Read Sources of Law: Meaning and Classification
Essentials of a valid Custom:
All the customs are not approved in judicial interpretation. There are some conditions which must be fulfilled for recognition. These requisites have been laid down by Blackstone, Allen, Carter, Littleton, etc. They are:
Antiquity:
To be a law, a custom must be in existence from time immemorial. Blackstone says, “A custom, in order that it may be legal and binding, must have been used so long that the memory of man runneth not to the contrary. So that is anyone can show the beginning of it, it is no good custom.” The question lies here that what is that exact time when a custom may be called an antique. The English rule is that a custom must have originated prior to the year 1189, the year in which the reign of Richard started. However, this arbitrary time limit has not been accepted all over. The legal fiction considers human memory to extend for approximately 800 years. So where the origin of the custom is known at 800 years back it’ll be a valid custom but when the origin cannot be ascertained, it must have come into existence before 1189. The Indian law does not consider a fixed time for antiquity. In Baba Narayan v. Saboosa[i], Sir George Rankin observed, “In India, while a custom need not be immemorial, the requirement of long usage is essential since it is from this that custom derives its force as governing the parties’ rights in place of the general law.”
Conformity:
Custom and a statutory law should not be in conflict with each other. A state can nullify a custom by an enactment and not vice versa. According to Coke, “No custom or prescription can take away the force of an Act of Parliament.” This view has been highly questioned by many writers. Their view is that legislation and custom stand equal. According to Allen, “Age cannot wither an Act of Parliament, and at no time, so far as I am aware, has it ever been admitted that a statute might become inoperative through obsolescence.”
Bernhard Windscheid says, “The power of customary law is equal to that of statutory law. It may, therefore, not merely supplement but also derogate from the existing law. And this is true not merely of rules of customary law inter se but also of the relations of customary law to statute law.”
Continuity:
A custom must have been in use continuously without any interruption or disturbance. If there has been a considerable gap of time in the practice of a custom, it may be presumed against the existence of the custom.
Consistency:
Other established customs are not hampered by a custom; this is one of the most important requisites of a valid custom. One custom cannot be established by opposing to the other custom.
Reasonableness:
A tough task to judge a custom lies in examining the reasonableness of a custom. The custom must be useful, convenient to the larger section of society. The rule regarding reasonableness, according to Allen is, “not that a custom will be admitted, if reasonable, but that it will be admitted unless it is unreasonable.” The unreasonableness of the custom needs to be proved and not the reasonableness. The idea is that a custom must not oppose ‘public policy’.
Peaceful Enjoyment:
There must be a peaceful enjoyment of a custom. If a custom is in question for a long time, it loses the presumption that there was consent in the origin of that particular custom.
Obligation:
The observation of a custom must be obligatory for the society. If there exists an option, it would be ineffective. The general public opinion must consider it as a matter of right. A custom to be unreasonable, it must be proved that it is opposed to reason.
Certainty:
Certain and definite customs are accepted in the court of law. A vague or indefinite custom cannot be recognized. Like the rule of evidence, there must exist a clear proof that a custom was in operation and not a mere presumption can uphold a custom.
Universality:
A custom must be universally accepted in the society, it must be general in nature. Carter writes, “Custom is effectual only when it is universal or nearly so. In the absence of unanimity of opinion, custom becomes powerless, or rather does not exist.”
Kinds of Customs:
Custom may be divided into two kinds, i.e. i) customs without sanction, and ii) customs with sanction.
Those customs which are non-obligatory are customs without sanction. They are backed by public pressure. Austin called such customs as ‘positive morality’.
Customs enforceable by State are customs with sanction. They are of types-
- Legal Customs- They are binding rule of law having absolute legal authority. They are recognized by courts and are a part of the system. There are two classes of legal customs: i) general custom, prevailing throughout the territory of the State and ii) local custom, having application in a defined locality or sect, viz. to a district, to a town, to a village, to a family, etc.
- Conventional customs- The customs which govern the parties to an agreement are known as conventional customs. They are backed not by the law of the land but because of the express or implied incorporation of the contract between the parties.
Conclusion:
The custom was the only source of law in the primitive society. The society kept changing and the so did the sources. The relevancy of customs came down and other means such as courts’ judgment, enacted laws started to prevail. Though customs are now a part of our enacted laws, a major portion of customs are still uncodified. The Courts and the Parliament have a huge task to filter those aged customs and take whatever suits the needs of the modern world.
[i] 1943) 2 MLJ 186
Books referred:
- Mahajan, V.D., Jurisprudence, and Legal Theory, Eastern Book Company, Lucknow, 2016.
- Tripathi, B.N. Mani, Jurisprudence(Legal Theory), Allahabad Law Agency, Faridabad, 2015.
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