CONTENT

1. Abstract
2. Introduction
3. Definition and nature of Custom
4. Concept of Custom as a source of Law
5. What is Customary Law?
6. Origin of Customs
7. The Position of Customs in Various Legal System
8. Custom as a source of Law in Jurisprudence
9. Types of Custom
10. When does a Custom become Law
11. Conditions for Custom to become Law
12. Stages in Development of Customary Law
13. Importance of Custom as a source of Law
14. Applicability of Custom in Modern Legal Systems
15. Conclusion
16. Reference
 Abstract

Custom, as a source of law, has historically played a significant role

in shaping legal systems across cultures, particularly in societies
where formal written laws were either absent or underdeveloped. In
jurisprudence, custom refers to practices and behaviours that are
widely accepted and followed by a community over a long period,
acquiring legal recognition despite their unwritten nature. This
research examines the relevance and applicability of custom as a
source of law in the contemporary legal landscape, where codified
statues, judicial precedents and international treaties dominate.
This abstract explores the role of custom as a source of law, its
characteristics and its impact on modern legal systems. It highlights
how customary law influences personal status, property rights and
dispute resolution, especially in indigenous and traditional
societies. Customary law supplements formal legal frameworks,
filling gaps wear statutes are silent or unclear, and in some
jurisdictions, it has been codified into formal legal systems. The
study explores the theoretical underpinnings of customary law, its
recognition in various legal systems, Including common law, civil
law, and indigenous legal frameworks, and its interaction with
modern legal principles. It analyze the criteria for customs to
acquire legal validity such as antiquity, continuity, reasonableness
and consistency with statutory law and evaluate their practical
applications in areas such as family law property rights and
indigenous governance. However, the application of custom as law
faces challenges, including issues of consistency, interpretability,
and potential conflict with statutory law. The relationship between
custom and written law varies across legal systems, with some
systems placing greater reliance on customary practices. This
abstract concludes by acknowledging the continuing significance of
custom in shaping legal norm, despite the dominance of codified
laws in modern jurisprudence.
 Introduction

Custom, as a source of law, has long served as a foundational pillar

in the evolution of legal systems, embodying the collective
practices, traditions and values of communities. In the early stages
of the society the customs are the most important, and in some
cases the soul source of law. But with the progress of the society
they gradually diminish and legislation and judicial precedents
become the main sources. In every legal system at all stages of legal
development there are some customs, but in advanced societies
they are more rationalised and are certain and definite. Custom, as
a source of law, involves the study of a number of its aspects its
origin and nature, its importance, reasons for its recognition, its
classification and the essentials of a valid custom. In jurisprudence,
the concept of law extends beyond written statutes and formal
legislation. One of the crucial sources of law, often considered
alongside legislation and judicial decisions, is custom. Customary
law has historically played an essential role in shaping legal
systems, particularly in societies were written laws were scarce or
non existent. This research seeks to explore custom as a source of
law, its characteristics, and its applicability and relevance in the
present scenario.
Definition and Nature of Custom

Custom refers to practices, behaviours, or traditions that have

developed over time and are generally accepted by a community or
society as binding. These customs evolve informally but can gain
legal recognition and enforcement when they are established and
widely followed. In legal terms, a custom becomes a source of law
when it is recognised by the legal system or when it is incorporated
into the formal legal process.

Definition of Custom in Legal Context

1. John Austin:
“Custom is a rule of conduct which the governed observe is
spontaneous and not in pursuance of law settled by a political
superior.”
Austin’s idea were often seen in contravention to
customary law because for him, the political superior was the
only source of love and customs were not ‘real law'. They
needed the assent and command of the Sovereign to be
considered law.
2. Salmon:
According to Salmond “Custom is embodiment of those
principles which have recommended themselves to the
national conscience as principles of justice and public utility.”
He splits Custom through two categories:
General Custom- A general custom seems to have the power
of legislature in a province's jurisdiction. Example- common
law in England.
Local Custom- Local customs are those that have the power of
law in the given area. A territorial custom has more power than
just a national customs.
3. Sir Henry Maine:
“Custom is a reflection of the general consensus of the
community over a long period of time, which ultimately
crystallizes into a recognized and obligatory norm.”
4. C.K. Allen:
He defines custom as “legal and social phenomenon growing
up by forces inherent in society-forces partly of reason and
necessity, and partly of suggestion and imitation.”
5. Keeton:
“A custom is a rule of conduct established by long usage and
regarded as legally binding by those who observe it.”
Concept of Custom as a source of law
The concept of custom as a source of law refers to the
recognition of habitual practices, traditions, or societal norms
that have evolved over time within a community and acquired
binding legal authority due to their consistent and widespread
acceptance. Unlike written statutes or judicial precedents,
customary law is unwritten, deriving its legitimacy from the
collective behaviour and consent of the community it governs.
As a source of law, custom reflects the organic development of
rules rooted in the cultural, social, and moral fabric of a
society, often filling gaps where formal legislation is absent or
inadequate.

What is Customary Law?

Customary law refers to the rules, practices, and behaviours
that are recognised by a particular community as binding, even
though they are not written down or formalized in legal
documents. These customs are traditionally passed down from
generation to generation, reflecting the values, morals, and
social norms of a community. Over time, custom becomes
widely accepted and is followed with consistency, it may gain
legal recognition, forming the basis of customary law.
Origin of Customs
There are different and divergent views regarding the origin of
customs. Historical jurists (of Germany) say that they originate
from the common consciousness of the people. One view is
that they came into existence due to necessity or convenience.
Some say that man’s nature of imitation is the main cause of
the origin of customs. Any particular conduct, imitated by a
group of people for a long time becomes a custom. There is a
series of reputed jurists who assert that judicial decisions are
the basis of customs.
Decisions as the basis of custom- Maine, in his theory of legal
evolution, says that in beginning the judgements of the kings
under divine inspiration were the basis of the customs.
Customs developed on those judgments. Ihering supports the
same view. He says that people will not impose liability upon
themselves by their own will until they are compelled by
courts. Later on, these judgments became customs. Gray too
says that custom often arises from judicial decisions. But the
recent anthropological researches have exposed the falsity of
such assumptions. Really speaking, the origin and
development of most of the customs is not due to any
conscious thought on the part of the people. They are the
results of tentative practice. When any problem arose, some
solution was found out.
It was based more on the primitive notions that on any logic or
principle of justice. Solutions were followed in similar cases
and in this way it became a custom.
Holland’s view-Holland’ puts the same thing as “One man
crosses the common in the direction which is suggested either
by the purpose he has in view, or by mere accident. If others
follow in the same track, which they are likely to do after it has
once been trodden, a path is made. Before a custom is formed,
there is no juristic mason for its taking one direction rather
another, though doubtless there was some ground of
expediency or religious scruple, or of accidental suggestions. A
habitual course of action formed gathers strength and sanctity
every year. There can, in fact, be no doubt that customary rules
existed among peoples long before nations or states had come
into being. In primitive times, there was little organised
sanction behind these customs as it is in a modern state. It
was the necessity and the force of public opinion which
ensured their compliance. When the state comes into being
and the society develops, they are rationalized and recognised
and grow as part of the law.
The Position of Customs in Various Legal
System
Roman Law :- We find the existence of customs in the
ancient legal system. 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 procedural law. But it was assigned only a secondary
position as compared to the legislation of the Imperial 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.

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 custom. The Smritis have strongly recommend that
the customs should be followed and recognised.
Manu says :-
One should follow the righteous path that has
been followed by ane's ancestors. By following that path, one
does not suffer.

Yajnavalkya's view :-
When a country is conquered, its usages and
customs and family traditions should be followed as they were
followed before.

Brihaspati says :-
The law of place, caste or family, which have
existed from before, should be followed as before; otherwise
people get agitated.

Mahabharat says :-
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 been followed by virtuous men.

Narada says :-
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 Hindu law. Their Lordships in the Privy
Council observed that in Hindu law “the clear proof of usage
will outweigh the written text of the law. 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 hostile to customs. It give them a very
inferior place Among the sources of law. But it could not keep
itself free from them. Many Mohammedan jurists said that the
customs which were not expressly Disapproved by the Prophet
were good law. It was on the basis of such Customs that
Sunnis interpreted many provisions of the law, especially the
Law of divorce and inheritance. Customs infiltrated into the
fabric of the Mohammedan law through other channels also.
They came in such garbs That they assumed authority. Joseph
Schacht, a German jurist, in his very Learned and thought
provoking research work, Origins of Mohammedan
Jurisprudence’, says that even the Traditions of the Prophet,
whose Authority as a source of law is next try to Koran, are
nothing but the living Traditions of the people, in other words,
the customs of the people, and People in their zeal to attach
sanctity and authority to them attributed them to the Prophet.
In India, many sects of Mohammedans in many matters are
Governed by local customary law.

English Law, Coke, St. German, Hale, Blackstone, Pollock

Customs have played a very important role in moulding the
English law. English law is known as “common law. Generally,
common law and common customs of the realm, were
considered as synonyms. Chief Justice Coke spoke about
customs as 'one of the main triangles of the laws of England.
St. German in his book Doctor 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 the Commonwealth of all the realm,
therefore, they have obtained the strength of law, in 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
"The common law is a customary law. The British
constitutional law is described as "The Law and Customs 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.

Custom as a Source of Law in Jurisprudence

Jurisprudence, the theory and philosophy of law, investigates
the nature, sources, and purposes of law. Custom is a
recognized source of law in many legal theories, including
natural law theory and sociological jurisprudence.
Natural Law and Custom: Natural law theorists, such as
Aristotle and Cicero, recognize that human laws should align
with universal principles of Justice, which often reflect
customs and traditions accepted by a Community. Custom
can be viewed as a manifestation of moral order, reflecting the
collective conscience of a society.
Sociological Jurisprudence: The sociological school, led by
figures like Roscoe Pound, focuses on the role of customs and
social practices in shaping legal norms. From this perspective,
law is not just a set of formal rules but is deeply intertwined
with the social practices and customs that govern people’s
everyday lives.

Types of Custom
The customs in their wider sense may be divided into two
classes :-
1) Customs without sanction, and
2) Customs having sanction.

1. Customs without sanction are those customs which are

non-obligatory. They are observed due to pressure of the public
opinion. Austinian term for them is positive morality'.
 2. Customs having sanction are those customs which are
enforced by the state. It is with these customs that we are
concerned here. These may be divided into two classes :-
I. Legal
II. Conventional.
➢ Legal Customs:- These customs operate as a binding rule of
law. They have been recognised by the courts and have
become a part of the law of the land. They are enforced by the
courts. Legal customs may be divided into two classes.
a) General Customs,
b) Local Customs.

General Customs or General legal customs :- General

customs are those customs that prevail throughout the territory of
the state. Though by the common use of the term 'customs is meant
the local custom in law, generally, the customs which are treated to
be the part of the law of the land are general legal customs.

Local Customs :- By local customs is meant those customs

which apply only to a defined locality, that is, to a district, or a town.
But they do not imply geographical locality only. Sometimes, certain
sects or families take their customs with them wherever they go.
They too are called local customs. On this point there are a number
of decided cases in Hindu and Mohammedan laws. Therefore, in
India local customs may be divided into two classes: (1)
Geographical local, and (2) Personal local customs. These customs
are law only for a particular locality, sect or family.

➢ Conventional Customs :- Conventional customs are those

customs which govern the parties to an agreement. Parties,
sometimes, expressly and sometimes, impliedly (it means that
they are considered to have agreed) agree to them. They are
called usages also. Such customs are binding "not due to any
legal authority independently possessed by them, but because
it has been expressly or impliedly incorporated in a contract
between the parties to it.

There are some conditions which stust be satisfied beisre a court

treats the conventional customs as incorporated in contract :-

1. It must be shown that the convention is clearly established and it

is fully known. It unplies that both the parties were aware of such a
convention.

2. Conventions cannot alter the general law of the land. Therefore,

they are valid only within the arms of either observance.
3. They must be reasonable. The main function of these conventions
is to throw light only on such rights and liabilities of the parties on
which the contract is silent. If certain conditions, or term, though
established by convention, are expressly excluded by the parties in
the contract, they will not be enforced.

When does a Custom become a Law?

A custom becomes a law when it is formally recognized and

adopted by a governing authority, typically through legislation,
judicial precedent, or consistent enforcement, transforming an
informal practice into a binding rule. This process varies by legal
system:

• Common Law Systems: Customs can become law through

judicial decisions where courts recognize long-standing
practices as legally enforceable (e.g., custom of the trade
influencing contract law). The custom must be consistent,
widely accepted, and reasonable.

• Civil Law Systems: Customs may influence law but typically

require codification by a legislative body to gain legal status.

• Traditional or Customary Law Systems: In some societies,

customs are law if they are widely practiced, socially
 accepted, and enforced by community leaders, without
needing formal codification.

Conditions for Custom to become Law

• Longevity and Consistency :- The custom must be practiced

consistently for a long period, typically from "time
immemorial" (i.e., beyond the memory of man).

• General Acceptance or Universal :- The custom must be

widely followed and accepted by the relevant community.

• Reasonableness or Justice :- The custom must be reasonable

and just, it should align with public policy and not conflict with
existing laws.

• Authority Recognition :- A governing body (legislature, court, or

community leader) must acknowledge or enforce.

Stages in the Development of Customary Law

1.Emergence of Custom :- A custom emerges as a social

practice or tradition within a community.

2. Recognition by the Community :- The custom is recognized

and accepted by the community, and its observance becomes
widespread.
 3. Judicial Recognition :- The custom is recognized and enforced
by the courts, which gives it the force of law.

4. Legislative Recognition :- The custom may be codified or

recognized by the legislature, which gives it statutory force.

Case Laws :-

1.Shrikrishna v. Lalitha, AIR 1953 SC 333 :- The Supreme Court of

India held that a custom must be established by clear and
convincing evidence.

2.Rani v. Santa Bala Devi, AIR 1955 SC 158 :- The Supreme Court of
India held that a custom must be reasonable and not opposed to
public policy.

A custom becomes a law when it meets the

conditions of long and continuous usage, universal acceptance,
reasonableness, certainty, and recognition by the courts or
legislature.

Importance of custom as a Source of Law

Custom is a crucial source of law in jurisprudence due to several

factors :-
1.Flexibility: It helps the law adapt to local traditions and societal
needs, particularly when written laws are absent.

2.Reflects Social Morality: Custom mirrors the ethical and moral

standards of society, shaping legal norms.

3.Legitimacy and Acceptance: Customs are widely accepted as

binding due to their long-standing practice.

4.Supplementing Written Law: It fills gaps in written laws, especially

in areas like family law and land tenure.

5.Historical Significance: Many legal principles have roots in

customs, influencing the development of modern law.

6.Transitional Role: Custom acts as a bridge between traditional and

formal legal systems.

7. International Law: Customary international law binds nations,

even in the absence of written agreements.

Overall, custom ensures adaptability, social

relevance, and continuity in the legal system, making it a

foundational element in jurisprudence.
Applicability of Custom in modern Legal Systems

1.Introduction :- Custom has traditionally been one of the oldest

source of law, evolving from the practices and usages of a society. In
modern legal system, it continues to hold relevance, though its
prominence has diminished compared to legislation and judicial
decisions.

2. Role of Custom Historically

Primary Source of Law: In early societies, custom was often the only
source of law. It reflected long-standing societal practices.

Recognition by Courts: Courts historically recognized customs

provided they met certain criteria (e.g., long usage, reasonableness,
certainty).

3. Present Scenario:

While modern legal systems are dominated by statutes and case

law, custom retains a limited but significant role:

Supplementary Role: Custom often fills gaps where legislation is

silent or ambiguous.

Recognition by Statutes and Courts: Some legal systems explicitly

recognize customs under certain conditions (e.g., trade customs in
commercial law).
Examples:

India:- Custom is recognized under Section 13 of the Indian

Evidence Act, 1872 and in personal laws (e.g., Hindu, Muslim).

International Law:- Customary international law (e.g., principles

recognized as binding through widespread state practice and opinio
juris).

Common Law Countries:- Custom may still influence common law

principles where relevant.

Commercial and Trade Usages:- Recognized in areas like contract

law and maritime law (e.g., Incoterms).

Challenges in the Modern Era:

Codification: Most areas of law are now codified, reducing the

reliance on custom.

Globalization and Uniform Laws:- Increasing adoption of uniform

commercial laws limits the role of local customs.

Dynamic Societies:- Changing social norms may render some

customs obsolete or unjust (e.g., discriminatory practices).
 Conclusion

Therefore, it can be seen that customs are a very important source

of law, which have their historical roots in the earliest and most
primitive of societies, and still hold relevance. Society is constantly
in the process of establishing newer practices which might in due
time turned into usages or customs.

We depend on customs and are governed by them, knowingly or

not. The English common law can be interpreted as formalisation of
existing customs, and there in lies the importance of having the right
customs in society.

In conclusion, while customs have historically been a significant

source of law, their applicability in the present scenario is complex
and nuanced. Indian courts have recognised the importance of
customary law, but they also emphasized that customs cannot
justify practices that violate fundamental rights or contradict
existing laws. Modern legal systems priorities the codified laws and
constitutional principles, but customs continue to play a role in
areas like dispute resolution and customary practices of certain
communities, particularly schedule tribes.
 Reference
1) Tripathi , B N Mani , Jurisprudence the legal theory.

2) Shrikrishna v. Lalitha, AIR 1953 SC 333.

3) Rani v. Santa Bala Devi, AIR 1955 SC 158.

4) http//www.ipleaders.blog.in/.

5) http//www.chatgpt.com/.