Custom can simply be explained as those long established practices or
unwritten rules which have acquired binding or obligatory character. In ancient
societies, custom was considered as one of the most important sources of law; In
fact it was considered as the real source of law. With the passage of time and
the advent of modern civilization, the importance of custom as a source of law
diminished and other sources such as judicial precedents and legislation gained
importance.
There is no doubt about the fact that custom is an important source of law.
Broadly, there are two views which prevail in this regard on whether custom is
law. Jurists such as Austin opposed custom as law because it did not originate
from the will of the sovereign. Jurists like Savigny consider custom as the main
source of law. According to him the real source of law is the will of the people
and not the will of the sovereign. The will of the people has always been
reflected in the custom and traditions of the society. Custom is hence a main
source of law.
There are different and divergent views regarding custom, as a source of law. As
per the historical school of jurisprudence, law is essentially the product of
normal forces associated with the spirit of each particular people and nothing
is more representative of these revolutionary processes than the autonomous
customs which are found to exist in each community, and which are indigenous as
its flora or fauna. Custom carries it own justification in itself because it
would not exist at all unless some deep seated need of the people or some
quality of temperament gave rise to.
Customs can be broadly divided into two classes:
These kinds of customs are non-obligatory in nature and are followed because of
public opinion.
These customs are binding in nature and are enforced by the State. These customs
may further be divided into the following categories:
Legal custom is a custom whose authority is absolute; it possesses the force of
law. It is recognized and enforced by the courts. Legal custom may be further
classified into the following two types:
These types of customs prevail throughout the territory of the State.
Local customs are applicable to a part of the State, or a particular region of
the country.
Conventional customs are binding on the parties to an agreement. When two or
more persons enter into an agreement related to a trade, it is presumed in law
that they make the contract in accordance with established convention or usage
of that trade. For instance an agreement between landlord and tenant regarding
the payment of the rent will be governed by convention prevailing in this
regard.
All customs cannot be accepted as sources of law, nor can all customs be
recognized and enforced by the courts. The jurists and courts have laid down
some essential tests for customs to be recognized as valid sources of law. These
tests are summarized as follows:
In order to be legally valid customs should have been in existence for a long
time, even beyond human memory. In England, the year 1189 i.e. the reign of
Richard I King of England has been fixed for the determination of validity of
customs.
A custom to be valid should have been in continuous practice. It must have been
enjoyed without any kind of interruption. Long intervals and disrupted practice
of a custom raise doubts about the validity of the same.
Custom must be enjoyed openly and with the knowledge of the community. It should
not have been practised secretly. Acustom must be proved to be a matter of
right. A mere doubtful exercise of a right is not sufficient to a claim as a
valid custom.
A custom must conform to the norms of justice and public utility. A custom, to
be valid, should be based on rationality and reason. If a custom is likely to
cause more inconvenience and mischief than convenience, such a custom will not
be valid.
A custom which is immoral or opposed to public policy cannot be a valid custom.
Courts have declared many customs as invalid as they were practised for immoral
purpose or were opposed to public policy.
In any modern State, when a new legislation is enacted, it is generally preferred to the custom. Therefore, it is imperative that a custom must not be opposed or contrary to legislation. Many customs have been abrogated by laws enacted by the legislative bodies. For instance, the customary practice of child marriage has been declared as an offence.
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