Custom as a source of law
Custom as a source of law
The Custom as a source of law is very important in all legal systems because it is beyond doubt that they appeared before the law. They came with the society. They are regarded as the founding stone of the legal system and basis of law. Subsequently, the growth of society leads to diminishing value of customs.
Customs consists of rules of conduct which are generally observed. According to Salmond, ‘custom is the embodiment of those principles which have commended themselves to natural conscience as principles of truth, justice, and public utility.’ A custom may be legal custom or a conventional custom. Legal customs are those customs which are having the force of law. Conventional customs are those which a party agrees that they will be binding on them. A legal custom may be general legal custom or a local legal custom. General legal custom is observed generally whereas a local legal custom is observed locally in a particular area. A Conventional custom is distinguished as usage.
There are certain conditions that must be satisfied before a court treats the conventional custom as incorporated in the contract:-
- It must be shown that convention is clearly established and fully known. It means both parties were aware of the custom
- Conventions cannot alter the general law of the land.
- They must be reasonable. The main function of these conventions is to throw light on such rights and liabilities on which the contract is silent.
The courts of law in administrating justice should accept these rules because what custom is to society is a law to state. Customs are an important source of law because they exist as established usage, they are nothing but usage and habits.
Difference between customs and Usage
Usually, a conventional customs are referred to as usage but there are a certain distinction between them.
- Customs is bound on parties even if there is no express contract between parties and parties cannot deny it, on the other hand, usage will be bound on parties if it is expressively said by the parties.
- For a custom to be valid it should exist from time immemorial, but it is not in the case of usage.
The relation between Custom and Prescription
The prescription was a species of custom in ancient time. It was said to be personal custom. Thus it was limited to rights of a particular person and its predecessors. It was different from the local custom which was related to a particular place and not a particular person.
- When a course of conduct is practiced for a long time, if it gives rise to rule of law, it Is known as custom. If it gives rise to the right, it is known as Prescription
- For a custom to be valid it needs to exist from time immemorial, in case of Prescription it is not the case.
- Custom originates from long usage, prescription originates from the waiver of rights.
- Custom extends to a particular place of community, Prescription is confined to the personal right
- For a custom to be valid it must be in conformity with the principle of natural justice, it is not in case of prescription.
Suggested books for the topic
Origin of customs
There are the different opinion of different jurist regarding the origin of customs. Some believe that they originate from the common consciousness of people. Many, that they came into existence because of necessity. Some say that it came into force because of imitation, a man’s nature to imitate the action for a long time becomes a custom.
Formation of Customs
Custom generally originates in imitation following upon invention. It is formed when a man does a thing in a particular way, and that thing is imitated by others.
The reason that customs are obeyed
Customs are obeyed because people feel that it embodies principles of justice and public utility. The real sanction behind custom is public opinion. Before the emergence of state people used to follow customs because of the public opinion. Later when the state came into existence it accepted many of the customs and enforced and took the role of administration of justice. When the state came into existence, its role was not to legislate and it accepted the already accepted customs. When the state took the role to legislate on different matters, customs got the statutory recognition.
Authority of customs
It is to be noted that customs are law, not because it has been declared by the court, but because it will be so recognized according to fixed principles of law. If in a court customs are proved by satisfactory evidence that they exist, the court will just declare them operative. Thus the sanction of the court just gives declaratory value and not constitutive value.
Customs to Law
According to Austin’s theory, customs become law when they are recognized by the state. But the state does not recognize every law, it recognizes only those law which according to it fulfill certain conditions such as antiquity, reasonableness. Only those customs are recognized by the state which meets a certain level of general reception and utility.
Customs cannot be law unless accepted by the sovereign. According to him, customs become law only after recognition from the state. He says that custom is a source of law and not the law in itself. His theory of law ‘command of sovereign backed by sanction’ does not fit customs in it unless it is accepted by the state. Custom can become ‘positive law’ only if accepted by the state, before that it is just ‘positive morality’. Thus this means that state is superior to that customs and it is state’s will whether to accept a custom or not.
Customs is not law unless approved by judges. He puts the court in the center of the legal system. According to him, the law is what judges declare. Customs, legislation precedents all are sources of law and they cannot become law unless and until they are accepted by judges. In deciding cases, judges look toward legislation and precedents, only when they are not there they look into morality. Only in the certain matter of cases, they look into customs and hence they are of very less importance. Thus according to him, customs are not law unless they commend themselves to the reason of the judge and he recognizes them in judgment.
Criticism of Analytical theory
Both the views are exaggerated. Customs does not become law unless they are accepted by the state and recognized by it is true to a certain level. But it has many shortcomings.
- Many customs are non-litigious and hence do not come in front of the court, but still, society follows them and treat them as customs.
- In most of the cases, the customs are recognized not with the assumption that this recognition gives them the sanctity of law but with this assumption that they are law and they have been treated so.
He said that recognition by the state is not necessary. Further, he said that customs per se is law. He said that customs arrived because it was the necessity of the people and thus have the explanation in itself to become the law. ‘ custom is a badge and not a ground of origin of positive law’. They embody the principle of justice which the society recognizes. The state has no option but to accept them. Judges while interpreting the law act as the representative of people. And thus the validity of customs does not depend on acceptance. Thus, customs are law from the very inception.
Criticism of Historical School
- Customs have not always been come into force because there was need or necessity of them. Many a time they have been forced by the ruling class of society.
- There are many customs which are very technical and complicated that common conviction might have never thought of them.
- The state being the superior authority have the power to abrogate them.
Reason for recognition of customs
- They are mainly common consciousness of people and thus they should be accepted by the court as an authoritative guide.
- If a custom for a long time has decided rights and liabilities of a person, and created expectations, if it is not opposed by the people it should be accepted by the court
The position of customs in various legal system
Customs played a major role in the legal system of ancient Rome before codification, after the codification of law their importance were decreased as customs became a secondary source of law. Test of reasonableness and antiquity was fixed to make a custom a law.
Most of the law in Smritis and Commentaries are customs. They have given great importance to customs and said that customs should be followed. After British started codification of law, their importance was decreased.
It is said by many jurists that customs were not expressively disapproved by the Prophet Mohamad. It was on the basis of customs that Sunnis interpreted many provisions of law, especially the law of divorce and inheritance.
French system does not give such importance to customs
They have played a major role in molding English law. They are known as ‘Common Law’ in English law. Common law is a customary law and thus they can neither be against God, nor against law of reason, and they are always believed to be good and necessary. The common law according to 19th and 20th-century jurists are “Judge-made law”
Requisites of a valid custom
- Reasonableness: A custom should be reasonable, it should not be against fundamental principles of morality or the law of the state.
- NOT contrary to the statute: A custom should not be contrary to the statutory law of the state
- Ancient: A custom must be from time immemorial.
- Continuous Practice: the custom should be followed continuously without any break. If there has been a long and continuous usage without opposing public opinion or reason, it is wise to not disturb it.
- Peaceable Enjoyment: they must have been enjoyed peaceably. If they are in dispute for a long time, it cannot be said that they originated by consent.
- Obligatory Force: Customs must have an obligatory force. It must have been supported by general public and enjoyed as a matter of right.
- Certainty: A custom must be certain. It cannot be vague and ambiguous
- Consistency: They must not come into conflict with other established customs. There must be consistency among customs. Therefore one custom cannot be opposite of other.
- Followed by the people: A custom will only have value when it is followed by a certain group of people.
Changing role of custom
It has already been told that customs were of great importance before the state came into existence. Before the state. Customs was the only recognized source of law. When the state came into existence, it played a very less role to legislate laws and it mainly recognized most of the customs.
Customs has been recognized more or less in almost all the systems. English common law is the product of a judicial decision of the King’s courts.
It is further to be noted that with the passage of time, Customs have decreased in value. The state took the responsibility to legislate on different matters. Thus legislated laws became the primary source of law and legislation and precedents now have more importance than customs.
Books Referred: Jurisprudence