Custom
Define custom. Explain various kinds of custom and the essentials of valid custom.
1) Introduction
The term “Custom” is derived from the Latin word “Consuetudo” which means “Habit or Usage”. A study of ancient society shows that law-making was not the business of rulers of that time. The law of the country had been found from the customs of the people which were developed by people with need of the time. Custom is the legal source of law and customary law derived from general practices of the state followed by the people, they consider those customs as legal obligation
2) Meaning of Custom
Traditional Legal practices or the usual way of doing something by a group of a social community is called Custom
3) Kinds of customs
Customs are of two kinds:
1. Legal custom
A legal custom is such custom whose legal authority is absolute and has been legally
accepted by the state. Legal custom has two kinds.
I. General custom
General customs are those customs which have been accepted by the state.
II. Local custom
Local customs are those customs which have been accepted by a particular locality but
the authority of the local custom is higher than general custom
2. Conventional custom
A conventional custom is such custom whose authority is conditional, and it may be accepted or not such as the agreement between the parties
Reasons for usage of customs
Following are some reasons why customs are being used as law
1) The usage must be reasonable
2) The Usage doesn’t go against the general law of the land
3) The Usage doesn’t go against the terms of the contract
Example
You for your wedding, want to wear a dress in red colour as the traditional dress of the
locality so it is to be called a conventional custom
4) Essentials of a valid customs
The following are the essential elements of a valid custom
1. Immemorial
A custom is a valid custom which is to be proved immemorial. A custom may be legal and binding and must have been used for an extremely long time even beyond human memory. So if anyone can show the beginning time of the custom, it is no good custom
2. Reasonable
Customs must be reasonable. A valid custom must obey the standards of justice and should be based on legal rules. If a custom is the cause of inconvenience such a custom will
not be valid
3. Continuous
A custom is valid if it has been in continuous practice and it has been enjoyed without any kind of interruption. Long breaks of practice of a custom raise doubts about the validity of the custom
4. Peaceable enjoyment
The custom must have been enjoyed peaceably without any clash with the court of law or otherwise
5. Certainty
The custom must be certain and definite, and must not be unclear and confusing. If it has some confusing factors in it, it is not a valid custom
6. Compulsory observance
Custom is valid if it has been continuously observed without any gap from times immemorial. And it must have been regarded as an obligatory rule of conduct
7. Universal
The custom must be universal or practically useable by people of the universal community. In the absence of common opinion, custom becomes ineffective or even destroyed
8. Not opposed to public policy
A valid custom must not be opposed to public policy or the principles of morality. If a custom is against the law. it is inapplicable
9. Not opposed to statute law
A custom which is opposed to statute law cannot be valid. Courts have declared many customs as invalid as they were opposed to statute law
10. Consistent (Mutabqat) with each other
A valid custom must be consistent with each other. One custom cannot disagree with another established custom.
5) Theories regarding the transformation of custom into law
Following are the two theories on the transformation of custom into law
1. Historical theory
Custom is derived from the common awareness of the people and it grows as a result of the intelligence of people. According to historical theory, the growth of law does not depend upon the will of any individual and it does not depend upon any accident. The growth of most of the customs is not the result of any conscious thought but of cautious practice. All customs are not the result of the consciousness of the people. In many cases, customs have arisen for the convenience of the ruling class
2. Analytical theory
Customs are a source of law and not law itself as well as customs are not valid until their validity is recognized by the courts. Customs are not laws but they are largely adopted into law by state recognition
6) Reasons for which custom is given the force of law
Following are the reasons by which customs are given the force of law
1. Scale of measurement
The reason for which custom is given the force of law because custom is a scale of measurement of the man’s insight and ability to judge matters
2. Expectation of continuance
The reason by which custom is given the force of law is the expectation of its continuation in the future and this expectation should be fulfilled and not frustrated
3. Observance by a large number of people
The reason by which custom is given the force of law is its observation by a large
number of people in society and, That’s why custom is given the force of law
4. Interests of society
The reason by which a custom is given the force of law is because it rests upon the interest of society. Such kind of interest in society makes the custom more strong and people do not go against the custom
5. Useful for legislation
Custom is useful in legislation and helps in the codification of law. Custom provides the material which helps in lawmaking. That’s why custom is given the force of law
7) Conclusion
Custom is an important source of law and a lot of laws have been enacted in the light of positive customs. It exists in the foundation of all legal systems. Customs come into existence with the existence of society. However, with time, the importance of custom in lawmaking has been accepted by lawmakers