CUSTOMS AS A SOURCE OF LAW

When the state comes into being and the society develops, customs are rationalized
and recognized and grow as part of the law. Salmond gives two reasons for the
recognition of the custom 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 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 not opposed to public or reason, there
is no wisdom in disturbing or removing. Chief Justice Coke spoke about customs as ‘one
of the main triangles of the laws of England’. Pollock said ‘the common law is a customary
law’. Salmond says ‘common law is essentially judge made law’. In other words, Judges
gave a very potent and creative touch to customs and carved them in the form of the
common law.

CLASSIFICATION OF CUSTOMS

1. Customs without sanction are those customs which are non-obligatory. They are
observed due to pressure of the public opinion. Austin term for them is ‘positive
morality’.
2. Custom having sanction are those customs which are enforced by the state. It
is with these customs that we are concerned here. They may be divided into two
classes:
• Legal Customs – These customs operate as a binding rule of law. They have
been recognized by the courts, and have become a part of the law of the
land. They are enforced by the courts. Legal customs may be divided into
two classes:
➢ General Customs – are those customs that prevail throughout the
territory of the state.
➢ Local Customs – local customs are those customs which apply only
to a defined locality, that is, to a district, or a town. Therefore, in
India, local customs may be divided into two classes: i) Geographical
Local ii) Personal local customs.
• Conventional Customs – are those customs which govern the parties to an
agreement. Parties sometimes have agreed to them. They are called usage
also. Such customs are binding ‘not due to any legal authority
independently possessed by them, but because it has been expressly or
impliedly incorporated in a contract between the parties to it.

Before becoming a part of the law such customs pass through three stages: First they
should be proved before the court as a question of fact. In the second stage, the court
takes judicial notice of them and they are established as a precedent. In the third
stage, the custom is embodied in a statute, and takes its final shape. There are some
conditions which must be satisfied before a court treats the conventional customs as
incorporated in a contract: -

1. It must be shown that the convention is clearly established and it is fully known.
It implies that both the parties were aware of such a convention. There is no
 fixed period for which a convention must have been observed before it is
recognized as binding.
2. Conventions cannot alter the general law of the land. Therefore, they are valid
only within the area of either observance.
3. They must be reasonable. The main function of these conventions is to throw
light only on such rights and liabilities of the parties on which the contract is
silent. If certain conditions, or term, though established by convention, are
expressly excluded by the parties in the contract, they will not be enforced.

ESSENTIALS OF CUSTOM

1. Antiquity – A custom to be recognized as law must be proved to be in existence

from time immemorial, ‘time whereof the memory of man runneth not to the
contrary’. 1189 the first year of the reign of Richard 1 has been fixed at which
the custom to be proved in existence.
2. Continuance – The second essential of a custom is that it must have been
practiced continuously. However, Blackstone has drawn a distinction between the
interruption of the right and the interruption of the mere possession.
3. Peaceful enjoyment – The custom must have been enjoyed peacefully.
4. Obligatory force – The custom must have an obligatory force. It must have been
supported by the general public opinion and enjoyed as a matter of right.
5. Certainty – A custom must be certain. A custom which is vague or indefinite
cannot be recognized. It is more a rule of evidence than anything else.
6. Consistency – Custom must not come into conflict with the other established
customs. There must be consistency among the customs. It is therefore, that
one custom cannot be set in opposition to the other custom.
7. Reasonableness – A custom must be reasonable. The time to decide
reasonableness of a custom is the time of its origin. Prof. Allen says that the
rule regarding reasonableness is not that a custom be admitted, if reasonable,
but that it will be admitted unless it is unreasonable.
8. Conformity with statute law – a custom to be valid must be in conformity with
statute law. It is a positive rule in most of the legal systems that a statute can
abrogate a custom.

Though, according to the view of the historical school, a custom is superior to statute
and it can be superseding a statute, this view has nowhere been recognized in practice.
The English rule is that a custom will not be recognized if it is in conflict with some
fundamental principle of the common law. Allen summarizes the position of the customs
as ‘Existing custom is therefore, law; if it is not called in questions, it operates as part
of the general law of the land, if it challenged, and is proved to exist as a local variation
of the ordinary law, and further is not shown to violate any essential general legal
principle, it is recognized by judicial authority as good law.

Definition of Custom:

1) Allen – When people find any act to be good and beneficial and agreeable to
their nature and disposition they use and practice it from time to time and it is
by frequent use and multiplication of this act that the custom is made.
 2) Herbert Spencer – It is a tradition passing from one generation to another that
originally governed human conduct. This tradition is called custom.
3) Salmond – Custom embodies those principles as are acknowledge and approved
not by the power of the state but by public opinion at large.
4) Holland – Custom is a generally observed course of conduct.
5) Austin – Custom is a role of conduct which the governed observe spontaneously
and not in pursuance of law settled by the political superior.
6) Keeton – defines custom as those rules of human action, established by usage
and regarded as legally binding by those to whom rules are applicable which are
adopted by court and applied as a source of law because they are generally
followed by the political society as a whole or by some part of it.
7) Halsbury – Custom is some kind of special rule which is in actual existence or
possibly followed from times immemorial and which have acquired the force of
law in specified territory, although it may be contrary or inconsistent with the
general law of the land.

Reasons for Recognition of Customs – Custom exists as law in every country though
it tends to lose its importance relatively to the other sources of law with the changes
in society. The law that originated in England on the basis of prevailing customs is known
as common law. Customs are not laws when they arise, but that they are largely adopted
into the law by the state recognition. When a particular conduct is followed by people
continuously for a long time it is called habit. These are conventional customs
established by usage and long practice and the courts shall not take judicial notice of
such customs. On the other hand, there are certain customs which are binding and are
enforceable by a court of law since they backed by the sanction of the state.

It would therefore be seen that though customary law is the oldest of laws, yet it is
the weakest and so it becomes inoperative as soon as legislation on it comes into
existence. It must be stated that custom has played a very important part in building
up the system of international law. A. 38 of the statute of ICJ provides for the
application of international customs as evidence of a general practices accepted as.

Relation between Custom and Prescription

1) When a course of conduct is practiced for a long time it gives rise to a rule of
law known as custom, but if it gives rise to a right it is called prescription. Thus,
custom is a source of law while prescription is a source of right.
2) Thus, a prescription right to air or light can be acquired by uninterrupted use
for a period of twenty years.

Theories regarding Transformation of Custom into Law

According to Austin a custom becomes law after its recognition by the sovereign shall
be given. Austin says that custom is a source law and itself is not law. A custom is not
positive law unless it is so declared by the court, or, in other words, it is not law until
it has received the judicial recognition, or it has been embodied in some statute. A
custom is law only to the extent to which, and from the time, when the sovereign
sanctions it. The customs not so sanctioned or declared are only ‘positive morality’.
Austin thus concluded that customary law is nothing but judiciary law founded upon
anterior custom.
According to Gray the law is, what the judges declare; that statutes, precedents, the
opinions of the learned experts, customs and morality are the sources of law. In
deciding cases, the judges are guided mostly by statutes or precedents. On points
where there are no customs or precedents, they are guided by morality rather than by
customs. Thus, according to Gray, customs are not law until they commend themselves
to the reason of the judge and he recognizes and embodies them in judgement.

Holland also called custom as law when it is recognized by a court through its decision.
Salmond too, supported this view. However, he said that a custom becomes law when it
satisfies the conditions prescribed by the law which are necessary for its legal validity.
Custom is therefore rightly treated as a legal material source of law.

Allen criticized Austinian theory of customary law on the ground that the customs are
recognized not because the court or legislature gives them sanctity of law but because
they are treated as law by the community as a whole and people feel themselves bound
by them.

According to Historical School, custom is per se law. A custom carries its justification
in itself. Savigny says ‘custom is the badge and not a ground of origin of positive law.
The customs are based on the opinion of the people and the national character;
Therefore, they embody those principles of justice which society recognizes. The state
has no discretion or power over them except to accept them. Thus, the validity of a
custom depends upon their approval. According to Puchta the worthy discipline of
Savigny, ‘custom is not only self-sufficient, and independent of legislative authority,
but is a condition precedent of all sound legislation’. Thus, according to the view of the
Historical school, custom is law independent of any declaration or recognition by the
state. Allen took a view ‘custom is law of itself because a court will recognize and accept
it as such.’

Savigny observed ‘customary laws completely modify or repeal a statute; it may create
a new law and substitute it for statutory rule which it has abolished’. Thus, customs
give authority to precedent and statute law. According to Savigny, customary law is the
real law of the people, while the rest is only a superimposition. This is true because
good and successful laws represent legitimate aspirations of the people. However, in
the present day highly technical and mixed society, one cannot completely rely on
custom as a source of law. It is only in traditional and tribal societies the custom is the
major source of law. In the contemporary society its inadequacy to meet the fast-
changing situation is beyond doubt in so far as customs cannot suddenly be created to
meet a situation.

Maine regards custom as a formal source of law. He regarded custom ‘posterior statute
law. Maine regards custom as a formal source of law. He regarded custom ‘posterior to
that of Themistes (awards dictated by the King or goddess of justice) or judgement.