Custom as the source of law

                        CUSTOM AS THE SOURCE OF LAW 

As we already seen about the law and its sources, there are three main sources of the law. Custom, legislation and the precedent. Custom is the long way practices that has been followed in the country , legislation is the law that was created by the Government and the precedent is the judgements gave by the judges in the previous cases. In this article we are going to see how custom became one of the sources of law. Custom is a rule of action, voluntarily and uniformly followed by the people. In the ancient time customs formed law. Law was deemed to lie in the general customs of community. The Latin term ‘Viv trita viv tuta’ which means that frequented path is always a reliable path. Custom is to Society, what law is to state. In ancient days, custom was the only source for administration of justice. Long continued custom is often rational. 

Kinds of Customs: 

Conventional Customs: 

The custom arose out of contract. Parties to a contract generally used certain terms to be observed in their transactions. Contract act is the best example for conventional customs. 

Personal customs: 

It relates to specific persons and does not include to all persons. Easementary rights and law relating to divorce are examples for personal customs. 

Local customs: 

Local custom is also consisting of another branch called general custom. Local customs are specific to definite localities like a village, tribal areas, certain districts or state. At present, the local customs consists of customary rights practised by the inhabitants of a particular place. It is generally of marriage, ceremonies, land cultivation, usage of rivers, private ownership etc., For a local custom to become a source of law, it must conform to the following requirements laid down by laws. 

General customs: 

It is common for the whole state. It is part of common land of law. It prevails throughout the country. Celebrating Diwali is common in all states in India and it is a general custom. 

Essentials of Valid custom: 

Reasonableness: 

The custom must be reasonable. It should not the affect the society or any people. It should satisfy the principles of natural justice. If a custom is unreasonable then it is not valid custom. 

Conformity: 

The custom should be in conformity with the established law of the land. If a custom is inconsistent with law of land, then it is invalid. For example, slavery is an offence under the IPC if someone recognises slavery then the custom is not valid. 

Opinion: 

The public must think that the custom is beneficial for them. They must value such customs as the binding rule of the community and not of individual choice. 

Observance: 

A mere practice of custom will not become law. It must be observed freely and voluntarily as of right. It must not be forced on the persons who follow it. 

Immemorial antiquity: 

The origin of the custom should be form time immemorial. The origin should not be traceable. No living man must remember its origin. Recent customs or modern customs are not valid customs. 

Continuity: 

The custom should be followed without interruption. It must be followed continuously. 

Peacefulness, certainty and consistent with other customs are some other essentials for the valid customs. If a custom satisfies all these essentials then that custom is taken as the source of law.