“Law Master’s” Publication
“Custom”
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Prof. S. D. Bhosale
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Sources of Law
CUSTOM
QUESTION BANK
Q.1
Q.2
State the essentials of a valid custom.
What do you understand by custom? What are the essential requisite of a valid
custom?
Q.3
“What custom is to society law is to State”, comment.
SHORT NOTES
“Law Master’s” Publication
“Custom”
Prof. S. D. Bhosale
15
1. Custom.
SYNOPSIS
I. Introduction-
II. Definition of Custom-
1) According to Austin-
2) According to Privya Council-
3) According to Allen-
4) According to Holland-
III. Essentials of valid custom-
1. Reasonableness-
2. Consistency-
3, Compulsory observance-
4. Certainty-
5. Continuance-
6. Peaceable enjoyment-
7. Immemorial antiquity-
IV. Types of Customs-
(1) Legal Custom-
(i) General Customs-
(ii) Local Customs-
(2) Conventional Customs-
The distinction between ‘custom’ and ‘usage’-
(i) Consent-
(ii) Time immemorial-
(iii) Overriding effect-
Conclusion-
I. Introduction-
In all societies of the world, customs have enjoyed a very high place in the regulation
of human conduct. Law based on custom is known as ‘customary law’. In fact, the custom
is a very fruitful source of law. It is the oldest source of law.
Custom is a habitual course of conduct observed uniformly and voluntarily by the
people concerned. When society finds any act to be good, beneficial, and agreeable, it
practices it. Over time, through frequent interaction and its approval and acceptance by the
community for generations, a practice becomes custom. Imitation plays a considerable part
in the origin of a custom.
Customs played a very important part in ancient Hindu law. The common law of
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“Custom”
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16
England is customary law. Mohammedan law also custom played an important role;
however, only those customs which were approved by the Prophet were treated as good
law.
II. Definition of Custom-
1) According to Austin-
“Custom is a rule of conduct which the governed observe spontaneously and not in
pursuance of law settled by the political superior.”.
2) According to the Privy Council-
“A custom is a rule which in a particular family or in a particular district or in a
particular class, sect or tribe, has from long usage obtains the force of law”.
3) According to Allen-
“Custom may be defined as the uniformity of habits or conduct of people under like
circumstances”.
4) According to Holland-
“Custom is a generally observed course of conduct”.
In short, custom means uniformity in the conduct and habits of people. Custom is
very useful in two ways; firstly, it provides ready material from which the law can be made
out. Secondly, customs that are followed for a long time are safe to be enacted into law.
Customs were the sole source of law in ancient times. However, in present times, the
importance of customs has been reduced considerably by the judicial and law-making
processes. Customs to be enacted into law must be good customs. In India, a number of
evil customs like untouchability, dowry, sati, child marriage, etc., were followed for ages.
III. Essentials of valid custom-
There are the following requirements of valid custom, viz-
1. Reasonableness-
Customs must be reasonable because the court cannot enforce unreasonable
customs. To be valid, custom should not be unreasonable. It should not be against reason.
A custom shall not be valid if it is repugnant to the right reason and is likely to make more
mischief than good if enforced. Custom is contrary to reason if it is opposed to the
principles of justice, equity, and good conscience, e.g., the custom of untouchability, the
custom of sati, child marriage, and the custom of dowry etc.
2. Consistency-
A custom must be valid if it is 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 statutory law.
3, Compulsory observance-
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“Custom”
Prof. S. D. Bhosale
17
A custom to be legally recognised as a valid custom must be observed as of right. It
means all concerned must have followed customs without recourse to force and permission
of those adversely affected by it. It must be regarded by those affected by it. Customs
should not merely be optional but an obligatory or binding rule of conduct.
4. Certainty-
To prove the existence of a custom since time immemorial, it must be shown that it
is being observed continuously and uninterruptedly with certainty.
5. Continuance-
Another essential of a custom is that it must have been practised continuously since
time immemorial. Such custom must have been continuously observed without any
interruption or break. In other words, one custom should not be in conflict with another
custom.
6. Peaceable enjoyment-
Suppose a custom is in dispute for a long time in a law court or otherwise. In that
case, it negates the presumption that it originated by consent as most of the customs
naturally might have originated. In other words, peaceable enjoyment is an essential
ingredient of custom.
7. Immemorial antiquity-
For a custom to have the force of law, it must be immemorial. In other words, the
origin of a custom should be beyond the stretch of memory. According to Blackstone, if
anyone can show the beginning of a custom, it is not a good custom. In England, the limit
of ‘legal memory’ was fixed in 1189 A.D.
However, the custom of getting legal force in India need not be of immemorial
but it is not the essence that its antiquity must in every case be carried back to a period
beyond the memory of man”.
IV. Types of Customs-
Broadly speaking, customs may be divided into (i) Customs without sanction (i.e.
without legal force). These customs are observed due to pressure of public opinion or the
will of the observer; therefore, they are called rules of ‘positive morality and (ii) Customs
having sanction (i.e. legal force). However, we are concerned in this topic with the
customs having sanctions. These customs having sanctions may further be divided into (i)
Legal Customs and (ii) Conventional Customs.
(1) Legal Customs-
‘Legal customs’ are binding rules of law. They are recognised by the State and are
1 ILR (1941) Lah. 154 (PC)
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“Custom”
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part of the law of the land. They are enforceable by the court.
Legal customs are further divided into two classes, viz-
(i) General Customs-
General customs are those customs that prevail throughout the territory of the state.
All the members of society generally observe them. Such general legal customs,
therefore, are part of the law of the land.
(ii) Local Customs-
A custom that prevails in a defined locality only, i.e., a particular district or town,
observed by a particular sect or family, is called ‘local custom’. In its narrowest sense, '
custom' means ‘local custom’.
(2) Conventional Customs-
Conventional custom is also called ‘usage’. Usage is an established practice.
However, its authority is conditional on its acceptance and incorporation in the agreement.
It is binding if accepted or incorporated expressly or impliedly in an agreement. When two
parties enter into a contract, all terms are not generally set out in expressways; a large part
of those terms are implied. Such implied intention can be gathered from the customary law
prevalent in the trading community.
Like legal customs, conventional customs are limited to a place in a particular
locality or market or trade or transactions of a particular nature.
The distinction between ‘custom’ and ‘usage’-
(i) Consent-
A custom is binding irrespective of the parties' consent, whereas ‘usages’ are
binding if not expressly excluded in the agreement.
(ii) Time immemorial-
Customs are valid from time immemorial. However, users need not be immemorial
in time.
(iii) Exclusion-
The parties cannot exclude custom, whereas applicability of usage can be excluded
in agreement by the parties.
(iv) Overriding effect-
Customs can override the common law, but usage can do so only to a limited extent.
Conclusion-
In conclusion, we may say custom played a very important role in ancient times in
Hindu and Mohammedan law as well as in English law. English law is, by and large, the
development of customary law; the importance of custom is diluting day by day due to
judicial precedent and legislation.
“Law Master’s” Publication
“Custom”
Prof. S. D. Bhosale
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