Law and Society

Unit 2
Law and Society

Custom
The word "custom" originates from the Latin term "consuetudo," it is a combination of "con-"
(meaning "together" or "with") and "suescere" (meaning "to become accustomed" or "to get used
to"). It means repeated or habitual action, emphasizing the process of becoming accustomed to a
particular practice or behavior within a community or society.
1. Émile Durkheim: Custom is a collective habit that is socially approved and enforced,
serving as a means of regulating social interactions and maintaining social cohesion.
2. Max Weber: Custom is an established and stable pattern of behavior that is repeated and
followed due to its perceived legitimacy, reflecting socially recognized and accepted
practices within a particular social context.
Creation of custom
The transformation of a habit into a custom involves a process of social recognition, acceptance,
and repeated practice within a community. Here is a general sequence of how a habit can become
a custom:
1. Individual Habit: It starts with an individual or a small group practicing a particular
behavior consistently. This could be driven by personal preferences, convenience, or
individual beliefs.
2. Social Adoption: If the habit proves beneficial or aligns with societal values, it may be
adopted by others within the community. Individuals observe the behavior and recognize
its potential benefits or cultural significance.
3. Social Approval: As more people adopt the habit, it gains social recognition and
approval. The community acknowledges the behavior as acceptable or desirable within
their shared cultural context.
4. Repetition and Tradition: The habit is repeatedly practiced over time, becoming a
tradition within the community. The behavior becomes associated with specific
occasions, rituals, or cultural events, adding meaning and significance.
5. Collective Reinforcement: The custom is reinforced through socialization, education, and
the active transmission of cultural knowledge. Older generations pass down the custom to
younger ones, ensuring its continuity.
6. Social Norms and Expectations: The custom becomes integrated into social norms and
expectations. It influences social interactions, guides behavior, and becomes an unwritten
rule or expectation within the community.

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7. Institutionalization: In some cases, customs may become institutionalized through formal

institutions, laws, or religious organizations. These institutions support and regulate the
practice of the custom, further solidifying its status within society.
It is important to note that not all habits become customs. The transformation from habit to
custom requires a collective recognition, acceptance, and cultural significance attributed to the
behavior. Additionally, the process can vary depending on the specific cultural context and the
level of social cohesion within a community.
Essential Elements of Valid Custom
The essential elements of a valid custom refer to the key criteria or characteristics that determine
the legitimacy and binding nature of a custom within a particular legal or social context. These
elements help establish the authority and enforceability of a custom. While the specific
requirements can vary depending on legal systems and cultural norms, here are some common
essential elements of a valid custom:
1. Consistency and Uniformity: A valid custom should be consistently practiced and
uniformly followed within the relevant community or group. It should be a well-
established and pervasive practice rather than an isolated or sporadic occurrence.
2. Public Acceptance: The custom must have gained public acceptance and recognition. It
should be widely known, acknowledged, and followed by a significant portion of the
community or group for an extended period.
3. Duration and Continuity: A valid custom should have endured over time, demonstrating
its stability and continuity. It should have been consistently practiced and recognized for
a significant duration, indicating its entrenched nature within the community.
4. Obligatory Nature: A valid custom is considered obligatory and binding upon the
members of the community. It carries a sense of moral or social duty, and individuals are
expected to conform to its requirements and norms.
5. Conformity to Law and Public Policy: A valid custom should not contradict or
contravene existing laws, legal principles, or public policy. It should be in harmony with
the broader legal and social framework and not conflict with fundamental rights or
societal interests.
6. Reasonable and Rational: A valid custom should be reasonable and rational in nature. It
should not be arbitrary, discriminatory, or against principles of justice and fairness. It
should serve a legitimate social purpose and align with societal values.
7. Immunity from Abrogation: A valid custom should be immune from arbitrary abrogation
or abolition by a higher authority. It should possess a level of protection and authority
that shields it from being easily disregarded or overridden.

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These essential elements help determine the validity, authority, and enforceability of a custom
within a legal or social framework. They provide a basis for assessing the significance and
binding nature of customs within a particular context.

Customs related to the caste system in India have historically played a significant role in shaping
social interactions, rituals, and practices. These customs, deeply rooted in tradition and social
norms, have influenced various aspects of life, including marriage, occupation, social
hierarchies, and religious practices. Here are some key customs associated with the caste system:
1. Endogamy: Endogamy is a prevalent custom within the caste system, wherein individuals
are expected to marry within their own caste. This custom reinforces social boundaries
and ensures the preservation of caste identity and traditions. Inter-caste marriages have
historically been discouraged, with couples often facing opposition and social ostracism.
2. Caste-based Occupations: The caste system traditionally assigned specific occupations or
trades to each caste. This custom dictated that individuals should follow the occupation
associated with their caste, and occupational mobility between castes was limited. For
example, Brahmins were traditionally involved in religious and scholarly pursuits, while
members of the Vaishya caste were engaged in trade and farming.
3. Ritual Purity and Pollution: The custom of ritual purity and pollution is closely tied to the
caste system. Certain occupations or activities were considered "pure" or "polluting," and
individuals from higher castes were expected to maintain their ritual purity. This custom
often led to the exclusion and marginalization of lower castes, particularly the Dalits or
untouchables, who were deemed "polluting" by higher castes.
4. Social Hierarchy and Caste Interactions: The caste system's customs established a strict
social hierarchy, with higher castes enjoying greater privileges and respect while lower
castes faced discrimination and marginalization. Social interactions were often governed
by rules and norms that maintained the hierarchical structure, such as restrictions on
dining, intermingling, and physical touch between different castes.
5. Caste-based Festivals and Rituals: Various festivals and rituals in India are tied to
specific castes and their traditions. These customs often involve caste-specific deities,
rituals, and practices that reinforce caste identities and foster a sense of community
among members of the same caste. Participation in these festivals and rituals is typically
limited to individuals belonging to the specific caste.
6. Caste-based Associations and Networks: Caste-based associations and networks, known
as caste panchayats or community organizations, have played a significant role in
maintaining and perpetuating caste customs and traditions. These associations often act as
social, cultural, and political bodies that safeguard the interests of a particular caste and
enforce social norms within the community.

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It is important to note that while these customs have been prevalent, societal changes, legal
interventions, and efforts towards social reform have challenged and transformed some aspects
of the caste system. Today, there is a growing awareness and movement against caste-based
discrimination, seeking to promote equality, inclusivity, and social justice.

Law
The etymological roots of "law" suggest the concept of something being laid down, fixed, or
ordered as a standard for regulating human behavior and maintaining social order. It conveys the
idea of a set of rules, ordinances, or principles that guide and govern the conduct of individuals
within a community or society.
1. Auguste Comte: Law is a social institution that reflects the progressive development of
societies, evolving from theological and metaphysical stages to the positive stage based
on empirical observation and scientific principles.
2. John Austin: Law is a command issued by a sovereign authority backed by the threat of
punishment.
i. Command: Law is a command issued by a political sovereign or superior
authority.
ii. Sovereign Authority: The command of law comes from the highest political
power or entity within a jurisdiction.
iii. Sanction: The command of law is enforced through the threat of punishment for
non-compliance.

Key characteristics of law include:

Law encompasses various fields, including criminal law, civil law, constitutional law,
administrative law, and international law. It governs a wide range of areas, such as contracts,
property, torts, family relations, business transactions, and human rights.
1. Authority: Law is created and enforced by a recognized governing authority, such as
legislatures, courts, or regulatory bodies. The authority grants legal rules their legitimacy
and power.
2. Binding Nature: Laws are binding and mandatory upon individuals and entities within the
jurisdiction of the governing authority. They set out rights, duties, and obligations that
individuals must comply with.
3. Uniformity: Laws are designed to apply uniformly and consistently to all individuals
within a particular jurisdiction, regardless of their social status, wealth, or influence. They
aim to ensure fairness and equality before the law.

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4. Enforcement: Laws are enforced through various mechanisms, such as the judicial
system, law enforcement agencies, and administrative bodies. Violations of the law can
lead to penalties, sanctions, or legal consequences.
5. Formal Sources: Laws can originate from various sources, including constitutions,
statutes, regulations, case law, and international treaties. These sources provide the legal
basis and authority for specific rules and principles.
6. Adjudication: Disputes and conflicts arising from the interpretation or application of laws
are resolved through legal processes, such as courts or alternative dispute resolution
mechanisms. Adjudication ensures consistent application of the law and the resolution of
conflicts in a fair and impartial manner.
Customs and law
Customs and laws play a significant role in shaping and regulating social practices related to
caste in India. Here's an overview of how customs and laws intersect with the caste system:
1. Customary Practices: Customs associated with the caste system are deeply ingrained in
Indian society. These customs govern various aspects of life, including marriage,
occupation, social interactions, and religious practices. They are often based on
traditional beliefs, rituals, and social norms that have been followed for generations.
Customary practices can vary across regions and castes, but they generally reinforce the
hierarchical nature of the caste system.
2. Legal Framework: In an effort to address caste-based discrimination and uplift
marginalized communities, India has enacted several laws and constitutional provisions.
The Indian Constitution, adopted in 1950, prohibits caste-based discrimination and
untouchability (Article 17). It recognizes the rights of individuals to equality, freedom,
and social justice, regardless of caste or social background. Several subsequent laws and
amendments have been enacted to reinforce these principles.
3. Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act: One important
law related to caste is the Scheduled Castes and Scheduled Tribes (Prevention of
Atrocities) Act, commonly known as the Atrocities Act. It was enacted in 1989 to prevent
offenses against members of Scheduled Castes (SCs) and Scheduled Tribes (STs). The
Act provides for stringent punishment for crimes committed against SCs and STs,
including offenses related to social boycott, humiliation, violence, and discrimination.
4. Reservation Policy: India has implemented a reservation policy, also known as
affirmative action or positive discrimination, to address historical caste-based
disadvantage and promote social equality. The reservation policy includes reserved
quotas in education, government jobs, and political representation for Scheduled Castes
(SCs), Scheduled Tribes (STs), and Other Backward Classes (OBCs). These reserved
quotas ensure proportional representation and opportunities for these communities.

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5. Inter-caste Marriage and Anti-Discrimination Laws: To promote social integration and

challenge caste-based prejudices, laws have been enacted to encourage inter-caste
marriages. The Prohibition of Child Marriage Act, 2006, and the Special Marriage Act,
1954, allow individuals to marry outside their caste and provide legal protections against
social ostracism and discrimination. Anti-discrimination laws, such as the Equal
Remuneration Act, 1976, also aim to address wage disparities based on caste.
6. Social Reform Movements: Alongside legal interventions, social reform movements and
grassroots organizations have played a crucial role in challenging caste-based customs
and advocating for social justice. These movements have worked to create awareness,
empower marginalized communities, and promote social change through education,
awareness campaigns, and community mobilization.
It is important to note that despite legal provisions and social reform efforts, the eradication of
caste-based discrimination and the full realization of social equality remains an ongoing
challenge in India. The interplay between customs, laws, and societal attitudes requires
continued efforts to ensure a more inclusive and egalitarian society.
Differences between law and custom
Basis Law Custom
Authority Created by legislatures, courts, or Developed organically within a
governing bodies with legal authority. community or society without a
formal legislative process.
Enforcement Enforced by the state or governing Enforced by social norms, peer
authorities through legal mechanisms pressure, and community
and sanctions. expectations without legal backing.
Formality Written, codified, and formalized in Oral or unwritten, passed down
statutes, regulations, and legal through generations, and based on
documents. traditions and practices.
Universality Applies uniformly to all individuals Varies across different communities
within the jurisdiction, regardless of and may differ based on cultural,
personal beliefs or preferences. regional, or social factors.
Flexibility Can be modified or repealed through More resistant to change and may
legislative processes to adapt to evolve gradually over time through
changing societal needs. social consensus.
Legal Violation of laws can result in legal Non-compliance may lead to social
Consequences penalties, such as fines, imprisonment, disapproval, exclusion, or loss of
or other judicial actions. reputation within the community.
Formal Laws are formally recognized and Customs may lack formal
Recognition acknowledged by the state or recognition and may not have the
governing authorities. same level of legal status or
enforceability.

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It is important to note that these differences can vary across different legal systems, cultures, and
societies. The table provides a general comparison between law and custom, but specific
contexts may have variations in the characteristics and distinctions between the two.
Meaning of Legitimacy
Legitimacy refers to the belief or acceptance that an authority, institution, or system has the right
to exercise power and authority over individuals or groups. It is a perception or recognition that
the authority or governance structure is rightful, valid, and morally justifiable. Legitimacy is
crucial for maintaining social order, stability, and the acceptance of authority. Legitimacy can be
based on various factors, including:
1. Legal Basis: Legitimacy can arise from the authority's adherence to established legal
frameworks, such as constitutions, laws, and procedural rules. When actions or decisions
are in accordance with established legal processes, they are seen as legitimate.
2. Consent and Support: Legitimacy can stem from the consent, approval, or support of the
people or those being governed. When individuals or groups willingly accept the
authority and its actions, it enhances its legitimacy.
3. Tradition and Historical Acceptance: Legitimacy can be derived from long-standing
traditions, cultural norms, or historical acceptance of a particular authority or governance
structure. When an authority has a deep-rooted historical or cultural basis, it may be
perceived as legitimate.
4. Performance and Effectiveness: Legitimacy can be based on the perception of an
authority's ability to effectively govern and deliver desired outcomes. When an authority
is seen as capable and efficient in addressing societal issues and meeting the needs of the
people, it enhances its legitimacy.
5. Moral and Ethical Alignment: Legitimacy can be derived from the alignment of an
authority's actions and decisions with moral and ethical principles. When an authority
upholds moral values, human rights, and justice, it enhances its legitimacy.
The concept of legitimacy is subjective and can vary across different societies, cultures, and
historical periods. It is shaped by political, social, and cultural dynamics, and its perception may
change over time. A lack of legitimacy can lead to challenges, resistance, or questioning of
authority, which may undermine social cohesion and stability.
Basis of Legitimacy
The basis of legitimacy refers to the underlying principles or sources that grant authority and
validity to a legal system or the laws within it. Different theories and perspectives offer various
bases of legitimacy for law. Here are a few commonly discussed bases of legitimacy:
1. Legal Positivism: Legal positivism asserts that the legitimacy of law is derived from its
formal enactment by a recognized authority. According to this perspective, laws are

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legitimate simply because they have been created through proper legal procedures and are
backed by the authority of the state.
2. Natural Law: The natural law theory posits that the legitimacy of law is grounded in
moral principles or universal values. It suggests that laws are legitimate when they align
with inherent moral standards or a higher moral order. Natural law theorists argue that
laws must conform to ethical principles to be considered valid.
3. Consent of the Governed: The basis of legitimacy can also be found in the consent of the
governed. According to this view, laws derive their legitimacy from the voluntary
agreement or consent of individuals within a society. Laws that are accepted and
followed by the majority are considered legitimate because they reflect the collective will
of the people.
4. Democratic Principles: Legitimacy can be based on democratic principles, emphasizing
the participation and representation of the people in the lawmaking process. Laws created
through democratic procedures and institutions are seen as legitimate because they reflect
the will of the majority and provide for equal participation.
5. Rule of Law: The concept of the rule of law emphasizes that the legitimacy of laws is
based on their conformity to fundamental legal principles, such as predictability,
transparency, fairness, and equality. Legitimate laws are those that are applied
consistently, impartially, and without discrimination.
These are some of the common bases of legitimacy discussed in legal and political theories. The
actual basis of legitimacy may vary depending on the legal system, cultural context, and the
prevailing beliefs and values within a society.
Evolution of legal System
The evolution of legal systems refers to the historical development and changes in the principles,
institutions, and practices of law within societies over time. Legal systems have evolved in
response to various factors, including social, cultural, political, and economic developments.
While the specifics of legal system evolution can vary across different regions and cultures, there
are some common patterns and stages that can be observed.
1. Customary Law: In early human societies, legal systems were primarily based on
customs, traditions, and communal practices. Customary law developed organically
within communities and was shaped by local norms and cultural practices. Disputes were
resolved through community consensus, and rules were passed down orally from
generation to generation.
2. Religious and Moral Codes: As societies became more organized, religious and moral
codes began to play a significant role in shaping legal systems. Laws were derived from
religious texts or moral principles, and religious authorities often held influence over
legal matters. Examples include the Code of Hammurabi in ancient Mesopotamia and
religious laws in various ancient civilizations.

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3. Legal Codification: With the rise of centralized states and empires, legal systems started
to be codified and formalized. Written laws and codes were created to establish a uniform
set of rules applicable to all citizens. Prominent examples include the Roman Law and
Justinian's Code, which codified Roman legal principles.
4. Common Law and Civil Law: Over time, legal systems began to diverge into two main
branches: common law and civil law. Common law developed in England and was based
on case law and precedents set by courts, emphasizing judicial decisions and legal
reasoning. Civil law, prevalent in continental Europe, is based on codified laws and
statutes.
5. Constitutional Law and Modern Legal Systems: The emergence of modern nation-states
brought significant changes to legal systems. Constitutional law became a central feature,
defining the powers and limitations of the state and protecting individual rights. Legal
systems also expanded to cover various specialized areas such as criminal law, contract
law, administrative law, and international law.
6. Globalization and International Law: In the contemporary era, legal systems have been
influenced by globalization and the need for international cooperation. International law
has gained importance in regulating interactions between nations, addressing global
challenges, and protecting human rights.
The legal system evolution is an ongoing process influenced by societal changes, technological
advancements, and shifting values. Legal systems continue to adapt and develop to meet the
evolving needs and challenges of societies.
Evolution of legal System in India
The evolution of the legal system in India has a rich and diverse history, influenced by various
factors, including ancient texts, colonial rule, independence movements, and constitutional
reforms. Here is a brief overview of the key stages in the evolution of the legal system in India:
1. Ancient Period: The legal system in ancient India was based on religious and customary
laws. The ancient texts, such as the Vedas, Smritis, and Dharmashastras, provided
guidance on social conduct, morality, and legal principles. These texts laid the foundation
for Hindu personal laws and customary practices that governed social and legal matters.
2. Muslim Rule: With the advent of Muslim rule in India from the 12th century onwards,
Islamic legal principles were incorporated into the legal system. Islamic law, known as
Sharia, influenced various aspects of personal law and governance in areas where Muslim
rulers held sway.
3. British Colonial Rule: The legal system in India underwent significant transformation
during British colonial rule. The British introduced their own legal framework, which
blended elements of English common law, equity, and statutory law. The introduction of
British legal institutions, such as the courts and legal education, brought a more
formalized system of justice.

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4. Codification and Reforms: In the 19th and 20th centuries, several important legal reforms
were undertaken in India. The British codified laws in areas such as criminal law (Indian
Penal Code) and civil law (Indian Contract Act, Transfer of Property Act). Social reforms
were also initiated, such as the abolition of Sati (widow burning) and the legalization of
widow remarriage.
5. Independence and Constitutional Reforms: India gained independence from British rule
in 1947. The Constitution of India, adopted in 1950, became the supreme law of the land.
It established a democratic framework and provided for fundamental rights, equality
before the law, and an independent judiciary. The Constitution also recognized personal
laws for different religious communities, leading to a pluralistic legal system.
6. Judicial Activism and Contemporary Developments: In recent years, the Indian legal
system has witnessed significant judicial activism. The judiciary has played a proactive
role in interpreting the Constitution, safeguarding fundamental rights, and addressing
social issues. Landmark judgments have shaped legal principles and influenced social
change in areas such as environmental protection, women's rights, and access to justice.
Today, the legal system in India comprises a combination of statutory laws, case law, customary
practices, and personal laws for different religious communities. The Supreme Court of India is
the highest judicial authority, with the power of judicial review to ensure the adherence to the
Constitution and protect the rule of law.
Significance of Law in Indian Society
Law plays a significant role in Indian society, providing a framework for governance, justice,
and social order. Here are some key aspects highlighting the significance of law in Indian
society:
1. Rule of Law: Law establishes the principle of the rule of law, which ensures that all
individuals and institutions are subject to and accountable to the law. It promotes equality
before the law and prevents arbitrary exercise of power, fostering a just and fair society.
2. Protection of Rights: Law safeguards fundamental rights and freedoms of individuals
enshrined in the Indian Constitution. It guarantees the right to life, liberty, equality,
dignity, and various socio-economic rights. Laws related to human rights, women's
rights, child rights, and minority rights protect the vulnerable sections of society.
3. Social Order and Stability: Laws provide a system of norms, regulations, and legal
mechanisms that contribute to social order and stability. They define acceptable behavior,
regulate interactions between individuals and groups, and resolve disputes. Legal
frameworks promote predictability, consistency, and fairness, fostering trust and social
cohesion.
4. Justice and Dispute Resolution: The legal system ensures access to justice for all citizens.
It provides mechanisms for resolving conflicts, disputes, and grievances through courts,
tribunals, and alternative dispute resolution methods. Legal institutions uphold principles

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of fairness, impartiality, and due process, promoting justice and resolving disputes
peacefully.
5. Governance and Public Administration: Laws govern the functioning of the government,
public institutions, and administrative bodies. They define the powers and responsibilities
of different branches of government, establish procedures for decision-making, and
regulate public administration. Administrative law ensures accountability, transparency,
and efficiency in the administration.
6. Economic Development and Business Environment: Laws play a crucial role in
facilitating economic development and creating a conducive business environment. Legal
frameworks govern areas such as contract law, property rights, intellectual property,
taxation, and business regulations. Clear and enforceable laws provide a stable
foundation for economic activities, investment, and entrepreneurship.
7. Social Reforms and Progress: Laws have been instrumental in bringing about social
reforms and addressing societal challenges. Legislation has been enacted to address
issues like child labor, gender discrimination, caste-based discrimination, environmental
protection, and public health. Legal provisions promote social progress, inclusivity, and
the welfare of marginalized sections of society.
The significance of law in Indian society lies in its role as a guiding framework that protects
individual rights, promotes social order, ensures justice, and facilitates the overall development
and well-being of the nation.
Law in Relation of Social Order
Social order refers to the stable organization of individuals and groups in a society, maintained
through shared norms, institutions, social control, trust, and cooperation. It ensures predictability,
harmony, and the functioning of society as individuals understand their roles and responsibilities
within the established framework. Social order adapts to changes while upholding stability and
minimizing disruptions.
Law plays a crucial role in establishing and maintaining social order within a society. Here are
some key aspects of the relationship between law and social order:
1. Normative Framework: Law provides a normative framework that sets out acceptable
standards of behavior and conduct within society. It establishes rules and regulations that
guide individuals' actions, interactions, and relationships. By defining legal rights,
obligations, and prohibitions, law helps establish a shared understanding of behavior that
contributes to social order.
2. Conflict Resolution: Law provides mechanisms for resolving conflicts and disputes that
may arise between individuals, groups, or institutions. By offering a formal and
structured process for dispute resolution, such as courts and tribunals, law helps to
mitigate conflicts and maintain social order. Adjudication based on legal principles
ensures fairness, consistency, and peaceful resolution of disputes.

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3. Deterrence and Social Control: The existence of laws, along with their enforcement and
the potential for penalties or sanctions, acts as a deterrent to prevent individuals from
engaging in behavior that would disrupt social order. The fear of legal consequences
helps promote compliance with societal norms and regulations, discouraging actions that
may lead to disorder or harm.
4. Protection of Rights: Law safeguards individual rights and freedoms, providing a
framework for their protection. By establishing legal rights and remedies, law ensures
that individuals can seek redress and protection against any violation of their rights. This
protection of rights contributes to a sense of security, trust, and stability within society.
5. Social Cohesion and Consensus: Law reflects the collective values, beliefs, and interests
of a society. It is developed through democratic processes and representative institutions,
taking into account the diverse perspectives and needs of the community. By embodying
shared societal values, law fosters social cohesion and consensus, contributing to a
harmonious and orderly society.
6. Predictability and Stability: Law provides predictability and stability by establishing clear
and consistent rules that govern social interactions. When individuals have a clear
understanding of legal expectations and consequences, it promotes certainty and stability
in their actions. This predictability helps prevent confusion, conflicts, and disruptions to
social order.
7. Social Change and Adaptation: Law plays a role in responding to social changes and
adapting to evolving needs and values. Legal systems can incorporate reforms and
amendments to address emerging challenges, correct injustices, and promote social
progress. By providing a framework for change, law ensures that social order is
maintained while accommodating societal advancements.
In summary, law and social order are closely intertwined. Law establishes norms, resolves
conflicts, deters misconduct, protects rights, fosters cohesion, and promotes stability within a
society. It provides the structure and mechanisms necessary for individuals to coexist
harmoniously and for society to function effectively.

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