Custom.docx

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Advantages and Disadvantages of Custom

Submitted to:

Submitted by:

Dr. Ajay Ranga

Dishant Mittal Roll no. : 130/15 Bcom LLB 2nd Semester

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Acknowledgment I take this opportunity to express my profound gratitude and deep regards to my teacher Dr. Ajay Ranga for his exemplary guidance and constant encouragement through out the course of this assignment on the topic ' Advantages and disadvantages of custom as a source of law'. Also I would like to express my special thanks of gratitude to my director Mrs. Sangeeta Bhalla who gave me this opportunity to do this wonderful assignment.

Dishant Mittal

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Index 1. Meaning of Custom 2. Importance of custom as a source of law 3. Kinds of Custom 4. Essentials for valid Custom 5. Advantages of Custom 6. Disadvantages of Custom 7. Conclusion

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Custom In early stages of the society the customs are the most important, and in some cases, the sole source of law. Custom is a habitual course of conduct observed uniformly and voluntarily by the people concerned. When people fine any act to be good and beneficial, which is agreeable to their disposition, they practice it and in course of time by frequent observance and on account of its approval and acceptance by the community for generations, a custom evolves. In all societies of the world, custom has enjoyed a very high place in varying degree in the regulation of human conduct. Customs arise whenever a few human beings come permanently without adopting consciously or unconsciously, some definite rules governing reciprocal rights and obligations. Custom is to society what law is to the state. Doctor Allen said, "Custom as the uniformity of habits, or conduct of people under life circumstances." Salmon said, "Custom embodies those principles which are acknowledged and approved not only by power of state but by public opinion of society at large."

Why has custom been regarded as an important source of law? Custom is one of the oldest forms of law making. In primitive societies human conduct was regulated by practices which grew up spontaneously and were later adopted by the people. What was accepted by the generality of the people and embodied in their customs was deemed to be right. So, custom has played an

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extremely significant role as a source of law, till other sources of law like legislation and precedent acquire prominence. Customs have been the most potent force in molding the ancient law.

Kinds of custom Customs are of two kinds (1) legal and (2) conventional. The first kind consists of custom which is operative per se as a binding rule of law, independently of any agreement on the part of those subject to it. The second kind consists of custom which operates only indirectly through the medium of agreement, express or implied, whereby it is accepted and adopted in individual instances as conventional law between the parties.

I. 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 custom gets recognition through a judicial decision. In its third stage of development the conventional custom is finally accepted as a statutory law after its codification.

II. Legal Custom:- The legal custom is one whose legal authority is absolute. It possesses the force of law proporio vigore. The parties, affected may agree to a legal custom or not but they are bound by the same. Legal customs are of two kinds (1) local and (2) general. Local customs apply only to a locality and a general custom applies to the whole country.

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Local Custom Local custom is one which prevails in some definite locality and constitutes a source of law for that place only. Every local custom must satisfy certain conditions. It must be reasonable. It must conform to the statue law. It must have been observed as obligatory. It must be of immemorial antiquity.

General Custom A General custom is that custom which prevails throughout the country and constitutes one of the sources of the law of the land. There was a time when common law was considered to be the same as the general custom of the realm followed from ancient times. There is no unanimity of opinion on the point whether the general custom must be immemorial or not.

Essentials for valid Custom Certain tests or essentials have been laid down by the jurists which a custom must satisfy for its judicial recognition. Some of the essentials of a valid custom are:-

Antiquity:- A custom to be recognized as law must be proved to be in existence from time immemorial.

Continuity:- It must have been practiced continuously. If a custom is disturbed for a considerable time, a presumption arises against it. It is the discontinuance of the right, for however small time, that ends the custom.

Reasonableness:- A custom must be reasonable. For declaring a custom inapplicable on the ground of unreasonableness, it will have to be shown that it is obviously opposed to reason.

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Conformity with statute law:- A custom, to be valid, must be in conformity with statute law. It is a positive rule in most of the legal systems that a statute can abrogate a custom.

Consistency:- Custom must not come into conflict with the other established customs. There must be set in opposition to the other custom. It is, therefore that one custom cannot be set in opposition to the other custom.

Peaceable enjoyment:- The custom must have been enjoyed peaceably. If a custom is in dispute for a long time in a law court, or otherwise, it negatives the presumption that it originated by consent as most of the customs naturally might have originated.

Obligatory force:- The custom must have an obligatory force. It must have been supported by the general public opinion and enjoyed as a matter of right. If a practice was maintained by stealth or by something of that sort, it cannot become a custom.

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Advantages of Custom 1. Custom is more flexible than written law:- As custom is the habitual course prevailing in the society. It is not written in book or in any arthshastras or in any old religious books. But our law is codified which means it is in written form. Like Constitution of India, Civil Procedure Code, Indian Penal Code etc. are regulating our society. But sometimes when there is need of new law or to amend existing law according to the present society for this amendment is to be done in the respective Act. The process of amendment is not easy and flexible. It is very rigid. For amendment, amendment bill is to be passed in Lok Sabha and Rajya Sabha and are to be approved majority present and votting. It is very long process. But in custom there is no need of such amendment to develop a new law because it is not codified. As it is developed by society independently without any permission. To develop a new custom it is practiced by the people of the society frequently and then custom come into existence.

2. Custom implements legislation:-

As we know custom is

an important source of law. Custom is the sole source of law in ancient times. Before making any law it is keep in mind the prevailing custom regarding it. Custom will always remain the important part of society. For example:- as in earlier times it is custom in Hindu marriages that seven rounds to be taken against the holy fire as this is considered to be auspicious, but with passage of time now it is become law for valid Hindu marriages seven rounds are to be taken against the holy fire, under Hindu Marriage Act. Any custom which is followed over by many years and is good for society is always considered in legislation while making law on it. Like prohibition of dowry system.

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3. Custom is found as reflection to the true needs of the community:-

As customs are followed over many years

by society or by a particular community. They reflect the true picture of society. As these customs are developed by the society so they reflect their true needs. For Example:- in earlier times women were not allowed to work or to go outside, but then Some of the ill practices against women have been eliminated by the open minded and great Indian people who raise their voices for the discriminatory practices against women. In the recent years, various constitutional and legal rights have been implemented by the government of India in order to eliminate ill practices and gender discrimination against women.

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Disadvantages of Custom 1. Customary rules develop very slowly:- Custom is a habitual course of conduct observed uniformly and voluntarily by the people concerned. Firstly it is a practice which is followed by a person then by a group of people and then by a community and by the society at large. Any particular conduct imitated by a group of people for a long time becomes custom. It is not a hard and fast rule or a law which is can be followed when passed by parliament. It is the practice of people which is to be followed continuously over a period of time. So that's why custom rules develop very slowly. For example:- earlier in weddings it is common to give dowry by woman parents, but it takes the shape of evil as brides are forced to suicide due to insufficient dowry, then to end this many people started to oppose against dowry system, and stop to give dowry, now law has been passed that giving or taking dowry is an offence. This is how custom develops very slowly.

2. Customary rules are often ambiguous:- Though there are some rules of law which are, undoubtedly based on the common conviction of the people, the majority of the rules are so complicated and technical that the common conviction might never have thought of them. Sometimes, these customary rules have been imposed upon the people by the ruling class. 3.

Customary law forms no formal legal system:-

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importance of an organized court system is usually thought to be uniformity of application, regardless of the source of law. A society without courts might have a good deal of local variation in what is expected or tolerated of its citizens, and perhaps would be completely infeasible in a densely-populated area such as a

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city. It also would be subject to the possibility of mob rule. Courts enforce constitutions, which is to say limitations on the state as opposed to individuals. It is also used to refer to law that has formed through the weight of custom or common opinion, often a local procedure of some sort, but a few international-law concepts such as piracy are also within this category.

CONCLUSION Custom occupies an important place as a source of law even to these days because most of the material contents of developed system of law have been drawn from ancient customs. Custom is one of most fruitful sources of law. According to Analytical school a custom when recognized by State or sovereign becomes law. According to Historical school when state or courts make law they give importance to the customs. So both of the view are combining to each other and are correct for a custom as source of law.

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Bibliography    

Dr. B.N. Mani Tripathi, Jurisprudence Notes https://www.quora.com/ www.gktoday.in/custom-in-jurisprudence ebooks.cambridge.org/