Custom as a Source of Law

Imagine the times when there were no codified laws, the moot question then was how to regulate and govern? In early times, ‘custom’ occupied an important place for administration in all the societies and is the oldest source of law making.

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 As a momentous wellspring of law, custom is a bona fide and binding, because of its celebrated worth. As per Sir John William Salmond, “custom is the embodiment of those principles which have commanded themselves to the national conscience as principles of justice and public utility.”

 It is often said that “Custom is to Society, what Law is to the State”, meaning thereby that persuasion of custom on society is parallel to that of law on the State and it relates to the totality of behavior patterns which are carried by practice and lodged in the cluster. The three Sanskrit words Ācāra (Achara,आचार:), Vyavahāra (Vyavahara,व्यवहार:) and Sadācāra (Sadachara, सदाचार:)  mean ‘religious observances in practice’; ‘the rules of civil law, denoting the right conduct’; and ‘the routine of righteous men’ respectively. These words, therefore, reflects that custom is, continuous course of conduct since age-old times.

 Prerequisites of valid custom

 To be recognised and acted upon, a custom is considered valid with a binding force, if the following requirements are fulfilled:

•  It must be consistently and continuously followed without any break since times immemorial; no one can recollect or give proof concerning it. Manu observed that an immemorial custom as supernatural law.
• It must be reasonable, rational and not opposed to public policy. Sir Edward Coke considered that a custom is contrary to reason if it is opposed to the principles of justice, equity and good conscience.
• It must be obligatory and binding rule of conduct as against optional choice of an individual. Pointing out unmistakable conviction, Blackstone observed, ‘a custom that all the inhabitants shall be rated towards the maintenance of bridge will be good’.
• It must be certain, specific and should not be ambiguous or vague. Where its existence becomes doubtful and indecisive, it will not be recognized as such.
• It must be fair, ethical and in conformity with public morality besides commonly followed with unanimity of opinion and enjoyed in a peaceful manner.

 Custom and Usage

 Custom and usage seems to mean one and the same thing, but the two essentially differ in certain ways. A usage is a repetition of acts whereas custom as the general rule arises from the repetition since times immemorial. Usage derives its authority from the consent of the parties to a transaction whereas custom is binding irrespective of the consent by the parties. In simple words, a usage may exist without a custom, but a custom cannot exist without a usage associated to it.

 Custom and Prescription

 Prescription is limited to the rights of a person and his predecessors, thus it is a species of custom. When a course of conduct is practiced for a long time, it gives rise to rule of law, to become custom and if it gives rise to the right, it is prescription. Prescription is confined to the personal right whereas custom extends to a particular place of community and unlike custom; prescriptions need not to be followed from time immemorial. For a custom to be valid it must be in conformity with the principle of natural justice, it is not in case of prescription. In simple words, custom is a source of law while perception is a source of right.

 Conclusion

 Customs is a cultural idea which comes into existence with the existence of the society and defines a normal blueprint of conduct, which is the characteristic of life. The influence of custom can be traced in any legal system as directly or indirectly, knowingly or unknowingly, customs govern the society and form the basis of large number of laws. But with the passage of time and the advent of contemporary civilisation, the importance of custom as a source of law is diminishing and other sources are gaining significance.