Jurisprudence

Sources of Law – Customs

Customs in law refers to the set pattern of behavior that can be affirmed objectively within a specific social background. We can carry a claim in defense of “what has always been done and accepted by law”. The idea of prescription is also related to the Customs. A prescription refers to a right which is enjoyed through long custom rather than positive law.

Sources of Law – Customs

Customary law or unofficial law or consuetudinary subsists in the following situations:

  1. Where a certain legal practice is observed
  2. When the relevant actors consider it to be a law.

Most of the customary laws address the standards of community that has been prevalent for a long time in society. However, customary laws can also deal with some areas of international law in a case where certain standards have universal acceptance. For example, laws against slavery, piracy, terrorism, etc.

Usually, the customary laws have supportive court rulings and case laws that give additional weight to their rule as law.

Law is necessarily rule-governed

According to Hund, the concept of custom generally denotes merging behavior. However, he says that not all customs have the force of law. Whereas in the opinion of Hart, social rules amount to the custom that has legal force.

Customary law and codification

The modern codification of civil law has evolved over a period of time from the traditions of medieval custumals. These were slowly pieced together from the case laws and the local jurists wrote them down later. When the members of a community regulated certain rights, entitlements, and obligations, the custumals acquired the force of law and became undisputed rules.

Customs

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Customs within a contemporary legal system

Customary law may be subordinate to statutes and regulations. It is a recognized source of law which falls in the purview of Civil law tradition. In many countries, usually, one or more types of customary law exist side by side with official law. We refer to this situation as legal pluralism.

In India, the law accepts many customs. For example, the Hindu Marriage Act recognizes the Hindu marriage ceremonies.

The Common law of England states that ‘long usage’ should be established. Here, the principle of property states that if something has been going on for a long time without any objection, the law shall finally recognize this fact and shall give the person doing it a legal right to continue. We refer to this as Customary Rights.

Customs in Torts

In Tort law customs determine negligence. Following or disregarding a custom is an indication of best possible practices for a particular action. Thus, it is not determinative of negligence.

Solved Example on Customs

Explain customs with reference to International law?

Ans. In the context of international law, customary law denotes the Law of Nations or the legal norms that evolved due to the customary exchanges between states. As per a popular belief, the legal obligations arise between states in order to carry out their affairs consistently with the acceptance of past conduct. However, these can change on the basis of the acceptance or rejection by the states of particular acts. We need to distinguish the customary international law from treaty law. However, many treaties attempt to codify pre-existing customary law.

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