According to Salmond, “Law maybe defined as the body of principles recognized and applied by the state in the administration of justice.” Customs or Customary laws and Codified Laws are two different sources of law. There have been controversies all around the globe about which source of law is better. However, according to me Codified Laws are better. Before knowing which one is better, we must know what customs and codified laws are and how they are different from each other.
Customs or Customary Laws can be explained as those long established practices or unwritten rules that are being carried on or have been passed from generations to generations. For instance, Common Laws can be described as a customary law. With the passage of time, the importance of a custom as a source of law has diminished and other codified sources have gained importance. Holland defines custom as “a generally observed code of conduct.”
On the other hand, Codified Laws are laws that have been accumulated, paraphrased, and written down for the purpose of providing civil order in society. In Law, Codification is the process of collecting, organizing and restating the law of a jurisdiction in certain areas, usually by subject, forming a legal code or a book of law. The reason why codified laws are better than customary laws:-
Customary Laws or Customs are usually driven by the personal motives of those who create them but on the other hand codified laws are created through legal and moral reasoning.
Codified Laws are written down, unlike customary laws in form of Statutes, Acts, and Sections etc: - and therefore it does not create any chaos in the society. However, Customary Laws are dynamic and tend to change a lit bit from individual to individual according to their needs, causing havoc.
Customary Laws or Customs are not uniform. It can differ from person to person. Whereas, Codified Laws are constant and unvaried for everyone.
Customary Laws are flexible and can be changed very easily because it is not written anywhere, whereas codified laws are static in nature.
Customary Laws are often beyond reasonableness. People tend to follow the customs from generations to generations even if they are not rationale. On the other hand, Codified laws are made by Cabinet Ministers and are drafted by technical experts as a bill. The bill is then moved to the Lok Sabha and the Rajya Sabha for approval. The bill is then assented by the President. Finally, the Bill becomes an Act.
However, Customs or Customary Laws are not positive laws until their existence is recognized by the decisions of the court. A custom becomes a law when it is enforceable or approved by the State. It is not every custom that is binding. A custom is a law only because the sovereign allows it to be so. Still on the other hand side, Codified Laws make more sense because they are not driven by personal motives unlike Customary Laws.
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