JAMIA MILLIA

ISLAMIA
FACULTY OF LAW
JURISPRUDENCE ASSIGNMENT
On

“CUSTOM as SOURCE of LAW”

Submitted to: MR. EQBAL HUSSAIN

Submitted by: MS. BHAWNA TOMER

Course: BA. LLB (Hons.) , Vth sem

Roll no. 08, Sec : B

 ACKNOWLEDGEMENT

I am feeling highly elated to work on the topic “Custom as a source

of law ” under guidance of Mr. EQBAL HUSSAIN. I am very grateful to him for
his exemplary guidance. I would like to enlighten my readers regarding this
topic and I hope I have tried my best to pave the way for bringing more
luminosity to this topic.
 CONTENTS
1. INTRODUCTION

2. DEFINITION & NATURE OF CUSTOM

3. REASONS FOR RECOGNISING CUSTOMS

4. THEORIES OF CUSTOM

5. ESSENTAILS OF CUSTOM

6. KINDS OF CUSTOM

7. CUSTOM DIFFERENT FROM USAGE

8. CONCLUSION
 INTRODUCTION
Custom occupies an important place in regulation of human conduct in almost all the
societies. In fact, it is one of the oldest sources of law-making. A custom may be defined as a
continuing course of conduct which by the acquiescence or express approval of the
community observing it, has come to be regarded as fixing the norm of conduct for members
of society.1 However, the importance of custom as a source of law continuously diminishes as
the legal system grows. The reason being that with the emergence and growing power of the
State, custom is largely superseded by legislation as a source of law.

According to Manu, the roots of custom as a source of law in ancient India maybe
enumerated under four distinct stages, namely,

(1) Revelation, or the utterances and thoughts of inspired seers;

(ii) The utterances of revered sages, handed down by words of mouth from generation to
generation;

(iii) The approved and immemorial usages1 of the people ; and

(iv) That which satisfies sense of equity and good conscience and acceptable to reason.

As rightly observed by Salmond "custom is to society what law is to the State.” Each one of
them is the expression and realisation, to the measure of men’s insight and ability, of the
principles of rights and justice. The influence of custom on society is similar to that of law on
the State.

Anthropological studies show that in early societies human conduct was regulated and
controlled by customs which the people in general usually followed as a matter of habit.
According to Savigny, the main founder of German historical school, custom is essentially a
product of natural forces associated with popular spirit of acceptance by the people. When
people repeat the same action (conduct) again and again, it assumes the form of “habit” and

1
Dias & Hughes : Jurisprudence (1957).
when habit continues to be in practice for a long time, it becomes custom. Tracing the origin
of custom as a source of law, Vinogradoff2 succinctly observed:

"Neither succession, nor property, nor possession nor contract started from direct legislation
or from direct conflict. Succession has its roots in the necessary arrangements of a household
on the death of its manager, (i.e. ‘Karta’ in ancient Hindu Law), property began with
occupation, possession is reducible to de facto detention, the origins of the contract go back
to the custom of barter. Disputes as to the rightly in primitive society were pre-eminently
disputes as to application of non-litigious customs.” Nothing more is necessary for the growth
of custom than that people should have some tradition of What their forefathers did before
him, that they should repeat the same conduct on similar occasions, and that they should be
convinced that what they do is right.3

Definition and Nature of custom :

A custom may broadly be defined as a usage observed by the people and recognised by the
courts on the fulfillment of certain conditions. It is a usage observed by a large majority of
people as a matter of habit and its continuance has acquired a legally binding force.4

Dr. Allen defines custom as the uniformity of habits or conduct of people under like
circumstances. When people find any act to be good and beneficial, apt 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.5 He holds that custom as a legal and social
phenomenon grows up partly by forces inherent in society, forces of purity of reason and
necessity and partly of suggestions and imitation.

According to Herbert Spencer, “Before any definite agency for social control is developed
there exists a control arising partly from the public opinion of the living, and more largely
from the public opinion of the dead. Thus it is tradition passing on from one generation to
another that originally governed human conduct. This tradition is called custom.”

Salmond opines that custom embodies those principles as am acknowledged and approved,
not by the power of the State, but by public opinion of the society at large. When State takes

2
Vinogradoff : Historical Jurisprudence, p.368.
3
Markby : Elements of Law, p.44.
4
Legal glossary published by Govt. of India.
5
Dias & Hughes : Jurisprudence, (1957).
up its function 03 administering justice, it accepts as valid the rules of right already accepted
by the society of which it is itself a product and it finds those principles already realised in
the customs of the realm. Salmond further observes that when the State acquires more self-
confidence, it seeks to conform national usage to the law, rather than the law to national
usage. Thus he states, "custom is the embodiment of those principles which have commanded
themselves to the national conscience as principles of justice and public utility".6

Austin suggests that custom is a rule of conduct which the governed observe spontaneously
and not in pursuance of law settled by the political superior. The Judicial Committee of the
Privy Council, in Harprasad V. Shivdayal7 observed that custom is a rule which has obtained
the force of law in a particular family or region due to long usage.

Keaton defines custom as those rules of human action, established by usage and regarded as
legally binding by those to whom the 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.

In Tamistry case,8 it was held that custom is jus non scriptum and it is evolved by the people
in respect of a place where it is followed. When people find any act to be beneficial and
agreeable to their nature and disposition, they start practicing it from time to time and when it
is continued for immemorial time, it obtains force of law.

REASONS FOR RECOGNITION OF CUSTOM

Custom exists as law in every country, though it tends to lose its importance relatively to
other sources of law with the changes in society. The law that originated in England on the
basis of prevailing customs is known as the ‘common law’, which is adopted in the form of
Acts of Parliament ever since the sixteenth century.

Customs are not laws when they arise, but that they are largely adopted into the law by the
State recognition. Customary law assumes a binding authority provided it fulfils certain
requirements and provided it is not suspended by law by a higher authority.

6
Fitzgerald, P.J : Salmond on Jurisprudence (12 th ed).
7
(1876) IA 259.
8
(1608) 80 ER 516.
When a particular conduct is followed by people continuously for a long time, it is called
habit. But if some conduct or rule is followed by most people of a particular class or locality,
then whether the others should follow the same would invariably depend on the generality of
practice. It is not always necessary that the court should recognise all the practices which are
prevalent in a community as custom. For instance, there is a practice among Hindus that the
male relatives of the deceased shave off their heads as a mark of condolence, but if a man
does not follow this custom, the court is certainly not going to punish him. In other words,
such customs are not obligatory.

On the other hand, there are certain customs which are binding and. are enforceable by a
court of law since they are backed by the sanction of the State. For instance, a Hindu
marriage solemnised without the performance of Saptapadi is not legally valid and can be set
aside by the court.

In earlier stages of the development of society before the State came into existence, people
were being governed by the customary laws. The Customary law of a particular class or place
is that which is universally followed, without interruption from time immemorial. Thus prior
to 1850 when civil and criminal laws were not codified, the topics, such as succession,
marriage, adoption, contract, transfer of property and crimes like arson, hurt, murder, theft,
treason were regulated by customary laws in the absence of legislation on these subject. After
the enactment of legislation on these subjects, the customary law yielded to the statutory law
on these issues. 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.

An appraisal of Hindu jurisprudence would unmistakably reveal that customary law was a
rule of conduct authoritatively imposed by the divine power upon man, governing all his
activities, public or private and affecting his spiritual and temporal interests. Every step in life
is guarded in the interests of preservation of human society.9

It is well known that ancient Hindu law was predominantly duty oriented. Hindu community
was deeply merged in religion and philosophy. The Srutis and Smritis emphasised on "duties"
rather than "rights". This, however, does not mean that the early Hindu society did not

9
Justice Panda, K.B : Sanatan Dharma & Law, (1977).
recognise any rights. For instance, in a joint family, the husband had a right over his wife'9
person and property, yet the wife had absolute right over her Stridhar property.

The present laws, that is, statutory or constitutional, are all man-made but the Hindu law, in
its nascent form was of divine origin, that is, it was ‘God-made’. Even ancient Greek
philosophers like Aristotle have said, “law is a form of order and therefore, a good law means
a good order.” Custom necessarily involves two conceptions, namely,

(i) the conviction of faith ; and

(ii) constant use.

AS Gautama rightly pointed out, "customs of castes and families which are not opposed to
the sacred records have also authority". Manu regarded custom as direct evidence of law. By
custom he meant practice of good men which necessarily involves an element of
reasonableness and which is not opposed to public policy. He emphasised that one should
follow the righteous path that has been followed by one's ancestors. By following that path,
one does not suffer. Recognising the importance of custom in Hindu law, even the Privy
Council in Collector of Madura v. Motoo Ramlinga, observed, "the clear proof of usage will
outweigh the written text of the law".10

THEORIES OF CUSTOM :
Customary law has not been established by legislators or professionally trained judges, but it
has come into existence by popular acceptance and practice. Writers and jurists have
expressed divergent views regarding transformation of custom into law and being accepted as
a source of law. There are two main theories in this regard, namely, (1) Historical theory; and
(2) Analytical theory.

1. Historical Theory

The main exponents of the historical school, namely, Savigny, Puchta, Blackstone and Henry
Maine have suggested that law has its existence because of the common consciousness of the
people and “customary observance is not the cause of law but the evidence of its existence”.

10
(1868) 12 MLIA 397.
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”. Sir Henry Maine regards
custom as a formal source of law. According to Manu, "Custom is transcendent law". James
Carter also supports historical View and says, “what has governed the conduct of men from
the beginning of time will continue to govern to the end of time. Human nature is not likely
to undergo radical change and law will forever continue to be custom".11

The critics of historical theory of transformation of custom into law, argue that it is erroneous
to think that custom gives authority to precedent and statute law. A custom is not itself
binding unless it fulfils certain essential requirements such as reasonableness, consistency
and immemorial antiquity to be accepted as binding law. A statute, on the other hand, is
binding, however, unreasonable it might be and even though it has fallen into disuse for a
long time. That apart, a custom cannot abrogate a statute law but a statute law can abrogate a
custom.

2. Analytical Theory

The main exponent of the analytical theory of customary law was John Austin who regarded
custom as a historical material source. He pointed out that custom derives its binding force
not from its own nature but by State recognition. It means that a custom becomes a law when
it is adopted by an Act of the Parliament or its validity has been established by judicial
decision. Thus a customary rule may become a legal rule either by recognition through a
statute law or by a precedent.

Austin further contended that custom has only persuasive value, customary practices have to
be recognised by courts before they can become law; If there is no statute-law on the point
for decision before a Judge, he may look into the custom for guidance. Once a custom is
recognised by the court, it becomes a law. It depends upon the court’s discretion to resort to
custom for deciding case when no other measure, i.e., enacted law or precedent is available
for guidance. Being of a persuasive nature, custom is considered as a historical source of law.
Austin thus concluded that "Customary law is nothing but judicial law founded upon anterior
custom.”12

11
Carter James : Law, its origin, growth & function.
12
Austin : Provinces of jurisprudence, (1945).
Holland also holds a View that custom becomes a law when it is adopted as law by State
recognition. He observed that binding authority is conceded to custom by the State when it
fulfils certain essential requirements, such as reasonableness, immemorial antiquity,
compulsory observance, continuity etc. Judges also recognise custom as a source of law if it
satisfies the contents of validity prescribed for being treated as law. Therefore, for Holland,
custom is a legal material source of law. This View is also supported by Sir Salmond.

ESSENTIALS OF A VALID CUSTOM :

In order to be a valid custom, it must conform to certain requirements laid down by the law.
The essential requisites of a valid custom are :-

1. Reasonableness - A custom must be reasonable. It must be remembered that the authority

of a prevailing custom is never absolute, but it is authoritative provided it conforms to the
norms of justice and public utility. A custom shall not be valid if it is apparently repugnant to
right and reason and it is likely to do more mischief than good if enforced. A general
observance of a custom leads to the presumption that it has a rational basis and that it is
useful and convenient. The party disputing the validity of a custom must satisfy the court of
its unreasonableness. In order to ascertain the reasonableness of a custom, it must be traced
back to the time of its origin.

As to the reasonableness of a custom to be recognised as valid, Dr. Allen observed, "the true
rule seems to be not that a custom will be admitted if reasonable, but that it will be admitted
unless it is unreasonable". The period of ascertaining whether a custom is reasonable or not,
is the period of its inception.13

Sir Edward Coke pointed out that a custom is contrary to reason if it is opposed to the
principles of justice, equity and good conscience. The courts should not lightly reject an
established custom unless it is manifestly repugnant to the notions of right and reason and
opposed to public policy. As Salmond rightly suggests, before a custom is denied legal
recognition, it must be found out that the mischief resulting from its enforcement outweighs
the harm that would result from the multiplication of the natural expectation of the people.

13
Mercer v. Denne, (1905)2 Ch 534, followed in Asarbulla v. Kiamatullah, (137) cal 245.
The Supreme Court of India, in Ram Dharz Lal v. Radhey Shyam,14 held that the custom of
recognising the channel of the river or stream as the boundary between two or more Villages
irrespective of its change in path cannot be said to be unreasonable and hence it was a valid
custom.

2. Consistency - A custom to be valid must be in conformity with statute law. In other words,
it should not be contrary to an Act of Parliament. A custom should necessarily yield where it
conflicts with a statutory law. This rule is observed as a positive principle of law in England
and countries like India which follow English law. The Roman law and various continental
systems; however, do not adhere to this rule. Justinian in his Corpus Juris mention several
statutes which have fallen into disuse by a posterior contrary custom. That is to say, the latter
rule prevails over the earlier, regardless of their respective origins and legislation has no
inherent superiority in this respect over custom. If an enacted law comes first, it can be
repealed or modified by a later custom and vice versa. Commenting on this aspect Savigny
pointed out that customs and statutes are put on the same level with respect to their legal
efficiency and customary law may complete, modify, or repeal a statute, it may create a new
rule and substitute it for a statutory rule which it has abolished. Windscheid also observed
that the power of customary law is equal to that of statutory law and therefore, it may not
merely supplement, but also derogate from the existing law.

3. Compulsory Observance - A custom to be legally recognised as a valid custom, must be

observed as of right. It means that custom must have been followed by all concerned without
recourse to force and without the necessity of permission of those who are adversely affected
by it. It must be regarded by those affected by it not merely as an optional rule but as an
obligatory or binding rule of conduct. If a practice is left to individual choice; it cannot be
treated as a customary law. Before accepting a custom as a binding source of law, the court
should satisfy itself that it has transformed into an unmistakable conviction of the community
as to the rights and obligations of its members towards one another. Citing an illustration of
the compulsory observance of a valid custom, Blackstone pointed out, “A custom that all the
inhabitants shall be rated towards the 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

14
1951 SCR370.
custom at all.” If the observance of a custom is suspended for a long time, it would be
assumed that such a custom was never in existence.15

4. Continuity and Immemorial Antiquity - A custom to be valid should have been

continuously in existence from the time immemorial. To quote Blackstone, "A custom in
order to be legal and binding, must have been used so long that the memory of man does not
run to the contrary. If anyone can Show the beginning of it, it is no good custom”. 3 English
law has, however, set an arbitrary but necessary limit to legal memory. It has fixed 1189 A.D.
- the year of accession of King Richard I as good enough to constitute the antiquity of a
custom. It means that if the continuance of a custom is traced back to 1189 A. D. - the year
which English law assumes that human memory can stretch back, the custom shall be held as
a legally valid custom. 4

5. Certainty – To prove the existence of custom since time immemorial, it is necessary to

show that it is being observed continuously and uninterruptedly with certainty. The element
of certainty evinces the existence of a custom therefore, a custom cannot be said to be in
existence from the time immemorial unless its certainty and continuity is proved beyond
doubt. Also, a custom should not be opposed to public policy.

KINDS OF CUSTOM
It is not necessary that a custom should be practiced all over the country There may be a
custom which is practiced authoritatively only in a particular locality. Broadly speaking, there
are two kinds of custom, namely, (1) Conventional custom, (2) Legal custom.

(1) Conventional Custom :

A conventional custom is also called "usage". It is an established practice whose authority is

conditional on its acceptance and incorporation in the agreement between the parties bound
by it. A conventional custom is legally binding 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. When two parties enter into a contract, generally
whole terms of the agreement are not set out expressly and a large part of most contracts is
implied. The intention of the parties to the contract can be gathered from the customary law
prevalent in the trading community.

15
Hamperton v. Hono, (1876) 24 WR603.
The development of conventional customs essentially involves three stages. Firstly, it must be
so well established as to have attained the notoriety of a usage. The existence of a usage must
be proved on the basis of evidence. In its second stage of development, a conventional
custom gets recognition through a judicial decision. At this stage it assumes the form of a
precedent. After having passed through these two stages the conventional custom is finally
accepted as a statutory law after its codification. This is its third stage of development. The
law relating to Bill of Exchange and most of the provisions of the Sale of Goods Act have
their origin in the conventional customs and usages which were followed from time
immemorial.16

A conventional custom may either be (i) local, or (ii) national. In order to acquire the status
of law, a conventional custom must fulfill the following conditions :

1. It should be old enough to be in the knowledge of the people in general. No specific period
is, however, prescribed for a custom to be treated as ‘old enough' for this purpose. Even a
relatively new conventional custom may also get legal recognition provided it has been well
established in the community.17

2. A conventional custom shall be recognised as law so long as it is not contrary to the

general law of the country. It should be consistent with statute law. It cannot alter the general
law of the land.

3. It should be reasonable. Whether a particular custom is reasonable 6 not, shall depend on

the discretion of the court. According to Allen, it I the unreasonableness of the custom which
must be proved and not it: reasonableness.

4. A conventional custom need not necessarily be confined to a particular area. It may relate
to any trade or commercial dealing which may be national or even international. .

5. A conventional custom or usage which is contrary to any express condition laid down in a
contract, shall not be enforceable by law.18

(2) Legal Custom :

16
Dias & Hughes : Jurisprudence, (1957).
17
Tucker v. Linker (1883) 8 AC 508.
18
Asarbulla v. Kiamtulla, (1937) cal. 245.
Legal customs are those which are operative per se as binding rules of law independent of
any agreement between the parties. Legal customs are of two kinds, namely, (1) Local
custom, (ii) General custom.

(i) Local Custom - A local custom is that which prevails in some defined locality whereas a
general custom is operative throughout the realm. When the word 'custom' is used simpliciter
it refers to local custom. Halsbury defined local custom as "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".19 A local custom to be valid should be certain, reasonable, continuous, permanent and
should not be contrary to any existing law. It should be practiced by the people voluntarily
and not out of the fear of the force of the State. It should also not be opposed to any other
existing custom in the locality concerned-If the inhabitants of a particular territory assert their
customary right over the territory of others; such a right shall not be recognised as a local
custom.

(ii) General Custom - A general custom prevails throughout the realm and constitutes one of
the sources of the common law of the country. For instance, the custom of eldest male
member of the family inheriting the entire property of the deceased karta of the joint Hindu
family was a well established custom in India before the enactment of the Hindu Succession
Act. Likewise, the custom of prohibiting widow remarriage in most of the communities in
India prior to statutory enactment in this regard was a well established general custom in this
country.

A general custom is usually practiced by all the people living in the country and it is
prevalent throughout the land. Until the 18th century, the general customs of England were
recognised as common law3 but today it is not so. Now only the statute law passed by the
British Parliament and precedents are regarded as the sources of common law. Therefore, at
present the general customs of England are different from the common law. According to
Keeton, a general custom must satisfy certain conditions if it is to be a 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. It
should also not be contrary to the common law of the land.

19
Halsbury : Laws of England, Vol. X.
 Custom Distinguished from Usage
Usually a conventional custom is referred to as usage but the two essentially differ in certain
aspects. A custom is binding irrespective of the consent of the parties not to be bound
thereby. Usages, on the other hand, are binding only when they are not expressly excluded by
the terms of agreement entered into by the parties.

Again, a custom to be valid should have been in existence from time immemorial but it is not
so in case of a usage. In other words, unlike custom, a usage need not be of immemorial
antiquity.

Further, a custom when it is local, can easily derogate from the general or common law of the
realm, but not from statute law. Usage, however, can do so to the extent to which it is
possible to exclude the common law by specific and express contract between the parties.
 CONCLUSION

It cannot be denied that with the development of the judicial process, the importance of
custom is constantly receding. Nevertheless, custom has played an important role in the
development of law and its significance is being experienced even to this day.

Custom was the sole source of law in early times because the laws in these days were mostly
unwritten. The common law in England is nothing but the rules of customary law which
prevailed in English society for regulating human conduct and intercourse inter-se. These
customary rules had the approval of public opinion. When States came into existence, they
gave immediate recognition to the customs prevailing at that time and thus they were
recognised as valid laws. However, with the passage of time, legislatures began to enact laws
and modify customary law or supplant it.

Desperate the diminishing role of custom in modern procures of lawmaking; the custom still
occupies an important place as a source of law even to this day because most of the material
contents of the developed systems of law have been drawn from ancient customs. The laws
relating to succession, inheritance, property, contract, sale of goods, negotiable instrument
etc. are evolved from early customary rules. In India, the personal law of Hindus which has
been codified after the Indian Independence, is nothing but customary law which had been
recognised by courts and embodied in judicial decisions from time to time.20

With the emergence of legislation as a potential source of law-making, the law-creative

efficacy of custom has, no doubt, declined. The doctrine of precedent has gained primacy
over customary law in modern time but even then at times courts do resort to ancient custom
in order to remove inconsistency or ambiguity in the existing law.

The relevance and importance of custom as a source of law has become a highly debatable
issue in modern legal system and its validity is challenged on the ground of it being outdated
or wholly irrational.

It is true that custom has lost its significance as a source of law in modern age but it still
exerts great influence in certain areas such as personal law, mercantile law and even the

20
The Hindu Marriage Act, 1955 : The Hindu Adoption & Maintenace Act, 1956 : The Hindu Succession Act,
1956 : The Dowry Prohibition Act, 1961.
International Law. Particularly, in the area of personal law, the need for a uniform civil
code21 has been emphasised time and again so that a rational law applicable to all-alike may
be evolved. The Supreme Court of India, in the historic case of Mohammad Ahmad Khan v.
Shahbano,22 reiterated the need for a uniform civil code which could be uniformly applicable
to all the castes and communities living in India so that differences as to caste and religion
may be mitigated. It would be a progressive step towards the attainment of the goal of
welfare State. In this process, the ancient customs of different communities shall have to be
taken into consideration so that the uniform law so evolved conforms to Indian traditions.

21
Art. 44 of the Indian Constitution.
22
AIR 1985 SC 945.
 BIBLIOGRAPHY
1. Pranajape N.V, Jurisprudence (2017).
2. Fitzgerald, P.J : Salmond on Jurisprudence (12th ed).
3. Austin : Provinces of jurisprudence, (1945).
4. Dias & Hughes : Jurisprudence, (1957).
5. Vinogradoff : Historical Jurisprudence, p.368.
6. Markby : Elements of Law, p.44.
7. Legal glossary published by Govt of India.
8. Art. 44 of the Indian Constitution.