Date:

LLB (5 YEARS) PART II

DAILY LECTURE
Session: Section: Subject: _English Jurisprudence

Teacher’s Name: Syed Zaki ur Rehman Lecture Topic:

Teaching Method: Lecture Duration:

Homework Assigned:

Discuss the custom as source of law? Also explain various kinds of

customs. What are the pre-requisite of valid custom?
Answer
1. INTRODUCTION:
Custom is the oldest form of law making. It is Jus NonScriptum (Unwritten) it is based on long
usage. In primitive times, there was no legislation no law courts and no precedents. Disputes
were settled by the elders in consonance with the dictates of reason which was regarded as
tantamount of truth, justice and public utility. Thus any long standing all pervading usage which
came to be recognized as custom not only had the force of law but also was law itself. Therefore
custom is one of the most fruitful sources of law. In the modern times the precedents i.e. Judge
made law and legislation have become over powered to that of customs. As in a case of Maduri
v/s Motu Ram Linga. It was held that even custom power over the state.
2. MEANING OF CUSTOM:
According to Black's Law Dictionary
"Custom means a practice that by its common adoption and long unvarying habit has come to
have the force of law."
3. DEFINITION OF CUSTOM:
(i) Salmond's Definition:
"Custom is the embodiment of those principles which have commenced themselves to the
national conscience of principles of justice and public utility."
(ii) Prof. Holland's Definition:
"Custom is a generally observed course of conduct. It grows just as a track is formed across a
grassy land by constant passing of people over it either intemally or by more accident once it is
formed, others follow the same track and thus a path is made."
(iii) Prof. Carter Definition:
"Custom is the uniformity of conduct of all people under like circumstances."
(iv) Austin's Definition:
"Custom is, a rule of conduct which the governed observe spontaneously and not in pursuance
of law settled by a political superior."
(v) According to Oxford Dictionary of Law.
A practice that has been followed in a particular locality in such circumstances that it is to be
accepted as a part of the law of that locality.
(vi) Case Law Definition. Transitory Case.30 ER 516
Held. In this case custom is described as: it is Jus Non Scriptum and made by the people of a
certain place by frequent iteration and multiplication of an act.
(vii) According to Merriam Webster Dictionary
A long-established practice considered as unwritten law.
Origin: Middle English custome, from anglo-French, rom Latin consuetudin, consuetude, from
consuescere to accustom.
First use 13th century
4. ORIGIN OF CUSTOM.
Custom is the oldest form of law making. In primitive society the lives of the people were
regulated by custom which developed spontaneously according to circumstances. When the
same thing was done again and again in a particular way. It is assumed the form of custom.
There is inevitably a tendency to adopt the maxim "Viatruta via tita, whatever has been
authority in the past is a safe guide for the people."
5. THEORIES REGARDING THE TRANSFORMATION OF CUSTOM INTO LAW.
(a) Historical Theory
According to this theory, the growth of law doesn't depend upon the arbitrary will of any
individual. It grows as a result of intelligence of the people. It is the product of the time. The
jurist belonging to this school consider custom as source of law.
(b) Analytical Theory.
According to Austin.
"Custom are not positive law until their existence is recognized by the decision of the court. A
custom becomes law when it is embodied in an act of legislature. it becomes law when it is
enforced by the state."
6. USAGE DISTINGUISHED FROM "CUSTOM":
Usage is a repetition of acts and differs from custom is that latter is general rule or law which
arises from such repetition. There may be usage without custom, but there can not be a custom
without usage preceding it.
7. VARIOUS LEGAL SYSTEMS RECOGNIZED CUSTOM AS A SOURCE OF LAW.
The followings are the systems which recognized custom as a source of law:
(a) Romar: Law :- Roman Law is known to be the oldest one in the world. This law is mainly
based upon customs of the society. Those customs which were reasonable continued them as
law by the Roman jurists.
(b) Hindu Law :- Hindu law is also to be considered as the most ancient law. His sources are
Vedas, Sutras and Smiriies and these were mainly based on customs. All personal laws of
Hindu are based upon custom that is why Lord Warren Hastings and Lord Cornwallis did not
attack on customs of Indians.
Manu said One should follow the given path of their ancestors. This was nothing but the
reorganization of customs.
(c) Mohammedan:- Particularly ignored customs for the purpose of law. During the Muslim
period in India their customs were protected by State. The British rulers in India also protected
customs and personal laws which were based upon customs. The traditions which were not
opposed by the prophet Mohammedan were recognized as law. In this way we can say that
customs in Mohammedan law also played an important role.
(d) English Law :- Which is known as common law and in the shape of un-written and based
upon customs and conventions: Customs which were reasonable and not against the public
policies were recognized as law under English Law.
8. REQUISITES / ESSENTIALS OF A VALID CUSTOM:
A custom in order to be fully operative as a source of law must satisfy the following
requirements..
(i) Reasonableness:
A custom must be reasonable because no court will enforce an unreasonable custom. The
prevailing custom authority is never absolute but it is authoritative because it informs to the
nations of public justice and N SERIES ENGI
utility. The reasonable custom should be judged with reference to the general principles which
are at the root of legal system. A custom is contrary to reason if it is opposed to the principles
justice and equity.
Case Law. RajaVarma vs. Ravi Varma 1 Mad 235(PC)
Held. It was held that custom recognizing the sale of trusteeship of a temple for pecuniary
advantage of the trustee was unreasonable and bad in law hence it was invalid. clearly
(ii) Continuous Observance:
For valid custom it should have been acted upon for such a long time and with such
invariability that it is by common consent submitted to as general rule of a particular area. If
custom has not been followed continuously for long time, presumption is that it never existed in
this area.
Case Law: Baba Narayan v/s Saboosa (1943)
Held: that although the existence of a custom from immemorial time is not necessary to give it
legal validity but it should be continuously in existence for a long time.
(iii) Immemorial Antiquity:
In English common law, for a custom to be valid it should have been observed from time
immemorial. Custom had to possess a sufficient measure of antiquity. Sufficient means that it
should be so old that memory of man can not trace out its origin. English common law places a
limit to legal memory and fixes 1189 A.D. as enough to constitute the antiquity if custom.
(iv) Not opposed to public policy:
A custom should not be opposed to the principles of morality or public policy. It recognition of
a custom causes greater evil than the right which is being denied, is against principles of
morality or public policy.
(v) Not contrary to any other custom:
A valid custom is that which is consistent with the other customs. That we valid custom is
contrary to another valid custom would be absurd since if conflict between customs arise, both
are declared to be bad customs and thus are not valid customs in courts.
(vi) Not opposed to Statute law:
A valid custom must not be opposed to statute law of country. Therefore general view is that no
custom is superior to any statute law and would stand invalid if custom is contrary to statute
law.
(vii) Peaceable enjoyment:
Custom must have been enjoyed peaceable. If custom is in dispute for a long time in a law court
or other wise, it negative presumption that it originated by consent, as most of customs naturally
originated.
(viii) Compulsory observance:
For a custom to be valid its observance is compulsory. It means that a custom should be
observed by all those who are concerned subjects and not by any one who pleases to do so. An
optional observance is ineffective, absurd, and idle and at all deed no custom.
(i)Observance as of Right: A valid custom is a source of law it must have been observed as of
right. It must have been followed openly. It must have an obligatory force and must have been
supported by general opinion of the public.
(x) Positive Morality:
Valid custom is not against positive morality. A custom which is immoral is considered to be
bad and not recognizable by the court of law.
Case Law: M. Naikin v/s Esu Naikin (1880)
Held: that adopting girls for immoral purpose is not valid custom.
(xi) Universal or General:
A custom which' is not universally or generally followed does not fall in the category of being a
valid custom.
(xii) Massive Support:
A valid custom should have as massive support of a group of people. If such happens than that
custom will attract legality and will differ from prescription which is attached to an individual.
(xiii) Reflection of Justice:
Legal phenomenon cannot be separated (isolated) from historical, political, social and moral
context of society except by drawing an arbitrary cut off point.
(xiv) Certain and Definite:
A valid custom must be certain and definite. It should not change with changing times.
(xv) Exist as a fact:
A custom must not be deduced but should exist independently as a fact. The custom which is
deduced by analogy is not considered to be valid one. It should be known to everyone and
should be universally practiced in locality area.
(xvi) Peaceable enjoyment.
It must have been followed in the form of the rule that user must be
"NEC VI nec clam necPrecario" (nor by force nor by stealth nor at will "
9. KINDS OF CUSTOMS:
A custom having the force of law has the following two kinds:
Customs
(a) Legal Customs
(b) Conventional Customs
(i) Local (Special) Customs
(ii) General Customs
(a) Legal Customs:
According to Black's law Dictionary
A custom that operates as a binding rule of law, independently of any agreement on the part of
those subject to it. It is a custom that operates as a binding rule of law, independently of any
agreement on the part of those subject to it.
Kinds/Classification of Legal Customs:
It is of the following two kinds:
i. Local/Special/Particular Customs:
According to Black's law dictionaryA custom that prevails in some defined locality only, such
as city or county and constitutes a source of law for that place only also termed as Particular
custom, special custom.
It is lexloci..
It is a customs that prevails in some defined locality only, such as a city or country and
constitutes a source of law for place only.
(ii) General Customs:
According to Black's law dictionary
A custom that prevails throughout a country and constitutes
one of the sources of law of land
It is customs that prevails throughout a country and constitutes one of the sources of law for that
land.
(b) Conventional Customs: (Usage)
According to Black's law dictionary
A custom that operates only indirectly through the medium of agreements, so that it is accepted
and adopted in individual instances as conventional, law between the parties to those agreement.
A conventional customs is established practice which is legally binding not because of any legal
authority independently passed by it but because it has either expressly or impliedly been
incorporated in a contract between parties.
For examples, law of merchant derived from the conventional customs of merchants, negotiable
instruments and sale of goods and. based on customs under certain circumstances i.e. usages.
Classification of Conventional Customs:
A conventional customs like a custom may be either local or general. But local usages like
general usages cannot become part of the general or common law of the land.
10. REASONS OF BINDING FORCE OF CUSTOM:
There are many reasons why custom is given the force of law:
(i) Embodiment Principles of Custom:
If custom is embodiment of those principles, which commanded themselves to the national
conscience as the principles of justice, truth and public utility.
(ii) Authority of Long Acceptance:
The very fact that any rule has the sanction of custom raises a presumption that it deserves the
sanction of law also. Its reason is that judges are inclined to accept those rules which have in
their favor, the prestige and authority of long acceptance of custom.
(iii) Sign of National Conscience:
The custom is the external and visible sing of national conscience and as such accepted by the
courts of law as an authoritative guide.
According to Salmond:
He rightly remarks, "Custom is to society what law is to state."
(iv) According to the Will of Peoples, not of the Sovereign:
Embodiment of law on those principles as they command themselves to the incorporate
community in exercise of its sovereign power. Custom embodies them as acknowledged and
approved not by the power of state but at large according to the public opinion of society at
large.
(v) Bringing Stability and Certainty in Legal Rule:
Custom may not be ideally just and reasonable but it is undeniable that it brings stability and
certainty in the legal rule.
(vi) Continuance of an Established usage:
Existence of an established usage is the basis of a rational expectation of its continuance in
future. Justice demands that this expectation should be fulfilled and not frustrated
(vii) Safe-Guide for Future:
In the past when ever.authority (custom) becomes a safe-guide for future. It is easier to secure
reverence for a code if it claims to base on customs immorally observed.
(viii) Material for new law:
Custom is useful in the sense that it provides material for embodiment of new law.
(ix) Interests of Society:
Custom rests on popular conviction that it is in the interests of society. This conviction is so
strong that it is not found desirable to go against society.
(x) Force of Law:
Sometimes a custom is observed by large number of individuals (peoples) in society and in
course of time the same comes to have to force of law.
11. CONCLUSION:
In early time the customs was the sole source of law. It is no doubt that with development of
judicial system (process) the importance of custom is constantly diminishing. Nevertheless,
custom has played an important role in the development of law, today mostly material contents
of developed systems of law have been drawn from ancient customs e.g. law of inheritance, law
of succession, law of contract, law of property etc. are evolved from customary rules.