Custom is one of the main sources of law. It is the oldest form of law-making. About its importance, the Privy Council refers that, ‘a clear proof of custom will outweigh the written text of the law.’ It is difficult to give a universal and uniform definition of Custom. Many definitions of Custom have been given by various writers and references may be made to some of them.
According to Prof. Salmond, ‘Custom is the embodiment of those principles which have commended themselves to the national conscience as principles of justice and public unity.’
According to Prof. Keeton, ‘Customary law may be defined 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 the Courts and applied as sources of law.’
According to Prof. Carter, ‘The simplest definition of Custom is that it is the uniformity of conduct of all persons under like circumstances.’
According to Prof. Holland, ‘Custom is a generally observed course of conduct.’
According to Prof. John Austin, ‘Custom is a rule of conduct which the governed observes spontaneously and not in pursuance of law settled by a political superior.’
According to Prof. Allen, ‘Custom as a legal and social phenomenon grows up by forces inherent in society, forces partly of reason and necessity and partly of suggestion and limitation.’
According to Prof. Halsbury, ‘Custom is a particular rule which has existed either actually or presumptively from time immemorial and had obtained the force of law in a particular locality, although contrary to or not consistent with the general law of the realm.’
Importance of Custom as a source of law:
There are many reasons why the Custom is given the force of law as a source of law –
- Custom is the embodiment of those principles which have commended themselves to the national conscience as principal of truth, justice and public policy. The very fact that any rule has the sanction of custom raises a presumption that it deserves the sanction of law also.
- Another reason for the binding force of custom is that the existence of an established usage is the basis of a rational expectation of its continuance in the future.
- Sometimes a custom is observed by a large number of people in society and in the course of time the same comes to have the force of law.
- Custom rests on the popular conviction that it is in the interest of society. This conviction is so strong that it is not found desirable to do against it.
- The Privy Council refers to that, ‘a clear proof of custom will outweigh the written text of the law.’
- According to Prof. Paton, ‘Custom is useful to the law-giver and codifier in two ways, – (i) it provides the material out of which the law can be fashioned, and (ii) it is great and intellectual effort to create law.’
Essentials of a valid Custom
- A custom to be must prove to be immemorial.
- It must be reasonable.
- It has been continuously observed without any interruption.
- Its enjoyment and use must be a peaceful one.
- It must be certain and definite.
- Its observation and application must be compulsory.
- It must not be opposed to public policy or the principles of morality.
- It must not conflict with any statute of the country.
- Its status must be proved by evidence.
10. It must be real and factual.
11. It must to be conformity with other customs.
12. It must be adaptable to satisfy social demand.
13. It may not to be such which may create dispute in the society.
14. It must be universal in nature or like such.
Classification of Custom:
1. Conventional Custom:
A Conventional Custom is one whose authority is conditional on its acceptance and incorporation in the agreement between the parties to be bound by it. A conventional custom is an established practice which is legally binding because it has been expressly or impliedly incorporated in a contract between the parties concerned.
2. Legal Custom:
A Legal Custom is one whose lawful authority is absolute. It possesses the force of law. It may not depend on any agreement between the parties. The parties affected may agree to a legal custom or not, but they are bound by the same. Legal Custom is two kinds. –
- Local Custom
- General Custom
- Local Custom
Local Custom is applied only to a locality. It is that which prevails in some defined locality only such as borough or county and constitutes a source of law.
- General Custom
General Custom applies to the whole country. It is that which prevails throughout the country and constitutes one of the sources of law of the land.