PHILOSPHY OF LAW

CUSTOM
1. INTRODUCTION:
Custom is the most ancient form of law-making. It is considered "Jus Non Scriptum" (Unwritten) because its
authority comes from long-standing usage. In ancient times, there were no legislative bodies or courts, and thus
no legal precedents. Disputes were resolved by community elders based on what was considered reasonable,
true, just, and publicly beneficial. Therefore, any long-established and widely accepted practice that gained
recognition as a custom not only carried the weight of law but was essentially law itself. This makes custom one
of the most fundamental sources of law. However, in modern times, other legal sources like judge-made law and
legislation have become more powerful than customs. For example, in the case of Maduri v/s Motu Ram Linga, it
was ruled that even custom holds authority over the state.

2. MEANING OF CUSTOM:
According to Black's Law Dictionary
"Custom refers to a practice that, through widespread acceptance and consistent, long-term habit, has
acquired 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 internally 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, Rome- Latin consuetudin, consuetude, from consuescere
to accustom.
4. ORIGIN OF CUSTOM
Custom is the oldest form of law-making. In early societies, people's lives were governed by custom. developed
naturally based on circumstances. When a specific action was repeatedly performed in a particular manner, it
gradually evolved into a custom.
There is a natural inclination to adopt the saying:
"Viatruta via tita (The trodden path is the safe path)," meaning that whatever has been a recognized authority in
the past provides reliable guidance for people.
First use: 13th century

5. THEORIES REGARDING THE TRANSFORMATION OF CUSTOM INTO LAW

(a) Historical Theory According to this theory, the development of law is not dependent on the arbitrary will of
any individual. Instead, it arises from the collective intelligence of the people. It is a product of its time. Legal
scholars associated with this school view custom as a primary source of law.
(b) Analytical Theory According to the jurist Austin, "Custom is not positive law until its existence is recognized
through a court decision. A custom becomes law when it is incorporated into an act of legislation, and it
becomes enforceable by the state."

6. USAGE DISTINGUISHED FROM "CUSTOM":

Usage refers to a repeated practice and differs from custom. Custom is typically a general rule or law that
emerges from such repeated practice. While usage can exist without a preceding custom, a custom cannot exist
without a usage preceding it.

7. VARIOUS LEGAL SYSTEMS RECOGNIZED CUSTOM AS A SOURCE OF LAW.

The following legal systems have acknowledged custom as a source of law:

(a) Roman Law Roman Law is considered the oldest legal system in the world. This law was primarily based on
the customs of society. Customs that were reasonable continued to be applied by Roman jurists.

(b) Hindu Law Hindu law is also regarded as a very ancient legal system. Its sources include the Vedas, Sutras,
and other sacred texts.
Similarities existed, and these were primarily based on customs. All personal laws pertaining to Hindus were
founded on custom. This is why Lord Warren Hastings and Lord Cornwallis did not interfere with the customs
of Indians.
Manu stated that one should adhere to the traditions set by their ancestors. This essentially meant the
restructuring of customs.

(c) Mohammedan Law: This legal system largely disregarded customs for the purpose of law. However, during
the Muslim rule in India, Muslim customs were protected by the State. The British rulers in India also
safeguarded customs and personal laws that were based on customs. Traditions that did not contradict the
teachings of the Prophet Mohammed were acknowledged as law. Therefore, it can be said that customs also
played a significant role in Mohammedan Law.

(d) English Law: This refers to what is known as common law, which is unwritten and based on customs and
established conventions. Customs that were considered reasonable and did not conflict with public policies
were recognized as law under English Law.

8. REQUISITES / ESSENTIALS OF A VALID CUSTOM:

For a custom to be fully recognized and applied as a source of law, it must satisfy the following conditions:

(i) Reasonableness:
A custom must be reasonable because no court will enforce an unreasonable custom. The authority of a
prevailing custom is not absolute, but it is considered authoritative because it aligns with principles of public
justice and utility. A reasonable custom should be evaluated in relation to the fundamental principles that form
the basis of the legal system. A custom is considered contrary to reason if it goes against the principles of justice
and fairness.
Case Law. Raja Varma vs. Ravi Varma 1 Mad 235(PC)
Held: It was ruled that a custom allowing the sale of a temple trusteeship for the financial benefit of the trustee
was clearly unreasonable and immoral, and therefore invalid.

(ii) Continuous Observance:

For a custom to be valid, it must have been practiced consistently and without variation for a very long time.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 otherwise, it
negatively presumes that it originally came into being through consent, as most customs arise naturally.

(viii) Compulsory observance:

For a custom to be valid, its observance must be compulsory. This means that a custom should be followed by all
those it concerns, and not just by individuals who choose to do so. Optional observance of a custom is
ineffective, pointless, and does not constitute a valid custom.

(ix) Observance as of Right:

A valid custom, as a source of law, must have been observed as if it were a legal right. It must have been openly
followed. It must possess an obligatory force and have been supported by the general public.

(x) Positive Morality:

A valid custom cannot contradict positive morality. A custom that is immoral is considered invalid and not
recognizable by a court of law.
Case Law: M. Naikin v/s Esu Naikin (1880)
Held: That adopting girls for immoral purposes is not a valid custom.
(xi) Universal or General:
A custom that is not universally or generally followed does not qualify as a valid custom.

(xii) Massive Support:

A valid custom should have significant support from a large group of people. If this support occurs, then that
custom will acquire legal validity and will differ from a prescription (a right acquired by long usage) that is
attached only to an individual.

(xiii) Reflection of Justice:

Legal phenomena cannot be isolated (separated) from the historical, political, social, and moral context of
society by drawing an arbitrary dividing line.

(xiv) Certain and Definite:

A valid custom must be clear and precise. It should not change over time.

(xv) Exist as a fact:

A custom must not be merely logically deduced but must actually exist. A custom derived by analogy is not
considered valid. It must be widely known and universally practiced in the local area.

(xvi) Peaceable enjoyment:

It must have been followed as a rule by the user without dispute.
"NEC VI nec clam nec Precario" (neither by force, nor secretly, nor by permission.)

9. KINDS OF CUSTOMS:
A custom that has the force of law can be divided into two types:

(a) Legal Customs:

According to Black's law Dictionary
A custom that operates as a binding rule of law, regardless of any agreement by the parties involved. It is a
custom that applies as a binding rule of law, independently of any agreement between the parties.

10. KINDS/CLASSIFICATION OF LEGAL CUSTOMS

Legal customs are of the following two kinds:

(i) Local/Special/Particular Customs:
According to Black's law dictionary
A custom that is common in a specific location, such as a city or county, and serves as a source of law for that
area. It is also known as a Particular custom or special custom.
It is lex loci, meaning a local law.
It refers to customs that are prevalent only in a specific geographical area, such as a city or country, and act as a
source of law exclusively for that place.

(ii) General Customs:

According to Black's law dictionary
A custom that is widespread throughout a country and is considered one of the sources of the law of the land.
It refers to customs that are prevalent across an entire country and constitute a source of law for that land.

(b) Conventional Customs: (Usage)

According to Black's law dictionary
A custom that only takes effect through agreements. It is accepted and adopted in individual cases as
conventional law between the parties who made the agreement.
A conventional custom is a recognized practice that is legally binding not due to any independent legal
authority, but because it has been either directly or indirectly included in a contract between parties.
For example, commercial law stemming from the conventional customs of merchants, negotiable instruments,
and sales of goods is based on customs or usages under certain conditions.

Classification of Conventional Customs:

A conventional custom can be either local or general. However, local usages, unlike general usages, cannot be
considered part of the general or common law of the land.

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.