18 Define Custom and essentials of a valid custom.

Discuss its importance as a source of law and also

compare with precedents.
INTRODUCTION: Custom is a conduct followed by
persons in the society. Custom is considered as the most
ancient and most important source of law. Source means
origin of a thing. It is also considered that law basically
comes out from customs. In the past customs were
prevailing for the control over the society.
Austin was the first person who discarded the value
of the custom. But the historical school again gave the
importance to custom. The sociological school also gives
importance to law with relation to society.
In the modern times the precedents i.e. Judge
made law and legislation have become over powered to
that of customs. As in a case of 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 which recognized custom
as a source of law :
1.Romal Law :- Roman Law is known to be the oldest one
in the world. This law is mainly based upon customs of
the society. Those customs which were reasonable
continued them as law by the Roman jurists.
2.Hindu Law :- Hindu law is also to be considered as the
most ancient law. His sources are Vedas, Sutras and
Smiriies and these were mainly based on customs. All
personal laws of Hindu are based upon custom that is why
Lord Warren Hastings and Lord Cornwallis did not attack
on customs of Indians.
Manu said One should follow the given path of their
ancestors. This was nothing but the reorganization of
customs.
3.Mohammedan:- Particularly ignored customs for the
purpose of law. During th Muslim period in India their
customs were protected by State. The British rulers in
India also protected customs and personal laws which
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.
4. English Law :- Which 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 stol common includes written law
and un-written law.” The written law is based upon the
general customs. In this way English law also gave
importance to the customs as a source of law.
CLASSFICATION OF CUSTOMS
Mainly the customs are of four types :-
1.National Customs :- Those customs which are related to
the nation and are applicable on the country’s people.
2. Local Customs :- Those customs which are related with
a particular locality.
3. Family Customs :- Those customs which are related
with a family and have application on a particular family.
4. Conventional Customs :- These customs based upon
conventions e.g. a bigger part of English Law based on
customs and conventions.
ESSENTIALS OF CUSTOMS
1. Antiquity :- 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
time limit.
2. Reasonable :- The customs must be reasonable. It
should not be un-reasonable and against the public
feelings.
3. Followed :- Customs must be followed by the society.
There should be no contradiction in observing customs.
4. Continuity :- Customs must be continuing from the time
it was recognized as law. There should not be any break
or interruption. If there is break for sometimes it does not
mean that the right thing has been lost.
5. Certainty :- Customs must be certain in its nature.
6. Consistency :- There should not any confliction for its
reorganization as a law.
7. Peaceful enjoyment :- Custom must be enjoyed
peacefully for a long time without an disturbances.
8. Immorality:- Customs should not be against the
morality.
9. Public Policy:- It must not be against the public policies
or against the will of people.
10. 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 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 judicial system of the society.
HISTORICAL SCHOOL:- Sovereign as the supporter of
Historical school says that custom is a 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 the society. The courts also while giving
the decisions recognized the customs prevailing in the
society.
CONCLUSION
Custom occupies an important place as a source of law
even to these days because most of the material contents
of developed system of law have been drawn from ancient
customs. Custom is one of most fruitful sources of law.
According to Analytical school a custom when recognized
by State or sovereign becomes law. According to
Historical school when state or courts make law they give
importance to the customs. So both of the view are
combining to each other and are correct for a custom as
source of law.