custom as a source of law

CUSTOM AS A SOURCE OF LAW

Salmond's ViewSalmond preferred to emphasis on

two main sources of law

Material Sources

Formal Sources

Material Sources: The material sources are further sub-divided into legal sources and historical sources. From the material source, the law derives only its matter and not the validity.

Formal Sources: These sources are those sources from which a rule of law derives its force and validity. Thus the will of the state as manifested in the statute book or decisions of courts are the formal source of law while legislation, customs, agreements and professional option of jurists etc. are the material source of law.

Keeton’s View

According to Keeton, the sources of law can be classified into two broad categoriesBinding

sources of lawPersuasive

sources

Binding Sources of Law: These sources may further be classified as :(i) Legislation(ii) Judicial Precedent(iii) Customary Law

Persuasive Sources: These sources are of three kinds:

(i) Principles of Equity(ii) Professional Opinions(iii) Writing of jurists

Kinds of Custom

Conventional Custom

Legal Custom

Conventional Custom: A conventional custom is also called “usage”. It is an established practice whose authority is conditional on its acceptance and incorporation in the agreement between the parties bound by it. Conventional custom is legally binding not because of any legal authority independently possessed by it, but because it has been expressly or impliedly incorporated in a contract between the parties concerned. The development of customs essentially involves three stages .Firstly, it must be so well established as to have attained the notoriety of a usage. In its second stage, a custom gets recognition through a judicial decision. In its third stage of development the conventional custom is finally accepted as a statutory law after its codification.

Legal Custom: Legal customs are those which are operative as binding rules of law independent of any agreement between the parties.

Legal customs are of two kinds

Local Custom

General Custom

(i) Local Custom: 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 it refers to local custom. Halsbury defined local custom as “a particular rule which has existed actually or presumptively from time immemorial, and has obtained the force of law in a particular locality, although it is contrary to or not consistent with the common law of the realm.

(ii) General Custom: A general custom prevails throughout the realm and constitutes on of the common law of the country. A general custom is usually practiced by all the people living in the country and it is prevalent throughout the land. According to Keeton, a general custom must satisfy certain conditions if it is to be a source of law. It must not only be reasonable but also be followed and accepted as binding. It must be in existence from the time immemorial and should not be in conflict with the statute law of the country.

Requisites of a Valid Custom

In order to be a valid custom, it must confirm to certain requirements laid down by the law. The essential requirements of a valid custom are :

Reasonableness

Consistency

Compulsory Observation

Continue and Immemorial Antiquity

Certainty

THEORIES REGARDING TRANSFORMATION OF CUSTOM INTO LAW

There are two main theories in this regard, namely :

HISTORICAL THEORY

ANALYTICAL THEORY

HISTORICAL THEORY The main exponent of historical school, namely,

Savigny, Puchta, Blackstone and Henry Maine have suggested that law has its existence because of the common consciousness of the people and “customary laws completely modify or repeal a statute; it may create a new law and substitute it for statutory rule which it has abolished’’. James Carter also supports historical view and says, “what has governed the conduct of men from the beginning of time will continue to govern to the end of time. Human nature is not likely to undergo radical change and law will for ever continue to be custom

ANALYTICAL THEORY The main exponent of the analytical theory of customary law was John Austin who regarded custom as a historical material source. He pointed out that custom derives its binding force not from its own nature but by an Act of the Parliament or its validity has been established by judicial decisions. Thus a customary rule may become a legal rule either by recognition through a statute law or by a precedent.