INTRODUCTION

In rule, customs lead to something like a fixed course of conduct which could be scientifically checked inside a given political and social context. We should make a point based on “what was already practiced and approved by statute.” Customs are indeed the oldest origins of legislation, becoming the foundation of the English Law code as we understand it today. They are cultural and ethnic traditions that have been established and supported by duty or approval merely by general experience and continued existence. The definition of prescribing too is tied to Customs. A prescription is a privilege or we can say right that is earned by longstanding tradition either by via substantive legislation. A custom is a consistent and voluntary pattern of actions witnessed by the citizens. In nearly all cultures, custom plays an important role in regulating human behaviour. It is, in practise, one of several earliest origins of legislation. However, as culture advances, customs disappear and law and legal decisions take their place as the primary data.

 Custom is established by the community through their implicit implementation from a certain code of behaviour whenever the same issue appears for resolution, and its validity is focused solely itself on long-term use as well as acceptance by the citizens. Custom is an unique expression law that has been practised since olden days. Customary law applies to rule founded on custom. Custom, as a basis of law, entails the investigation of many factors, including its source and essence, its significance, the causes for its acceptance, its description, its numerous hypotheses, its differentiation from regulation and use, and the fundamentals of a legal custom.

Meaning of word ‘custom’

The expression “custom” derives from the French Word “Coustume.” Many claim the term ‘custom’ is founded mostly on Latin term ‘Consuetudo,’ some claim it is originated first from phrase ‘Consuetus,’ even while several people suggest this is a component of the expression ‘Consuescere,’ that implies ‘accustom.’ Most claim it really is originated from the words “con” and “suescere,” which signify “conveying extreme power” and “suescere” respectively. In Hindi language, this term ‘custom’ imply ‘reeti’, ‘vyavhar’, ‘rasam’ or ‘riwaz’.

Culture, practise; utilisation; adherence; manner; conference; method; ritual; liturgy; easement; establish; directness; style; sequence; way; derogatory term; unspoken reign; way to do things; structured; pedagogy; theme; good manners; regimen; addiction; common; rite; dignified; unstated framework; traditional human behaviour; etc.

Followings are some of the meanings of word custom:

• It refers to a custom or tradition that is popular to several people or limited to a certain location, category, or person.
• This is a long-standing tradition that is regarded as unstated or unenforced regulation.
• It entails a lot of rehearsal.
• It refers to the whole set of customs, traditions, and norms that govern life outside of work.

A custom is an ongoing pattern of action that has later became known as setting the code of behaviour for people in society owing to the subservience or explicit consent of that same group following it. When people deem an action to always be supportive and useful, appropriate and conducive to the existence and temperament, individuals use and practise this from start to end, and it is through repeated use though repetition that the action becomes more common.

DEFINITION OF CUSTOM

Custom is a significant basis of legislation, so it is beneficial to describe it. Respective scholars have established custom based on the content, ideology, beliefs, including opinions. Specific scholars described custom based on its origins, relevance, experience, tradition, and usefulness.

Followings are some definitions of custom given by various jurists:

According to Salmond, ‘custom is embodiment of those principles which have recommended themselves to the national conscience as principle of justice and public utility’.

He splits Customs through two categories:

GENERAL CUSTOM- A general custom seems to have the power of legislature in a province’s jurisdiction. Example common law in England.

LOCAL CUSTOM- Local customs are those that have the power of law in a given area. A territorial custom has more power than just a national custom.

C.K. Allen defines custom as ‘legal and social phenomenon growing up by forces inherent in society- forces partly of reason and necessity, partly of suggestion and imitation.’

As per J.L. Austin custom is defined as ‘rule of conduct which the governed observe spontaneous and not in pursuance of law settled by a political superior.’

Austin’s views were sometimes regarded in conflict with customary law since, according to him, the constitutional leader has been the sole rule of legislation and customs just weren’t “true law.” To either be called law, individuals required the Sovereign’s approval and order.

Holland define custom as ‘generally observed as course of conduct.’

According to Robert Keeton ‘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.’

USAGE OF CUSTOM AS SOURCE OF LAW

Simply adding the history provision would not make it legal. All of the other distinctions among use method and custom are as follows:

• A customary custom or usage that lacks absolute jurisdiction is clearly distinguishable from either a valid custom of legal standing.
• A custom is obligatory if it cannot be shown that somehow a single group is outside of its reach and there is no consensus on the issue.
• Unless the custom is a particular custom, it is restricted to a certain region; however, the usage would not need to be restricted to a certain area since it is practised globally.
• Within this ability, a ‘legitimate custom’ cannot be interpreted in the sense of ‘usages,’ which is indeed built on prehistoric times but has not gained definitive or necessary personality, nor does a consumer be exercised.
• When the required requirements are fulfilled, a custom serve as a point of legislation for the entire system or even the geographic division in which it resides. Allocation actually applies a word to the use.
• A market usage does not need to establish artifact, continuity, or prestige, which are all important for custom.
• Local custom will certainly criticise domain-based or ruling legislation, but not enacted national laws. Usage, on the other hand, will do it to the degree that it is possible to stop.

       TYPES OF CUSTOM

Customs can be divided into two categories, and are as following.

CUSTOMS WITHOUT SANCTION- There are the customs that are strictly non-mandatory. They are all shown because with the closeness of widespread social opinions, that undermines Austin’s beliefs reflected in his theory of positivity.

CUSTOM WITH SANCTIONS- These will be the customs that the government has put. Such customs are maintained by approval from higher judiciary in the statements.

Custom with sanctions further classified into:

LEGAL CUSTOM- Legal customs are those whose lawful validity is unmistakable. These type of custom act as a supplementary legal system. They were viewed by judiciary and become a part of the practise which must be followed. The judiciary uphold them in the legal statements. It is once more graded below in.

• Local Custom or Particular Custom- A local custom is something which is observed in such a specific location, such as a neighbourhood, city, or region. Regardless, they do not imply ground location in the common context. Other individuals or groups will also carry the customs with them at all everywhere they travel. They are often known as local customs. As a consequence, throughout India, local customs can be divided into two categories: property local customs and person local customs. Such customs are only applicable to a certain place, group, or community.
• General Custom- A general custom is really what prevails throughout the country which is one of the origins of a law that all should obey. According to Keeton, ‘a general custom can also satisfy those requirements if it is to be a source of rule.’It should be reasonable, followed, and recognised as legal, and this should not be in conflict with the country’s settlement statute, and it must have existed since olden times.

CONVENTIONAL CUSTOM- A conventional custom is often referred to as “using.” It is a structure to whom the legitimacy is dependent on its recognition and the organisation of the meetings required by something like this. In simple terms, a conventional custom is a requirement, and the requirement was that it would bind the participants only if it is accepted and implemented by them since mutual arrangement and agreement. A conventional custom is binding on the parties not because of qualified expert, but because it has become expressly or implicitly inserted inside an arrangement among the parties in question.

ESSENTIALS OF VALID CUSTOM

There are certain requirements and criteria that would count as a legal tradition and however should be accepted by the courts and parliament in order to enact it. The below are the criteria for legitimate tradition.

• ANTIQUITY

The real determinant of a legitimate custom is that it may have existed since prehistoric times. It should be outdated or old and not from a current origin. “time worn tradition is divine legislation,” Manu said. Days of prehistoric times mean in the structures assumed subsequently and originally suggested in England, and subsequent period is so distant that neither man alive may remember it or provide facts in this regard.

In England, a tradition may have existed during the reign of Richard I, King of England.” Such that, in England, the time frame for a legal tradition to also be considered substantive is 1189. Year 1189 was indeed a pivotal the year Richard I’s reign. In either event, India does not adhere to the English theory of “ancient times creation.” It is required that the custom be practised since time immemorial. The activity must be so entrenched in civilization that trying to legislate it appears to be the only logical next step. Latest or new behaviours could not be considered customary until they have gained widespread acceptance in society and the community.

• REASONABLITY

The second critical legal test for a legitimate custom is it has to be fair. It shouldn’t be irrational. That must be beneficial and useful to the wider populace. When either party finds problems with a tradition, the participants must follow the custom to inform the jury that perhaps the custom is unfair. This ensures that the burden of proof falls mostly on person that questions the custom. To determine the rationality of a tradition, it should be traced directly to its origin. The irrationality of custom must be so severe that its sanction does more serious harm than if there’s no custom at all.

A custom is considered sufficiently fair because it does not violate the basic instruction of significant worth of the rule of the system in which it operates, as well as principles of justice, morals, and unfairness. It must not be reckless, uncompromising, or badly organised in particular.

• CONTINUANCE

In its origin, a custom should be practised with accuracy and durability. If it has been proven in a court of laws that a certain group made a run and delay in upholding the tradition, the court will have the power to nullify the practice. As a result, a tradition should be practised consistently and consistently. A custom must not be interrupted or its practise must not be sparse. It needs to be continuing for time immemorial without any interruption.

• CERTAINTY

The much more critical measure of such a true and necessary custom is it has to be precise and free of uncertainty. If a tradition is unclear, undefined, or not understood more by parties, the judiciary will consider it invalid and meaningless, as the Privy Council decided in Wilson vs. Wilson. What the custom is and how it will be followed must’ve been simple and indisputable. A custom may only be upheld in trial if this is not permanent or ambiguous. It must be complete and factual both in theoretical terms and even in practice basis.

• NOT OPPOSED TO PUBLIC POLICY

Another condition for validity of tradition is that it will not run opposed to policy making of the public. As a general word, such evaluation could be integrated into test of rationality, and it could even cover government policy. In Buldano vs Fasir, the court declared a custom in which a female was permitted to remarry within the life of her spouse to be invalid because it violated policy decisions.

• JURIDICAL NATURE

A custom should be legally binding. A custom must make reference to legitimate relationships. A purely discretionary activity that is not founded on every law of rights or duty doesn’t really constitute a statutory custom.

• NO ANALOGICAL DEDUCTIONS

Argument and analogy cannot be used to extend the definition of custom. It must be constructed experimentally rather than subjectively, and it cannot be developed using previous techniques. It can’t be based on conjecture, but it should still be based on fact. Similarly, one tradition cannot be derived or concluded by another. Custom that violates human rights will be ruled invalid.

• PEACEABLE ENJOYMENT

The next significant criteria are the custom may have been observed peacefully. If a custom is in question for a long period of time, whether in a criminal court or not, it may undermine the belief in which it originated by consensus, since most customs do. As a result, in order for such a custom to be enforced, it must be shown that the custom has been observed beyond disruption or challenge.

• COMPULSORY OBSERVANCE

To be lawfully recognised as a true custom, a custom must be practiced as a privilege. It implies the custom would have been upheld by all those involved without the use of coercion or the consent of those who are negatively impacted by it. It must be treated as a compulsory or mandatory code of behaviour for those who are influenced by it, rather than as a discretionary code. If a procedure is given to individual judgement, it cannot be considered customary law. These conditions are represented as the law that the recipient should be nec vi nec clam necprecario- not by coercion, deception, though will. In Hamperton v. Hono, it was determined that if the affirmation of a tradition is postponed for an extended amount of time, it is concluded that the custom not actually occurred.

• PUBLIC POLICY

Another criterion for the legitimacy of a tradition is that it should not be contrary to public policy. This check can be included in examination of rationality since it is a general concept that may include government policy. In the case of Budanso v. Faturr, a tradition that would allow a woman who loves marry again within her husband’s lifespan without even any fixed laws requiring that the relationship with the first spouse be broken before the second marriage is concluded was ruled to be against policy making. In a summary, a tradition is legitimate if it is not counter to law, fairness, or good faith, or if it is not inconsistent with the policy.

THEORIES REGARDING TRANSFORMATION OF CUSTOM INTO LAW

The following are two myths about the turn of custom into law:

1. HISTORICAL THEORY- Karl Von Savigny, his disciple Puchta, Blackstone, and Sir Henry James Summer Maine are the main proponents of this philosophy. As per Savigny, custom is rule of law in and of itself. He argues the rule is founded on tradition. A tradition holds its own rationale. As per Puchta, the custom is free of specified constraints. It exists independently of any policy resolution or acknowledgment. Sir Henry Maine considers custom to be the basis of structured legislation. “Custom is spiritual legislation,” as per Manu. J.C. Gray also claims that certain laws were enacted not only against the will of the citizens, but against the desires of the vast majority of everyone.  Allen has found out that not all customs can be linked to popular awareness.

This philosophy holds that the creation of law is not based on the subjective will of any person. People’s collective consciousness gives way to tradition. It stems from an internal sense of social justice. The common the will of people is what gives legislation its life. Paton rejected the empirical hypothesis, stating that “the development of most traditions is not the product of any deliberate thinking but of preliminary practise.”

• ANALYTICAL THEORY- Austin is the most prominent proponent of this philosophy. Custom, he says, is not legislation in and of itself, but rather a basis of law. A tradition would not become a statute if it is not recognised by laws and authorised by the courts. Gray also claims that the real view would be that the rule is determined by the courts. Law is developed from laws, rulings, traditions, and morals. Customs are not ruling as they occur, as per Holland, and they are generally incorporated into rules by State approval. A custom is only a rule to the degree that it is approved by the king, and only from the moment it is sanctioned. Custom, as per him, is a legitimate substance and a basis of legislation. Salmond agrees with this point of view. Gray also acknowledges that tradition is a foundation of rule, but it is not the only basis. Allen opposed the Empirical principle, saying, “Customs evolve by behaviour, and it is thus an error to evaluate its value exclusively by the aspect or convey punishment conferred by courtrooms or any predetermined power.”

CONCLUSION

In the early days of the normal community, customs have been the most important, or in some circumstances, the only source of legislation. The customs are found in the creation of a completely valid and legal system. They are visible in the eyes of the public. In terms of tribal civilization, custom is the ongoing norm. A custom is a norm or procedure that has been followed by the wider populace since prehistoric times. Customs were endorsed, merged, and illustrated in legal codes. Custom’s effect can be tracked under every valid and lawful context. Only other prerequisite for tradition to be a true and rightful basis of law is that it be true and legal.

As a result, it can be found that Customs seem to be a very significant priority of the government, with ancient origins in the oldest and perhaps most basic of cultures that remain relevant today. Society is constantly developing newer traditions, which may eventually become meanings or customs. We rely on customs and are regulated by people, whether we realise it or not. The English Common Law could be viewed as a formalisation of current customs, and it is in this context that the value of getting the correct customs in community is highlighted.

REFERENCES

• R. v Secretary of State for Foreign and Commonwealth Affairs,
• Economic and Social Development
• Customary IHL Database
• Druzin, Bryan H. (2014, April). “Planting Seeds of Order: How the State Can Create, Shape, and Use Customary Law,
• www.toppr.com
• blog.ipleaders.in
• en.wikipedia.org

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