Custom is simply the practices and usages of distinctive communities. But are such customs legally binding? Can custom be law, even before it is recognized by authoritative legislation or precedent?
And, assuming that custom is a source My library Help Advanced Book Search. Cambridge University Press Amazon. Custom as a Source of Law.
Cambridge University Press , Aug 16, - Law. A central puzzle in jurisprudence has been the role of custom in law. And, assuming that custom is a source of law, what are its constituent elements? Is proof of a consistent and long-standing practice sufficient, or must there be an extra ingredient - that the usage is pursued out of a sense of legal obligation, or, at least, that the custom is reasonable and efficacious?
And, most tantalizing of all, is custom a source of law that we should embrace in modern, sophisticated legal systems, or is the notion of law from below outdated, or even dangerous, today? Broadly, there are two views which prevail in this regard on whether custom is law.
Jurists such as Austin opposed custom as law because it did not originate from the will of the sovereign. Jurists like Savigny consider custom as the main source of law. According to him the real source of law is the will of the people and not the will of the sovereign.
The will of the people has always been reflected in the custom and traditions of the society. Custom is hence a main source of law. Customs can be broadly divided into two classes: These kinds of customs are non-obligatory in nature and are followed because of public opinion. These customs are binding in nature and are enforced by the State.
These customs may further be divided into the following categories:. All customs cannot be accepted as sources of law, nor can all customs be recognized and enforced by the courts. The jurists and courts have laid down some essential tests for customs to be recognized as valid sources of law. These tests are summarized as follows: In order to be legally valid customs should have been in existence for a long time, even beyond human memory.
In England, the year i. A custom to be valid should have been in continuous practice. It must have been enjoyed without any kind of interruption. Long intervals and disrupted practice of a custom raise doubts about the validity of the same. Exercised as a matter of right: Custom must be enjoyed openly and with the knowledge of the community. It should not have been practised secretly. Acustom must be proved to be a matter of right. A mere doubtful exercise of a right is not sufficient to a claim as a valid custom.
A custom must conform to the norms of justice and public utility. A custom, to be valid, should be based on rationality and reason. If a custom is likely to cause more inconvenience and mischief than convenience, such a custom will not be valid.
A custom which is immoral or opposed to public policy cannot be a valid custom. Courts have declared many customs as invalid as they were practised for immoral purpose or were opposed to public policy. Status with regard to: In any modern State, when a new legislation is enacted, it is generally preferred to the custom. Therefore, it is imperative that a custom must not be opposed or contrary to legislation.
According to Austin one of the main priests of analytical school, custom is a source of law and not law in itself. Custom are not positive laws until their existence is recognized by the decisions of the courts. A custom becomes law when it is enforced by the state. It is not every custom that is binding.
Oct 24, · Custom can simply be explained as those long established practices or unwritten rules which have acquired binding or obligatory character. In ancient societies, custom was considered as one of the most important sources of law; In fact it was considered as the real source of law.
Oct 24, · Custom in jurisprudence Custom can simply be explained as those long established practices or unwritten rules which have acquired binding or obligatory character. In ancient societies, custom was considered as one of the most important sources of law; In fact it was considered as the real source of law. Salmond- Custom is to society what law is to the state. Each is the expression and realization of Each is the expression and realization of the measure of man’s insight and ability of the principles of right and justice.
Custom In Jurisprudence custom in jurisprudence Can you improve the answer?Oct 24, Custom can simply be explained as those long established practices or unwritten rules which have acquired binding or obligatory character. Custom, in English law, an ancient rule of law for a particular locality, as opposed to the common law of the country. It has its origin in the Anglo-Saxon period, when local customs formed most laws affecting family rights, ownership and inheritance, contracts, and personal violence.