Topics to be covered: Custom as a source of law

Custom as a Sources of Law.
Definition of Custom.
Essentials of Custom.
Case Laws.
Classification of custom.
Historical Theory on Custom.
Criticism.
Analytical Theory on Custom.
Criticism

Custom as a source of law:

Main Sources of Law:

Legislation (Statutory Law)
2.Precedent (Case Law / Judicial Decisions) ( past judicial decisions, especially by higher courts., Doctrine of Stare Decisis).
Customary Law (Customs and Traditions) (Unwritten practices followed by society for a long time).
Constitutional Law (Indian Constitution, USA Constitution)

What is Custom:

A custom is a long-established practice or usage that has gained the force of law in a particular locality.
The word ‘custom’ is derived from an old French word ‘Costume’.
Some says that the word ‘custom’ is based on Latin word ‘Consuetudo’.
In Hindi the word ‘custom’ means ‘reeti’,‘vyavahar’,‘rasm’, or ‘riwaj’.

Allen – ‘custom as the uniformity of habits or conduct of the people under like circumstances’.
Salmond: -custom as those principles that are acknowledged and approved not by the power of the state, but by public opinion of the society at large.
Holland: – He defined custom as “a generally observed course of conduct.”
Austin: – According to Austin, “custom is a rule of conduct which the governed observe spontaneously and not in a pursuance of law set by a political superior”.
Harprasad v. Shivdayal:- In this case the judicial committee of the Privy Council observed, custom as a rule which in a particular family or in a particular district or in a particular sect, class or tribe, has from long usage obtained the force of a law.

Essentials of a valid Custom:

1. Reasonableness

Meaning: The custom must be reasonable and not arbitrary or opposed to public policy.
Explanation: It should not cause harm to society or violate principles of justice, equity, and good conscience.
Example: A custom where a widow is forced to marry her husband’s brother (without her consent) is unreasonable and cannot be recognized as a valid custom.

2. Antiquity (Long Usage)

Meaning: The custom must have existed for a long time without interruption.
Explanation: It should be ancient, meaning that its origin is not recent and has been practiced for a considerable period of time.
Case Law:
- Collector of Madura v. Moottoo Ramalinga Sethupathy (1868) – The Privy Council held that the custom must be ancient and immemorial.

3. Continuity (Uninterrupted Usage)

Meaning: The custom must have been practiced continuously without any interruption.
Explanation: If the custom was broken or discontinued at any point, it may lose its validity.
Example: If a community practices the custom of community feast every year, but it was discontinued for 20 years, the custom may become invalid.

4. Certainty

Meaning: The custom must be clear, definite, and certain.
Explanation: The rules and practices followed in the custom should not be vague or uncertain.
Example:
- A custom stating “women should not wear ornaments in some festivals” is certain.
- However, a custom stating “women should not wear ornaments sometimes” is uncertain and hence invalid.

5. Compulsory Observance (Binding Force)

Meaning: The custom must be obligatory and binding on the community.
Explanation: People in the community should follow the custom voluntarily without opposition.
Example: In rural areas, it is a custom for the bride’s family to offer a feast to the groom’s family after marriage. If everyone in the community follows it, it becomes binding.

6. Consistency (Uniformity)

Meaning: The custom must be uniformly followed without any contradiction.
Explanation: It should be observed in the same manner and applied consistently.
Example: If a community has a custom of inheritance passing to the eldest son, it must always be practiced in the same manner without any variation.

7. Conformity with Law and Morality

Meaning: The custom must not conflict with statutory laws or principles of morality.
Explanation: Any custom which contradicts existing laws or promotes immorality is not valid.
Example:
- Sati Practice was declared illegal despite being a custom.
- Child marriage customs were also banned by statutory laws.

8. General Acceptance (Recognition)

Meaning: The custom must be generally accepted by the society or community.
Explanation: A custom can only be recognized as valid if it has social acceptance and is followed without opposition.
Example: The custom of dowry may exist, but it is opposed by the law and society, making it invalid.

9. Peaceful Enjoyment

Meaning: The custom must be practiced without any dispute or controversy.
Explanation: There should be no frequent disputes regarding the custom in the community.
Example: If two sects within a community are constantly fighting over a custom, it may not be considered valid.

10. No Conflict with Statutory Law

Meaning: The custom should not contradict any existing statutory or codified law.
Explanation: If the Parliament has passed a law on a particular subject, any custom contradicting it will become invalid.

Case Laws:

Collector of Madura v. Moottoo Ramalinga Sethupathy (1868)
Custom must be ancient, certain, and continuous.

Bai Basu v. Bai Gulab (1907)
Custom must not be opposed to public policy.

Mathura Naikan v. Esu Naikan (1923)
Custom must have binding force.

Thakur Gokalchand v. Pravin Kumar (1952)
Custom must be reasonable and not opposed to statutory law.

Classification of Custom:

Legal Custom (Binding Custom)

1. Legal Custom (Binding Custom)

Meaning: A legal custom is a custom recognized and enforced by the court of law as law.
Binding Nature: This custom has legal binding force, which means it can be enforced in the court of law.
Recognition: It exists independent of any agreement between the parties.
Example:
- Inheritance of property according to customary laws in certain tribes.
- Muslim Personal Law regarding marriage, divorce, and inheritance.

2. Conventional Custom (non binding custom)

2. Conventional Custom (Non-Binding Custom)

Meaning: A conventional custom is a custom that derives its force from the agreement between the parties.
Binding Nature: It is not legally binding unless the parties agree to follow it.
Agreement-based: This custom becomes valid only when both parties agree to abide by it.
Example:
- Trade Customs like returning goods within 30 days without explanation.
- Marriage customs like dowry (although legally invalid but still practiced).

Theories on Custom:

Historical Theory: Custom as a source of law

The main exponents of this theory are Karl Von Savigny, his disciple Puchta, Blackstone, and Sir Henry James Summer Maine.
The Historical Theory of Custom was mainly propounded by Friedrich Karl Von Savigny (1799-1861).
Savigny and Maine emphasized that custom is the true source of law, and legislation is only secondary.
According to the Historical Theory of Custom, law is not created but evolved from customs, traditions, and social practices
In a progressive society, law develops naturally from custom and becomes enforceable only when recognized by the State.
Law is Not Created, It Grows Naturally (Law is Evolutionary)

Marriage rituals like Saptapadi (7 steps around fire) were originally customs but later became law under the Hindu Marriage Act, 1955.

Custom is the Real Source of Law (Custom Precedes Law)

The custom of Karta (Head of Family) in Hindu Joint Family was not created by legislation but evolved through customary practices.Later, courts recognized Karta’s powers as legal rights under the Hindu Succession Act, 1956.

Law Develops With Society (Law Evolves) (Dowry, child marriage)

Custom Becomes Law When Recognized by State (State Recognition)

Criticism of Historical Theory on Custom:

The theory ignores the importance of modern legislation in making laws.
It does not recognize the role of courts in creating new laws.
Relying solely on custom slows down legal development.
In fast-changing societies, laws cannot rely solely on old customs.
“The growth of most of the customs is not result of any conscious thought but of tentative practice”~ Paton

Analytical Theory:

Positive Theory of Custom.
John Austin, Jeremy Bentham, H.L.A Hart, Hobbes, Gray-main propounder.
custom is not law in itself, but it is a source of law.
“A custom does not become law until it is recognized and enforced by the sovereign (State or Court).”
Custom itself is not law.
The State is the supreme authority to decide which custom should be enforced and which should not.
Without State recognition, custom has no legal force.
John Austin (Main Propounder): Custom is not law unless it is recognized by the State. Law is the command of the sovereign, not custom.
Jeremy Bentham: Custom has no legal force without state recognition. Only the State can convert custom into law.
H.L.A. Hart: Custom without state recognition is just a social habit, not law. Once recognized, it becomes binding law.
Thomas Hobbes: Law comes from the sovereign’s command, not from custom. Custom only becomes law when accepted by the sovereign.

Criticism of Analytical Theory on Custom:

Neglects Social Importance of Custom
Excessive State Power

“Customs grow by conduct and it is therefore, a mistake to measure its validity solely by the element or express sanction accorded by courts of law or by other determinate authority”-Allen.