Presently, ‘Namaste’ is a form of Indian custom that has gained fame worldwide under COVID-19. Like every citizen, not just the Indian Prime Minister joins hands to greet, but many other nations' prime ministers follow the same greeting style. Custom is the habit, pattern, and behaviour universally accepted and followed in any social system. Therefore, most of the laws defined are based on traditions followed for ages. Everyone abides by the law; hence it maintains the balance and brings peace and harmony.
In the current scenarios, law or rules formed in any institution like court are derived from different sources. Hence sources of law are classified into two categories.
Principal Sources of Law
Secondary Sources of Law
In this article, we will get into details of sources of law.
As per the ancient literature, it is found primitive people ran life wholly based on customs. It was when everything was underdeveloped; lack of resources led to life in specific style by everyone again and again. Thus, a particular activity became a custom. Customs have played a significant role in the development of Hindu Law. Legal entities like the Court and Parliament consider the importance of custom as a source of law in India.
Custom as a source of law is further categorized -
Without Sanctions- these are the customs that are not compulsory, however, bound to follow due to social obligations. Custom without sanction example, the nearness of the general public beliefs
With Sanctions- These are the customs imposed by the governing body. Thus, these are the obligatory customs. Sanctioned customs could be either Legal Customs or Conventional Customs.
Legal Customs- There are legal customs with sanctions that act like a strict rule to be followed by everyone. If anybody does not abide by the legal customs, they will be liable to be punished. Custom in jurisprudence is recognized by the various legal entities like the court. There are legal sanctioned customs that apply to a particular specific geography. Henceforth, a custom that becomes part of place culture, is called Local customs. We have communities who continuously move from one place to another carrier such local customs along with them. There are general customs which are not specific to a particular local geography. Every citizen of the country follows customs applicable to the whole nation and is called General Customs.
Conventional Customs - Any agreement in which two involved parties mutually promise and are aware of its notion becomes a conventional custom. The reasonable conventional custom cannot modify any other general rule of the area. Based on the geography, conventional custom are also narrowed down into general and local conventional customs
You must be thinking, at what point a custom becomes a law. Let's answer your query; there are particular prerequisites for a custom to become valid and further convert into law. Let’s see the prerequisites
There are few requisites laid down for the recognition of valid custom. All the customs are not approved in judicial understanding.
Antiquity- a custom that is ancient or immemorial could be considered as a valid custom.
Certainty- A clear definition of custom is compulsory so that the idea behind is not vague
Reasonable- A custom must be rational to support fundamental justice, equality, and good conscience.
Mandatory Adherence- A custom is considered valid if all the people follow it without observing any interruptions since ancient times.
Conformity with Law and public morality- A custom should not be against any law of the country. Law can make any of its customs prohibited, which means it will no longer be a valid custom.
Unanimous view- A valid custom is universally accepted. Each person of the nation should receive the custom, then only it will be considered accurate.
Peace and harmony- Everyone should enjoy following a valid custom. It should always bring peace. Then the only custom is considered valid.
Consistency- There should be consistency and uniformity between the customs. Any two customs that contradict viewpoints should not be considered valid customs.
Do you know requisites for binding any valid custom was laid down by Alle, Blackstone, Carter, Littleton?
Do you know customs without sanctions backed by public pressure are also termed as positive morality?
Q1. Explain Theories on Custom.
Ans: There are two views on custom-
Historical Theory- The creation of law does not depend upon the independent will of any person. It is because of the knowledge and information of the communities, groups, and civilizations that have existed throughout the past.
Custom is obtained from the joint morality of the general inhabitants. It springs from a distinctive inborn feeling of right. Law has its reality and genuineness in the general will of the people.
Analytical Theory - Austin advocates analytical theory-. Customs did not have any lawfully obligatory force in themselves. Their legal character is always subject to the agreement of the Sovereign. According to Austin, customs were merely a reflection of law and were not ‘real law.’ Customs need the amendment and judges, jurists, or rulers' consent to have any binding force on people.
Q2. Explain a Valid Custom.
Ans: Valid custom conforms to specific features like it should be followed uninterrupted for ages with a clear definition and motive behind it. Secondly, it should abide by the basic rules of law without going against the country's public policy. A valid custom is always universally accepted, such that citizens enjoy following it, bringing peace and harmony. The idea behind the custom should be consistent and should not oppose the viewpoint of different another customs.