2. 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
3. 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
4. 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.”
5. 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”
6. 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
7. 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
8. Requisite of a valid local custom
Reasonableness
Confirmity with Statute Law
Observance as of Right
Immemorial Antiquity
Peaceable enjoyment
Certainty
Consistency
Continuity
9. 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
11. 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.
12. Historical theory
Savigny –Puchta –Blackstone -
Custom is the primary source from which all law
derives its legal efficacy and authority
It is a formal source of law
Custom 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 clans
Possess sanction of people and judges recognize them
only officially
13. Ancient sources of Law in the Indian legal system.
1.SHRUTI
2.SMRUTI
3.COMMENTARIES AND DIGESTS
4. 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.
14. CUSTOM IN INDIA
1. Local Custom
2. Family Custom
3. 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.
15. 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 229
But 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.
16. 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.
17. 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.
