ESSENTIALS OF A VALID CUSTOM
During the earlier ages the customs were the most important, and in some cases, the sole source of law. In every legal system at all stages of legal development there are some customs, but in advanced societies they are more rationalizes, and are certain and definite. Custom, as a supply of law, involves the study of a variety of its aspects: its origin, and nature, its importance, reasons for its recognition, its classification and the necessity of a valid custom.
Definition given by John Salmond:
Custom is the embodiment of those principles which have commended themselves to the national conscience as principles of justice and public utility.
Origin of custom:
Regarding the origin of customs there are different and divergent views. Historical jurists of Germany say that they originate from the common consciousness of people. Some say that man’s nature of imitation is the main cause of origin of customs. There is a series of reputed jurists who assert that judicial decisions are the basis of customs.
Essentials of valid custom:
Certain tests or essentials have been laid down by the jurists whom a custom must satisfy for its judicial recognition. The following are essentials of valid customs:
1) Antiquity – A custom to be recognized as law must be proved to be in existence from the time immemorial, time whereof the memory of man is not contrary. This is often the rule of the English Law. This legal memory presumes to be going back to a fixed time. English law fixed 1189 to test antiquity of a custom. But the presumption of law is that the customs which are old and whose time origin cannot be ascertained must have started before the year 1189.
In ancient Hindu law additionally, the antiquity was one in all the necessity for the popularity of custom, Immemorial custom is transcendental law. The law in India at present is that antiquity is important for the recognition of a custom; however there is no such fixed for which it must have been existence it is within the English Law.
2) Continuance: The second essential of a custom is that it must have been practiced endlessly. In England, the custom during the period from 1189 must have been enjoyed continuously without any interruption. Continuity doesn’t mean that should not be operating all the time. There should always be available in terms of availability of custom to deal with rule of conduct. It means that if possession for a few times is disturbed, however the claim to enjoy the custom is not abandoned, the custom continues.
3) Peaceable enjoyment: The custom must have been enjoyed peaceably. If a custom is relevant for a long time in a law court, or otherwise, it negatives the presumption that it originated by consent as most of the customs naturally might need originated.
4) Obligatory force: The custom should 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 be certain. A custom that is obscure 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 truth, or as a legal presumption of fact.
6) Consistency: The customs which ever are prevailed should not come in conflict with other established customs. They should maintain consistency among the other customs. Therefore, it is said that one custom cannot be set in opposition to other customs.
7) Reasonableness: A custom must be reasonable. A custom must be should be in conformity with regard to basic morality. It should be prevailed as understanding of justice, health and public policy. If the custom is not reasonable, then it cannot be considered as a valid custom. Reasonability cannot be judged with every change of social conditions. It is however said that every custom must not be perfect in its ethic and morality, concerns, it is said that it should be reasonable and relevant and it should be capable of understanding. It said that they include public policy among the tests of custom. And the custom should not oppose the public policy. It should be reasonable during comprehensive times, which would be helpful to be laid on as an example.
8) Conformity with statute law: A custom has to be valid, and it should be in conformity with statute law. There should not be any contravention in relation to the existing laws. It is a positive rule in most of the legal systems that a statute can abrogate a custom. If any violation is found in relation with custom in an territory it cannot be treated as custom.
9) Public Policy: Whatever the public policy is it should be of state and the custom must be in operating. The custom should not oppose to public policy.
10) General: The custom will be effect when it is universally accepted or nearly so. If there is an absence of unanimity of opinions then customs has no power left, or rather they don’t exist.
Therefore, as we have seen that Customs are very essential source of law, this has its roots emerging from historical schools, and the primitive societies, which are even relevant now. As a developing society it changes day to day and adopts different practices which would become usage or custom.
The customs lie in the basis of all the legal system. Customs come into existence with the existence of society. We can trace the history, reason, need and background of custom. With the development in the society we can see over a change and control over the customs. Development of society has much influence over the customs. Now customs are rationalized, embodied in our legal systems. Knowingly or unknowingly we depend upon customs and we are governed by them. Customs has its importance in the society, which makes customs a key important for the proper running of the society.
Author: Saba banu,
Pendekanti law college, 3rd year BA LLB student