FACULTY OF LAW

JAMIA MILLIA ISLAMIA

LEGAL METHODS
CLASS ASSIGNMENT
ON

CUSTOM AS A SOURCE OF LAW

(SUBMITTED TO DR. EQBAL HUSSAIN)

Presented By:
SHOAIB KHAN
Roll no. - 63
3RD SEMESTER
BA.LLB. (Hons.)

CONTENTS

1.
2.
3.
4.
5.
6.
7.
8.

SOURCES OF LAW- MEANING.4

SALMONDS VIEW...5
CRITICS OF SALMONDS CLASSIFICATION....6
KEETONS VIEW7
SOURCES OF LAW: INDIAN PERSPECTIVE....7
CUSTOM AS A SOURCE OF LAW....9
REASONS FOR RECOGNITION OF CUSTOM...............10
KINDS OF CUSTOM....11
1. Conventional Custom
2. Legal Custom
9. REQUISITE SO A VALID CUSTOM.13
10. THEORIES REGARDING TRANSFORMATION OF CUSTOM INTO
LAW..15
1. Historical Theory
2. Analytical Theory
11. CONCLUSION...18

ACKNOWLEDGEMENT

First and foremost, I express my deepest gratitude to Dr. Eqbal

Hussain, Faculty of Law, Jamia Millia Islamia, for helping me
with the basics and technicalities of Jurisprudence. He has
always been a source of inspiration and helping hand for all the
students. After him, I take this opportunity to thank my parents,
who have constantly supported me with my efforts. I have been
blessed with very kind parents who have always shown me the
right path. I would also like to thank my seniors, friends and

relatives for their cooperation. I hope you will enjoy going

through this project.

With regards
SHOAIB KHAN

SOURCES OF LAW- MEANING

In the modern jurisprudence the term sources of law is broadly used in two sense.
Sometimes it is used in the sense of State or the sovereign from which the law derives its
force and validity. In the other sense, it is used to denote the causes of law or the contents or
matter of which the law is composed. Dr. C.K. Allen asserts that the true sources of law are
agencies through which the rules of conduct acquire the character of law because of their
certainty, uniformity and binding force. According to Fuller, the source of law includes the
material from which the Judge obtains rules for deciding cases. In this sense, it includes
statutes, judicial precedents, customs, opinions of legal experts, jurists etc.1

1 Fuller L: Anatomy of the Law, p. 69

3

According to the natural law philosophers, the law has a divine origin. It is a gift of God
contained in Holy Books. As stated earlier, Vedas and Smritis are sources of law according to
Hindu jurisprudence as they have originated from the sages. Likewise, the Quran is the word
of God and therefore, a positive source of Muslim Law. The hadis contains the precepts of
the Prophet as inspired and suggested by God.
T.E. Holland also supports the view that the term sources of law has been used in a variety
of senses. Sometimes it denotes the material from which all knowledge of law of obtained.
This may include statutes books, treatises or law-reports etc. In another sense, the source of
law denotes the ultimate authority which gives law its binding force. Such authority is
undoubtedly the State which is sovereign. Sometimes the term is used to denote the causes
acquired the force of law e.g. Religion, Custom etc. and sometimes the agency of organ
through which State creates law or grants legal sanction to existing rules is also called the
source of law, e.g. legislation etc.

SALMONDS VIEW
Salmond preferred to emphasize on two main sources of law. He calls them i) material
source, and ii) formal source of law. The material sources are further sub-divided into legal
sources and historical sources. He defined a formal source of law as that form which a rule of
law derives its force and validity. He, however, clarified that from the material source, the
law derives only its matter and not the validity. Thus the will of the State as manifested in the
Statue book or decisions of Courts are the formal source of law while the legislation,
customs, agreements and professional opinion of jurists etc. are the material sources of law.
Salmonds classification of sources of law can be briefly summarized as under:

SOURCES OF LAW

MATERIAL SOURCES

Legal Sources

FORMAL SOURCES

Historical Sources

(These are authoritative)

(These are un-authoritative

Eg., writings of eminent jurists,
Foreign judgments etc)

LEGISLATION

PRECEDENT

CUSTOMARY LAW

(Enacted law)

(Case Law)

(Law based on Customs)

CONVENTIONAL
LAW

(Based on agreements, eg., local laws, treaties etc.)

In addition to the historical and legal sources of law, Salmond also talks about literary sources
of law which refer to original and authoritative sources of knowledge of law. It consists of all
text books, commentaries and law reports from where we trace any rule of law.
Of the two kinds of material sources, namely, legal and historical, the first is authoritative
while the second is un-authoritative. To quote a concrete example, an Act passed by the
legislature becomes a law which has a binding force therefore; it is a legal material source of
law. On the other hand, opinions of eminent jurists have only a persuasive value and are not
binding upon the courts. Therefore, they are historical material source which are unauthoritative. Historical sources may become legal if they are incorporated in law or are
recognized by law.

Salmond further pointed out that historical sources pertain to legal history and not to legal
theory. It is for this reason that Salmond has discussed only legal and not the material sources
and even among the legal sources he has included only legislation, precedent and custom and
not others.

CRITICS OF SALMONDS CLASSIFICATION

The classification of sources of law by Slamond into formal and material sources has been
criticized by some jurists, notably, Allen and Keeton.
Dr. Allen objected to Salmonds assertion that legal sources are the only gates through
which new principles can find entrance into the law and historical sources operate only
mediately and indirectlythey are merely links in the chain of which ultimate link must be
some legal source to which law is directly attached.2 He alleged that Salmond has
undermined the importance of historical source. Keeton has also criticized Salmond for his
views on formal source of law which in modern time is the State. In his view, the State cannot
be termed as law in modern technical sense because it is only an agency to enforce law. In
real sense it is the public opinion which finds expression through legislature which gives law
its authority and force.
Dr. Glanville Williams also prefers to distinguish legal and historical sources of law; the legal
sources being legislation and precedent while the historical source is the actual origin of the
rule adopted by the Court in arriving at a decision.

KEETONS VIEW
2 P.J. Fitzgerald: Salmond on Jurispurdence. 12th Edition, p. 112
6

According to Keeton, the sources of law can be classified into two broad categories, namely,
1) Binding Source of Law; and 2) Persuasive sources
Binding Sources may further be classified as: i) Legislation, ii) Judicial precedents, and iii)
Customary law. Likewise, persuasive sources may also be of three kinds, namely, i)
Principles of equity, ii) Professional opinions, iii) Writings of Jurists etc. He asserts that in
modern time, the only formal source of law is the state, but it being an organization which
enforces law, it is not correct to consider it as a source of law in real sense of the term. In his
opinion, persuasive sources are useful only when there is no binding source of law.

SOURCES OF LAW: INDIAN PERSPECTIVE

Prior to the Bristish rule in India, Hindus and Muslims who constituted the major population
of this country were governed by their personal laws, namely, Hindu law for Hindus and
Mohammadan law for Muslims. It is interesting to note that original Hindu law recognized
four sources of law i.e. 1) the Sruti, 2) the Smritis, 3) the conduct of the virtuous, and 4) ones
own conscience.3
In the course of time, the last two receded into the background.
The Primary source of Mohammedan Law were also more or less similar, namely, 1) Quran,
2) Sunnat and Ahadis which meant tradition, 3) Ijma (consensus of opinion), 4) Kiyas, i.e.,
analogical deductions. Both these laws claimed transcendental origin and recognized King as
a magisterial official. The Sruit as a source of Hindu law and the Quran as a source of
Mohammedan law are supposed to be a direct revelation from God but the language of both
is of human origin. The two, however, differ on one major point- while Mohammedan law
3 Manu, p. 11-12
7

claims human being, namely, Prophet Mohammad as its founder, no such claim is made by
Hindu law.
With the introduction of English common law in India, the English legal source of law
replaced the earlier sources of indigenous laws and they have now become an integral part of
the modern Indian jurisprudence which owes its origin to the British Legal system.
In the modern legal system legislations occupies a prominent place as a source of law since
most of the laws are made by the Union or State legislatures. The role of custom as a source
of law is diminishing day y day as the societies are changing fast adopting new ways of life
and living. The role of precedent as a source of law is also limited because the judges have to
take the help of many other sources, such as juristic writings, foreign decisions, moral and
social values of the time and place in deciding cases and handling down judgments.

CUSTOM AS A SOURCE OF LAW

Custom occupies an important role in regulation of human conduct in almost all the societies.
In fact it is one of the oldest sources of law making. Only a few people are likely to concur
with the classical Greek poet Pindars maxim, Custom is the king of all. A custom may be
defined as a continuing course of conduct which by the acquiescence of express approval of
the community observing it, has come to be regarded as fixing the norm of conduct for
members of society4. However, the importance of custom is slowly diminishing away as the
legal system grows and the reason being that with the emergence and growing power of the
State, custom is largely superseded by legislation as a source of law.

4 Dias & Hughes: Jurisprudence,(1957) p.34

8

De Allen defines customs as the uniformity of habits or conduct of people under like
circumstances. When people find any act to be good and beneficial, apt and agreeable to their
nature and disposition, they use and practice it from time to time, and it is by frequent use and
multiplication of this act that the custom is made.5 He holds that custom and legal social
phenomenon grows up partly by forces inherent in society, forces of purity of reason and
necessity and partly of suggestion and imitation.
Salmond is of the opinion that custom embodies those principles which are acknowledged
and approved, not by the power of the state but by the public opinion of the society at large.
When states takes up its functions of administering justice, it accepts as valid the rules of
right already accepted by the society of which it is itself a product and it finds those
principles already realized in the customs of the realm. Thus he states custom is the
embodiment of those principles which have commanded themselves to the national
conscience as principles of justice and public utility6.
Jhon Austin was of the view that no folkway regardless of the fact how respected it is or how
much is it followed can influence the law. He was of the view that only those conventions and
folkways recognized by the sovereign through some judicial act or legislative disposition
might be certified as a customary source of law.
The judicial committee of the Privy Council, in Harprasad v Shivdayal7 observed that custom
is a rule which has obtained the force of law in a particular family or region due to long
usage.

5 Allen, C.K.: Law in the Making, p. 87

6 Fitzgerald P.J.: Salmond on jurisprudence
7 (1876) 1A 259
9

Keeton defines custom as those rules of human action, established by usages and regarded as
legally binding by those to whom the rules are applicable, which are adopted by court and
applied as a source of law because they are generally followed by the political society as a
whole or by some part of it.

REASONS FOR RECOGNITION OF CUSTOM

Custom exists as law in every country, thought it tends to lose its importance relatively to
other sources of law with the changes in society. The law that originated in England on the
basis of prevailing customs is known as the common law, which is adopted in the form of
Acts of Parliament ever since the sixteenth century.
Customs are not laws when they arise, but that they are largely adopted into the law by the
State recognition. Customary law assumes binding authority provided it fulfils certain
requirements and provided it is not suspended by law by a higher authority.
When a particular conduct is followed by people continuously for a long time, it is called a
habit. But if some conduct or rule is followed by most people of a particular class or locality,
then whether the others should follow the same would invariably depend on the generality of
practice. It is not always necessary that the court should recognize all the practices which are
prevalent in a community as custom. For instance, there is a practice among Hindus that the
male relatives of the deceased shave off their heads as a mark of condolence, but if a man
does not follow this custom, the court will certainly not punish him. Thus, these are
conventional customs established by usages and long practices and the courts shall not take
judicial note of such customs. In other words, such customs are not obligatory.

10

On the contrary, there are certain customs which are binding and are enforceable by a court of
law since they are backed by the sanction of the State. For instance, a Hindu marriage
solemnized without the performance of Saptapadi is not legally valid and can be set aside by
the court.
Custom necessarily involves two conceptions, namely, 1) the conviction or faith; and 2)
constant use. It must be said that custom has played a very important part in building up the
system of International Law. Article 38 of the Statute of Internal Court of Justice provides for
the application of International Customs as evidence of a general practices accepted as law.
As Oppenheim rightly pointed out, whenever and as soon as a line of international conduct
frequently adopted by States is legally considered as an obligation or right, the rule which is
abstracted from such conduct becomes a rule of customary International Law. A rule to
become a rule of International Law must satisfy two criteria: 1) its existence as constant and
uniform practice 2) its acceptance as a rule of International Customary law.8 Therefore, the
diplomatic relations between States under International Law are generally regulated by
customary usages and practices which are recognized as law of nations.

KINDS OF CUSTOM
It is not necessary that a custom should be practiced all over the country. There may be a
custom which is practiced authoritatively only in a particular locality. Broadly speaking, there
are two kinds of custom, namely,
1. CONVENTIONAL CUSTOMS
2. LEGAL CUSTOMS
The two are explained as under:
8 Opinio juris sive necessitatis
11

I.

Conventional custom

It is an established practice whose authority is conditional based on its acceptance and

incorporation between the parties bound by it. When two parties enter into a contract
generally all the terms of the contract are not set expressly and a large part of it is implied.
The intention of the parties entering into an agreement can be gathered by the customary law
prevalent at that time.
The convention custom has three stages of development. In the first stage it should have
attained the status of usage. In the second stage it gets recognition through some judicial
decision, and presumes the form of a precedent. After this it is finally accepted as a statutory
law.
The first section of the Indian contract act, 1872 recognizes the customs that are prevalent in
the trade.

II.

Legal Custom

These are those which are operative per se as binding rules of law independent of any
agreement between the parties. These, are of two types:

Local Custom

Halsburys defined local custom as a particular rule that has existed actually or
presumptively from time immemorial and has obtained the force of law in a particular
locality although contrary to or not consistent with the common law of the realm.9 So it can
be said that a local custom prevails in a small locality.

9 Halsbury: Laws of England, Vol.X.p.2

12

Bigamy in India is allowed in some tribal parts on account of the local custom prevalent at
those places.

General Custom

A general custom prevails throughout the country and is the main source of the common law
of the country. The custom of prohibiting the remarriage of widow in most of the
communities of India, before its abolition was a general custom in the country. A general
custom is prevalent is usually practiced by all the people living in the country, and is
practiced throughout the land.

REQUISITE SO A VALID CUSTOM

There were many customs but it is not necessary that all are the customs are accepted. For the
customs to be accepted as a valid customs it should have some requisite characteristics:
1. Reasonableness
A custom must be reasonable. It must be understood that the authority of any custom is never
absolute, but it is authoritative provided it confers to the norms of justice and public utility. A
custom shall not be valid if it is repugnant to right and reason and is like to do more mischief
than good if enforced.
The true rule seems to be not that a custom to be admitted if reasonable but that it will be
admitted unless it is unreasonable. The custom of recognizing the channel of the river or the

13

stream as the boundary between two villages irrespective of the change in the path cannot be
said as unreasonable and hence it was held as a valid custom10.

2. Consistency
A custom to be valid must be in conformity with statutory law. In other words it must not be
against any act of Parliament. A custom should necessarily yield where it is against any law,
but in many cases there can be some exception to the law or some modifications can be made
to it due to any custom.
3. Compulsory observance
A custom to be legally recognized as a valid custom must be observed as a right. It means the
custom should be followed by all concerned without the use of force. It must be regarded not
only an optional rule but as an obligatory rule or binding rule of conduct. If a custom is left to
the choice of the individuals, then it is not a costmary law. If the observance of a custom is
suspended for certain time than it is assumed that the custom was never in existence11.
4. Continuity and immemorial Antiquity
A custom to be valid should have been in existence from time immemorial. To quote
Blackstone

10 Ram Dhan Lal v.Radhey Shyam, 1951 SCR 370

11 Hamperton v. Hono, (1876) 24 WR 603
14

A custom in order to be legal and binding, must have been used so long that the memory of
man runneth not to the contrary, if anyone can show the beginning of it, it is no good custom
12

English law has made an arbitrary limit to the legal memory. It has been fixed as 1189 A.D.the year of accession of King Richard 1 to the throne which means, if any custom has its
roots back to 1189 AD or backwards would be regarded as a valid custom. This time limit
was applied in the case of Simpsons v. Wells 13. However in India the limit of 1189 A.D. is not
valid14. In India no definite year has been laid down to determine the antiquity of a custom. It
need not to be beyond human memory15.
5. Certainty
Not only a custom should be practiced from time immemorial but, it should also be observed
continuously and uninterruptedly with certainty. A custom cannot said to be valid from time
immemorial unless its certainty and continuity is proved beyond doubt.

THEORIES REGARDING TRANSFORMATION OF CUSTOM INTO

LAW
Customary law has not only been established by legislatures or professionally trained judges,
but it has come into existence because of popular acceptance and practice. There are two
popular theories in this regard (1) Historical theory and, (2) Analytical theory
12 Blackstone: Commentaries, p.76
13 (1872) 7 QB 214
14 Gokul Chandra v. Praveen Kumari, AIR 1952 SC 926
15 Mst. Subbhani v. Nawab, ILR 1947 PC 21
15

1. Historical Theory
The main components of the historical theory school, namely, Savigny, Blackstone and Henry
Maine have suggested that law has its existence because of the common consciousness of the
people and the customary observance is not the cause of law but the evidence of its existence.
Savigny observed, customary laws completely modify or repeal a statute; it may create a
new law and substitute it for statutory rule which it has abolished. Maine regarded custom as
formal source of law. James Carter also supports historical view and is of the opinion that
What has governed the conduct of men from the beginning of time will continue to govern to
the end of time. Human nature is not likely to undergo radical change and law will forever
continue to be custom16.

Criticism
Dr. Allen points out that all the customs cannot be contributed to the common consciousness
of the people. For instance, a ruling class quite often imposes custom on the governed. It does
so for its own interests rather than the interest of the people. The customs in India such as
untouchability cannot be contributed to any kind of common consciousness. Therefore any
custom cannot be a source of law it should not be again public sentiments.

2. Analytical Theory
The main supporter of analytical theory is John Austin who regarded custom as a historical
material source. He points out that custom derives its binding force not from its own nature
16 Carter James: Law, its Origin, Growth & Function, p. 120
16

but by state legislation. It means custom becomes a law when it is adopted by an act of
parliament or its validity has been established by any judicial decision.
He further states that custom only has persuasive value. Customary practices have to be
recognized by court before it can become law. Being of persuasive nature it is recognized as
historical material source of law. Austin thus concludes that Customary law is nothing but
judicial law founded upon anterior system.17

Criticism
Dr. Allen has criticized Austinian theory of customary law and pointed out that the fallacy of
the Austinian doctrine is in supporting that custom is not law until it has been so pronounced
by a court. He observed that the truth is exactly the reverse of it. According to him, custom is
firstly and essentially a law. Custom is enforced by courts because it is already a law, it does
not become a law only on enforcement of court.18

CONCLUSION
Of all the various sources of law The Customary Laws are definitely the most significant
source of law. In the ancient days in the absence of any legislative laws the customary laws
were only the prevalent law. These are very important as these are already followed by the
people and it is the very reason why many of the customary laws are even recognized today.
These customary laws had the approval of the public opinion.
There is no doubt that with the development of the judicial process and with the
modernization of the society, the importance of custom is receding. When states came into
17 Austin: Province of Jurisprudence, (1945) p. 165
18 Allen C.K.: Law in the making, pp 84
17

existence they immediately gave recognition to the customs prevailing at that time and thus
they were recognized as valid laws. But with time customary laws have receded to the
statutory laws.
The laws relating to sale of goods, inheritance of property, succession, property, contract, sale
of goods etc. have all evolved from the customary laws. The codified Hindu laws are nothing
but the codification of the prevalent customary laws with some exceptions.
It would be wrong on the part of any one to say that the customary laws need recognition
from the court. The customary laws are always recognized since they are always in practice.
Most of the customary laws that were just in nature and were good for the society have been
recognized by the parliament or the court. These laws can be sometimes invalidated if it
appears that these are against the public policy and justice.
One of the most important reasons why the customs are important source of law is that it that
it is highly practiced in the society. So, if any new law is made that is contrary to the
practiced customs and traditions, will not be accepted by the society. This may lead to chaos
and anarchy in the society. So any law that is passed takes into consideration the customs and
traditions prevalent in the society at that time. The state by its legislation only validates the
existing customs. It may in some exceptional cases also modify or nullify some of the
customs if it is for the welfare of most of the people of the society. So in this way the state
makes laws mainly based on the customs that are good for the society

18

BIBLIOGRAPHY
BOOKS REFERRED:
1. Dr. V.N PARANJAPE, Studies in Jurisprudence and Legal theory.
2. TRIPATHI, Jurisprudence: The Legal Theory.
WEBSITES REFERRED:

1.
2.
3.
4.

www.lawjuris.com
www.conceptsoflaw.com
www.merriamwebester.com
www.legalservices.com
19

ARTICLES:
1. Austin: Province of Jurisprudence, (1945) p. 165
2. Allen C.K.: Law in the making, pp 84
3. Carter James: Law, its Origin, Growth & Function, p. 120
4. Blackstone: Commentaries, p.76
5. Halsbury: Laws of England, Vol.X.p.2
6. Fitzgerald P.J.: Salmond on jurisprudence

20