Custom as a Source of Law

Customs exist in every society and form an integral part of the societal values and obligations. It’s a habitual course of conduct not only having importance in social life but also the legal jurisprudence. The voluntary observance of customary rules by the general population makes it more adaptable in society.  Its legal utility can be understood by examining its validity based on judicial tests laid down by scholars and courts. Custom as a source of law has been studied by different schools of jurisprudential thought explaining various views of the exponent jurists.

Introduction

Law has acquired its present form by developing throughout many years and centuries. The origin of law can be traced back to various sources from which it derives its validity. The term sources of law may refer to the practices and authorities from which the laws derive their force making it binding. Sources of law form a very important part of legal Jurisprudence. The legal definition of Source of Law provided by Merriam-Webster is something (as a constitution, treaty, custom, or statute) that provides the authority for judicial decisions and legislation.[1]

The sources of law can be classified into two heads that is formal sources and informal also known as material sources. The former type contains sources from which law derives its validity like the will of the sovereign, the will of people, will of the state, and judicial decision of courts. According to Salmond, Material sources are those sources from which law derives its matter. The material sources are further divided into Legal material sources and Historical Material sources.

The legal sources are authoritative sources recognized by the law itself which include Legislations, Judicial Precedents, Customs, and Treaties. And the historical sources are unauthoritative sources that lack formal recognition and binding value. These are mere historical significance and help us in understanding the development of law. It includes religion, morality, opinion of jurists and scholars, beliefs, and local traditions.

Meaning of Custom as a source of law/Customary Law.

Customs mean practices that governed the general code of conduct and every way of acting, thinking, and believing in people in primitive times. It was usually and widely accepted by particular communities, localities, or society as established ways of doing things at a particular time. Custom is defined variously by several jurists and sociologists. In the sociological view, custom may be defined as a cultural idea that describes a regular, patterned behavior, regarded as a characteristic of life in a social system. The ways of greeting people, manners of worshipping god are considered some examples of customs persisting in a society. These cultural norms differ from society to society and hold great importance.

Definitions of custom in Jurisprudence:

John Salmond says, “Custom is frequently an embodiment of those principles which have commended themselves to the national conscience as principles of justice and public utility.”[2]

For Salmond, a valid custom is backed by the absolute authority of law which is a force of law in itself. He divides it into two types:

General Custom – A general custom enjoys the force of law throughout the territory of a state, just like the Common Law in England.

Local Custom – The local customs operate in a particular locality and enjoy the force of law in that society only. The local custom has higher authority than the general custom.

Definition by C K Allen – “As a legal and social phenomenon growing up by forces inherent in society—forces partly of reason and necessity, and partly of suggestion and imitation.”[3]

Edward Sapir, an American anthropologist-linguist described that custom is  “is used to apply to the totality of behavior patterns which are carried by tradition and lodged in the group, as contrasted with mere random personal activities of the individual.”[4]

John Austin, a jurist belonging to the Analytical School of law viewed everything in terms of the political superior (sovereign) as the ultimate authority or the source of law. Thus he defined custom as “a rule of conduct which the governed observe spontaneously and not in pursuance of law settled by a political superior.”[5]

According to Section 3(a) of The Hindu Marriage Act, 1955, the term “custom” signify any rule which, having been continuously and uniformly observed for a long time, has obtained the force of law among Hindus in any local area, tribe, community, group or family. But the rule should be certain and not unreasonable or opposed to public policy, and further in case of a rule applicable only to a family it should not be discontinued by that family;

Essentials of a valid custom

 Following are the essentials of a valid custom:

  • Ancient / Antiquity: Custom must be long-standing practices, that is, they must be followed from times immemorial and have been observed for a long time. In India, the courts decide the question upon a custom on its antiquity based on the circumstances of each case. Though Hindu Law does not fix any particular period to judge the antiquity of a custom English Law has the fixed year 1189 A.D. (accession of Richard – I) to determine the antiquity of a custom.
  • Opinio necessitates / Compulsory Observance as a Right – It is the second requisite of a valid custom. Opinio Juris, a shortened phrase frequently used in legal proceedings, of the Latin maxim opinio juris sive necessitatis, which means “an opinion of law or necessity” is the belief that an action was carried out as a legal obligation. Opinio Juris denotes a subjective obligation, a sense on behalf of a state that it is bound to the law in question.

A component of international law known as customary international law refers to international obligations arising from established international practices. It results from a general and consistent practice of states that they follow from a sense of legal obligation and opinio juris is the second element necessary to establish a legally binding custom. The International Court of Justice reflects this standard in ICJ Statute, Article 38 by reflecting that the custom to be applied must be “accepted as law”. As with customary international law, opinio juris is an unsettled and debated notion in international law. [6]

  • Continuity and Uniformity: The validity of custom is also determined by its characteristic of being followed continuously for a longer time. It must also be uniformly applicable to the places where it is observed. If a custom is discontinued for a time and then comes into force again, such custom will be presumed to never exist at all. From the fact that a custom must be uniform, it follows that it must be consistent. Consistency implies solidarity between customs existing together at a time. 
  • Reasonableness – A custom to have a force of law must be reasonable, that is it must be rationally accepted by a prudent man. In the words of Sir John W. Salmond “The true rule is that custom, to be deprived of legal efficacy, must be so obviously and seriously repugnant to right and reason, that to enforce it as the law would do more mischief than that which would result from the overturning of the expectations and arrangements based on its presumed continuance and legal validity.” 
  • Certainty: A custom should be certain and definite in regards to nature, applicability, and acceptability. It should not be vague or uncertain. When the validity of custom is questioned it should be able to answer affirmatively in the aspects of being followed in its true essence, its applicability over people of such locality, and its conformity.
  • Adherence to the law of the land: The custom, which is in operation in a particular society, must be in compliance and conformity with the legal and constitutional principles existing in that society. The rule of the law of the land is considered to be of utmost significance and is upheld by the courts. If the custom is contrary to the principles laid down in the Constitution, it must be dispensed with. The most famous example of this essential is the practice of Triple Talaq among Hanafi Sunni Muslims.
  • Not opposed to public policy, morality, or express enactment: A custom which hinders morality or peace, or is against public health and safety cannot claim its validity on the above grounds as well. Also, it must not be expressly prohibited by any statute or enactment. The question of judging the morality of custom is left to the conscience of court keeping in mind the needs of the society. There is no such restricted formula to test the morality of custom; the court adapts itself to the standards of morality of the community, section, tribe or society to which the custom is sought to apply.

In the case of Balusamy Reddiar v. Balkrishna Reddiar,[7] the Madras High Court observed that a marriage with the daughter’s daughter is illegal as it is abhorrent to public health and morality as there was such a custom existing in the Reddiar community of Tirunelveli district.

Because of the express prohibition by legislation, some customs are given supremacy over the general laws, and the customs observed in that society are allowed to prevail. Section 5 of the Hindu Marriage Act, 1955, in the clauses (iv) and (v) give importance to the customs or usages of the community governing the people in terms of validity of marriage questioned on the ground of coming within the scope of prohibited degrees of relationship and Sapindas.

Classification of Customs

Customs without Binding Obligation

Such customs do not exercise a binding effect and are not obligatory. They do not exercise the compulsion of law. Some customs form a part of our daily social lives. Thus they are called social customs. Though they may be lacking legal enforceability, they have societal sanctions attached to them and non-observance of such customs may lead to a possibility of socially outcast.

Customs with Binding Obligation

Such customs have enforceability of law and are backed by legal sanctions. They are obligatory. Such customs acquire legal character if they satisfy certain standards or tests laid down by courts. They regulate the social relations like the obligation of marriage and the upbringing of children, the transmission, succession, and inheritance of property after death, or the modes of consummating and fulfilling agreements. Further divided into legal and conventional customs.

Kinds of Customs

Mainly two kinds of customs:

Legal Custom

Customs are ‘legal’ in the sense that they take up the form of law and are binding rules of conduct, not merely based on faith and conviction. Its non-compliance amounts to a breach of duty. According to Salmond, Legal Customs have a legal obligation in itself or proprio vigore. He divides legal customs further into General and Local Customs.

  1. General Custom General Custom prevails throughout the country and constitutes one of the sources of the law of the land. It is observed by all the members of society.
  2. Local Custom Local customs are confined to a particular locality and constitute a source of law for that locality only. It may be tribal customs, personal local customs, geographical local customs, and community customs.

Conventional Custom

According to Salmond, A conventional custom is one whose authority is conditional on its acceptance and incorporation in an agreement between the parties to be bound by it. A conventional custom or usage comes into practice due to it being followed for a long period and arising out of a contract between the parties; it does not have any legal character in itself.

Thus it is an established norm that is legally enforceable, not because of any legal authority independently possessed by it, but because it has been expressly or impliedly incorporated in a contract between the parties concerned. Conventional custom may also be divided into two types—General Conventional Customs and Local Conventional Customs. Former is extensively practiced throughout the realm; whereas the latter is limited to a particular place or a particular trade or transaction.

Theories regarding the transformation of customs into law

Analytical School and Historical School of Jurisprudence have expressed their views in this regard which are as follows:

The analytical school of Jurisprudence traces the development of the law through legal positivism. It means the law is the command of the sovereign and the law emanates from the supreme authority/ state. The school considers Customs as general norms or practices followed in society having no force of law until they are recognized by the sovereign who is the highest form of authority and hence all sources of power flow from him. Custom is not the law in itself but it is a source of law. The major exponents of this school are Austin, Holland, Gray, and Salmond. It is also viewed by Holland that custom does not become law as of their existence; they become laws when they are recognized to be adopted as laws by the state.

This theory is criticized by various jurists. Vinogradoff criticizing this theory states that It is not conflicts that initiate rules of legal observance, but the practices of every day directed by the give-and-take considerations of reasonable intercourse and social co-operation. Neither succession, nor property, nor possession, nor contract started from direct legislation or direct conflict. Succession has its roots in the necessary arrangements of the household on the death of its manager, the property began with the occupation, possession is reducible to de facto detention, and the origin of the contract goes back to the customs of barter. Disputes as to rights in primitive society are pre-eminently disputes as to the application of non-litigious customs.[8]

Historical School of Jurisprudence was founded by the famous jurist, Edmund Burke. This school of jurisprudence considers the historical development of law, which can be traced by historical institutions in the form of religion, usages, traditions, and customs. Friedrich Carl Von Savigny and George Friedrich Puchta are the main exponents of the historical school of law.

The views of the historical school of jurisprudence regarding custom as law are

  • Law is primarily an expression of practices and customs followed in society.
  • According to Savigny, ‘Law was not something that should be made arbitrarily and deliberately by a lawmaker’.[9] It was embedded in the past and the peculiar character of a nation and the national spirit of people known as Volksgeist.
  • The custom carries its justification, it does not need the authority of the state to be recognized, and hence it is independent of the law of the sovereign.
  • Law has existence in the general will of people.
  • Customs are embedded in the common consciousness of the people.

This theory is also criticized because most of the customs originate from local social conditions existing at particular times in society rather than the widespread Volksgeist. Allen, says that ‘Many customs which have taken deep root in society do not appear to be based on any general conviction of their rightness or necessity, or upon any real or voluntary consensus lutetium.’ [10] Slavery, for example, was almost the universal practice of the ancient world. It was a custom based upon the needs not of a popular majority but a ruling minority. Similar was the case in India of the prevailing practice of Untouchability.

Important precedents on Customs as a Source of Law

  1. In the case of Youth Welfare Federation v. Union of India [11] the Andhra High Court held thatAlthough the custom is an important source of law in early times, its importance continuously diminishes as the legal system grows. As an instrument of the development of law, it has now almost ceased to operate, partly because it has to a large extent been superseded by legislation and precedent and partly because of the stringent limitations imposed by law upon its law creating efficacy. Law was either the written statue law or unwritten common or customary law… Blackstone appears to have concluded the custom as a source leading to the codified law to seek legal sanction viz., “the municipal law……may; with sufficient propriety be divided into two kinds; the Lex Non-Scripta, the unwritten or common law or lex scripta the written or written law. The written law includes not only general systems or the common law so-called but also certain parts of the kingdom and likewise those particular laws that are observed only in certain Courts and jurisdictions”
  • The Supreme Court of India in the case of Madhu Kishwar & Ors. V. State Of Bihar & Ors,[12]observed that “Customs are prevalent and being followed among the tribes in matters of succession and inheritance apart from other customs like marriage, divorce, etc. Customs became part of the tribal laws as a guide to their attitude and practice in their social life and not a final definition of law. They are accepted as a set of principles and are being applied when succession is open. They have accordingly acquired the status of law.

Like in Hindu law, they prefer a son to the daughter and in his absence daughter succeeds in the estate as a limited owner. Widow also gets only limited estate. More than 80 percent of the population is still below the poverty line and they did not come at par with civilized sections of the non- tribals. Under these circumstances, it is not desirable to grant a general declaration that the custom of inheritance offends Articles 14, 15 and 21 of the Constitution. Each case must be examined and decided as and when full facts are placed before the Court.”

Judicial tests to Determine the Validity of a Custom

  • It has been held by the Supreme Court of India Salekh Chand (Dead) v. Satya Gupta And Ors[13]

Custom must be ancient, certain, and reasonable as is generally said. It will be noticed that in the definition in Cl. (a) of Section 3 of the Act, the expression ‘ancient’ is not used, but what is intended is an observance of custom or usage for a long time…  Certainty and reasonableness are indispensable elements of the rule. For determination of the question of whether there is a valid custom or not, it has been emphasized that it must not be opposed to public policy.”

  • In the case of Thakur Gokalchand vs Parvin Kumari[14], the apex court upheld that “A custom, to be binding, must derive its force from the fact that by long usage it has obtained the force of law, but the English rule that “a custom, so that it may be legal and binding, must have been used so long that the memory of man runneth not to the contrary” should not be strictly applied to Indian conditions. All that is necessary to prove is that the usage has been acted upon in practice for such a long period and with such invariability as to show that it has, by common consent, been submitted to as the established governing rule of a particular locality.

It was held that where the custom is set up to prove that it is at variance with the ordinary law, it has to be proved that it is not opposed to public policy and that it is ancient, invariable, continuous, notorious, not expressly forbidden by the legislature and not opposed to morality or public policy.[15]

  • Bhimashya And Ors v. Smt. Janabi @ Janawwa – It was laid down that “A custom to be valid must have four essential attributes. First, it must be immemorial; secondly, it must be reasonable; thirdly, it must have continued without interruption since its immemorial origin, and, fourthly, it must be certain in respect of its nature generally as well as in respect of the locality where it is alleged to obtain and the persons whom it is alleged to affect.[16]
  • The Supreme court of India while reiterating in the above case that, “However, it connotes some matter which concerns the public good or the public interest. No strait-jacket formula can be laid down to hold what is for the public good or for the public interest, or what would be injurious or harmful to the public good or public interest. What is public good must be in consonance with a public conscience. The observations were quoted with concurrence in the case of Gherulal v. Mahadeodas.[17]

Conclusion

Thus it can be concluded that though the custom is derived from ancient values and practices which society used to follow in primitive stages and some may still follow the same, and the importance of such customs have been diminished due to various judicial bars and enactments given primacy, the customs still hold relevance in studying the historical development of our society. In English law, various customs and traditions have become part of their unwritten constitution. Similarly, the common law is also perceived as customary law.

 FAQs

  • What are the essentials of a valid custom?
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 References


  • [1] https://www.merriam-webster.com/legal/source%20of%20law.
  • [2] Fitzgerald, P.J., M.A., “Salmond on Jurisprudence”, (1997), N. M. Tripathi Pvt. Ltd., Bombay, at p 190.
  • [3] Allen, Sir Carleton Kemp, “Law in the Making”, (1964), Oxford University Press, Ely House, London W.I., at p 111.
  • [4] Mohanti, K.K., “Custom Vis-à-vis Law: Some Reflections on Marriage Customs and Rules Among Caste and Tribal Communities”, in “ADIVASI: Journal of the Scheduled Castes & Scheduled Tribes Research and Training Institutes”, Bhubaneswar, Vol. 44, No. 1 & 2, June & December 2004, p 12, at p 12.
  • [5] Tondon, M. P., “Jurisprudence (Legal Theory)”, (2010), Allahabad Law Agency, Faridabad, at p 167.
  • [6] OPINIO JURIS SIVE NECESSITATIS July 16, 2019, Louis de Gouyon Matignon, Space law, Public International Law, The United Nations; https://www.spacelegalissues.com/opinio-juris-sive -necessitatis/.
  • [7] Balusamy Reddiar v. Balkrishna Reddiar, AIR 1957 Mad 97.
  • [8] Allen, Sir Carleton Kemp, “Law in the Making”, (1964), Oxford University Press, Ely House, London W.I., at p 71.
  • [9] Bodenheimer, Edgar, “Jurisprudence: The Philosophy and the Method of Law”, First Indian Reprint (1996), Harvard University Press, U.S.A., at p 71.
  • [10] Allen, supra note 8, pp 89 – 93
  • [11] Youth Welfare Federation v. Union of India, 1996 (4) ALT 1138.
  • [12] Madhu Kishwar & Ors. V. State Of Bihar & Ors, 1996 AIR 1864, 1996 SCC (5) 125.
  • [13] Salekh Chand (Dead) v. Satya Gupta And Ors, On, 04 March 2008; SLP (Civil) 1380 of 2002.
  • [14] Thakur Gokalchand vs Parvin Kumari , 1952 AIR 231, 1952 SCR 825.
  • [15] Mookka Kone v. Ammakutti Ammal, AIR 1928 Mad 299 (FB).
  • [16] Bhimashya And Ors v. Smt. Janabi @ Janawwa, on 11 December 2006; Appeal (civil) 5689 of 2006.
  • [17] Gherulal Parakh v. Mahadeodas Maiya, 1959 AIR 781, 1959 SCR Supl. (2) 406.

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