Jurisprudence: Customs

Can all Customs become Law?

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What is Custom

In various parts of the world, we see various customs of varying degrees. These help in the regulation of human behaviour. These are adopted consciously or unconsciously. However, we see reciprocal rights and obligations related to them. Law based on customs is known as customary law.

We see Hindu law, and Muslim Law based on the customs and traditions of the respective community. Similarly, we have Parsi law and Christian Act regarding their personal rights and rituals.

However, we see not all customs become law. In this blog, we will see what are the conditions, which a custom should fulfil to make it valid in the eyes of law.

Position of custom in various ancient Legal Systems

Unlike any other source of law, the custom is also given the status as the source of law. In case it fulfils certain conditions. In most of the ancient legal societies, we see that there were Smritis, Yajnavalkya and other important sources such as Manusmriti etc.

These governed societies and its regulations. They have bestowed a divine origin. Therefore they formed the most potent force in moulding the ancient Hindu laws.

In the case of Collector of Madura vs Motoo Ramlingam

It was held that the usage of customs overweight their written or textual form.

Reasons for the acceptance of Customs

Salmond proposed two theories regarding the same.

Firstly, the custom is frequently the embodiment of national interest as well as the principles of justice and public utility. The national conscience is linked with it.

Secondly, the rational usage in the present implies its usage in the future as well. This is because they are based on the established practices of the present times.

According to Keeton, it was propounded that the main reason for the admission of customs as the law is because the organs of state undertake the task of framing laws for the community. However, we see that in the case of customs, the community already follows them as elaborated rules of conduct. So, the acceptance of customs would be the habits enforced by the popular courts.

The place of custom among the sources of law

Various jurists have divergent opinions regarding the same. These are as follows:

Historical School

According to Savigny, a German Historical school supporter it was said that it would be childish to govern the present without properly understanding the past. Hence, we should accept the rules laid down by the common conscience of the people in the form of customs.

Analytical School

According to this school, customs are not the authoritative source of law at all. Austin points out that the English customary law is purely an invention. Hence, the propounders of this school of the law say that customs are nothing but the judicial laws which should be followed as any other law.

The present position of Customs in India

In the present scenario, we see that customs have not diminished as an important source of law. In India, customs still hold a very important position and it has a recognised value in the eyes of law. We see Article 25, Article 26 and Article 28 of the constitution of India, the indirect customary protection to the established set of rules.

Kinds of Customs

Broadly, there are Two types of customs. These are legal and conventional customs.

Legal customs are those customs which are per see equally applicable to all. However, on the other hand, the conventional customs are those customs which are not applicable to all per se. The second category is the customs which are operating indirectly. Here the parties come into an express or implied consent. It is only after that these are enforceable.

Analytical School's view

Austin proposed two propositions regarding the same. According to Austin:

Firstly, it is not necessary that every custom would be binding. The customs in order to be legally binding must have some legal recognition. In case it qualifies the judicial recognition, it will become a social custom. On the other hand, if it does not qualify, this would be mere positive morality in the eyes of law.

The second argument was that there should be legal support from the sovereign in order to let the custom prevail.

However, Holland disagrees with this view.

Views of Historical School

The propounders of the Historical School argue that custom per se is a law. It does not require any state recognition in order to make it valid or acceptable.

According to Geist, customs are nothing more than the product of revolutions that exists within the communities.

Essentials of a Valid Legal Custom

Not all Customs are recognised by law. In order to become a law, a custom should fulfil the following conditions:

Custom must be Ancient

Customs must be able to follow from time immemorial. According to Blackstone, in order to make the customs valid in the eyes of law, it should be ancient. The expression of 'immemorial antiquity' has been used to express such a view.

Custom must be continuous

A custom must be continuous in existence. It should not be followed by any interruption since its inception. For instance, in the case of the Sati system, it was stopped after the efforts of Raja Ram Mohan Roy and many others.

However, we see that since it was discontinued after a long history by the efforts of the British empire and Indian reforms, it cannot be termed a custom.

Custom Must be reasonable

In the case of Johnson vs Clark it was held that in case the custom is to be made valid, it should not be unreasonable.

For instance, we see that in ancient times, the lower class people were not allowed to share the same pond as it was used by the Zamindars or the so-called upper-class people. However, today we see that there is no such tradition.

Since it is unreasonable, it is not recognised as custom today.

Custom must not be immoral

In Gopi vs Jaggo, it was held that the provision of remarriage by the woman in case her husband deserted him would be a valid act. Hence, this was valid in the eyes of law. We can find the reasoning in the following case laws.

However, in the case of Naikin vs Anarakia Soomar, the Bombay court recognised the tradition of adopting girls from the dancing girls. In the case of Mathura Naiki vs Esu Naikin, it was found that the custom of adopting girls for the dancing girls is immoral. It was held that there is a sense of immoral practice doing and continuing the same profession of dancing girls.

In the case of Reg. vs Karson, the Bombay High Court held that the provision of deserting a husband by a woman at her pleasure would be immoral. A consideration amount or maintenance should be provided to the divorced party.

Custom must not be contrary to justice, equity and good conscience

It is propounded by the jurists that in order to make a custom valid, it must not be opposed to public policy. For instance, one cannot lend a house at lease to open a brothel.

In the case of R vs. R, the courts found that the courts are not concerned about what public policy is. However, the focus is that the established system of legislation should not be altered in the enforcement of such a new custom.

Custom should not oppose public policy

It is propounded by the jurists that in order to make a custom valid, it must not be opposed to public policy. For instance, one cannot lend a house at lease to open a brothel.

Custom must not contravene any express law

A custom should be in congruence with the fundamental rights, directive principles of the state policies, fundamental duties etc. It should not oppose the statutory law. It should comply with the constitution of India.

For instance, we cannot write anything seditious. Similarly, something opposing public policy or fundamental rights would not be valid. Also, we see that the custom should not be such as slave trade, trafficking etc. This is because it would oppose Article 23 of the Indian Constitution. Also, it violates the International Conventions related to Human Rights.

Conclusion

From the above discussion, we see that customs form a vital part of the legislation. We see the Article 25, 26 and 28 indirectly supporting the customs. However, we should thank the great leaders such as Raja Ram Mohan Roy and others for helping us to shape the modern society. Today, we should be proud that certain activities such as Sati Prathaa, wintch hunting and Johar are not a part of the modern society.

However, in certain areas such as Khap Panchayat, Love Jihad and Honour Killing we are a leap behind the western civilisations. We should imbibe the system of tolerance and value-based education in order to eradicate such menace.

BA-LL.B. (Semester 7): All You Need to Know

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Jurisprudence: Customs

Can all Customs become Law?

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