ABSTRACT

“Custom as a Source of Law”

Sehaj Sofat (082)
B.com LLB (B2)

A Custom is said to be any established mode of social behavior within the

community. Various dimensions of human behavior which are followed by the
community or society hints at the conceptual frame of the custom. It is considered
as one of the mechanisms of social control and an appropriate direction for humans
to live in the community and to allow the society to perpetuate. According to the
Chamber’s 20th Century Dictionary “CUSTOM” means, ‘what one is wont to do:
what is usually done by others: any of the distinctive practices and conventions of
a people or locality, esp., those, of a primitive tribe’. Custom has been defined and
opined by various scholars, jurists and authors.

Radin states that “Customs are regarded as habitual ways of conduct among social
groups.” While Carter maintains that, custom is the “uniformity of conduct of all
persons under like circumstances.” According to Holland, “Custom is a generally
observed course of conduct.” According to Sir John Salmond, “Custom is
frequently the embodiment of those principles which have commended themselves
to the national conscience as principles of justice and public utility.” He further
states that “The national conscience may well be accepted by the courts as an
authoritative guide; and of this conscience national custom is the external and
visible sign.” Taking into consideration what has been discussed above, customs
are habits of action or patterns of conduct which are generally observed by classes
or groups of people. Such habits of action or pattern of conduct (customs) can be
classified into –

1) Customs without binding obligation

2) Customs with definite binding obligation.

“Essentials of a valid custom” can, broadly, be classified into – Formative

Essentials and Operative Essentials. Antiquity, Uniformity/Continuity, Certainty
and Conscious acceptance as of right, etc. are the essential formative elements of a
valid custom. Custom possessing these elements is prima facia valid though it may
be unenforceable if it is unreasonable, opposed to morality, public policy, express
enactments of legislature and for want of proof; all these are invalidating elements.

SYNOPSIS
a) Statement of Problem

In this task we will discover primary issue ie.what is custom and its application in
law and in the general public. I additionally endeavor to feature the conditions for
custom and its legitimacy.

b) Survey of Existing Literature

1) The reference has been taken from "Jurisprudence legal theory” by Dr. B. N.
Mani Tripathi, A book which is very renowned as far as the study of
jurisprudence is concerned in India.
2) The book on V.D Mahajan “Jurisprudence & Legal Theory” is a brief note
to get the idea of what jurisprudence is and how it functions in a country like
India. The book contains various case laws and short commentaries on
various issues and case laws.
3) The Edgar Bodenheimer, Universal Law Publishing Company, Revised
Edition, is the another book which was reviewed by me in the completion of
this research project. The book provides for a broad understanding of the
jurisprudence.

c) Identification of the issues

 What are critical analyses on custom?
 What are characteristics or attributes of custom?
 What is the relationship b/w custom and law?
 Is there any necessary for custom to become a law?

d) Objective and scope of the Research

The project work limits to the understanding of the jurisprudence and its
framework of customs in the society and critical analysis on how it evolve in the
society. And how it becomes law in India or what is the process behind that

e) Research methodology adopted

The research methodology adopted in this project report is Doctrinal Method. In

this research project, the research is going to be subjective in nature and the
method adopted for the project is descriptive. The main source of the research is
secondary source. Mainly the research is done through the library and from various
internet sources and legal websites. The analysis of data is collected from various
sources such as books, journals, newspapers and law reporters.

f) Probable Outcome

Out 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 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.

g) Chapterization

1) Introduction
2) Background and History
3) Characteristics of customs
4) Kinds of customs
5) Transformation of custom into law
6) Conclusion
7) Bibliography