The primary source of law is custom. It is the sole source of law when there is no direct authority. With the development of the society, customs have been recognized by various legislation and judicial decisions. To study customs, it is desirable to know about origin, nature, meaning, types, and essentials of a custom.
Definition:
Salmond: “Custom is the embodiment of those principles which have commended themselves to the national conscience as principles of justice and public utility.”
Keeton: Customary law may be defined as “those rules of human action, established by usage and regarded as legally binding by those to whom the rules are applicable, which are adopted by the courts and applied as source of law because they are generally followed by the political society as a whole or by some part of it.”
Holland: “Custom is a generally observed course of conduct.”
Carter: “The simplest definition of custom is that it is uniformity of conduct of all persons under like circumstances.”
Allen: “Custom as a legal and social phenomenon grows up by forces inherent in society, forces partly of reason and necessity and partly of suggestion and limitation.”
Austin: “Custom is a rule of conduct which the governed observe spontaneously and not in pursuance of law settled by a political superior.”
Halsbury: “A custom is a particular rule which has existed either actually or presumptively from time immemorial and has obtained the force of law in a particular locality, although contrary to or not consistent with the general common law of the realm.”
Judicial Committee of Privy Council: “A rule which in a particular family or in a particular district has from long usage obtained the force of law.”
Origin of custom:
The prime question lies how customs have emerged. Jurists of different schools have divergent views about it. Holland points out that custom originated in the conscious choice by the people of the more convenient of the two acts. Imitation also must have played an important part in the growth of customs.
According to Vinogradoff: “Social customs themselves obviously did not take their origin from an assembly or tribunal. They grew up by a gradual process in the households and a daily relation of the clans, and the magistrate only came in at a later stage, when the custom was already in operation and added to the sanction of general recognition the express formulation of judicial and expert authority.”
The laws were not made by the King or Sovereign at first. People had a particular way of life and doing things that were, later on, recognized by the sovereign by putting the imprimatur on it. This is how customs got the status of law. With the passage of time vague customs became definite and strong. Once authorized by the King, customs became the rule of law. Salmond says that the importance of custom diminishes as the legal system grows. Customs are considered as transcendental law.
Why is custom binding?
There may be questions as to why customs are recognized as law and why they have the same force as a law. Considering the same, Salmond observed, first, “Custom is frequently the embodiment of those principles which have commended themselves to the national conscience as principles of justice and public utility. The national conscience may well be accepted by the courts as an authoritative guide, and of this conscience, national custom is the external and visible sign.” “Custom is to society what law is to the State.”
Second, “The existence of an established usage is the basis of a rational expectation of its continuance in the future.” If the society has for a long time continued a practice which determined their rights and liabilities, and aroused expectation, and if it is not opposed to public policy or reason, there is no need to remove or amend it. Other logics behind enforceability of custom may be considered as customs are observed by a large part of society and in contemporary need, the same can have the force of law, customs are considered as in the interest of society and going against may hamper the public policy. Paton observes, “Custom is useful to the law-giver and codifier in two ways. It provides the material out of which the law can be fashioned—it is too great an intellectual effort to create law de novo. Psychologically, it is easier to secure reverence for a code if it claims to be based on customs immemorially observed and themselves true even though historically claim cannot be sustained. There is inevitably a tendency to adopt the maxim ‘Whatever has been an authority in the past is a safe guide for the future’.”
Theories regarding when does a custom become a law:
Mainly, there are two theories as to when a custom is transformed into law, i.e. historical theory and analytical theory.
Analytical theory: The likes of Austin, Holland, Gray, Allen, Vinogradoff supported the analytical view of the transformation of a custom into law. Austin says that customs are not law until so declared by the sovereign. Custom is a source of law and a law in itself. To be a ‘positive law’ customs need to be declared so by the court, or, can say, it is not law until it has received the judicial recognition, or it has been embodied in some statute. The customs are not so recognized or backed by the authority are mere ‘positive morality’. ‘when does a custom become law’, Austin answers, ‘when it is declared so by the sovereign’.
Gray says that customs are not law until approved by the judge. “The true view, as I submit, is that the law is what the judges declare; that statute, precedent, the opinions of the learned experts, customs and morality are the source of law; that at the back of everything lies the opinions of the ruling spirits of the community who have the power to close any of the sources; but that so long as they do not interfere, the judges in establishing law have recourse to these sources. Custom is one of them, but to make it not only one source but the sole source of law itself, requires a theory which is as little to be trusted as that of Austin.” Customs are not law until they commend themselves to the reason of the judge and the judge recognizes and embodies them in judgment.
Holland is of the view that customs are not laws per se. customs are not law when they arise but they become law by State recognition.
Historical theory: This concept is backed by Savigny, Puchta. According to them, Declaration or recognition by the state is not necessary for a custom to become a law. Contrary to the views of analytical school, historical school, Savigny says that custom is per se law. A custom indicates that it has arisen due to the urgent need and by the approval of people. “Custom is the badge and not a ground of origin of positive law.’ Putcha views that custom is not only self-sufficient, and independent of legislative authority, but is a condition precedent of all sound legislation. The state is bound to accept customs and cannot reject the authenticity of the same.
Criticism:
The analytical approach has been criticized because it holds half-truth only. All customs are not approved by courts as they do not come into question, the society itself recognizes customs. Courts shape customs, derives raw materials from them but that would be wrong to say that custom is not law until it has been recognized or declared by the sovereign.
The view of historical school is also not correct completely. Customs have not been always arisen out of the needs of people, the imposition of certain rules by the ruling class has also resulted in the transformation of custom into law. The historical school also neglected the role of judges and lawmakers as they are relevant in the contemporary world.
To be continued…….
Books referred: 1. Mahajan, V.D., Jurisprudence and Legal Theory, Eastern Book Company, Lucknow, 2016. 2. Tripathi, B.N. Mani, Jurisprudence(Legal Theory), Allahabad Law Agency, Faridabad, 2015.
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