
(1 :-e· --~X.Z).._,-,.<s.gn~enti~
~gal CJ,!stolt\§,-'fb£se custoQ!s m o~ a,~ __ a~ a_J,inding ml~ Qf la!Y:.
'lfj,~y haye been recognised by the-eeu-i:ts-and.:l:iave~be(:ome a-part of
the law o~ ~e land. 'I]:l~Y- ar~ ~11forced by _the cou.rt&,.LegaLcus.t q ~
I!!-~ g~..Sb.Y.~dedJ,nto . two.. classes_.:...-:-

&
(1) - G,eneral C.ust..Q~,-~ .dJ 2)_.LocaL.C.usi oms....
. enera1e .Customs - or Gene~al legal custom~.-General customs are
~- . fo~· tfi"'t . revail tlu'ou ho._u t. tb~-t_erritor of the " .e ...Toough by
~~ O.J1. ~se .of the term -'customs:Juneant. eJocaLcustom.,in law, generally,. .
t!{e .customs which are treated to be fu..e g.a_rLqfJhe law th~-laIJ.Q-9.Je_general _
legal_,, .. _. , s_._ - .
-· - (2. l cal custo s.-By local customs is mea,!lj__tpose ~ t~m~.which apply
onl}"~ ciefined locali.-!Yt,_ that!§t .N ii _c;lis~tict,_or .a . towl)._~utJ:hey. qo not imply
geographlcal.:,~ ~~tt:' -~ajY: S~met~es, certain sects or__ famil!~L take their
c~ ~ J f \~IB wh~~yer $ex gQ...'I1Jey t90 a~ call~d l~":1.91sJ~ms. On this
po~,!!i~ . a.. ~~ber of .decided cas~s in ~du ,Mo~~ s.
tlie~P.re,,-in,. lndia.Jocal customs may p~ divided,. ., into- tw..o .•~ s : (1)
0

~ =::o-.::r
· ~ gt,~pJ.ticalJocal, and (2) ~erson.~J p~al .~s.tqms._Th~~e~~ tog:IB. ½,w only

=~::~ tio~~~§; ;. -~:;:~~ toms

~ -: - pyg.r;tl.J he.·~rvarties to an ag!_e em~t._P~~~!.~ ~e~ es!_~ ressly and
sometimes, implied y (i _ ·.. th~LQisy, are considered. to hav~Jlg!eed a~
to1l\"""~ - _ey are.,:c_aU~ us ..,.S~ c'!i ~~st9m~.Jli:e _b m g "not du~ ·to any
iegai ~1.1,!ho.n, 11'.l e e , _ possessed~by~.them, b~t. because J!_has been
ex jess _or. rm Uedl -inco .oratedJn.,a..c.ontracLhe.t w~!l.th~ p~J,ies to it. ''""One
w o makes -~~cg_~!,r~ct.}!!.'!W .P~#~i&c!r, tr~tje _or market the p~s~p_tiop. ornl'W
istnafl:us µfutention is to make the contract in accordance with the established
cohvenffon~or' usages·orthaCfradeor market:·He is bound by .Jh~i ~s
oecause·tfley are treatea-as·a-parl of-the contract. Thus, in ·an ];Qgli§h case .it
1

a
wasn eltt""that · lease of agricultural land must be· reaa suojecr to the customs
§f'Jb,!t !@_ty ~~n. that matter. In th_e same way, in riegotia61~ ajstrufuents a
n ~ r_oJ tel!1)5..A{e considered.to have .been incorporated on the b~is_qf _the
usages of the particular !1'~.<!e _to ~Nsh the v~gQtjat,J~ .~ ~ ~tR~~ .:., There
is a bulk of ciistoln'ary law regulating such transac · nsl:Pefore becoming a:::eart
of the law such ass thro··~·~ ~- . .:. · t, thE: sho\lld.R~ p~
_bef?re .!!!!,_court_as a uestio11 Qf fac! the second sta~.1!!1• couit . _ •~J\J_aal
notice o and they are established as a preced~~ In thJ:tlilici stagetfle
iustom is ·embodied ·-in-=-~s_!atute, _.ana _takes _f!~-- lin~!c' ~~pe, ,1'1_ost)fart_ of
mercantile law had its ongm and aeve op se s ages..JJ k~ eg~
customs, con_ventional AI..S.t O ~ -are..either- (-1 General, or (2) .Local. Loc'ay
..,,.,,,,.....__

aL't
1. Hutton v. Warnn (1836) I.M. and W. 466.
l--> c,-,~-<ti ~ \J()<./irQ!
c_ o~evn ' \ ,-+<i,-:J. -hs c1_
't" a . •
I
r
CUSTOM
189

onventional customs are limited either to a .

carticular trade 2!, ! ran§.<!f!ion.
- - £.articular Ela,ce or markeLQt.Jo--.a..
p1 ,e~21!!~ .£.~?c!!tio11~ which must be . .
"',,entional customs as incorpora-t--e d in·
- _a_..__ .....S~ti§.~~fore, a -~ourLtreats..the " \
col:!~ ,. · · . . . _ contract :- . -\'~ v
- 1. ll.,.must be_st10~w_n Ul~t__the convenfio . . -·
!._ .ullx..,.~.o~~.'- It implie_s fuat boih tfu;-~~"!.Jx. e~t;iJ?ljmed..;mil j_L~--
Af/ c~ ve~t~.;t· !!'ere is _no fixetl-pe-rio'tl"'io~~~es ~~--~-~ a~.-~!.,~ c~_!
/ " "li'.aveoe~ ob~erved before it fs ·reco · .· d-~ ~ c~ en1i_gn .mll,S,t
\\, c"'·"" · · · - gruze as oinaing
! ..
J:I;·. , . on~~~t;..£._n~ -~~ot_ alter _the gen~ral law of ·t he land f th
are vana only. within the area of ei·th ·. b. - . . . ere ore, ~y
~ - . . . er o servance.
1ney must be reasonable. The ma· f . ·· . .
- -L~ ~ ~ :r - - -- --·• . . _ll1 . unction of these conventions is
1 o utrow ngnt only on such rights · d ·w ·b !i•r·•· ,·-- ·- -~- ----- ......_.._
...-""",'.","'-e"'i'l.. '·-· · - an ua uities of the parties on

,. .oi9Y. '-~~ - wmc~t

A"(}' ,,. · • :- • • •
uie contract

· the contract, they will not be enforced.

is silent •
If certain· cond't'
established by convention, are expressly excluded by the ~arties in
A
. . though
i ions or term

L p _ ~O CL(.
...,. . ,.

~ssentials of a Custo~
C!_ftain test~ or e~s~ ~ ~ave been laid down· by the 'urists which a
custom st sa~_s!lJ.C?r. it~ j J:1,9-~~0~ o ~( '!h~ss~ il-1 cto~-
c~~~t-~. ~ re, ~ a_
-P~!9..w. H..tlQJ!Q.~ <:;9ck Q~ · ittJeto .. All - - ana many
o ..!:~<!1~~E;~-~ ~iters_ ~n the sub1ect~ ,~-~~-~~~11?,.w.e~ _~ e s~ e.:, .,.. .,.. .. .
IUr- ~ .(,t) Anh_gu1~--~.µglish-llule.-~ custom to,,~e recognised as law must be
P~_:.°--~b~~ isten~e fr_<?_m _r"!1~. ~ ~ orial,~ ~ e..whereaf the.memru:y--1!L
runneth_~o-~_!o the_contrary} This is J;he rule of the English law. -there, this'""'
~a1 memory presµmes to be going back to a fixes;Ltime _&R_arhitrary time limit, ·
th~t is/ the ear 1189, the first ear of th " .. , -~ _ ~ ~_.=__eenftxed ar
7 -

w .:ch the custom must b.e.pwved tQ..be in exis.t,ence. Bx_a. fiction of law, h uman
memory is made to extend for abou~ BQO_ye<!rs. _B~_L th~- r~~uropjiQn.,of law is
ttiatthe cus om:s; w are...o . , ilios;.e...tim~4>~~r;;,._g~;.r...w.MJS.Y-.-
!!lust have ·started before the.....y..,ear_.118.9_.I:fowe-¥errif,_it-~ou.kl- be-shown tha t a
cust~l!\ c~e into existence at anY- time later tlli}n _JJ89 fue-cpresµmptj~n__-; _

--Yndian ---
aru1qu1fy snalf"be d..fil,e.ated. - .
..:-----rule.-In ancient Hindu law als.o, the antiquity was one of the
essentials for the recogrµtio.n-ofcusforri;Manu-saia -:--___-::: =-=:-_ _ _ ___
,--- -- ~...,,...--.,~ ; ;orial custom is trans.cendental -.@W~- lhe-law--in-lRdia-at
1. '--"f>reserrt is that anti ui is essential for the reco ition of a custom, but
there is no such fixed peri_o_g for which it must have been existence as ¼t is
~ ~ J:BW;·-· --- . - .
v<w-'Eontinuance.-The second essential-4tU!-.E:1~~.=J~atdt:-m~_st:J1-ave-
been J).rM;hcect continuou~.- Th-Eng!andL the custom dyting_the_period.Jrom
1_189 been-er1jo)Led contmueusly--witheu!-an._..Y::in~P~i~- IL~om_
€sJ~en ~eil.[ t _a ·c~ ~t~ ~presum _- p~ - a~ e~~ag~t=U.
Jiowever ~ 9 s -draw-n- a-dtstinetion- b~tW~ 1!:!li~:.l!'teRUpdo'a=of.:.the-
'~L 1
th~ ~ter~p_~~n ?f .tl:1~ ¥~P2~~~-I! ~-th! ~5':~nfinu~ce
~f.
. ~ ssion
- -
.-... the nght', forn owsoever small a tune, fiat ~1-:l<:i..S lli1;_cusfo~ ...!!_ means that if

L,
f~r·;~me ihne ~ ist!!!be9,, biit ~ .L cla~ to"" e~j~l_~: _custom is-riot --
--- - -
1. Law in the Making.
-/ ; L
u1
\\
·
tt.JJ 6 I '
'h.:J

\ \ ~/\ ~,\: :\
f
:;;

11111

190 JURISPRUDENCE

abandone~ e custom continues.

\9.~e~e~j?ym_ent.-The custo~ must have been . ·
peaceably.•n a custom 1s m dispute for a long time in a law court or U~nJo~ed
if negatives the •presum12tion that it originated by consenta; m~r;"ISe, 0
customs ·na lly might have originated.. the
(4) _ ligatocy £oo;e.-The custom 1:1ust _h~ve an obli~atory force. It mus

f!ght. If~ p~~_c_t_ice_

7
~een-supp?1ted by-th -g~eral_pubhc opiruon and enJoyed as a matter t
-~ -~tamed by stealth or by something of that sort~1£..
cannot_~eco~; a ~usto~. ' ~( ,
- -~ 5) _£ertainty. A cust~m be ce~t~in. A custom which is va~e
indefinite caru1Qt be reco™11sed. It is more a rule of evidence than anything ei:er ,
The court must be satisfierrr 'a clear proof that custom exists as a matter foi A

fact, or a~egal presumption of fact.

(6('Consistency.~ustom must not come into conilict with t~e other
established customs. ~ ~ -rn.µst . b.e....consistenc:y: amon&:]be cu~toms. In s,
there~o~ ! ! .-~~ -~~stom...c:innoU~-~ ~~! in_EP£.OSi~~~~ -t_QJ~e. other cust~ .
- C7) ~y-onablencs~•--::-t\ ~l:!~to~ must be i:eason_able~ 'Ipis is a very
difficult test which a custom must 12a~s. Jhro.ugh.~Jt_gi_ves a goocl aeal of
diSf~on to the -court m the matter of reco ition of the cus runs. But certain

-
stanaards~ ve een 'esfabiishea--t>n ---W.h kh _the -~-QJ.U:ts_ pmceed-: The
reasonableness will not be judged wi(f( every cfiartge in social condtt10Ils. It has
,, ~lieen settled tha( the lftne·to·decide reasonableness of a custom is the time of its

3/
origin. Prof. Allen says that the rule regarding reasonableness is ·'not that a
\( J custom will be admitted, if reasonable, but that it will be admitted unless it is
unreasonable'. In other words, the courts are not 'at liberty to disregard a
custom whenever they are not satisfied as to its absolute rectitude and wisdom,
or whenever they think that a .better rule could be formulated in the exercise of
their own judgment, otherwise · a custom will lose much of its force and
sanctity'. For declaring a custom inapplicable on the ground of
unreasonableness, it will have to be shown that it is obviously opposed to
reason.
Public policy.-Some writers include public policy also clJ!lOng the tests of
a custom. ~ey say thatacustoin snouTdi1ofbe o pp<?.§~i[to_p,ub] £]?2licy:-If ]s
s ubmitted tnat the 'reasonableness' 1s a very' wiae term and it maf1ncfude
public policy as well. Acq:>rding to ~ome writers, there should be one more
essentia!)>f/ custom. It is :- ·
~onformity with statute Iaw.-A custom, to b~ valid, must be in
conformity with statute law. It is a positive rule un nosCof the ~ ~!:systems that
!
a statute can abrogate-a custom.
Though according to the view of the Historical school, acustom is superior
to statute and it can supersede a statute this view has nowhere been recognised
in pr~ctice. The English rule is that a ~ustom will not be recognised if it is in
conflict with some fundamental principle of the common law. .
t
If a custom is proved to have the essentials given above, it is law, but the
courts h~ve power on sufficient grounds to change the law it embodies. Allen' /
summarizes the position of the customs as : "Existing custom is, therefore, law :
1. Law in the Making.
 CUSTOM
191

if it is not called in question, it operates as

if it is challenged, and is proved to ex. t P;irt of the general law of the land,
and further is not shown to violat is as a oc~l variation of the ordinary law,
recognised by judicial authority as e an~ ~ssentia~ ~eneral legal principle, it is
necessarily declared not to be law an~o; haw. If it 1~ i:iot proved to exist, it is
cases, though proved to exist in fact, it -~s h:~~ : ;alid_i~ _and fur:ther, if in r~
is abrogated by the court and then fOrth . e 1evous m tendency, 1t
ce , lS of no binding force "
A custom must be pleaded and proved.• ·
i
i fwhen does a Custom become Law?
j

-A discussion
. . about the custom aS-a-sou..,,,, ~.n,e-o£:--mw-w.J
1-.......
11 not be com:~te.
,...10.1
unless some light is thrown on one more question regarding it. The question is
when ~oes a ~ust0m bec~ law? Two views have been iven b the 1 "urists on
this~ nomt which
----- .
are· contrary.
.
•n
- "'-'-
th
. +h . S._,
u.1-0 er.-~ e-0Re.. v,1&w-1S~ LI e_An_al)11Cil.
0...-1.. ~1fi
-.
sch~ ~ -the: other- is-that-of -the-Historical schooLHere..these two _views..shall
be Q'tven m bnef. , _, •6 1

.
-

I
?
.
/\ClAi, ~ <J \/Uc..t n ci At.;U,\; . P'\~;cp_
.J
Analytical view J A+~
V\,, ' .-,
•.: dlt ~(Ci~. -'V f .
.
'

Aust~n; Customs not law until so declared by the soverei&!!.-We have

alrea~~ ~ Ltlie~theory~ gO\&lytical s~fuio.[~arlier,!! ·Here, 1n- briel,--ffie .
vrews o two un ?rtant .. tical ·urists, ·Austin _and_~ that a custom ; I

bee ll\es __ -• ~ m~-the...s(?~~ei - shall-be -iv-eA-A: •

that· sourc o law _______ e_ · ..not w.j;Iis definition-of-laW.-:that
it is !llJl\ail _ o e s.Q.Yete_i _ -~~~-nqt,..alloii.Jb,Ul,lsto~..,.t~J>~clug__e~_in
aw. A custom is not7£ositivelaw' unless it is so declared by the court, or. in .
o-;;r Wor~4;i'(is nof l~'Y ~ il it has received the judicial recognition, or it has
b~ ~b_o died m ~SOIT\J? s~tiie. lt§,..I~WeHtl~~y~~~~ or-its iricorporatio~
~ e statu~ ._Ru_t§-~P-Q.Q_itJbe.JmP,lieti .o~ exp~~~-se,~~oflhtio.¥.eriiigiund -
it becomes _la~ -!n~f ]\li~~J ESP.lication of . this,__view ~ at the sovereign CU\
and bi1. mu4,9J'ily.j~yp.w._q_r_to·!l)e.iu. -~ stq~~~-'?aj~ _
th ~ ~1ch,
~ -·~ ,.,,_r._,h,-... .....
and from
,1~...._....__,_............
,.,-'!"....-·. ,,l':~ ..
the_µm~,--
I • e
'tl.beO~ QY.~~•gn.:.sanctions_
•
1 ~
c~ oms not _s_g_~~ctioq ~ aeclare~_!_~ ..9..~ J'~~~1~~~~~~~ccording to__
~ ~~ --tcrthe---qttestiOn;"'wnetr"-aoes a cusfom oecome law, would be
'when if is declared so by the sovereign'.
- Gray; .C usfomi n ot iawuntilapproved by judge.--Gray puts the courts
in the centre of the legal. system. He says, "The true view, as I submit, is that the . ' I

law is, what the judges declare; that statutes.-~edents, the-epini!)nS;:Of- the
learned experts, customs and morality_are_th.e...so.mces...oU aw.. : !hat at the back
of everything lies the opinion of the ruling spirit of the community, which have
the power to close any of these sources; but that so long as they do not interfere,
the judges in establishing law have recourse to these sources. Custom is one of
them, but to make it not only one source but the sole source, the law itself
requires a theory which is as little to be trusted as that of Austin". According to
Gray, in deciding cases, the judges are guided mostly by statu~s or precedents.
On points where there are no customs or precedents, they are guided by
mor~q rather than by customs. There are only very few branches of law where
t. Ram Swaroop and Others v. MJihindra and Others, (2003) 12 S.C.C. 436.
2. Stt Chapter m.
IP7
] J::3 e,
192
JURISPRUDENCE 3 1 ~f 1~
ome influence The adjective law is independent of customs '1"I.. ·
customs have S · . . . al h · 1.ne
customs often arise from judicial dec1S10ns (Mam~ so e1d the same view).
Thus, according to Gray, customs are no~ law until the~ comme~~ ~emselves
to the reason of the judge and he recognises and embodies them in Judgment.
1

Historical view - b }..,·" q~,v\ ! · I. l·d,..t ,- A :

f' :vv.rt ~ o-vY L. .
Savigny; Puchta; Declaration o~ recognition by_ the state ~ 0~'fr\~
necessary.-The Historical school holds JUSt. the contrary view. According to
Savigny, the founder of this scho_ol, custom is per s_e l~w. A custo_m carries its
justification in itself. The very existence of custom indicates that it must have
arisen due to the strong need and by the app~o~al of th~ ~eople. Savigny says :
1
'Custom is the badge and not a ground of origin of positive law . The customs
are based on the opinion of the people and the national character. Therefore,
they embody those principles of justice which society recognises. The .state has
no discretion or power over them except to accept them. · The judges in
interpreting, or moulding them, work as the representatives of the people and
no more than that. Thus, the validity of a custom does not depend upon their
approval. According to Puchta, the worthy disciple of Savigny, "custom is not
only self-sufficient, and independent of legislative authority, but is a condition
precedent of all sound legislation". Thus, according to the view of the Historical
school, custom is law independent of any declaration or recogl)itiop by\ ~ e state. _A
'
7
. L> · fb-c.t./>l. e'e.teff\-1 1)(JV'\ ~ u1--ai
Criticism Against these Vie.w s llqY~ l~,m
·It is not necessary to -enumerate the respective supporters of'ihese two
views and to discuss their arguments. Now the points of criticism against these
views shall be discussed andJ at~ezppt f,.~11
be made to find _out the correct
position. p h.~ Y'l\~ W O' • (.(JvJ rv,~ (...~')f"litVvt ,~Dr'\
Shortcomings of analytical approach.-Both the views are full of ,t ~l.t"'
exaggerations. The view of the Analytical school that customs are not law until
recognised by the sovereign, undoubtedly, contains some truth, but it contains
only partial and not the whole truth. This approach is defective due to many
reasons. First; a bulk of the customs is non-litigious, 'and hence it does not come
befo~ the courts but the society regulates its conduct in accordance with them.
Second, in most cases the custo~ are recognised not with the assumption that
this recogrution gives them the sanctity of law bu.,~ with this assumption- that
thex__are law and they have been treated so. Third, though the court plays a
creative !°le in rationalizing and shaping them it draws its raw matenal from
the customs. lherefore, the view that custom 1s not law until it receives the
recognition of or declaration by the sovereign is not fully correct.
Sho1!'=~mings of historical approach.-Similarly, the view of the Historical
school also 18• 1;u,t halanceg. Cust~ms~ave ~ot always arisen out of convenience
or the peed of the eo le. Sometunes they have been imposed u on the people
by the g c ass. Secon y, ough there are some ru es of law which are,
undoub~bas~ on the common conv1chon of the people, the majority of the
rules are so complicated ~d technical that the common conviction might never
have Qlought of them. Thirdly, the Historis_al jurists did not pay proper heed to

und~=ated the l~ g~ \~r

the fact _that the state h~s the power of abrogating a custom. Fourthly, they
1.~•:::;.::f legislators which_are

L~°"'" ~-·'-,J~·),JLu.A.\-
J':.-~ ~ .c.
-,~
, ~lt.<f~.,.~
 CUSTOM i -v \1
'(""" ,.~el" 193
so important in modem times. /> \ O~
\ · f) J
Con cl us ion SO~\ Q.-
The correct position lies in .
by adopting a sociological point a ;~thes1s of the two views given above and
a-ulhe legal system. I hey come :tovie~ . The c~stoms lie in the foundation of
The con uct em O ie • . existence with the existence of the socie .
trace some reason need c
O
•
1 e CQrporate action. ometimes we can
eve custom has 'alwa ' or convenience behind some customs, ..l:w.Llo..say-tl:\at--
say that they are a wa ys some reas~n behind it is to o far from the truth. To j
~ e 15 a so mcorr yts A o. origin or the ari ut of the conviction of the
.t''""'"'r
.;;..
a_ s ..,.
th,_e_ c_u-st_o_m_s -o"""f-th ec
e ru
_ ......... .
__, ~ s i.-U,.las_be.
l'...,,,,,_ 1 e n
- obs_eru, A ~-- f . customs, sueh
"'."'""-e .~ ~ ,-:--Q.!!lgn
.al m c ass, and sometimes international customs such as-
0
C':1_! ms, are adop_~ and observed When soc1e eve oe~ ju 1c1a
g ' exercises_ ~J.JlL<;pQtroL mier fuecustoms. With the development of
society, many other forces com~ to exercise th~ir- influ~ n customs such~
the --.=- L~o }~r~! _a\!_g_i~ ers and others. N~ customs are- rahonaffsed
jurists a'f'
1 l · - - - - - - - - -;--- - - : - - - ' ana-
are incorporated and embodied in legal rules. In any system these m fluences-cau
·~ ~ aw-thecr~attve_role _oLthe_maglstrates, .in]i\gusfi law that
0 1 equity Jud_ges, and a galaxy of great writers on law from Bracton to

Eackmm1e, in Hinw1awthato fch'e-Smrtti:km-s;-the--commentators-artd-the-14ivy-

Conncil -dec-isiens-have-materially .affected the .form as well as the substance of-
the_c..u stoms;--- --- - · - - - ~ ·- -- - - - -
' -
They interpreted and moulded customs ~ --new shape. If one does not take
into account these influences, he cannot understand the proper course of the
development of customs. In developed legal systems the courts always exercise
some control over the customs. The function of the courts is more of a
scrutinizer. They scrutinise as to how far an alleged custom is a rule of conduct,
or is observed, and secondly, how far it satisfies the test laid down for it. H the
court comes to the conclusion that an alleged custom is in existence and is
observed generally and it satisfies the tests, the duty of the court is to declare
the custom as an operative law. The function of the court is 'declaratory rather
than constitutive':- A great Historical jurist Vinogradoff says that most of the
branches of ·the law did not start from legislation, or from any other source, but
by customs, such as the law of succession, property, possession and contract.
They started in one or the other form. in the primitive society. Succession started
from the necessary arrangement of the household on the death of the manager,
or the head of the family, property began from occupation, possession from de • I

facto retention, and contract from the custom of barter. But these_ c~st~~s have
not the same form and substance ~ich th~ad when they came7nfo
existence They are no longer_ customs but have oecome law. The judges, the
legislators, the jurists and a number of other agencies have contributed in
bringing about their present form. Thus, we may say that the customs are the
basis of most of the law, but, at the same time, judges, jurists and legislators
have played a very vital role in moulding them.

L;, ~t,;cu-i·~ -~cu ,

F15