SOURCES OF LAW

Dr.Rabbiraj.C

Origin of custom

Historical jurists (Germany):

Common consciousness of people

Come into existence due to necessity & convenience

Decisions as the basis of custom:

Maine: judgments of the kings under divine inspirations

basis of the customs

Ihering: people will not impose liability by their own will

until compelled by courts

Gray: custom often arises from judicial decisions

Holland’s View

Customs is not due to any conscious thought on the

part of the people.

Results of tentative practice

customary rules existed long before nations or states

had come into being

In primitive times little organized sanction

Necessity & force of public opinion ensured

compliance

CUSTOM

Spencer:

“Before any definite agency of control is developed

there exists a control arising partly from the public

opinion of the living, and more largely from the public

opinion of the death. Thus it is the tradition passing

from one generation to another that originally

governed human conduct. This tradition is called

custom.”

Allen: “As the uniformity of habits or conduct of people

under like circumstances”

Salmond “Custom is the embodiment of those principles

which have commanded themselves to the national

conscience as principles of justice and public utility”

Carter :“What has governed the conduct of men from the

very beginning of time will continue to govern it to the

end of time. Human nature is not likely to undergo

radical change and therefore that to which we give the

name of law has been, still is, and will forever continue

to be custom”

KINDS OF CUSTOM

Legal

Conventional

Legal Custom: Salmond-operative per se binding rule

of law

(i)Local Custom:

Defined locality & source of law for that place

(ii) General Custom

Observed by all members of a society

Conventional Custom:Salmond: “One whose authority is conditional on its

acceptance and incorporation in agreements between parties to be bound by it”

Conventional custom as incorporated into contract:

To be shown that custom is clearly established &

fully known

Can not alter the general law of the land

Must be reasonable

Need not be confined to particular area-may relate to

trade or commercial dealing

Requisite of a valid local custom

Reasonableness

Confirmity with Statute Law

Observance as of Right

Immemorial Antiquity

Peaceable enjoyment

Certainty

Consistency

Continuity

When does custom become Law?

Analytical View:

Austin

Custom not law until so declared by the sovereign

Gray:

Customs not law until approved by the judge

Theories of Customary Law

Analytical TheoryHistorical theory

Analytical Theory

Austin:

Custom derives its binding force not from its own nature

but by state recognition

“Law styled customary is not to be considered a distinct

kind of law. It is nothing but judcial law founded upon

anterior custom”

Custom has only persuasive value only

Allen:

It is fallacy that custom is not law until it has been

prnounced upon by a court.

Historical theorySavigny –Puchta –Blackstone -Custom is the primary source from which all law

derives its legal efficacy and authorityIt is a formal source of lawCustom is self sufficient, independent of legislative

authority but condition precedent of all sound legislation.

Vinogradoff :Custom did not originate from judicial decisions

Originated from house hold & relations of clansPossess sanction of people and judges recognize them

only officially

Ancient sources of Law in the Indian legal system.

1.SHRUTI2.SMRUTI3.COMMENTARIES AND DIGESTS4. CUSTOMS

Shruti means "something that is heard". The early time rishis and munis attained the heights of spirituality when the studied and presented the knowledge of the Vedas.

Smrit means "something that is remembered". With the concept of smrutis, people started learning the Vedas.

Commentaries were framed in period following 200 AD. Digests on the other hands explained the materialistic contents of all smrutis. Some of the notable commentaries were manubhashya, manutika, and mitakshara.

CUSTOM IN INDIA 1. Local Custom2. Family Custom3. Class Custom.4.Guild Custom

“Local Custom” is a custom which is prevalent, and has been followed in a particular area or territory for a long period of time, time immemorial to be more specific, and is not against the morality and legal principles. “Family Custom” is often followed only in a particular family, which makes it difficult for the family members to prove the existence of any such custom as required by the case. “Class custom” is the one followed by a particular class.

“Guild Customs” - These are the customs that are followed by traders.

Balwinder Singh v. Smt. Gurupal Kaur AIR 1985 Delhi 14.Among the Sikh Jats of Amritsar, there is a custom of the husband dissolving a marriage out of court preferably by written instrument which is saved by Section 29 (2) of the Act.

Keshav v. Gandhi 39 Bom 588Agency, Allahabad.The Bombay High Court condemned a custom allowing divorce as a

matter of course on payment of a fine fixed by the caste.

Thangammal v. Gangayammal (1945)1 MLJ 229But the Madras High Court holds a custom valid which enables either spouse to divorce the other with the latter’s consent.

In Sankarlingam v Subba [1894] 17 Madras 479. Divorce by consent was held valid as a matter of custom of the Pakhali caste of Ahmedabad observing that there was nothing immoral in a caste custom by which divorce and remarriage were permitted by mutual agreement.

SOURCES OF INTERNATIONAL LAW

According to Article 38, of the Statute of the

International Court of Justice (ICJ) there are four

sources of international law.

1) conventions or treaties to which a state is a party;

2) international custom or practice that international

society has come to accept as law;

3) the general principles of law that are recognised by

civilised states; and

4) the views of highly-qualified jurists writing on a point of

law.

Custom as a source of law

There are three conditions under which the general

behaviour of states becomes a rule of customary

international law:

a) if the behaviour is widespread,

b)practices are followed for a significant period of time,

and

(c) it s viewed by it is practitioners as mandated by law.