Custom as a Source of Law

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Abstract The following article tries to establish the fact that the Customs are the most important source of law. It defines customs and gives information about its types and what are the requisite of a valid custom, how are they recognized and why are they recognized? In ancient days the customary laws were the only laws as they were practiced by the people. With the passage of time and modernization of society the customary laws are seen as orthodox laws and are fast receding to the statutory laws, but still the laws that are passed by the parliament has its root in the customary laws

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Electronic copy available at: http://ssrn.com/abstract=1958646

Custom occupies an important role in regulation of human conduct in almost all the societies. In fact it is one of the oldest sources of law making, though only a few people are likely to concur with the classical Greek poet Pindar’s maxim, “Custom is the king of all”. A custom may be defined as a continuing course of conduct which by the acquiescence of express approval of the community observing it, has come to be regarded as fixing the norm of conduct for members of society 1. At its inception the English common law derived all its rules from a single source. Sir Carleten Kemp Allen notes 2 ‘ Blackstones “ general customs” and “customs of the realm” are those fundamental principles in legal relationship which for the most part are not to be found in any express formulation, but are assumed to be inherent in our social arrangements. These are, in short, the common law itself ’. Salmond is of the opinion that custom embodies those principles which are acknowledged and approved, not by the power of the state but by the public opinion of the society at large. Thus he states ‘custom is the embodiment of those principles which have commanded themselves to the national conscience as principles of “justice” and “public utility’ 3. Jhon Austin was of the view that no folkway regardless of the fact how respected it is or how much is it followed can influence the law. He was of the view that only those conventions and folkways recognized by the sovereign through some judicial act or legislative disposition might be certified as a customary source of law. Kinds of Custom: 1. Conventional custom

It is an established practice whose authority is conditional based on its acceptance and incorporation between the parties bound by it. When two parties enter into a contract generally all the terms of the contract are not set expressly and a large part of it is implied. The intention of the parties entering into an agreement can be gathered by the customary law prevalent at that time The convention custom has three stages of development. In the first stage it should have attained the status of usage. In the second stage it gets recognition through some judicial decision, and presumes the form of a precedent. After this it is finally accepted as a statutory law.

1 Dias & Hughes: Jurisprudence,(1957) p.34 2 Allen C.K.: Law in the making 3 Fitzgerald P.J.: Salmond on jurisprudence

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Electronic copy available at: http://ssrn.com/abstract=1958646

The first section of the Indian contract act, 1872 recognizes the customs that are prevalent in the trade Legal Custom These are those which are operative per se as binding rules of law independent of any agreement between the parties. These, are of two types: 3 • Local Custom

Halsbury’s defined local custom as “ a particular rule that has existed actually or presumptively from time immemorial and has obtained the force of law in a particular locality although contrary to or not consistent with the common law of the realm.” 4 So it can be said that a local custom prevails in a small locality. Bigamy in India is allowed in some tribal parts on account of the local custom prevalent at those places. • General Custom

A general custom prevails throughout the country and is the main source of the common law of the country....
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