Custom As A Source Of Law 5w2i73

CUSTOM AS A SOURCE OF LAW

Salmond's View Salmond preferred to emphasis on two main sources of law

Material Sources

Formal Sources

Material Sources: The material sources are further sub-divided into legal sources and historical sources. From the material source, the law derives only its matter and not the validity. Formal Sources: These sources are those sources from which a rule of law derives its force and validity. Thus the will of the state as manifested in the statute book or decisions of courts are the formal

Keeton’s View According to Keeton, the sources of law can be classified into two broad categories

Binding sources of law

Persuasive sources

Binding Sources of Law: These sources may further be classified as : (i) Legislation (ii)Judicial Precedent (iii)Customary Law Persuasive Sources: These sources are of three kinds: (i) Principles of Equity (ii) Professional Opinions

Kinds of Custom

Convention al Custom

Legal Custom

Conventional Custom: A conventional custom is also called “usage”. It is an established practice whose authority is conditional on its acceptance and incorporation in the agreement between the parties bound by it. Conventional custom is legally binding not because of any legal authority independently possessed by it, but because it has been expressly or impliedly incorporated in a contract between the parties concerned. The development of customs essentially involves three stages .Firstly, it must be so well established as to have attained the notoriety of a usage. In its second stage, a

Legal Custom:

Legal customs are those which are operative as binding rules of law independent of any agreement between the parties.

Legal customs are of two kinds Local Custom

General Custom

(i) Local Custom: A local custom is that which prevails in some defined locality whereas a general custom is operative throughout the realm. When the word ‘custom’ is used it refers to local custom. Halsbury defined local custom as “a particular rule which has existed actually or presumptively from time immemorial, and has obtained the force of law in a particular locality,

(ii) General Custom: A general custom prevails throughout the realm and constitutes on of the common law of the country. A general custom is usually practiced by all the people living in the country and it is prevalent throughout the land. According to Keeton, a general custom must satisfy certain conditions if it is to be a source of law. It must not only be reasonable but also be followed and accepted as binding. It must be in existence from

Requisites of a Valid Custom In order to be a valid custom, it must confirm to certain requirements laid down by the law. The essential requirements of a valid custom are : Reasonablene ss

Compulsory Observation

Consistenc y

Certainty

Continue and Immemorial Antiquity

THEORIES REGARDING TRANSFORMATION OF CUSTOM INTO LAW There are two main theories in this regard, namely :

HISTORICA L THEORY

ANALYTICAL THEORY

HISTORICAL The main exponent of historical school, THEORY namely, Savigny, Puchta, Blackstone and

Henry Maine have suggested that law has its existence because of the common consciousness of the people and “customary laws completely modify or repeal a statute; it may create a new law and substitute it for statutory rule which it has abolished’’. James Carter also s historical view and says, “what has governed the conduct of men from the beginning of time will continue to govern to

ANALYTICAL THEORY The main exponent of the analytical theory of customary law was John Austin who regarded custom as a historical material source. He pointed out that custom derives its binding force not from its own nature but by an Act of the Parliament or its validity has been established by judicial decisions. Thus a customary rule may become a legal rule either by