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Principle Sources of Indian Law – Customs

Customs can be described as a cultural idea that defines a regular pattern of behaviour, which is considered a characteristic of life in a social system.  They are one of the earliest sources of law. Customs are important for maintaining balance and peace in a society. Even today, customs are a basis of a large number of laws.

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The modern law that is used in courts has originated from various sources. All these sources of law fall under two important heads, namely

  • Principle Sources of Law
  • Secondary Sources of Law

Principal Sources of Law – Customs

Studies on ancient societies show that the lives of the primitives were dictated by the customs which developed during that time period because of the circumstances. When a certain activity is performed in a certain way, many many times, it becomes a custom. Customs have played a major role in forming ancient Hindu Law.

Customs can be broadly classified into :

  • Without sanctions

Customs without sanctions are those which are not obligatory and are followed due to the pressure of the society. It is referred to as ‘positive morality’

  • With sanctions

Customs which have sanctions are those which are enforced by the ruling body. It is these customs that we will be dealing with in the law. These are again divided into two types –

1. Legal Customs 

Legal Customs act as strict rules that are meant to be followed by everyone and action is taken against anyone who breaks them. They are recognised by the courts and are part of the law. Again, there are two aspects to legal customs, which are :

Local Customs – Local customs are those types of customs which exist in a certain geographical locality and are thus part of that place’s culture. It is specific to that place alone. However, when certain communities migrate, they take their customs with them. And so, local customs are then further divided into two parts – geographical local customs and personal local customs.

General Customs – A general custom is a custom that is not specific to a single locality, but rather it is followed by the whole nation or country. They are also part of the law.

2. Conventional Customs 

A conventional custom is an established ‘usage’ which is considered legally binding because it has been incorporated in an expressly stated or implied contract. Before a court of law treats a conventional custom as legally binding, certain prerequisites have to be fulfilled. Those are :

  • It must be shown that the convention is clearly established and also that the contracting parties are fully aware of it. There is no fixed period before which a convention must be observed before it is recognised as binding.
  • The convention cannot alter the general law of the land.
  • It must be reasonable.

Similar to legal customs, conventional customs can be divided into genral or local conventional customs.

sources of law

(source – slideshare)

Requisites of a valid custom

A custom will only be considered a valid law with a binding force if these requirements are fulfilled :

  • Immemorial (Antiquity) – A custom must be ancient or immemorial so that it may be considered as a valid binding custom.
  • Certainty – The custom has to clearly defined, it cannot be vague and confusing.
  • Reasonable – A custom must be within bounds of reason for it to be considered legally binding. Therefore, custom would be considered unreasonable if it opposes principles of justice, equality and good conscience.
  • Compulsory Observance – For a custom to be considered valid, it must have been observed since ancient times without any interruptions and must be considered by the people following it as a binding rule of law.
  • Conformity with Law and public morality – A custom must not go against public policy and law of the land. If the law makes it forbidden, it will not be considered a valid custom.
  • The unanimity of Opinion – Only a universally accepted custom will be considered valid.
  • Peaceable Enjoyment – When everyone follows and enjoys the custom in a peaceful manner, only then will it be considered valid.
  • Consistency – There should be consistency between customs. Two customs that have opposing viewpoints cannot be considered valid.

 

Solved Question for you

Question: Mention at least three requisites of a valid custom. 

Answer – Three requisites

Immemorial – A custom must be ancient or immemorial so that it may be considered as a valid binding custom.

Certainty – The custom has to clearly defined, it cannot be vague and confusing.

Reasonable – A custom must be within bounds of reason for it to be considered legally binding. Therefore, custom would be considered unreasonable if it opposes principles of justice, equality and good conscience.

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