Custom

• Person doing an act- regularly- substantial period of time-

accustomed of doing it but when large section of society does
an act over a longer period of time- becomes custom.
• Slow growth- habitual course of conduct followed voluntarily
by people under same circumstances.
• Tradition- one generation to another- governed human
conduct.
• Originated- common consciousness of people.
• Came in existence- necessity or convenience.
• When society- not developed- primitive man- custom was all
in all- guided by magic/taboo. But with growth of civilization-
man began to reason & reject unreasonable customs & accept
reasonable ones.
 Origin of customs
• Historical School Jurist- custom originate- common consciousness/
necessity.
• Man’s nature of imitation.
• Judicial decisions- basis- people not impose liability upon
themselves until they are compelled by Courts.
• Recent anthropological researchers- proved- custom not
developed due to any conscious thought on part of people but
result of tentative practice. When any problem arose, some
solution was found out.
• So based on intuition & everyday experience & not on logic or
principle of Justice. Solutions followed in similar cases- became
custom.
 Definition/ Meaning of Custom
• Definition- a practice so long established that it has a force of Law.
• Meaning- Custom- derived from an old French word ‘Coustume’.
• Based on Latin word ‘Consuetudo’.
• Derived from word ‘Consuetus’
• Comes from word ‘Consuescere’ means- accustom.
• Derived from two words- ‘Con’ means- expressing intensive force &
‘suescere’- become accustomed.
• In Hindi- means- reeti/ vyavahar/rasm/rivaj.
• Literal/ grammatically/ ordinarily- tradition/practice/ usage/
observance/ way/ convention/ procedure/ ceremony/ritual/
ordinance/ form/ formality/ fashion/mode/ manner/ unwritten
rule/ way of doing things/ etiquette/ routine/ habit/ usual rite/
conventional social behavior etc.
 General Meaning of Custom
• Means- usage/ practice common to many or to
particular place or class/ habitual with an individual.
• Long established practice considered as unwritten
law.
• Repeated practice.
• Whole body of usages/ practices/ conventions -
regulate social life.
• Tradition- passing on from one generation to another.
• Established way of doing things
Reasons for recognition of Custom
• One of oldest form of law-making.
• In primitive societies- conduct regulated by
practices- grew up naturally or voluntarily-
adopted by people.
• People find any act- good/ beneficial- practice it-
in course of time- observance- approved/
accepted by community for generations- custom
evolves.
• Custom is to society What Law is to State.
 Why Customs are given force of Law?

Salmond gives two reasons-

1. Custom is frequently the embodiment of
those principles which have commanded
themselves to the national conscience as
principles of justice & public utility.
2. The existence of an established usage is the
basis of a rational expectation of its
continuance in the future.
Position of Customs in various legal system.
• Roman Law- played imp. Role but before enforcement of code.
Influence- recognized in substantive/ procedural law. Custom-
assigned- secondary position.
• Hindu Law- custom imp. Smrities/ commentaries/ vedas-
importance of custom- than written text of Law.
• Muslim Law- custom imp.- Law of Divorce & inheritance based.
• English Law- known as common law- judge made law- judges took
material from customs only. Courts- reconcile/ harmonize/ modify
customs & give shape of law. Much of English family law- still
customary.
• French Law- not based on customs- not imp.-but influences in an
indirect manner as through interpretation etc.
 Classification of Customs
Customs without sanction Customs having sanctions
(non- obligatory/ observed due
To pressure of public)
Austinian Term for Legal Conventional
them in positive morality

General Local
Customs Customs

Geographical Personal
local local
 Legal custom
• Legal custom- binding rule of law. Recognized by Courts &
become a part of Law of Land/ enforced by courts.
Ex- Statutes relating to bill of exchange/ negotiable instruments
etc.
• General custom- prevail throughout territory of State. General/
uniform/certain. Prolonged use- treated as- sources of law of
land.
Ex- common law of England- gen. custom of State. Kanyadan/
Saptapadi/ mangalsutra Dharna.
• Local Custom- apply- defined locality/ district/town.
1. Geographical local- U.S- custom- shake hands/ Japan- to bow.
2. Personal Local- Locality/sect/family- tribal custom/Johar-
Rajasthan/ satipratha- West Bengal.
 Conventional Custom
• Govern parties to an agreement- parties agrees- expressly/
impliedly- called usages.
• Parties- enter into contract- agree on terms but some
conditions implied- parties follow according to usage in
trade. Law allows implied terms- parties must belong to
same trade before implication made.
• Customs binding-not forced by legal auth but expressly/
impliedly incorporated in contract b/w parties. If party
wants- exclude usage by express terms.
• Not source of law directly. Long usage converted into
custom. Then Legislature- made law on it.
Before becoming law customs pass through 3
stages
1. Ist Stage-They should be proved before the court as a question of fact
2. IInd Stage- the court takes judicial notice of them & they are established
as precedent.
3. IIIrd Stage- the custom is embodied in a statute & takes it final shape.
Mercantile Law developed- these stages.

Ex- Negotiable Instrument Act.

• Conventional Customs- two types:
1. General- applied to all trades. Ex- Sales of goods Act/ Contract Act.
2. Local- belong to particular trade/mkt/place/transaction. Ex- broker in
property business. Mobile business- mobile/ charger- bought together.
 Essentials of Valid Custom
• Antiquity/ Ancient
• Continuance
• Peaceful enjoyment
• Obligatory Force
• Certainty
• Consistency
• Conformity with Statute Law
• reasonableness
When does a custom become Law
• Two views

Analytical Historical
School School

Austin Savigny
 Austin View
• Law- command of Sovereign so custom- no place.
• Custom- source of Law & itself not law.
• Not positive Law unless declared by Court or embodied in some
statute.
• Not law until received Judicial recognition.
• Custom- Law when it is sanctioned by sovereign.
• Custom- derive- binding force not from its own nature but by State
recognition.
• Persuasive Value.
• “ Law styled customary is not to be considered a distinct kind of
Law. It is nothing but Judicial law founded upon anterior custom”.
• Criticism- View is not satisfactory. This approach is defective.
 Savigny View
• Custom- per se law.
• Law- unconscious & organic Growth i.e. Law is found & not made.
• Custom- must have arisen due to strong need & by consent of
people.
• Based on opinion of people & national character.
• Principles of justice which society recognizes.
• State- no discretion- except to adopt them.
• Custom not only precedes legislation but superior to it. Judges-
representatives of people & their job is to interpret/ mould
customs. The validity of customs- not depend upon their approval.
• Criticism- view not balanced as customs not always arisen out of
Convenience or need of people.
Difference Between
Custom & Usage