Custom as a source of law
In every society, the custom is prevalent and plays an important role to regulate society. In earlier stages, the custom is the rules and regulations of society. Due to the progress of society custom is modified and became an enforcement law in society. So, the custom is one of the sources of law. With the progress of society custom gradually diminish and legislation and Judicial precedents become the main sources. Although the custom is generally accepted and recognized as law by law courts provided it is proved to the satisfaction of the court.
Regarding the origin of customs, there are different views. According to the Historical Jurists of Germany say that they originated from the “common consciousness of people”. Another view is that they come into existence due to necessity or convenience. Some say that “Man’s nature of imitation” is the main cause of the origin of customs. Any particular conduct, imitated by a group of people for a long time becomes a custom. There is a series of reputed Jurists who assert that judicial decisions are the basis of custom. The custom was based more on the primitive notions than on any logic or principle of justice. Solutions were followed in similar cases and in this way it becomes custom.
Meaning of custom:
In Sanskrit, there are three terms Achara (rules relating to religious observances); Vyavahara(the rules of civil law); Sadachara (the usage of virtuous men). The word, Sadachara, therefore, has been used for the custom which means the custom handed down in regular succession from times immemorial among the four chief castes and mixed races of the country. Accordingly, Sadachara or approved usage only means that it should not be contrary to Dharma.
Hence legal custom can be easily distinguished from social customs and general users in the sense the former is obligatory binding accompanied with sanction while the latter once is merely the norms of social conduct without being legally binding or enforceable.
Essentials on the basis of which customs can be termed as a law
In the literal meaning custom normally denote habitual course of conduct. But certain testes or essentials have been laid down by the jurists which a custom must satisfy for its judicial recognition. However, each and every customs cannot be legally enforced. the tests are:
- custom must have to prove that it is valid.
- It should not be contradicting any statutory law.
- It should not be opposed to public policy.
- It should not be immoral and illegal.
- It should not be against public policy.
Difference types of customs
1.custom without sanction:
It is not obligatory. It is observed through public pressure. Austin terms it as positive morality i.e. as it is.
2.custom with sanction:
It is obligatory. Customs which have passed all the valid tests of law.
It applicable throughout the territory of India among everyone like Hindu marriage rituals will be observed by all Hindus.
custom observes in one particular locality by a particular person like tribes in Purulia practices some customs locally.
Customs practice by particular groups residing in particular geographical areas like tribes’ customs. Example: Gorkha, Lepcha, Seepa people practice their customs as they are hilly region people.
Personal local custom:
The custom originated by the people from their own groups. Example: Chhou dance of people of Purulia is practiced by some tribes or groups of people of Purulia as their custom.
Custom evolve d from an agreement between parties (agreement between nations and from there law emerged). Example: Trading practices differ in Kolkata and Delhi depending on the customs of the regions.
Customs lies in the foundation of every legal system. Personal laws that people of different religious groups follow evolves from religion. Keeping in mind that religion all laws are made. Custom is the origination of the personal law. Like, Hindu religions follow certain rules mention in statue but it is a custom followed by a certain group of people.
Author: Sonali Gorai,
Adamas University/ 3rd Year/ Perusing BALLB(H)