Custom
- Custom is some kind of special rule which Is in actual existence or possibly followed from time immemorial and which has acquired the force of law in specified territory, although it may be contrary or inconsistent with the general law of the land.
- Austin suggests that custom is a rule of conduct which the governed observe spontaneously and not in pursuance of law settled by political Superior.
- Keeton 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 whole or by some part of it.
- Salmond opines that custom embodies those principles as are acknowledged and approved, not only by the power of the State, but by public opinion of the society at large.
- Allen defines custom as the uniformity of habits or conduct of people under like circumstances, when the people find any act to be good and beneficial and 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.
- The Judicial Committee of the Privy Council has defined custom as the rule which is in a particular family or in a particular district has from long usage obtained the force of law.
- In the Tamstry Case custom was described as it is jus non scriptum and made by the people in respect of the place where the custom obtains. When the people find any act to be good and beneficial and agreeable to their nature and disposition, they use and practice it from time to time, and It Is by frequent multiplication of this act that the custom Is made and being used from time to which memory runneth not to the contrary obtained the force of law.
Essentials of a Custom
In order to be valid custom, it must conform to certain requirements laid down by the law. The essential requisites of a valid custom are-
Antiquity
A custom to be valid should have been continuously in existence from the time immemorial. Blackstone describes a custom in order to be legal and binding, must have been used so long that the memory of man runneth not to the contrary. If anyone can show the beginning of it, it remains not a good custom.
In ancient Hindu law also, the antiquity was one of the essentials for the recognition of custom. Manu said – “Immemorial custom is transcendental law”.
The law in India, at present is that antiquity is essential for the recognition of a custom, but there is no such fixed period for which it must have been in existence as it is in the English law.
Continuance
Only that custom is valid which has been continuously observed without any Interruption from time immemorial. If a custom has not been followed continuously and uninterruptly for a long time, the presumption is that it never existed at all.
Peaceful Enjoyment
The custom must have been enjoyed peaceably. If a custom is in dispute 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 have originated.
Compulsory Observance
A custom to be legally recognized as a valid custom, must be as a 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.
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.
Consistency
A custom to be valid, must be in conformity with statute law. It should not be contrary to the act of parliament. A custom should necessarily yield where it conflicts with a statutory law.
Certainty
A valid custom must be certain and definite. In one case, a customary easement was claimed to cast on the lands of neighbors the shadow of overhanging trees. It was held to be vague and indefinite on the ground that the shadow of overhanging trees was a Changing occurrence.
Obligatory Force
The Custom must have an obligatory force. It must have been supported by the general public opinion and enjoyed as a matter of right if a practice was maintained by strength or by something of that sort, it cannot become a custom.
Kinds of Custom
- Custom without sanction
- Custom having Sanction: Legal [General and local] and Conventional
Customs without sanction are those customs which are non- obligatory. They are observed due to presence of the public opinion. Austinian term for them is positive morality.
Custom having Sanction are those which are enforced by the State. It is this custom that we are concerned here.
Legal Customs
- The legal custom is one whose legal authority is absolute. It possesses the force of law Proprio Vigore. The parties affected may agree to a legal custom or not but they are bound by the same.
- Legal customs are of two types-
- a) 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 simply citer it refers to local custom. Halsbury defined local custom as “a particular rule which has existed actually or presumptively from time immemorial. A local custom to be valid should be certain, reasonable, continuous, permanent and should not be contrary to any existing law.
- b) A general custom is that which prevails throughout the country and constitutes one of the sources of the law of the land. There was a time when common law was considered to be the same as general custom of the realm followed from ancient time. The view of Salmond is that a general custom cannot have the force of law unless ana until it is also immemorial. A general custom once recognized cannot he set aside by a latter general custom.
Custom Distinguished from Usage
- A Custom is binding irrespective of the consent of the parties to be bound thereby. Usages are binding only when they are not expressly excluded by the terms of agreement entered into by the parties. A custom to be valid should have been in existence from time immemorial but usage need not be of immemorial antiquity.
Custom Distinguished from Prescription
- When a course of conduct is practiced for a long time, it gives rise to a rule of law Known as custom, but if it gives rise to a right, it is called prescription. Thus, custom is a source of law while prescription is a source of right.
- In case of custom, the old rule as to time immemorial still subsists, but in the case of prescription the fiction of lost grant operates and it is governed by statutory prescribed time. Thus, a prescriptive right to air or light can be acquired by interrupted use for a period of twenty years.
- A custom originates from long usage whereas a prescription originates from waiver of a right
Theories Regarding Transformation of Custom into Law
There are two theories regarding the question as to when a custom is transformed into law. Those are the analytical and historical theory.
Analytical Theory
The great advocates of the analytical theory are Austin, Holland, Gray, Allen ana Vinogradoff. According to Austin – “Custom is a source of law and not law itself. Customs are not positive laws until their existence is recognized by the decisions of the courts. A custom becomes law when it is embodied in an act of the Legislature. It becomes law when it is enforced by the State. It is not every custom that is binding; only those customs are valid which satisfy the judicial test. The sovereign can abolish a custom. A custom is law only because the sovereign allows it to be so. Its recognition by the court or its incorporation in the statutes puts upon it the implied or the express seal of the sovereign and it becomes law. The other implication of this view is that the sovereign can abrogate custom and his authority is superior to them. A custom is law only to the extent to which, and from the time, when the sovereign sanctions it.
- Gray also concedes that custom is one of the sources of law but it is certainly not the sole source of law. He admits that law is what the judges declare but while establishing a law they have to seek recourse to other sources such as statute, precedents, opinions of the legal experts, customs, morality etc. all of which must have the Support of the community. Custom is one of them, but to make it not only one source but the sole sources of law itself, requires a theory which is as little to be trusted as that of Austin
- The analytical theory has been criticized by Allen in these words- “Customs grow by conduct and It is therefore a mistake to measure Its validity solely by the element or express sanction accorded by courts of law or by other determinate authority.”
Historical Theory
- According to the historical theory, the growth of law does not depend upon the arbitrary will of any individual. It doesn’t depend upon any accident. Custom is derived from the common consciousness of the people. It springs from an inner sense of right. Law has its existence in the general will of the People.
