Custom as a Source of Law

Think of a footpath across a college lawn. Nobody planned it and no rule created it. Students found it the shortest way, others followed, the grass wore away, and in time the path became so settled that the gardener stopped fighting it and laid bricks along it. Custom grows the same way. A practice is found convenient, it is repeated, it hardens into habit, and in time the habit is felt as a duty that the courts will enforce. Long before there were legislatures to enact law or courts to declare it, human societies were governed by such settled practices. Even today, when legislation and precedent dominate, custom retains real force in India, above all in the personal laws of the communities and in tribal and agrarian life.

Figure: The pillars of a valid custom: antiquity, continuity, certainty, reasonableness, peaceable enjoyment as of right, and consistency with statute and morality, resting on long community practice

1. Meaning and Definitions

A custom is a rule of conduct which, having been followed by a community for a long time, has come to be regarded as obligatory. It has two elements: a material element, the long and uniform practice, and a psychological element, the conviction that the practice is binding (sometimes called opinio necessitatis). A mere habit, such as taking tea in the evening, lacks the second element and is not a custom in the legal sense. Customary law is the body of such customs recognised and enforced by the courts.

2. How Custom Becomes Law: The Theories

Austin: custom is positive morality until adopted

For Austin, law is the command of the sovereign. A custom, however old, is not a command, and so in itself it is only positive morality. It becomes law only when the courts enforce it or the sovereign adopts it by statute. When the judges enforce a custom, it becomes law by the tacit command of the sovereign, who permits the judges to enforce it; what the sovereign permits, he commands. Custom, on this view, is a source of law only in the historical sense: the courts, not the custom, give it legal force.

The historical school: custom as the true source

For Savigny and his pupil Puchta, custom is the truest source of law. Law, like language, grows out of the common consciousness of the people (the Volksgeist). Custom is its direct expression; legislation should only follow and formulate the custom that already lives among the people. Custom does not derive its validity from the sovereign; it is prior to and independent of both legislation and judicial recognition. On this view the judge who enforces a custom finds law; he does not make it.

Allen: custom grows from below

Allen rejected Austin's view that custom is law only when the courts adopt it. Custom is law in itself: it grows from below, out of the conduct of the people, and the courts merely recognise it by applying tests to see whether it is valid. Allen is also associated with the rule on reasonableness discussed in Section 4: the court does not ask the party setting up a custom to prove it reasonable; it enforces the custom unless the challenger shows it to be unreasonable.

Maine: custom follows themistes

Maine, in Ancient Law (1861), traced the order in which law appeared in early societies. First came themistes, the judgments of the king, believed to be divinely inspired (from Themis, the Greek goddess of justice). From the repetition of these judgments arose custom, held in the memory of a privileged class such as priests or an aristocracy. Then came the codes, such as the Twelve Tables, when writing made the customs public. So for Maine custom follows themistes; it is not the very first stage of law.

3. The Kinds of Custom: Salmond's Scheme

Salmond's classification is a single scheme, not two unrelated lists. At the top, custom is divided into legal and conventional. Legal custom is then subdivided into general and local.

The difference between legal custom and usage is one of the most tested points. A legal custom operates as law, independently of anyone's agreement. A usage operates only as an implied term of a contract: a trade usage that goods are delivered on credit binds the buyer and seller only because they are taken to have contracted with reference to it, and an express term to the contrary excludes it. Distinguish also custom from prescription. Custom creates a general rule for a locality or class; prescription creates a personal right in a particular person through long enjoyment, such as a right of way acquired by twenty years' use under the Limitation Act and the Easements Act.

4. The Requisites of a Valid Custom

Not every practice is enforced as law. The party who sets up a custom must show that it satisfies the following tests, and the failure of any one is fatal.

5. Proof of Custom

Because a custom is a departure from or addition to the general law, the party who relies on it must plead and prove it by clear evidence of its long, continuous and obligatory observance, usually through instances and the testimony of persons familiar with it. Under the Indian Evidence Act, Section 13 made relevant the facts showing how a right or custom was created, claimed, recognised or exercised, and Section 48 made relevant the opinions of persons likely to know of the existence of a general custom or right. These provisions are now carried into the Bharatiya Sakshya Adhiniyam, 2023, which replaced the Evidence Act from 1 July 2024. Once a custom has been repeatedly proved and recognised by the courts, it becomes part of the law of the land and the courts may take judicial notice of it without fresh proof. Custom thus moves from a question of fact into a question of law.

6. Custom in Indian Personal Law

Custom has special and continuing importance in the Indian family law. The Hindu Marriage Act, 1955 defines custom and usage in Section 3(a) (Section 1 above), and gives custom real work: a marriage within the prohibited degrees or between sapindas is void unless the custom or usage governing both parties permits it, and a marriage may be solemnised according to the customary rites and ceremonies of either party (Section 7). Section 29(2) saves any right recognised by custom to obtain a customary divorce, so that communities that traditionally allowed divorce outside the courts may still do so. The Hindu Succession Act and the Hindu Adoptions and Maintenance Act, by contrast, override custom except where they expressly save it.

Muslim law took the opposite course. The Muslim Personal Law (Shariat) Application Act, 1937, by Section 2, provides that notwithstanding any custom or usage to the contrary, in matters such as intestate succession, marriage, dissolution of marriage, maintenance, dower, guardianship, gifts, trusts and wakfs, the rule of decision where the parties are Muslims shall be the Muslim personal law (Shariat). Its purpose was to abrogate customs, followed by some communities, that departed from the Shariat, especially customs excluding women from inheritance. Tribal communities, finally, are governed largely by their own customs, many of them expressly protected by the Constitution and by tenancy laws.

7. Custom and the Constitution

Article 13(3)(a) defines 'law' to include any ordinance, order, bye-law, rule, regulation, notification, custom or usage having the force of law in the territory of India. Under Article 13(1), pre-Constitution laws, including customs, are void to the extent they are inconsistent with the fundamental rights. Custom is therefore subject to constitutional review. Whether personal law itself falls within Article 13 has been more controversial.

8. Custom Compared with Legislation and Precedent

Custom has declined as a source of law for three reasons. Modern life changes too fast for practices that take generations to form; legislation is more certain and can reform; and many old customs have been found inconsistent with equality. Yet custom remains alive in international law, where Article 38 of the Statute of the International Court of Justice lists international custom, as evidence of a general practice accepted as law, among the sources the Court applies. The contrast between law and custom as concepts is treated in Note 53.

9. Frequently Asked Questions

Q. What is the difference between a legal custom and a conventional custom?
A. A legal custom binds of its own force once its requisites are met, whether or not the parties agreed to it; it may be general or local. A conventional custom, or usage, binds only because the parties are taken to have incorporated it into their agreement, and an express term can exclude it.

Q. Must a custom in India be immemorial?
A. No. English law requires a custom to date from 1189, but Indian courts require only that it be ancient, of long and uniform usage, without fixing any date. Section 3(a) of the Hindu Marriage Act speaks of a rule continuously and uniformly observed for a long time.

Q. How does Austin's view of custom differ from Savigny's?
A. Austin held that custom is only positive morality until the courts or the sovereign adopt it, when it becomes law by the sovereign's tacit command. Savigny held that custom is the truest source of law, the direct expression of the people's consciousness, and valid independently of the sovereign.

Q. Can a custom override a statute or a fundamental right?
A. No. Statute prevails over inconsistent custom, and under Article 13(3)(a) a custom having the force of law is void to the extent it violates fundamental rights. The Shariat Act 1937 expressly abrogated customs contrary to Muslim personal law.

See also: Note 53 (law versus custom), Note 13 (historical school), Note 22 (sources of law), Note 23 (legislation), Note 24 (precedent).