Custom as a Source of Law
Authored By- Ayushi Patil
Keywords- Custom, Law, Legal
Custom plays a major source of law under the Indian legal system. The constitution defines law to include custom. There are various tests conducted to ensure whether it is a valid custom or not all the essentials of valid customs are explained in the article which includes immemorial antiquity, reasonableness, continuity, peaceful enjoyment, certainty, morality it makes custom valid. It remains the main point in struggling between official law and traditional law. The article features custom as a source of law. It shows the importance of customs in law. This article showcases the importance of custom in law. The meaning and definition of customs are described in the article. Also, the classification of the custom has been explained in simple words. The article also includes an introduction, conclusion, case laws, and references from where the research has been done.
In ancient times when there were no codified laws, the people were governed by the terms of customs. The customs were followed by all the communities as it was enforced and implemented in each community. Hence, custom is known as a source of law because of the value and importance they have in the historic periods. As there was a time where there were no codified laws and many questions rose in one’s mind about how to regulate? And hence they came up with customary law which helped them to govern the area. Custom has been made by many legal advisers according to their idea, theories, views, and beliefs. It occupies an important place in regulation of human conduct with the development of society. It was created by people on certain rules and solutions for the problems. It is the oldest source of making law. Custom as a source of law includes the study of aspects of its classification, theories, and essentials of valid customs. It is a basic cultural idea that is analysed by way of behavior and life of a social system that maintains the balance of peace in society.
Meaning of custom
The word ‘custom’ is derived from the French word ‘costume’; also it is based on the Latin word ‘consuetudo’. In Hindi, custom means reeti, riwaj, or rasm. The custom means procedure, ceremony, formality, ritual, manner, the mode also it can be called an unwritten rule. Hence, it has several meanings. It means practice or a repeated practice to any particular place or a class. It is usages or conventions to regulate social life. It is a tradition passing from one generation to another. It includes the mode of behavior or habits established in the way of doing things. It is a continuous course observed voluntarily by the people concerned. Custom is adopted by the court to make law and fulfillment of certain conditions because it is made by legal sense and rules of human conduct. According to Salmond, “custom is the embodiment of those principles which have commended themselves to the national conscience as principles of justice and public utility”.
Classification of Customs
1. Custom without Sanction: There are customs that are non-obligatory. These customs are observed due to the presence of public opinion. It is referred to as positive morality. These are non-directory they all together can be seen because of the nearness of public and followed due to the pressure of the society.
2. Custom with sanctions: Custom which is enforced by the ruling body, dealing with law and enforced and implemented by the state. Further, these customs have been classified as follows:
(i) Legal custom: The customs which are legal authority, are absolute and unconditional and operates binding rule of law are legal customs. They are recognized by the court and become a part of the law. It works as the coupling rule of law. It is again classified as under:
a) Local Custom: Local custom is implied in the district, town, or an area but not on geographical locality. Local custom also defined locality. Families take their customs with them wherever they go. It can be classified into geographical customs and personal local customs. A local custom should be sustained, reasonable, continuous, and permanent. Local custom can be called a place culture practiced in the locality.
b) General customs: A general custom is constituted throughout the nation. It likewise fulfills certain conditions and must be sensible, pursued, and acknowledged as an official with resolution law of the nation and must be in presence from the time immemorial. It must be reasonable, followed from ancient times, and accepted as binding.
(ii) Conventional customs: These customs are considered as legally binding and established usage. It is an incorporated and expressly implied contract. It must be shown that convention is established and parties are aware. The period is not fixed before the convention and cannot alter the general law of the land. It must be reasonable.
Essentials of valid customs
In order to enforce a valid, there are terms that will qualify as a valid custom. If the requirements are fulfilled then only the custom is considered as valid law. As custom in unwritten law, it cannot be legally enforced so it has to be proved before a court that contains judicial test.
1. Immemorial Antiquity: It must not be a recent origin it should be immemorial old or ancient so that it may be considered as a valid binding custom. The reason behind not enforcing a modern custom is that then many customs would become law. Law adopts sufficient methods of protection against development to keep force and power that modern law and unreasonable custom should not be accepted. In Thakur Gokalchand v. Parvin Kumari the court ruled and denied the validity of custom from 1189 AD that it must be ancient and historical times.
2. Reasonable: To consider legal binding the custom must be within bounds of reason. It would be considered unreasonable if principals of justices, good conscience and equality are neglected. It should be advantageous and helpful to the general public. When it is against fundamental guidelines it is viewed as adequately reasonable. It must not be unreasonable. If anyone opposed to be unreasonable it must satisfy the court that custom is not unreasonable. The reasonableness should not be judge by the modern view. In Robinson v. Mollett stated that the test should be even more broadly it should be in accordance with fundamental principles of right and wrong.
3. Continuance: The custom must be followed in consistency and continuity the court would have discretion to get the custom annulled. It should be continuously observed without any interruption. In case Muhammad Hussianforki v. Syed Mian Saheb it was stated that unless there is continuity there is no custom.
4. Certainty: The most important valid and essential custom is that a particular custom must be specific and less from ambiguity. If it is not understandable by the public then the particular custom will be declared void by the court and same was ruled in case Wilson v. Wilson
5. Compulsory Observance: If it is been observed since ancient times without any interruption and considered by people then the custom is considered valid. It must be observed as a right. If the custom observance is suspended for long time it should be assumed that custom was never in existence.
6. Public Morality: A custom must not be against public policy. If it is opposed to the public policy it will not be considered a valid custom. It is valid if not contrary to justice, equity or good conscience or opposed to public policy. It should be in conformity with the law.
7. Juridical Nature: The custom must be juridical in nature and must refer to legal relations. It must be based on any rule of right and not amount to a legal custom.
8. Consistency: There should be consistency between customs. Customs opposing viewpoints cannot be considered valid. It should not be contrary to statutory law. It should respect legal efficiency and customary law.
9. Peaceable Enjoyment: Where everyone follows and enjoys the custom in a peaceful manner then only it will be considered as valid. Customs must be enjoyed peacefully. It is necessary to enjoy the custom without any disturbance or contest. It was not based on the general consent of the people but based on the habit and undisturbed existence of the custom.
The customs played a vital role in the early stage of society. The customs lay all the legal system. They came into existence with the society. Custom is a set of rules practiced by the people and it is a valid source of law. The requisite of valid custom includes immemorial antiquity, reasonableness, continuity, peaceful enjoyment, certainty, morality it makes the custom valid. It was trailed by the general population from immemorial time. It established a lawful framework with continuous practice with regard to society.
 1952 SCR 825  (1875) LR 7 HL 802  (1942) 1 MLJ 564   SLR 1_224