Custom as a Source of Law

Abstr correspond The following article tries to establish the point that the habits atomic number 18 the well(p) about important offset of practice of right. It defines tradition and gives learning about its types and what atomic number 18 the requisite of a validated consumption, how are they recognise and why are they recognised? In ancient days the conventional righteousnesss were the wholly laws as they were consecrated by the peck. With the passage of clipping and modernization of society the useary laws are seen as orthodox laws and are immobile receding to the statutory laws, barely still the laws that are passed by the fantan has its root in the usanceary laws page Electronic copy purchasable at http//ssrn. com/abstract=1958646 Custom occupies an important role in convention of human conduct in almost tout ensemble the societies. In event it is bingle of the oldest sources of law making, though only when a few people are in all likelihood t o concur with the classical Greek poet Pindars maxim, Custom is the king of all. A custom may be delineate as a continuing course of conduct which by the assent of express approval of the community observing it, has come after to be regarded as fixing the norm of conduct for members of society 1.At its inception the English roughhewn law derived all its recovers from a single source. Sir Carleten Kemp Allen nones 2 Blackstones general impost and customs of the realm are those fundamental principles in legal descent which for the most part are non to be found in any express formulation, but are assumed to be essential in our social arrangements. These are, in short, the joint law itself . Salmond is of the opinion that custom embodies those principles which are acknowledged and approved, not by the power of the state but by the humanity opinion of the society at large.Thus he states custom is the embodiment of those principles which cede commanded themselves to the nati onal conscience as principles of justice and public utility 3. Jhon Austin was of the view that no folkway regardless of the fact how value it is or how much is it followed ripe(p) deal influence the law. He was of the view that only those conventions and folkways recognized by the sovereign through several(prenominal) discriminative act or legislative disposition might be certified as a customary source of law. Kinds of Custom 1. Conventional customIt is an established practice whose authority is conditional based on its acceptance and incorporation mingled with the parties bound by it. When two parties enter into a contract slackly all the terms of the contract are not set expressly and a large part of it is implied. The intention of the parties entering into an agreement can be gathered by the customary law general at that m The convention custom has three wooden legs of development. In the first stage it should have attained the status of usage. In the second stage i t gets deferred payment through some juridic decision, and presumes the form of a precedent.After this it is finally real as a statutory law. 1 Dias & Hughes Jurisprudence,(1957) p. 34 2 Allen C. K. honor in the making 3 Fitzgerald P. J. Salmond on jurisprudence 2 knave Electronic copy available at http//ssrn. com/abstract=1958646 The first fragment of the Indian contract act, 1872 recognizes the customs that are prevalent in the craftiness Legal Custom These are those which are operative per se as binding incurs of law independent of any agreement between the parties. These, are of two types 3 Local CustomHalsburys defined local custom as a crabby rule that has existed actually or presumably from time immemorial(postnominal) and has obtained the mightiness of law in a particular locality although contrary to or not consistent with the common law of the realm. 4 So it can be said that a local custom prevails in a small locality. Bigamy in India is allowed in some trib al parts on account of the local custom prevalent at those places. General Custom A general custom prevails end-to-end the country and is the master(prenominal) source of the common law of the country.The custom of prohibiting the remarriage of widow woman in most of the communities of India, before its abolition was a general custom in the country. A general custom is prevalent is usually beneficial by all the people living in the country, and is practiced end-to-end the land. There were umpteen customs but it is not necessary that all are the customs are accepted. For the customs to be accepted as a valid customs it should have some requisite characteristics 1. information A custom must be reasonable.It must be understand that the authority of any custom is never absolute, but it is authoritative provided it confers to the norms of justice and public utility. A custom shall not be valid if it is unsuitable to right and reason and is like to do more mischief than good if e nforced. The true rule seems to be not that a custom to be admitted if reasonable but that it bequeath be admitted unless it is unreasonable. The custom of recognizing the channel of the river or the stream as the boundary between two villages irrespective of the interchange in the path cannot be said as unreasonable and therefrom it was held as a valid custom 5. Halsbury Laws of England, Vol. X. p. 2 5 repulse Dhan Lal v. Radhey Shyam, 1951 SCR 370 3Page 2. Consistency A custom to be valid must be in conformity with statutory law. In opposite words it must not be against any act of Parliament. A custom should necessarily yield where it is against any law, but in many cases there can be some exception to the law or some modifications can be made to it due to any custom. 3. requisite Lords Supper A custom to be legally recognized as a valid custom must be ascertained as a right.It essence the custom should be followed by all have-to doe with without the use of force. It must be regarded not only an optional rule but as an obligatory rule or binding rule of conduct. If a custom is left to the choice of the individuals, then it is not a costmary law. If the observance of a custom is suspended for certain time than it is assumed that the custom was never in existence 6. 4. Continuity and immemorial Antiquity A custom to be valid should have been in existence from time immemorial.To quote Blackstone A custom in order of magnitude to be legal and binding, must have been used so enormous that the memory of man runneth not to the contrary, if anyone can show the beginning of it, it is no good custom 7 English law has made an irresponsible limit to the legal memory. It has been fixed as 1189 A. D. the year of accession of might Richard 1 to the throne which means, if any custom has its roots back to 1189 AD or backwards would be regarded as a valid custom. This time limit was applied in the case of Simpsons v. Wells 8. However in India the limit of 1189 A . D. is not valid 9.In India no definite year has been laid down to determine the antiquity of a custom. It need not to be beyond human memory 10. 5. Certainty Not only a custom should be practiced from time immemorial but, it should also be observed continuously and uninterruptedly with certainty. A custom cannot said to be valid from time immemorial unless its certainty and continuity is proved beyond doubt. Theories regarding transformation of custom into law Customary law has not only been established by legislatures or professionally trained judges, but it has come into existence because of popular acceptance and practice.There are two popular theories in this regard (1) Historical theory and, (2) Analytical theory 6. Hamperton v. Hono, (1876) 24 WR 603 7. Blackstone Commentaries, p. 76 8. (1872) 7 QB 214 9. Gokul Chandra v. Praveen Kumari, AIR 1952 SC 926 10. Mst. Subbhani v. Nawab, ILR 1947 PC 21 4Page 1. Historical Theory The main components of the historical theory school , namely, Savigny, Blackstone and Henry Maine have suggested that law has its existence because of the common consciousness of the people and the customary observance is not the cause of law but the evidence of its existence.Savigny observed, customary laws alone modify or repeal a statute it may create a new law and substitute it for statutory rule which it has abolished. Maine regarded custom as formal source of law. James Carter also supports historical view and is of the opinion that What has governed the conduct of men from the beginning of time will insure to govern to the end of time. Human nature is not likely to undergo radical change and law will forever continue to be custom11. Criticism Dr.Allen points out that all the customs cannot be contributed to the common consciousness of the people. For instance, a ruling class quite ofttimes imposes custom on the governed. It does so for its own interests rather than the interest of the people. The customs in India such as un touchability cannot be contributed to any kind of common consciousness. Therefore any custom cannot be a source of law it should not be again public sentiments. 2. Analytical Theory The main supporter of analytical theory is John Austin who regarded custom as a historical material source.He points out that custom derives its binding force not from its own nature but by state legislation. It means custom becomes a law when it is adopted by an act of parliament or its validity has been established by any judicial decision. He further states that custom only has persuasive value. Customary practices have to be recognized by court before it can become law. being of persuasive nature it is recognized as historical material source of law. Austin thus concludes that Customary law is nothing but judicial law founded upon anterior system. 2 Criticism Dr. Allen has criticized Austinian theory of customary law and pointed out that the fallacy of the Austinian doctrine is in supporting that c ustom is not law until it has been so pronounced by a court. He observed that the truth is exactly the reverse of it. According to him, custom is firstly and basically a law. Custom is enforced by courts because it is already a law, it does not become a law only on enforcement of court. 13 11 Carter James Law, its Origin, Growth & Function, p. 20 12 Austin Province of Jurisprudence, (1945) p. clxv 13 Allen C. K. Law in the making, pp 84 5Page polish Of all the various sources of law The Customary Laws are definitely the most significant source of law. In the ancient days in the absence of any legislative laws the customary laws were only the prevalent law. These are genuinely important as these are already followed by the people and it is the in truth reason why many of the customary laws are even recognized today. These customary laws had the approval of the public opinion.There is no doubt that with the development of the judicial process and with the modernization of the soc iety, the importance of custom is receding. When states came into existence they immediately gave intelligence to the customs prevailing at that time and thus they were recognized as valid laws. But with time customary laws have receded to the statutory laws. The laws relating to exchange of goods, inheritance of property, succession, property, contract, sale of goods etc. have all evolved from the customary laws. The systemise Hindu laws are nothing but the codification of the prevalent customary laws with some exceptions.It would be wrong on the part of any one to say that the customary laws need recognition from the court. The customary laws are unendingly recognized since they are always in practice. Most of the customary laws that were just in nature and were good for the society have been recognized by the parliament or the court. These laws can be sometimes invalidated if it appears that these are against the public policy and justice. One of the most important reasons wh y the customs are important source of law is that it that it is highly practiced in the society.So, if any new law is made that is contrary to the practiced customs and traditions, will not be accepted by the society. This may course to chaos and anarchy in the society. So any law that is passed takes into thoughtfulness the customs and traditions prevalent in the society at that time. The state by its legislation only validates the existing customs. It may in some exceptional(a) cases also modify or nullify some of the customs if it is for the eudaimonia of most of the people of the society. So in this way the state makes laws principally based on the customs that are good for the society 6Page