Essentials of Customary Law

 In practically all communities, custom plays a significant role in regulating human behaviour. It is, in reality, one of the earliest sources of legal authority. However, as society progresses, customs fade away, and laws and legal precedents become the primary source of information. People develop custom by unconsciously adopting a given code of conduct whenever the same problem arises, and its authority is founded on nothing more than the people's long-term use and acceptance of it.

Custom is a type of particular norm that has been followed since the dawn of time. Customary law is a type of law that is founded on custom. Custom, as a source of law, involves the study of a number of its aspects: its origin and nature, its importance, reasons for its recognition, its classification, its various theories, its distinction with prescription and usage, and the essentials of a valid custom.[1]

Definitions of Customs as per different thinkers (Jurists)

According to Salmond:

custom is the exemplification of those standards which have complimented themselves to the national still, small voice as standards of equity and open utility.

According to Austin:

custom is a standard of direct which the sovereign watch suddenly and not in the compatibility of law set by a political superior.

According to Keeton:

Customary law may be defined as those rules of human action established by usage and regarded as legally binding by those to whom the rules are applicable, which are adopted by the courts and applied as source of law, because they are generally followed by the political society as a whole, or by some part of it.

According to Halsbury law:

A custom is a specific principle which has existed either really or hypothetically from time immemorial and has received the power of law in a specific territory, though in spite of or not steady with the general precedent-based law of the community.[2]

Essentials of a valid legal 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. In India it has been said that a custom must be of old nature, but there is no such fixed period for which it must have been in existence as it is in the English law. The reason for not enforcing a modern custom is that otherwise so many of the novel customs would become law. The law adopts sufficient methods of protection against the development of vexatious acceptance of modern customs.

Continuity:

It must have been practised continuously. If a custom is disturbed for a considerable time, a presumption arises against it. t if a custom has not been followed continuously and uninterruptedly for a long time, the presumption is that it never existed at all. It must have been in existence and recognized by the community without any intervening break, for such duration as may, under the circumstances of the case, be recognized as reasonably long. In case of Muhammad Hussainforki v. Syed Mian Saheb[3] ,it was held that unless there is continuity there is no custom.

Reasonableness:

It is necessary for a tradition to be reasonable. It will have to be demonstrated that a custom is plainly adverse to reason in order to declare it inapplicable on the basis of unreasonableness. It cannot be irrational. It must be beneficial and practical to society. If a party challenges a custom, it must show that the custom is irrational to the court.

That is, the individual challenging the custom bears the burden of proof. Our present understanding of suitability should not be used to determine reasonableness. When a custom is not in conflict with a fundamental tenet of morality, the law of the state in which it exists, or principles of justice, equity, and good conscience, it should be considered adequately reasonable.

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.

Observance as of right It must have been observed as of right. Mere practice of a voluntarily nature would not make a custom valid. It must have been followed openly not stealthily, and without the necessity for the recourse to force. To use the expression of Salmond, there must be opinio necessitatis , that is, the conviction on the part of those who use a custom that it is obligatory ands not merely optional.