Q # 08: Define custom?

Explain various kinds of custom and

essentials of valid custom?
1) Introduction
 The term “Custom” derived from Latin word “Consuetudo” which means “Habit or Usage”. A
study of ancient society shows that law making was not the business of rulers of that time.
Law of the country had been found from the customs of the people which developed by
people with need of the time. Custom is the legal source of law and customary law derived
from general practices of the state followed by the people ,they consider those customs as
legal obligation

2) Meaning of Custom
 Traditional Legal practices or usual way of doing something by a group of a social community
is called Custom

3) Kinds of customs
Custom are of two kinds:

1. Legal custom
 A legal custom is such custom whose legal authority is absolute, and has been legally
accepted by the state. Legal custom has two kinds.

I. General custom
 General customs are those customs which have been accepted by the state.

II. Local custom

 Local customs are those customs which have been accepted by a particular locality but
the authority of the local custom is higher than general custom

2. Conventional custom
 A conventional custom is such custom whose authority is conditional, and it may be
accepted or not such as agreement between the parties

 Reasons of usage of customs

Following are some reasons by which customs are being used as law

1) The usage must be reasonable

2) The Usage doesn’t go against general law of the land
3) The Usage doesn’t go against the terms of the contract
  Example
 You for your wedding ,want to wear the dress in red color as traditional dress of the
locality so it is to be called as conventional custom

4) Essentials of a valid customs

Following are the essential element of the a valid custom

1. Immemorial (Qadeem)
 A custom is a valid custom which is to be proved immemorial. A custom may be legal
and binding ,and must have been used before extreme long time even beyond human
memory. So if anyone can show the beginning time of the custom ,it is no good custom

2. Reasonable
 Custom must be reasonable. A valid custom must be obey the standards of justice and
should be based on legal rule. If a custom is cause of inconvenience such a custom will
not be valid

3. Continuous
 A custom is valid if it has been in continuous practice and it has been enjoyed without
any kind of interruption. Long break of practice of a custom raise doubts about the
validity of the custom

4. Peaceable enjoyment
 The custom must have been enjoyed peaceably without any clash with court of law or
otherwise

5. Certainty (Yaqeeni)
 The custom must be certain and definite, and must not be unclear and confusing.
 If it has some confusing factors in it ,it is not a valid custom

6. Compulsory observance
 Custom is valid that if it has been continuously observed without any gap from times
immemorial. And it must has been regarded as an obligatory rule of conduct

7. Universal
 The custom must be universal or practically useable by people of the universal
community. In the absence of common opinion, custom becomes ineffective or even get
destroyed
 8. Not opposed to public policy
 A valid custom must not be opposed to public policy or the principles of morality. If a
custom is against the law. it is inapplicable

9. Not opposed to statute law

 A custom which is opposed to statute law cannot be a valid custom. Courts have
declared many customs as invalid as they were opposed to statute law

10. Consistent (Mutabqat) with each other

 A valid custom must be consistent with each other. One custom cannot disagree with
other established custom.

5) Theories regarding transformation of custom into law

Following are the two theories on transformation of custom into law
Arbitrary

1. Historical theory
 Custom is derived from the common awareness of the people and it grows as a result of
intelligence of people. According to historical theory, the growth of law does not
depend upon the will of any individual and it does not depend upon any accident . The
growth of most of the customs is not the result of any conscious thought but of cautious
practice. All customs are not the result of the consciousness of the people. In many
cases, customs have been arisen for the convenience of the ruling class

2. Analytical theory
 Customs are source of law and not law itself as well as customs are not valid until their
validity recognized by the courts.Customs are not laws but they are largely adopted into
law by state recognition

6) Reasons for which custom is given the force of law

Following are the reasons by which customs are given the force of law

1. Scale of measurement
 The reason for which custom is given force of law because custom is scale of
measurement of the man’s insight and ability of judgment of matters

2. Expectation of continuance
 The reason by which custom is given force of law is the expectation of its continuation in
the future and this expectation should be fulfilled and not frustrated
 3. Observance by a large number of people
 The reason by which custom is given force of law that is its observation by a large
number of people in society and, That’s why custom is given force of law

4. Interests of society
 The reason by which a custom is given force of law because it rests upon the interest of
the society. Such kind of interest of society makes the custom more strong and people
does not go against the custom

5. Useful for legislation

 Custom is useful in legislation and helps in codification of law. Custom provides the
material which helps in law making. That’s why custom is given force of law

7) Conclusion
 Custom is an important source of law and a lot of laws have been enacted in the light of
positive customs. It exists in the foundation of all legal systems. Customs come into
existence with the existence of society. However with the passage of time, the
importance of custom in law making has been accepted by law makers