Essential Elements of Valid Custom

By | November 2, 2021
Essential Elements of Valid Custom

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This article titled ‘Essential Elements of Valid Custom.’ is written by Sanjana Shikhar and covers custom as a source of law and aims to explain the concept and the essentials of custom through detailed explanation.

I. Introduction

Have you ever envisioned a situation where there were no written laws? You could wonder if it would result in anarchy or how you would govern and regulate the particular class and sect.

People were ruled by the customs of their local society in ancient times when there were no laws. Because of its historical significance, the custom is a very authentic and binding source of law. There are several fundamental grounds that qualify custom as a genuine one and thus allow them to get recognised by the judiciary and legislature. This can also be called the tests required for a custom to be valid.

There are not only one or two essentials or tests required for customs to be valid, but there is a number of them. But before delving into that we should have a good knowledge of exactly what is custom and the entire concept behind it.

The term ‘custom’ comes from the French word ‘Coustume’. Some claim the term ‘custom’ is derived from the Latin word ‘Consuetudo’ others say it is a part of the phrase ‘Consuescere’ which means ‘accustom.’ According to some, it is derived from two words: ‘con’ means “to express intense energy,” and ‘suescere’ means “to become acclimated.”[1]

A custom is a continual series of behaviour that has come to be considered as fixing the norm of conduct for members of society due to the acquiescence or express agreement of the community observing it.

When people find an act to be desirable and helpful, apt and pleasant to their nature and disposition, they use and practice it on a regular basis, and the custom is formed via repeated usage and multiplication of the act. A ‘rule of conduct, binding on those within its scope, established by lengthy usage,’ according to one definition.

Custom can simply be defined as long-standing customs or unwritten regulations that have taken on a binding or compulsory status. Valid custom must be of immemorial antiquity, certain and reasonable, compulsory, and not in conflict with Statute Law, even if it deviates from the common law.

General customs are those that apply to the entire country, such as merchants’ general customs. The use of specific characteristics is referred to as a custom. Local customs are customs of certain parts of the country. 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 refers to the sum of behaviour patterns carried by practice and lodged in the cluster.

Theorists have defined custom as :

Allen – Custom is defined as the regularity of people’s habits or actions in similar circumstances.[2]

Salmond: – Custom embodies those values that have been recognised by the national conscience as principles of fairness and public benefit.[3]

Holland: – A frequently observed line of conduct, he defined custom as.[4]

Austin: – Custom is a rule of conduct that the governed adopt voluntarily rather than in obedience to a law imposed by a political superior, Austin writes.[5]

Each and every custom cannot be legally enforced. Before they may have the power of law, they must be proven in court, just like anything else. Antiquity, reasonableness, morality, continuation, peaceful enjoyment, consistency, conformity with statute law, certainty and obligatory force are some of the judicial tests that have evolved for customs, to be legally recognized by the courts and to gain the binding power of law.

II. Custom as a source of law

A custom is a set of rules that people follow consistently and freely. In practically all communities, custom plays a significant role in regulating human behaviour. It is, in fact, one of the earliest legal authority sources. Customs, on the other hand, fade away as society evolves, and legislation and legal precedents become the dominant source of information.

A custom is a form of the specific norm that has existed from the beginning of time. Customary law is a type of law that is founded on custom. People’s customary law has been regarded as the main pillar of their legal identity.[6]

“A custom is a specific concept that has existed either actually or hypothetically from time immemorial and has obtained the authority of law in a specific territory, despite or in opposition to the general precedent-based law of the community,” according to Halsbury law.[7]

III. Origin of Custom

“Custom is idea subsequent to that of Themistes or judgments,” writes Sir Henry Maine. Themistes were judicial prizes given to the King by the goddess of justice in Greece.[8]

He described the development in distinct steps. They are:

  1. Law by rulers under divine inspiration: At early, legislation was enacted by monarchs who sought divine approval for their decrees. They were thought to be God’s messengers, laying down the law for the people.
  2. Developing of Customs: People gradually develop a habit of following their rulers’ mandates, which eventually becomes customary law and a part of people’s daily lives.
  3. Knowledge of law in the hands of priests: A small group of people, mostly religious people, study the understanding of customs and practices. This is feasible due to the rulers’ power over the people eroding. Priests, research customs, discover patterns, comprehend their significance, and formalize them.
  4. Codification: The codification of these laws is the last and final step. Priests meticulously research customs and record them on paper. After that, the code is marketed and spread to other locations and territories.

IV. View of the Scholars

  1. John Salmond:  “Custom embodies those values that have been recognised by the national conscience as principles of fairness and public benefit.” A valid custom, according to Salmond, possesses absolute legal authority and has the force of law in and of itself.[9]
  2. J.L. Austin: “Custom is a norm of conduct that the governed observe spontaneously rather than in accordance with a law established by a political superior,” says J.L. Austin.”[10] Austin’s theories were frequently perceived as contradicting customary law because he believed that the political superior was the sole source of law, and that traditions were not true law. To be considered law, they needed the Sovereign’s agreement and direction.

V. Theories of Custom

1. Historical Theory

As this school points out, the custom has its own legitimacy because it would not exist unless it met some fundamental demands of the general population or met some specific societal needs.[11]

The formation of law is independent of any individual’s subjective will. It is due to our understanding of the various groups and civilizations that have existed throughout history. The whole public’s common conscience is used to create custom. It comes from a deep sense of rightness. The collective will of the people gives law its existence.

It’s dubbed ‘Volkgeist’ by Savigny.

2. Analytical Theory

The Analytical theory’s main proponent was Austin. Customs, in his opinion, lacked any legal authority. Their legal status is always contingent on the Sovereign’s approval. Customs, he believed, were only a mirror of the law, not the ‘true law.’ For customs to have any binding force on people, they must be modified and approved by judges, jurists, or rulers. This corresponds to his belief that all law is the ‘Will of the Sovereign.’[12]

VI. Essential elements of valid custom

Each and every custom cannot be legally enforced. Before they may have the power of law, they must be proven in court, just like anything else. Some judicial standards have arisen in order for custom to be legally recognised by the courts and gain the binding force of law.

These tests given by Blackstone are as follows:

1. Immemorial Antiquity

A valid custom must be immemorial to be considered valid. It must be old or ancient, and not recently created. Allen, Paton, Salmond, and all other jurists believe that in order for a custom to have legal validity, it must be proven to be of ancient age or origin. “A custom, in order to be legitimate and binding, must have been employed as long as man’s memory runneth not to the contrary,” writes Blackstone.”[13]

The idea of immemorial custom was derived by the law of England from the Cannon law, and by the Cannon law from the Civil law. In Civil law and Cannon law, and the systems derived from them, time immemorial refers to a period of time so distant that no living person can recall it or give evidence about it.

A custom in England must date from the reign of Richard I, King of England. In England, the time of legal memory for a custom to be considered legitimate is 1189. The year 1189 was the first year of Richard I’s reign. However, in India, the English notion of ‘immemorial origin’ is not fully maintained.

In Kuar Sen v. Mamman[14] the Allahabad High Court decided in 1895 that applying the English ‘law of 1189’ in India would be inefficient since it would abolish many customary rights to contemporary expansion in villages and other areas. In Ambalika Dasi v. Aparna Dasi,[15] the Calcutta High Court held that either 1773 A.D. or 1793 A.D. is the appropriate period for treating a custom that has existed since time immemorial.

If examples of an alleged custom have been acknowledged within the last 20 years, the assumption is that it is of immemorial antiquity, according to the Bombay High Court. Similarly, the Andhra Pradesh High Court, citing the Bombay High Court, held in Venkata Subba Rao v. Bhujangyya[16] that a 40-year-old custom is enforceable.

The Supreme Court, however, ultimately decided the matter once and for all in Gokalchand v. Parvin Kumari,[17] stating that the English laws of custom must have been in use for so long that man’s memory runneth not to the contrary and should not be strictly applied to Indian customs.

In India, it is believed that a custom must be of ancient origin, although, unlike English law, there is no set era during which it must have existed. The reason for not enforcing a modern custom is that many of the novel traditions would become law if they were enforced. The law recognizes that current or irrational custom should not be accepted in order to preserve the force and strength of precedent.

2. Reasonableness

According to the second important legal criterion, a legal custom must also be reasonable. It can’t possibly be unreasonable. It must be beneficial to society and practical. When a party challenges a custom, it must show the court that the custom is unreasonable.

That is, the individual challenging the custom bears the burden of proof. To determine whether a custom is acceptable, it must be traced back to its inception. A custom’s unreasonableness must be such that enforcing it causes more harm than if there were no custom at all. As a result, a custom is invalid if it appears to be contrary to right and reason, and if it is enforced, it is likely to cause more harm than good.

A custom is contradictory to reason, according to Sir Edward Coke, if it contradicts the principles of justice, equity, and good conscience. Salmond is correct in suggesting that before a custom is denied legal status, it must be determined if the harm caused by its enforcement outweighs the harm caused by the multiplication of people’s natural expectations. [18]

It has been held, that a tradition that is not reasonable is illegal in law and not obligatory. As a result, the sati pratha could not replace a legal custom because it ran against to man’s logical sense of justice and goodness.[19] It was established in Newcastle-under-Lyme Corporation v. Wolstanton[20] that courts will not enforce unreasonable customs since the law will not accept what is unreasonable and inequitable.

In the case of Lutchmeeput v. Sadaulla,[21] the plaintiff, a zamindar, sued to prevent defendants from fishing in certain bhils (ponds) that were part of his zamindari, and the defendants contended that they had a prescriptive right to fish under a custom according to which all zamindari residents have the right to fish in the bhils. Because the purported custom was found to be irrational, the defendants were granted permission to take away all of the fishing rights in the bhils, leaving nothing for the plaintiff, who was admittedly the owner of them.

When a custom is not opposed to the fundamental principle of morality, the law of the state in which it exists, or the principles of justice, equity, and good conscience, it should be considered adequately reasonable… In Produce Brokers co. v. Olympia oil and coke co.,[22] the Divisional Court of the King’s Bench defined the criterion as ‘fair and proper, and such as reasonable, honest, and fair-minded 11 men would accept.’

In the case of Budansa v. Fatima bi,[23] a custom that would allow a woman to marry again during her husband’s lifetime without any established laws requiring the first marriage to be dissolved before the second marriage is contracted was found to be against public policy.

The criteria were articulated even more broadly in Robinson v. Mollett,[24] by Brett, J: ‘whether or not it is in accordance with fundamental principles of right and wrong.’ It is not the validity of a custom that must be reasonable, but the duration of validity of a custom must be reasonable; yet, a precedent that is clearly and substantially unreasonable may be overruled rather than followed.

According to Prof. Allen, “The true rule appears to be that a tradition will be accepted unless it is absurd, rather than if it is reasonable”.[25]

3. Morality

The third criterion for a valid custom is that it must not be unethical. A well-established rule is that a custom should not be incompatible with decency and morality. The Bombay High Court ruled in Mathura Natkin Plaintiff v. Esu Naikin,[26] that the practice of adopting girls for immoral purposes, like dancing, is prohibited because it was aimed to prolong the profession.

The habit of marrying a daughter’s daughter has also been declared unethical in the case of Balusami v. Balakrishna.[27] In Gopi v. Jaggo,[28] the Privy Council acknowledged and sanctioned a tradition that recognized and sanctioned a woman’s remarriage after her husband had abandoned and deserted her.

In the case of Narayan v. Laving,[29] the Bombay High Court ruled that a custom allowing a woman to quit her husband at her leisure and marry again without his consent was immoral. In Keshav Hargovan v. Bai Gandi,[30] the same Court ruled that a custom in which a marriage connection might be severed by either husband or wife against the divorced party’s wishes for a fee was immoral.

4. Continuance

The fourth criterion for a genuine custom is that it must have been followed without fail for a long time. The general rule is that if a custom has not been followed constantly and uninterruptedly for a long time, it was never really there. It had to have existed and been acknowledged by the community for a period of time that might be considered reasonable under the circumstances.

It was established in Muhammad Hussain Faroki v. Syed Mian Saheb[31] that there is no custom unless there is continuity. A custom, if it abrogates another custom, the latter no longer exists. Blackstone distinguished between the interruption of a ‘right’ and the interruption of simple ‘possession.’

The custom comes to an end when the ‘right’ is no longer exercised, no matter how briefly. It indicates that even if possession is disrupted for a period of time, but they claim to enjoy the custom is not abandoned, and the custom remains. The custom will come to an end if the right is revoked, even if it is only for a day.

5. Peaceable Enjoyment

The next important test is that custom must have been enjoyed peaceably. The presumption that a custom began by consent, as most customs do, will be disproved if it has been questioned in a court of law for a long time. As a result, in order for a custom to be enforced, it must be demonstrated that the custom has been followed without interruption or competition. A custom is founded on consent or habit, and we cannot argue that it was based on the universal consent of the people until the tradition existed undisturbed.

6. Consistency

A custom must not be a conflict with other prevailing customs. The custom must be consistent with other customs. Different rules of behaviour for a given scenario will result from differences in custom. It is therefore that, one custom cannot be set in opposition to other customs.

7. Conformity with Statute Law

The only way to tell if a custom is valid is if it complies with the law. It should not be in violation of the law. This rule is observed as a positive legal concept in England and other nations that follow English law, such as India. This rule, however, is not followed by Roman law or many continental systems. Justinian lists various statutes in his corpus juris that have fallen out of favour due to later opposite custom.

Savigny commented on this subject, stating that customs and statutes are treated equally in terms of legal efficiency, and that customary law can alter or repeal a statute, as well as create a new norm to replace a statutory rule that has been repealed.[32] In Scotland and ancient Greece, a statute may be rendered obsolete by subsequent conflicting custom.

However, in India, the position is clear that custom cannot be in conflict with statute law, as the Indian Supreme Court declared in Mohammad Baqar and Ors. v. Naim-Un-Nisa Bibi.[33] Custom, obviously, cannot override newly adopted legislation. For example, the established legislation governing such issues has abolished all customary forms of marriage, adoption, succession, or property among Hindus. As a result, an ancient inconvenient and unjust custom cannot be used to justify a violation of the law.

According to Coke, “No custom or prescription can take away the force of an Act of parliament.”[34]  However, it should be noted that different writers hold opposing viewpoints on this subject. If the legislated legislation comes first, a later custom can repeal or modify it.

If customary law is the earlier, it can also be addressed by later passed legislation. “If we evaluate conventions and legislation in terms of their legal efficacy, we must put them on the same level,” Savigny says. “Customary law has the power to amend or repeal a statute, as well as to create a new rule to replace a statutory rule that has been repealed.”[35] “The power of customary law is equal to that of statute law,” Windshield claims. “As a result, it has the power to not only enhance but even to override current legislation.” [36]

8. Certainty

A valid custom requires certainty as a precondition. An ancient custom, on the other hand, cannot be undefined and uncertain. Wilson v. Wills[37] established that a custom must be specific and not ambiguous. It is impossible to recognize a custom that is ambiguous or indefinite.

It’s more of an evidentiary rule than anything else. A clear proof that a custom exists as a matter of fact, or as a legal presumption of fact, must be presented to the court. The plaintiff in a particular case claimed a customary right of easement for the shadow cast by the branches of trees hanging from the neighbour’s field. Mr Justice Pandalai of the Madras High Court declared that a custom relating to the shade of trees could not exist since it is so vague, ambiguous, and ephemeral that it cannot give rise to any customary right.

9. Obligatory Force

 To be legally recognized as a valid custom, a custom must be followed as a right. It indicates that custom had to be followed by all parties involved without the use of force or the need for permission from those who were negatively affected by it. It must be considered as an obligatory or binding rule of behaviour by those who are impacted by it, not only as an optional guideline. These requirements are encapsulated in the rule that the user must be not by force, stealth, or will.

In Hammerton v. Honey,[38] the court found that if a custom is not observed for a lengthy period of time, it is presumed that the custom never existed.

VII. Conclusion

In conclusion, it can be said that customs are the most significant, and in some cases, the only source of law, in the early stages of society. All legal systems are built on the foundation of customs. They are created as a result of society’s existence. The primitive society’s recurring habit is known as custom.

A custom is a norm or practice that has been observed by humans since the beginning of time. Customs are rationalized, and legal principles are assimilated and embodied. Any legal system can be traced back to the impact of custom.

The creative rule of the magistrates in Roman law, equity judges in English law, a galaxy of great legal writers like Blackstone, and the Smritikars, Commentators, and Privy Council rulings in Hindu law have all had a significant impact on the form and substance of the conventions.

Custom is an important source of law. But it must be a valid custom. We have discussed all the essentials of a valid custom. Each and every element of valid custom is important. They are the prerequisites for a custom to be valid.

There was a time when most components of law were based on customs and not codified, but such laws are now created through the due process of law.  The advancement of science and technology evolves new mechanisms and techniques. New claims are recognized as new faculties of life develop, and these are given the character of statutory rights at the same time.

So if we see, the tests required for a valid custom is very necessary because if meaningless practices become or are certified as customs then it would be a dangerous situation because then there is a probability of them being codified as law. There were many practices that were rejected by the courts on the above grounds. As stated above, some of the examples:

The habit of marrying a daughter’s daughter has been declared unethical in the case of Balusami v. Bala Krishna.[39]It was established in Newcastle-under-Lyme Corporation v. Wolstanton[40] that courts will not enforce unreasonable customs since the law will not accept what is unreasonable and inequitable.

As we all know, the custom has always been an important source of law. Irrelevant and meaningless practices would have an overall adverse impact on people. In this way, we can say that the essentials of customs are very significant because they have an impact on the formation of law and in turn on the people’s lives.


References

[1] Anon., Custom as a source of law, n.k. n.k. 1, 1 n.d., Available Here.

[2] SLIDESHARE, Available Here, (last visited Jun. 25, 2021).

[3] Ibid.

[4] Anirudh Vats, Custom as a source of law, BLOG – IPLEADERS, Available Here, (Jun. 25, 2021, 11:06 PM).

[5] Ibid.

[6] DAVID J. BEDERMAN, CUSTOM AS A SOURCE OF LAW 25 (Cambridge University Press 2010).

[7] Keerthana R, Custom as a source of law, LAWCOLUMN Available Here, (Jun. 25, 2021, 11:10 PM).

[8]SOCIAL LAWS TODAY, Available Here, (last visited Jun. 25, 2021).

[9] LAWBHOOMI, Available Here, (last visited Jun. 25, 2021).

[10] Supra note 4.

[11] Supra note 9.

[12] Mr Lakshay Diwan, Understanding the sources of law, LAW WITHIN Available Here, (Jun.26, 2021, 8:30 AM).

[13] ONLINE LIBRARY OF LIBERTY- LIBERTY FUND, Available Here, (last visited Jun. 26, 2021).

[14] Kuar Sen v. Mamman And Ors., (1895) ILR 17 All 87.

[15] Srimati Ambalika Dasi And Ors. v. Srimati Arpana Dasi And Ors., 47 Ind Cas 402.

[16] Nannapaneni Venkata Subba Rao v. Thummala Bhujangayya (Died) And Ors., AIR 1960 AP 412.

[17] Thakur Gokalchand v. Parvin Kumari, 1952 AIR 231. 

[18] Supra note 1 at 10.

[19] SRD LAW NOTES, Available Here, (last visited Jun.26, 2021).

[20] Newcastle-under-Lyme Corporation v. Wolstanton, [1947] Ch 92.

[21] Lutchmeeput Singh v. Sadaulla Nushyo And Ors., (1883) ILR 9 Cal 698.

[22]Produce Brokers co. v. Olympia oil and coke co., [1916] A. C. 314 ; 85 L. J. (K. B.) 160.

[23] Budansa Rowther And Anr. v. Fatma Bi And Ors., 22 Ind Cas 697.

[24] Robinson v. Mollett, (1875) LR 7 HL 802.

[25] Supra note 1 at 11.

[26] Mathura Natkin v. Esu Naikin And Ors., (1880) ILR 4 Bom 545.

[27] Balusami vBalakrishna, AIR 1957 Mad 97.

[28] Gopi Krishna Kasaudhan v. Jaggo, (1936) 38 BOMLR 751.

[29] Narayan Bharthi v. Laving Bharthi And Ors., (1878) ILR 2 Bom 140.

[30] Keshav Hargovan v. Bai Gandi, (1915) 17 BOMLR 584.

[31] Muhammad Mahmood Hussain Faroki alias Chan Bash v. Syed Abdul Huq alias Sabju Saheb, minor by guardian Syed Miah Saheb, (1942) 1 MLJ 564.

[32] Supra note 1 at 12-13.

[33] Mohammad Baqar And Ors. v. Naim-Un-Nisa Bibi And Ors., AIR 1956 SC 548.

[34]LAW PAGE, Available Here, (last visited Jun.26, 2021).

[35] Ibid.

[36] Ibid.

[37] Wilson v. Wills, 69 S.E. 755, 154 N.C. 105 (N.C. 1910).

[38] Hammerton v. Honey, 24 WR 603.

[39] Supra note 27.

[40] Supra note 20.


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Author: Sanjana Shikhar

Faculty of Law, Banaras Hindu University

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