SOURCES OF LAW

INTRODUCTION*

 Salmond classified law into two types

MATERIAL SOURCES FORMAL SOURCES

From the material source, Those sources from which a
law derives its matter and not rule of law derives its force
the validity. and validity.
Two types -
Eg. – will of the State as
manifested in a statute or a
Legal sources Historical sources decision of the court, etc.
Instruments or Where rules are
organs of the State initially found in an
by which legal rules unauthoritative
are created form. They operate
indirectly
By Anu Solanki Kamble
  Keeton classified law into two types

BINDING PERSUASIVE SOURCES

SOURCES Eg. – Principles of Equity,
Eg. – legislation, professional opinions, opinion
judicial precedent, of jurists.
customary law.

By Anu Solanki Kamble

*

 Austin said that the term ‘source of law’ has three

different meanings:

a. This term refers to immediate or direct author of the

law which means the sovereign in the country.
b. This term refers to the historical document from
which the body of law can be known.
c. This term refers to the causes that have brought into
existence the rules that later on acquire the force of
law. E.g. customs, judicial decision, equity etc.

By Anu Solanki Kamble

KINDS OF SOURCES

A. Custom
B. Legislation
C. Judicial Precedent

By Anu Solanki Kamble

1. CUSTOM AS A SOURCE OF LAW

a. Introduction & Background

b. Definition & Meaning
c. Kinds & Types
d. Essential characteristics
e. Merits
f. Demerits
g. Impact

By Anu Solanki Kamble

Background*
Custom is one of the oldest forms of law making. Imitation plays an important role in
the growth of custom. Custom was so important in early society, that sir Henry Maine
points out, even a sovereign could not think of changing & disregarding a custom.

What was accepted by the generality of the people and embodied in their customs
was deemed to be right. So, custom has played an extremely significant role as a
source of law, till other sources of law like legislation and precedent acquire
prominence.

In all societies of the world, custom has enjoyed a very high place in varying degree
in the regulation of human conduct.

Custom is to society what law is to the state – Salmond

Personal laws in the entire world are based on customs.

By Anu Solanki Kamble

 Introduction*
When people find any act to be good and beneficial, which is agreeable to their
disposition, they practice it and in course of time by frequent observance and on
account of its approval and acceptance by the community for generations, a custom
evolves.

The best illustration of formation of such habitual courses of action, says Holland is
the mode in which a path is formed across a lawn.

One man crosses a lawn, in the direction which is suggested either by he has in view or
by more accident or for reasons of convenience. If this process continues in the sense
that for a period of time others follow the same track and for similar reasons, eventually
what emerges is a clear foot path across the lawn with green grass on either side.

Almost in an identical manner custom comes into existence. A certain rule or practice
is followed by someone for reasons or convenience etc. others, without being obliged to
do so follow the same rule. Eventually the rule or practice becomes a habitual course of
conduct in the society giving rise to a custom.

By Anu Solanki Kamble

Definition & Meaning*
 Custom is a habitual course of conduct observed uniformly and voluntarily by
the people concerned.

 Halsbury – “a particular rule which has existed actually or presumptively from time
immemorial, and has obtained the force of law in a particular locality, although it
is contrary to or not consistent with the common law of the realm.”

 Custom is one of the oldest forms of law making. In primitive societies human
conduct was regulated by practices which grew up spontaneously and were later
adopted by the people.

 According to Salmond, custom is the embodiment of these principles which have

commanded themselves to the national conscience as principles of justice & unity.

 According to Austin, a custom is a rule of conduct which the governed observe

spontaneously and not in pursuance of law settled by a political superior.

By Anu Solanki Kamble

Acceptability of a Custom*

 Custom is accepted as a source of law because of two

reasons:
 It has appealed to the conscience of people as principles of
justice and utility.
 Existence of usage is the basis of a rational expectation of its
continuance in future.
 Keeton says that the main reason for the admission of
custom as a source of law seems to be that before State
organs undertook the task for framing laws for the
community, this was done by the people themselves,
and the rules elaborated by habit were enforced in
popular courts.
By Anu Solanki Kamble
Development

 Ehlrich said that at any given point of time, the centre of

gravity of legal development lies not in legislation, not in
science nor in judicial decisions but in the society itself.

 It essentially involves three stages as follows –

a. It must be so well established so as to have attained the

acceptance as a “usage”
b. A custom gets recognition through a judicial decision.
c. A conventional custom is finally accepted as a statutory
law after its codification.
By Anu Solanki Kamble
Theories about transformation of custom into
law

A. HISTORICAL THEORY B. ANALYTICAL THEORY

 Main proponents – Henry Maine, Savigny,  Main proponent – Austin, Holland

Blackstone.  According to Austin custom is a source of law and
 According to the theory the growth of law does not not law itself. A custom becomes law when it is
depend upon the arbitrary will of any individual and embodied in an act of legislature or its existence is
upon any accident. It grows as a result of the recognized by the decision of the courts.
intelligence of the people.  Custom derives its binding force not from its own
 Custom is derived from the common consciousness nature but by an Act of the sovereign (Parliament)
of the people which springs from inner sense of or its validity has been established by judicial
right. decisions.
 What has governed the conduct of men from the  A customary rule may become a legal rule either
beginning of time will continue to govern till the end by recognition through a statute law or by a
of time. Human nature is not likely to undergo
precedent.
radical change and law will be the custom.
 A custom is law only because the sovereign allows
 custom is in itself an authoritative source of law-
it to be so.
present cannot be understood without reference to
the past, and to understand the true source of law  According to Holland customs are not laws unless
we must go back to the days when society was in its they are adopted into laws by state recognition.
infancy.
Kinds / Types
Conventional custom / Legal custom
usage
 It is an established practice whose  Those customs which are
authority is conditional on its operative as binding rules of law
acceptance and incorporation in independent of any agreement
the agreement between the parties between the parties.
bound by it.  Two types
 This custom is not binding because
of any legal authority Local custom general custom
independently possessed by it, but Defined locality entire realm
because it has been expressly /
impliedly incorporated in a contract  It possesses the force of law proporio
between the parties concerned. vigore. The parties, affected may
 Business practices… trade customs agree to a legal custom or not but
are popular examples of this. they are bound by the same.
 Local Custom
 The term ‘custom’ in its narrowest sense means
local custom exclusively. It refers to those customs
which are restricted to certain geographical area.
 In order that a local custom may be valid and
operative as a source of law, it must conform to
certain requirements.
 Reasonableness
 Conformity with statute law
 Observed as a matter of right
 Immemorial antiquity

By Anu Solanki Kamble

Requirements of Local Custom
 Reasonableness- The authority of usage is not absolute but conditional on a
certain measure of conformity with justice and public utility. The true rule is
that in order to be deprived of legal efficacy, a custom must be so obviously
and seriously repugnant to right and reason, that to enforce it as law would
do more mischief than that which would result from the overturning of the
expectations and agreements, based on its turning of the expectations and
agreements, based on its presumed continuance and legal validity.
 Conformity with statute law- It must not be contrary to an Act of
Parliament.
 Observed as a matter of right. This does not mean that the custom must be
acquiesced in as a matter of moral right. The custom must have been
followed openly, without the necessity of recourse to force and without the
permission of those adversely affected by the custom being regarded as
necessary.
 Immemorial antiquity- In order to have the force of law, the custom must
be immemorial, i.e. there should be no memory of custom not being in
practice

By Anu Solanki Kamble

General Custom

 General custom prevails throughout the realm

and constitutes the common law of the country.
 It is usually practiced by all the people living in the
country and it is prevalent throughout the land.
 Keeton – “a general custom must satisfy certain
conditions for it to be a valid source of law – it
must not only be reasonable, but also be followed
and accepted as binding; it must be in existence
from the time immemorial and should not be in
conflict with the statute law of the country.”
By Anu Solanki Kamble
 Requisites of a valid
Custom*

Reasonable Continuity
ness conformance
with statute
law

Obligatory Continued &

force immemorial
antiquity
(Ancience)

Not against public

policy

By Anu Solanki Kamble

1. REASONABLENESS*
 A custom must be reasonable.
 For declaring a custom inapplicable on the ground of unreasonableness, it will
have to be shown that it is obviously opposed to reason.
 It gives a good deal of discretion to the court in the, matter of recognition of
customs. ·
 It has been settled that the time to decide the reasonableness of a custom is
the time of its origin.
 Customs differ from place to place. The reasonableness is, therefore, to be
determined in context of society in which it exists. There may be certain
customs, which are to be held unreasonable in all times and in all societies.
 Allen- The rule regarding reasonableness is not that a custom will be
admitted, if reasonable, but that it will be admitted unless it is unreasonable.
 The courts are not at liberty to disregard a custom whenever they are not
satisfied as to its absolute rectitude and wisdom or whenever they think a
better rule can be formulated in the exercise of their own judgment,
otherwise, a custom will lose much of its force and sanctity.

By Anu Solanki Kamble

2. OBLIGATORY FORCE*

 A custom is valid if its observance is

compulsory. An optional observance is
ineffective.
 Blackstone- A custom that all the inhabitants
shall be rated, towards maintenance of a
bridge, will be good but a custom that every
man is to contribute thereto at his own
pleasure, is idle and absurd and indeed no
custom at all.
By Anu Solanki Kamble
3. CONTINUITY*
 It must have been practiced continuously. If a custom is
disturbed for a considerable time, a presumption arises against
it.
 If a custom has been followed continuously and without any
interruption for a long time, it gains recognition.
 Discontinuance must be held to destroy them. Discontinuity is
fatal to the legal existence of custom. Discontinuance
sometimes may be accidental, in which case also the legal
effect of custom may be negatived, where it is discontinued
otherwise it would come to an end.
 A custom loses force also by abandonment.
 Mayne has said that in the case of widely spread local custom,
want of continuity would be the evidence that it had never had
legal existence.
By Anu Solanki Kamble
4. ANTIQUITY*
 A custom to be recognized as law must be proved to be in existence from time
immemorial.
 Blackstone- 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.
 In point of time it is difficult to prescribe any time limit for the establishment of a
custom as a valid source of law. It must be ‘immemorial’ which shows that it
must be beyond the living human memory.
 The Courts have generally held hundred years observance as a requirement to
hold a custom ancient. The Privy Council was of the opinion that it is not
essential in every case that its antiquity is carried back to a period beyond the
memory of man.
 It will depend upon the circumstances of each case what antiquity must be
established before the customs can be accepted. What is necessary to be proved
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 accepted as
the governing rule.
 Sir George Rankin in Baba Narayan V. Saboosa (1943) stated- 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’ right in
place of the general law.
By Anu Solanki Kamble
5. CONFORMANCE 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.
 The term ‘law’ in the present context is indicative not only of
statutory law but also of the mandatory texts of Dharmshastra law.
 Coke- No custom or prescription can take away the force of an Act
of Parliament. ·
 A statute can abrogate custom but not vice-versa.
 But according to the historical school, a custom is superior to
statute and it can supersede a statute, though 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.
By Anu Solanki Kamble
6. NOT AGAINST PUBLIC
POLICY*
 A custom should be neither immoral nor opposed to public
policy. Immoral custom is void.
 It was clearly delineated by the writers of Dharmashastra that
a custom should be the usage of the virtuous and should not
be opposed to Dharmashastra.
 The immorality of a custom is to be tested in context of
consensus of the whole community not of a part of it.
 Thus custom whereby a temple dancing girl is allowed to
adopt a girl with the intention of training her up in an immoral
profession is invalid. Similarly, a custom permitting the
trustees of a religious endowment to sell the trust has been
held to be contrary to public policy.
 Privy Council(In Raja Varma V. Ravi Varma)- Public policy,
when against custom, will invalidate the custom as badSolanki
By Anu in law.
Kamble
 Other essentials
 Certainty - A valid custom must be certain and definite. · A custom which is vague or
indefinite cannot be recognized. · It is more a rule of evidence than anything else. ·
The court must be satisfied by a clear proof that custom exists as a matter of fact or as
a legal presumption of fact.

 Peaceful enjoyment - The enjoyment of custom must be a peaceable one. If that is

not so, consent is presumed to want it.

 Consistency -   A custom must not be in conflict with other prevailing customs.

Difference or inconsistency in custom will amount to different rule of conduct for a
given situation; it will negotiate the general consent.

 Opinio Necessitatis (obligatory and not optional)

 Clear & unambiguous - Customs must be certain and unambiguous. It must also be
established by clear evidence, because it is only by the force of such evidence that the
courts can be assumed of its existence. Any recognition to its legal effect can be
extended only when its unambiguity is proved.
By Anu Solanki Kamble
Merits*
 Custom embodies the principles of right and justice, which is
acknowledged and approved not by the power of the state, but by
the public opinion of the society at large.
 Reflects the true state of affairs and ideology (common
consciousness) of people.
 Customs have been the most potent force in molding the ancient
law.
 Another reason for the binding force of custom is that, the
existence of an established usage is the basis of a rational
expectation of its continuance in the future.
 Custom is observed by a large number of persons in society & in
course of time the same comes to have the force of law.
 Custom rests on the popular conviction that it is in the interests
of society.
 It is voluntary and self driven in its application.
By Anu Solanki Kamble
Demerits*
 The growth of most of the customs is not the result of
conscious thought but of tentative practice.
 All customs cannot be attributed to the common
consciousness of the people. In many laws, customs have
arisen on account of convenience of the ruling class.
 That custom is often posterior to judicial decision .
 The state has an overriding power of abrogating a custom.
 Custom grows by conduct and it is therefore a mistake to
measure its validity solely by the element of express sanction
awarded by courts of law or by other determinate authority.
 The characteristic feature of majority of custom is that they
are essentially non-litigious in origin. The starting point of all
custom is convention rather than conflict.

By Anu Solanki Kamble

Impact / Application*

 The very fact that any rule has the sanction of

custom raises a presumption that it deserves the
sanction of law also.
 Acts as a source of law / predecessor for other
sources like precedent and legislation.
 Custom is the external and visible sign of national
conscience and as such is accepted by the courts of
law as an authoritative guide as quoted by Salmond
"Custom is to society what law is to state."
 Validation and reiteration of cultural and religious
heritage / ideology.
By Anu Solanki Kamble