Customs
1. What is
Custom?
When a person has been doing an act regularly over a substantial period of time, it is usual to say that he has grown accustomed to doing it. But when a large section of society is in the habit of doing that act over a very much longer period, it becomes a Custom.
Custom is a habitual course of conduct observed uniformly and voluntarily by the people concerned under like circumstances. Custom is tradition passing on from one generation to another that originally governed human conduct. Custom is of slow growth. All customs are not laws. The custom will be labelled ‘law’ when ‘ought’ rests on such practices or acts of the people which are being habitually used by the community for generations.
According to Austin, “Custom is a rule of conduct which the governed observed spontaneously and in pursuance of law set by a political superior”.
When a person has been doing an act regularly over a substantial period of time, it is usual to say that he has grown accustomed to doing it. But when a large section of society is in the habit of doing that act over a very much longer period, it becomes a Custom.
Custom is a habitual course of conduct observed uniformly and voluntarily by the people concerned under like circumstances. Custom is tradition passing on from one generation to another that originally governed human conduct. Custom is of slow growth. All customs are not laws. The custom will be labelled ‘law’ when ‘ought’ rests on such practices or acts of the people which are being habitually used by the community for generations.
According to Austin, “Custom is a rule of conduct which the governed observed spontaneously and in pursuance of law set by a political superior”.
2. The
Origin of Custom
To the savages, custom was all in all. They were guided by magic and taboo. As long as the disposition of the early man remained synomic, he was inseparably bound to custom. With the growth of civilisation, man began to reason and to reject the unreasonable customs and accepted reasonable ones.
Allen says that some customs are the result of imposition by the ruling body or by the strong on the weak. Maine says that in the beginning the judgements of the kings under divine inspiration were the basis of the customs.
Customs originated from the common consciousness of the people. They came into existence due to necessity or convenience. They originated in the practices of the people as also in what was imposed upon them by the rules; and the Judges working on the raw material of customs fashioned them in the form of laws through the judicial recognition of custom.
To the savages, custom was all in all. They were guided by magic and taboo. As long as the disposition of the early man remained synomic, he was inseparably bound to custom. With the growth of civilisation, man began to reason and to reject the unreasonable customs and accepted reasonable ones.
Allen says that some customs are the result of imposition by the ruling body or by the strong on the weak. Maine says that in the beginning the judgements of the kings under divine inspiration were the basis of the customs.
Customs originated from the common consciousness of the people. They came into existence due to necessity or convenience. They originated in the practices of the people as also in what was imposed upon them by the rules; and the Judges working on the raw material of customs fashioned them in the form of laws through the judicial recognition of custom.
3. Reasons for the
Recognition of Customs as Law
Some local and general customs have been given the force of law. Salmond gives two reasons for the recognition of customs as law. “In the first place, custom is frequently the embodiment of those principles which have commended themselves to the national conscience as principles of justice and public utility.” “A second ground of the law-creative efficacy of custom is to be found in the fact that the existence of an established usage is the basis of a rational expectation of its continuance in the future”.
Custom is to society what law is to the state. Each is the expression and realisation of the principles of right and justice. The law embodies the principles of right and justice by the power of the state whereas the custom embodies these principles by the public opinion of the society at large. When the state takes up its function of administering justice, it accepts as valid the rules of justice of rights already accepted by the society as customs of the realm.
The customs are continued to be accepted as law when they are adaptable to changing ideas and they are reasonable and possess antiquity and consistency and continuity.
Some local and general customs have been given the force of law. Salmond gives two reasons for the recognition of customs as law. “In the first place, custom is frequently the embodiment of those principles which have commended themselves to the national conscience as principles of justice and public utility.” “A second ground of the law-creative efficacy of custom is to be found in the fact that the existence of an established usage is the basis of a rational expectation of its continuance in the future”.
Custom is to society what law is to the state. Each is the expression and realisation of the principles of right and justice. The law embodies the principles of right and justice by the power of the state whereas the custom embodies these principles by the public opinion of the society at large. When the state takes up its function of administering justice, it accepts as valid the rules of justice of rights already accepted by the society as customs of the realm.
The customs are continued to be accepted as law when they are adaptable to changing ideas and they are reasonable and possess antiquity and consistency and continuity.
4. Requisites/Essentials of a
Valid Custom (General or Local).
Any custom either general or local to be legally recognised and enforced should fulfil some essential requisites. Blackstone listed them following Cock on Littleton. Allen and many others followed the same. Among them the following five are necessary conditions as per Dias.
1) Immemorial Antiquity: A custom to be valid must be immemorial. English law fixed the year 1189 to test the antiquity of a custom. A custom must be in existence prior to 1189, only then it can prove the consideration of antiquary. Under Hindu law also immemorial customs are transcendental law. However India law does not fix any particular year to test the antiquity of custom.
2) Continuance: A custom must be practiced without interruption; continuity is an essential feature of the custom. Continuity does not mean that it should be in operation all the time. It means that there should be a continuous availability of the terms of the customs to deal with particular rule of conduct with which it deals. Presence 6f custom if fact and its enforceability both are essential to prove antiquity. If a custom becomes legally unenforceable even for a short time it would not the recognized as a valid' custom.
3) Peaceable enjoyment: It is essential that custom must have been enjoyed peacefully by the concerned people.
4) Matter of right: Custom must have been enjoyed as a matter of right. This right should be enforceable. Thus custom must result in creating obligatory force at the one hand and related claim on the other hand. If a practice is observed as a courtesy and not as a matter of right then it can be termed a "custom" in legal sense.
5) Certainty: Custom must be certain. If the nature of the custom is not certain then it loses its validity. Custom originate from general consent, it is hard to determine existence of consent, on something which is not certain.
6) Consistency: A custom must not be in conflict with other prevailing customs. The customs must be in consistency with other custom. Difference or inconsistency in custom will amount to different rule of conduct for a given situation; it will negotiate the general consent.
7) Conformity with statute law: Custom should be conformity with statute law. A legislative enactment can abrogate a custom. In case of inconsistency between custom and statutory provision, former must give way to the latter. Thus, custom yield legislative enactment.
Any custom either general or local to be legally recognised and enforced should fulfil some essential requisites. Blackstone listed them following Cock on Littleton. Allen and many others followed the same. Among them the following five are necessary conditions as per Dias.
1) Immemorial Antiquity: A custom to be valid must be immemorial. English law fixed the year 1189 to test the antiquity of a custom. A custom must be in existence prior to 1189, only then it can prove the consideration of antiquary. Under Hindu law also immemorial customs are transcendental law. However India law does not fix any particular year to test the antiquity of custom.
2) Continuance: A custom must be practiced without interruption; continuity is an essential feature of the custom. Continuity does not mean that it should be in operation all the time. It means that there should be a continuous availability of the terms of the customs to deal with particular rule of conduct with which it deals. Presence 6f custom if fact and its enforceability both are essential to prove antiquity. If a custom becomes legally unenforceable even for a short time it would not the recognized as a valid' custom.
3) Peaceable enjoyment: It is essential that custom must have been enjoyed peacefully by the concerned people.
4) Matter of right: Custom must have been enjoyed as a matter of right. This right should be enforceable. Thus custom must result in creating obligatory force at the one hand and related claim on the other hand. If a practice is observed as a courtesy and not as a matter of right then it can be termed a "custom" in legal sense.
5) Certainty: Custom must be certain. If the nature of the custom is not certain then it loses its validity. Custom originate from general consent, it is hard to determine existence of consent, on something which is not certain.
6) Consistency: A custom must not be in conflict with other prevailing customs. The customs must be in consistency with other custom. Difference or inconsistency in custom will amount to different rule of conduct for a given situation; it will negotiate the general consent.
7) Conformity with statute law: Custom should be conformity with statute law. A legislative enactment can abrogate a custom. In case of inconsistency between custom and statutory provision, former must give way to the latter. Thus, custom yield legislative enactment.
5.
Classification of Customs
The customs in their wider sense maybe divided into two classes:
1) Customs without Sanction: They are those customs which are non-obligatory. They are observed due to the pressure of the public opinion. They are social customs. Austin calls them “positive morality”.
2) Customs having Sanction: They are those customs which are enforced by the State. It is with these customs that we are concerned here. According to Salmond, a custom which has the force of law is of two kinds -
a) Legal Customs: A legal custom is one which possesses in itself the force of law. These customs operate as a binding rule of law. A legal custom is one whose legal authority is absolute - one which in itself and proprio vigore possesses the force of law. They have been recognised by the courts and have become a part of the law of land. They have the force of law without the necessity of any agreement – custom which exists of itself and is recognised by the law as so operative. Legal Customs maybe divided further into two categories:
i) The General Custom of the Realm or General Legal Custom: General Legal Custom is the custom prevailing throughout the entire realm and not limited to any locality if the state. Though by the common use of the term ‘custom’ is meant the ‘local custom’, in law, generally, the customs which are treated to be the part of the law of the land are general legal customs.
ii) Local Customs: By local customs is meant those customs which apply only to a definite locality of region of the realm such as a district, a village, etc. It is custom proprio vigore, existing irrespectively of any agreement.
b) Conventional Customs or Usages: A conventional custom or usage is a practice established by having been followed for a considerable period of time, and arising out of contract between the parties, it does not arise out of its own force. A conventional custom or usage is an established practice which is legally binding, not because of any legal authority independently possessed by it, but because it has been expressly or impliedly incorporated in an agreement. A conventional custom is so called because it is rooted in agreement. Its authority is dependent upon prior acceptance by the parties sought to be bound by it. Usually a conventional custom is referred to as ‘usage’ and legal custom as ‘custom simpliciter’.
ConclusionThe customs in their wider sense maybe divided into two classes:
1) Customs without Sanction: They are those customs which are non-obligatory. They are observed due to the pressure of the public opinion. They are social customs. Austin calls them “positive morality”.
2) Customs having Sanction: They are those customs which are enforced by the State. It is with these customs that we are concerned here. According to Salmond, a custom which has the force of law is of two kinds -
a) Legal Customs: A legal custom is one which possesses in itself the force of law. These customs operate as a binding rule of law. A legal custom is one whose legal authority is absolute - one which in itself and proprio vigore possesses the force of law. They have been recognised by the courts and have become a part of the law of land. They have the force of law without the necessity of any agreement – custom which exists of itself and is recognised by the law as so operative. Legal Customs maybe divided further into two categories:
i) The General Custom of the Realm or General Legal Custom: General Legal Custom is the custom prevailing throughout the entire realm and not limited to any locality if the state. Though by the common use of the term ‘custom’ is meant the ‘local custom’, in law, generally, the customs which are treated to be the part of the law of the land are general legal customs.
ii) Local Customs: By local customs is meant those customs which apply only to a definite locality of region of the realm such as a district, a village, etc. It is custom proprio vigore, existing irrespectively of any agreement.
b) Conventional Customs or Usages: A conventional custom or usage is a practice established by having been followed for a considerable period of time, and arising out of contract between the parties, it does not arise out of its own force. A conventional custom or usage is an established practice which is legally binding, not because of any legal authority independently possessed by it, but because it has been expressly or impliedly incorporated in an agreement. A conventional custom is so called because it is rooted in agreement. Its authority is dependent upon prior acceptance by the parties sought to be bound by it. Usually a conventional custom is referred to as ‘usage’ and legal custom as ‘custom simpliciter’.
In conclusion, it may be said that we can neither agree with the Analytical school nor that of the Historical school. Salmond’s view maybe accepted. His view is that custom becomes law whenever it, in fact, satisfies the conditions prescribed by the law as necessary for its validity. If proof of this is forthcoming, courts must affirm, the validity of the custom. Such a custom is called legal custom. Legal custom then supplies principles to which the will of the state is bound to give legal force. It is, therefore, to be ranked as a legal material source of law.
Prof. Keeton also shares the same view when he says that much customary law develops independently of the judges, although it is ultimately incorporated into a legal system by way of judicial recognition.
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