Law is not static. It has been developing since its origin. Different factors have been contributing to its development since its origin. These factors are termed as sources of law. Among these sources, custom is considered as one of the oldest source of law.
Different jurists have defined custom in different words some of them are given below.
Custom is embodiment of those principles which have commended themselves to the national conscience as the principles of justice and public utility.
The simplest definition of custom is that it is the conformity of the conduct of all persons under like circumstances.
Customary laws are those rules of human actions which are established by usage and are regarded as legally binding by those to whom the rules are applicable.
(3) Custom in simple words:
In simple words, custom means those long established practices or unwritten rules, which have acquired binding or obligatory character
(4) Custom in different societies:
Now we will have a view of custom in different societies.
In ancient societies: In ancient societies, there was no concept of state. For people had to face different problems. They had to react to them in different ways. With the passage of time, there developed a kind of uniformity in those reactions. And finally they were termed as custom. It reveals that custom is the earliest source of law.
(a) In Legal English System:
It was long established and official theory of English law that whatever was not the product of legislation had its source in custom. Therefore custom has remained an important source of common law.
(b) In Islam:
Custom is considered important source of other laws but Islam does not give such importance to it. However, custom, to the Holy Quran, Sunnah and Ijma and which which is according is accepted by ijtehad is considered source of Islamic law.
(5) What is Legal or Valid Custom ?
what is legal custom?
Legal custom is that custom whose legal authority is absolute. It possesses the force of law and is operative per se as a binding rule of law. It can be classified into local and general customs. Local customs is that custom, which is applicable to particular locality while general custom is that custom, which is applicable to the whole country.
Followings are essentials of legal custom.
- (i) Immemorial antiquity
- (ii) Continuity
- (iii) Certainty
- (iv) Morality
- (v) Enjoyment General or Universal
- (vi) HONEY Philosophy of Law
- (vii) Obligatory Force
- (viii) Public Policy
- (ix) Reasonableness
- (x) Conformity with statutory law
- (xi) Conformity and established customs
- (xii) Matter of Rights
(i) immemorial antiquity:
It must have been in existence from time immemorial. And such time can be beyond human memory.
It must have been followed continuously and without any interruption for a long time.
It must be certain and definite.
It must not be against morality.
Its enjoyment must be peaceful.
(vi) General or universal:
It must be general or universal.
It must be reasonable.
(viii) Obligatory force:
Its observance must be compulsory.
(ix) Public policy:
It must not be against public policy.
(x) conformity with statutory law:
It must be in conformity with statutory law. In most of legal system, it is settled rule that statue can abrogate custom but HONEY Philosophy of Law custom cannot abrogate statue.
(xi) Conformity and established customs:
It must not be in conflict with other established customs.
(xii) Matter of rights:
It must be observed as matter of right.
What is Valid local custom?
What is valid local custom: Local custom can be defined as that custom, which prevails in some definite locality and constitutes a source of law for that place only.
Following are the essentials of legal local custom.
- (i) Particular locality.
- (ii) Immemorial antiquity.
- (iii) Continuous.
- (iv) Open enjoyment.
- (v) Willingness.
- (vi) Reasonableness.
- (vii) Morality or public policy.
- (viii) Legislation.
(i) Particular locality:
Local custom is applicable to a part of the state or to a particular region of the country. In fact it is confined to particular locality.
(ii) Immemorial antiquity:
It is essential for valid local custom that it must have been in existence for a long time, which must be beyond human memory.
It is necessary for valid local custom that it must have been in continuous practice. It must have been enjoyed without any kind of interruption. Long intervals and disrupted practice of a local custom raise doubt about its validity.
(iv) Open enjoyment:
Local custom must be enjoyed openly and with the knowledge of the community. It must not have been practiced secretly.
It should not be imposed on the people of some particular region through threat or use of force. In fact, the people must have observed it with their free consent and will.
It must conform to the norms of justice and public utility. In fact, valid local custom is based on rationality and reason. vi. معقولیت:
(vii) Morality or public policy:
It must be in accordance with morality or public policy.
In this modern state system, legislation is preferred to custom. Therefore, it is necessary for valid local custom that it must not be opposed or contrary to legislation.
To conclude we can say that custom was considered as one of the most important source of law in ancient societies. In fact, it was considered as the real source of law. The importance of custom as source of law has continuously been diminished as the grown, with the passage of time and the advent of modern, civilization, the importance of custom as a source of law has been diminished and other sources such as judicial precedents and legislation have gained importance.