Customs are known as the earliest source od law and they form the basis of the English common law system . They are basically the cultural practices which have backing of obligation and sanctions just by virtue of the widespread practice and continue presence.
Various definitions of Customs by different jurists
“Custom is the embodiment of those principles which have commended themselves to the national conscience as principles of justice and public utility.”
C.K. Allen defines custom as “legal and social phenomenon growing up by forces inherent in society—forces partly of reason and necessity, and partly of suggestion and imitation.”
“Custom is a rule of conduct which the governed observe spontaneous and not in pursuance of law settled by a political superior.”
“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 Holland, “custom is a generally observed course of conduct”.
Holland says that custom originated in the conscious choice by the people of the more convenient of the two acts.
Types of Custom
There are two types of Custom one is the custom without any binding obligations and Customs with legally binding obligations
Custom without Binding Obligation
There are those customs which are not enforceable by law but still have value in the society and have social sanctions attached to the same
These customs, although not binding, hold tremendous importance in society and must be followed uniformly for efficient functioning of society.
These customs are followed due to the fear of the society and are although not mandatory to be followed they are followed due to the social pressure of the society and the fear to live in it. Such customs are also known as the social customs
Customs with Binding Obligations
This type of obligations have a obligations and a commitment attached to it. Some of the example is the that of a marriage and upbringing of children and transmission of property
Customs under this category have sanctions which are more stringent than the previous category. If these customs gain widespread acceptance, they acquire legal character. On violation of these customs, adequate penalty is incurred by the violator as per the statute that governs the particular custom.
The Essential of a Valid Customs
The essential of a valid customs are as follows:
The Custom must be in conformity with conformity with basic morality, justice, health, public policy, If it is not reasonable in its origin or practise, it cannot be considered a valid custom
Conformity with Statute Law
It Must be clear and unambiguous so to what the custom is and how it is practised.
It must be clear and unambiguous as to what the custom is and how it is practised. A custom can only hold up in a court of law when it is not indefinite or uncertain.
A Custom must be in consistency with the law and should form the basis of law
A Custom must be a continuous and should not be interrupted.
Theory of Customs
Custom contains its own legitimacy, since it would not exist at all except if some profound needs of the general population or some local nature of societal needs offer validity to it.
Austin was the main proponent of the Analytical theory. For him, Customs did not have any legally binding force in themselves. Their legal character is always subject to the assent of the Sovereign. For him, customs were merely reflection of law, and were not ‘real law’.