Introduction to custom:
Custom is conduct followed by persons in society. Custom is considered the most ancient and most important source of law. Source means the origin of a thing. It is also considered that law basically comes out from customs. In the past customs were prevailing for control over the society. Austin was the first person who discarded the value of the custom. But the historical school again gave importance to custom.
The sociological school also gives importance to the law in relation to society. In modern times the precedents i.e. Judge made law and legislation have become overpowered to that of customs.
Maduri v/s Motu Ram Linga.
It was held that even custom power over the state.
VARIOUS LEGAL SYSTEMS RECOGNIZED CUSTOM AS A SOURCE OF LAW.
The followings are the systems that recognized custom as a source of law:
Roman Law is known to be the oldest one in the world. This law is mainly based upon the customs of the society. Those customs which were reasonable continued them as law by the Roman jurists.
Hindu law is also to be considered as the most ancient law. His sources are Vedas, Sutras, and Smritis, and these were mainly based on customs.
All personal laws of Hindu are based upon a custom that is why Lord Warren Hastings and Lord Cornwallis did not attack the customs of Indians.
Manu said One should follow the given path of their ancestors. This was nothing but the reorganization of customs.
Particularly ignored customs for the purpose of the law. During the Muslim period in India, their customs were protected by the State.
The British rulers in India also protected customs and personal laws that were based upon customs. The traditions which were not opposed by the prophet Mohammedan were recognized as law. In this way, we can say that customs in Mohammedan law also played an important role.
This is known as common law and in the shape of un-written and based upon customs and conventions.
Customs which were reasonable and not against the public policies were recognized as law under English Law.
According to Pollock, The common Law is customary law.
Black stone common includes written law and unwritten law.”
The written law is based upon the general customs. In this way, English law also gave importance to customs as a source of law.
CLASSIFICATION OF CUSTOMS
Mainly the customs are of four types:-
Those customs are related to the nation and are applicable to the country’s people.
Those customs are related to a particular locality.
Those customs are related to a family and have an application on a particular family.
These customs based upon conventions e.g. a bigger part of English Law based on customs and conventions.
ESSENTIALS OF CUSTOMS
It means oldness of the customs. The customs must be ancient. There is no limit of time for the antiquity of custom. In India, there is no fixation of such a time limit.
The customs must be reasonable. It should not be unreasonable and against public feelings.
Customs must be followed by society. There should be no contradiction in observing customs.
Customs must be continuing from the time it was recognized as law. There should not be any break or interruption. If there is a break for sometimes it does not mean that the right thing has been lost.
5. Certainty:- Customs must be certain in their nature.
There should not any conflict for its reorganization as a law.
Customs must be enjoyed peacefully for a long time without disturbances.
Customs should not be against morality.
It must not be against public policies or against the will of people.
Not against the State of Law:-
Customs should not over-ride the legislation. It should not be against the law of the land.
WHEN DOES A CUSTOM BECOME LAW. ANALYTICAL VIEW:-
Austin and Gray are the supporters of the analytical school. They say that a custom becomes law when it is recognized by the sovereign in the sense of positive law only. It means that if a custom has been accepted or adopted or recognized by the sovereign then it will become a law otherwise there will be no value of the custom in the judicial system of the society.
Sovereign as the supporter of Historical school says that custom is the main source or base of law He says that “ consciousness of the volkgiest is the main source of law.”
Custom is superior to Judge made law or legislation. The legislation while making a law recognizes the customs of society.
The courts also while giving the decisions recognized the customs prevailing in the society.
Custom occupies an important place as a source of law even to these days because most of the material contents of the developed system of law have been drawn from ancient customs. it is one of the most fruitful sources of law. According to the Analytical school, a custom when recognized by State or sovereign becomes law. According to Historical school when states or courts make law they give importance to it. So both of the views are combining with each other and are correct for a custom as a source of law.
Wiki- customary Law