Customs as principal source of law

What are customs?

Meaning of Customs: – Customs can be described as a cultural idea that defines a regular pattern of behavior, which is considered a feature of life in social order. Customs are one of the earliest sources of law. Customs are important for maintaining balance and peace in society. Even today, customs are the basis of a large number of laws. Custom may be considered as a fact and as a law. As a fact, it is simply the frequent and free repetition of acts concerning the same thing; as a law, it is the result and consequence of that fact.

Modern law used in courts has its origins from various sources. All the sources of law fall under two important heads, which are as follows: –

1. Primary Sources of Law
2. Secondary Source of Law

Principal Source of Law

Studies of ancient societies show that the lives of primitive people were dictated by custom that developed during that time period due to circumstances. When a certain activity is performed in a certain way, many times, it becomes a practice. Customs have played a major role in the making of ancient Hindu laws.

As a source of law, there are different and divergent views about custom. According to the historical school of jurisprudence, law is essentially the product of the general forces associated with the spirit of each particular people and nothing is representative of these revolutionary processes of autonomous custom that exist in every community, and which are indigenous to its flora and fauna.

Customs can be broadly classified into: –

1. Without Sanctions: – Customs without sanctions are those which are not obligatory and are followed due to the pressure of the society. It is referred to as ‘positive morality’.

2. With Sanctions: – Customs which have sanctions are those which are enforced by the ruling body. It is these customs that we will be dealing with in the law. These are again divided into two types: –
   1. Legal Customs: – Legal Customs act as strict rules that are meant to be followed by everyone and action is taken against anyone who breaks them. They are recognised by the courts and are part of the law.
   2. Conventional Customs: – A conventional custom is an established ‘usage’ which is considered legally binding because it has been incorporated in an expressly stated or implied contract. Before a court of law treats a conventional custom as legally binding, certain prerequisites have to be fulfilled.

Usage of Custom as a Source of Law

Merely attaching the antiquity clause (i.e. a particular has been followed from time immemorial) doesn’t make it binding. Some of the differences between the application of usage and custom are as follows: –

1. A customary custom or use which does not have outright authority is obviously discernable from a legitimate custom having a power of law.
2. A custom shall be binding if it is not proved that a particular sect is out of its scope and have no agreement regarding the same.
3. In the event that custom is a local custom, it is limited to a specific area then again, the utilization need not be kept to a specific region because it would be followed locally.
4. In that capacity, a ‘legitimate custom’ can’t be comprehended in the feeling of ‘use’ which is additionally founded on time immemorial yet it has not procured authoritative or required character nor a user can be practised starting at right inhering in one individual and official on the other against whom such use is guaranteed.
5. Custom to be substantial have been in usage from time immemorial. Use of late inception can be given impact by the courts on the ground that parties had contracted with reference to the use.
6. Local custom can undoubtedly criticize from or precedent-based law of the domain, yet not from drafted statute law. Utilization, notwithstanding can do as such to the extent to which it is conceivable to avoid the precedent-based law by explicit and express contract between the gatherings
7. In the event that in a specific case, customary law can’t be prohibited by express understanding, it can’t be rejected by use moreover. Be that as it may, custom can supersede the precedent-based law.
8. On satisfying the essential conditions, a customs works as a wellspring of law either for the whole network or the regional segment wherein it works. Utilisation just adds a term to its usage.
9. A trade use need not build up relic, consistency, and reputation, which are so necessary on account of custom.
10. A custom emerges out of its own power, though use does not appear out of its own power but rather is emerging out of an agreement between the gatherings. At the end of the day, a lawful custom has its very own free stand and isn’t an animal of understanding, then again a customary custom or use does not exist or emerge out of any lawful specialist autonomously possessed by it it is formed out of mutual understanding between the people

What are the types of customs as principal source of law?

Types of customs are as follows: –

1. Without Sanctions: – Customs without restrictions are those which are not compulsory and are obeyed due to the pressure of society. This is known as ‘positive morality’. These are those customs which are merely non- directory. They are altogether seen because of the nearness of the general public beliefs which is contrary to the views expressed by Austin in his positivist theory.
2. With Sanctions: – Customs that have restrictions are enforced by the ruling body. These are the customs that we will deal with in law. These are the customs which have been implemented by the State. These customs are upheld by authorization by the different courts in their pronouncements.
3. Legal Customs: – Legal customs act as strict rules that are followed by all and action is taken against whoever breaks them. They are recognized by the courts and are part of the law. The legal customs are those whose legal authority is absolutely unequivocal. These customs work as the coupling rule of law. They have been perceived by the courts and have turned into a piece of the tradition that must be adhered to. They are upheld by the courts in their judicial pronouncements. 
4. Local Customs: – Local customs are those types of customs that exist in a certain geographical area and are thus part of the culture of that place. It is specific to that place alone. However, when some communities migrate, they carry their customs with them. So, local customs are then divided into two parts- geographical local custom and individual local custom.A local custom is that which is practised in some characterized locality, that is, to an area, town or then again a zone.
5. General Custom: – A general custom is a custom that is not specific to any one locality, but is followed throughout the country or whole nation. They are also part of the law.A general custom is what wins all through the nation and comprises one of the wellsprings of the rule that everyone must follow. As indicated by Keeton, ‘a general custom should likewise fulfil certain conditions on the off chance that it is to be a wellspring of law’. It must be sensible, pursued and acknowledged as official and ought not to be in contravention with the resolution law of the nation and must be in presence from the time immemorial.
6. Conventional Custom: – A conventional custom is one which is not automatically binding but becomes binding only when it is accepted and incorporated in to the terms of a contract.A conventional custom is likewise called “use”. It is a setup whose authority is contingent on its acknowledgement and the organization in the agreement between the gatherings bound by it. In basic words, a conventional custom is a contingent and condition is that it will tie on the parties just, on the off chance that it has been acknowledged and consolidated by them in their agreement.

What are the essentials of Valid Customs?

All customs are not accepted as sources of law, nor can all customs be recognized and enforced by the courts. Jurists and courts have conducted some necessary tests for customs identified as legitimate sources of law. These tests are summarized as follows: –

1. Antiquity: – If any custom need to be legally valid then they must have existed for a long time, even beyond human memory. The primary trial of a legitimate custom is that it must be prevalent from time immemorial. It must be old or old and must not be of the ongoing source. Days of ancient times imply in the Civil law in the frameworks inferred consequently and initially implied in England and additional time is so remote that no living man can recollect it or give proof concerning it. In England, 1189 i.e. the reign of Richard I King of England is fixed to determine the validity of a custom.
2. Continuous: – The custom of being valid should have been in constant practice. It would have been enjoyed without any interruptions. The validity of the same is doubted by long intervals and interrupted behavior of a custom. A custom must be followed with consistency and in continuity from its inception. If it is proved otherwise that there were a break and a pause by a particular community in the following the custom in a court of law, then the court may have the discretion to get the custom annulled. Therefore a custom must be followed in consistency and continuity. In Hampton vs. Hono, it was ruled that if a custom is not practised for a significant amount of time, then it would cease to exist as a valid custom.
3. Exercise as a Matter of Right: – The custom should be enjoyed openly and with community knowledge. It should not have been practiced in secret. A custom must be proved as a right. Just a questionable doubtful claim of exercise of right is not enough for a valid custom.
4. Reasonableness: – A custom must be in conformity to the norms of justice and public utility. A custom, to be valid, must be based on rationality and reason. It must not be unreasonable. It must be helpful and advantageous to the general public. On the off chance that any parties face difficulties in a custom, the parties must fulfil and convince the court that a particular custom is unreasonable. If a custom is likely to cause more inconvenience and mischief than convenience, such custom will not be valid.
5. Morality: – A practice that is unethical or opposed to public policy may not be a valid practice. Courts declared many customs invalid because they were practiced for an immoral purpose or opposed to public policy.
6. Status in this Regard: – In any modern state, when a new law is enacted, it is generally preferred to custom. Therefore, it is imperative that a practice should not be opposed or contrary to legislation. Many customs have been abolished by laws made by legislative bodies. For example, the practice of child marriage has been declared a crime.

Conclusion

In the beginning periods of the general public, the customs were the most significant, and in some cases, the sole wellspring of law. The customs lie in the establishment of the entirely legitimate and lawful framework. They appear with the presence of the general public. Custom is the continuous practice with regards to the primitive society.

Custom is a standard or practice which is trailed by the general population from time immemorial. Customs are supported and are fused and exemplified in legitimate standards. The impact of custom can be followed in any legitimate and legal framework. Custom is a valid and authoritative source of law but the only condition is that it must be valid and a lawful custom.