Jurisprudence
Law versus Custom
At a Glance ▪ Custom is a rule of conduct observed by a community because it has long been observed; law in the strict sense is a rule laid down or recognised by the State and enforced by its courts. Custom is older; law is later and deliberate. ▪ Jurists disagree on how custom relates to law: Austin calls it positive morality until the courts adopt it; Savigny and Puchta make it the true source of law; Maine traces a sequence of themistes, custom and codes; Allen sees custom as law growing from below. ▪ Legal custom (general or local) binds by its own force once proved; conventional custom (usage) binds only as an implied term of an agreement. ▪ In England a local custom must date from time immemorial (1189); Indian law asks for antiquity but fixes no date. Reasonableness works negatively: a custom stands unless shown to be unreasonable. ▪ Statute overrides custom, and custom having the force of law is 'law' under Art. 13(3)(a), so it is subject to fundamental rights. |
Think of a footpath across a village field. No one planned it and no by-law created it. People walked that way for generations until the path wore into the earth, and now everyone uses it as a matter of course. That is custom: a rule that grew from practice. One day the village panchayat notices the path, surveys it and declares it a public right of way, enforceable against the landowner. That is law: the State recognising the practice and backing it with its authority. The full treatment of custom as a source of law, with every test and case, is in Note 25. This note concentrates on the comparison: how the two differ, the theories about their relation, and the precise rules on when custom yields to law in India.
1. The Two Defined
Classic Definitions ▪ Salmond (Jurisprudence): 'Custom is the embodiment of those principles which have commended themselves to the national conscience as principles of justice and public utility.' ▪ Holland (Elements of Jurisprudence): custom is a generally observed course of conduct (paraphrase). ▪ Austin (The Province of Jurisprudence Determined, 1832): custom is a rule of positive morality, and becomes positive law only when the courts or the sovereign adopt it (paraphrase). ▪ Hindu Marriage Act 1955, s. 3(a): custom and usage signify any rule which, having been continuously and uniformly observed for a long time, has obtained the force of law among Hindus in any local area, tribe, community, group or family, provided it is certain and not unreasonable or opposed to public policy. |
The core difference is one of source and sanction. Custom arises from the practice of the people and is upheld by habit and social opinion; law arises from the deliberate act of a State organ and is upheld by the courts. Custom is spontaneous and usually unwritten; law is deliberate and usually written.
2. Theories of Custom
How the schools explain the relation ▪ Austin (analytical). Law is the command of the sovereign. Custom, before judicial recognition, is only positive morality. When a court enforces it, it becomes law because the sovereign tacitly commands what his judges enforce. Custom is thus a historical source, not law in itself. ▪ Savigny and Puchta (historical). Law is not made but found. It grows from the common consciousness of the people (Savigny's Volksgeist idea, the term popularised by Puchta), as language does. Custom is the truest expression of that consciousness, and legislation is valuable only when it declares it. Custom is prior to and superior to legislation. ▪ Maine (historical, comparative). In Ancient Law (1861) Maine traced a sequence: first themistes, the individual judgments of kings believed to be divinely inspired; then customary law, preserved by an aristocracy of legal knowledge; then codes, such as the Twelve Tables, once writing spread. ▪ Allen (Law in the Making). Custom is law that grows from below, from the practice of the community, not law imposed from above. Courts do not create it; they recognise it and test it for reasonableness. ▪ Carter (American). Custom is the source of all law; even legislation succeeds only so far as it conforms to the customs of the people (paraphrase). |
An exam answer should present these as a spectrum. At one end, Austin denies custom any legal force of its own. At the other, Savigny and Carter make custom the foundation of all law. Allen and the modern view stand between: custom is a genuine source of law, but its binding force in a developed system depends on recognition by the courts, which apply the tests of validity.
3. Kinds of Custom
Kind | Meaning | How it binds |
|---|---|---|
Legal custom: general | Prevails throughout the country (in England, the common law began so) | Has the force of law by itself once proved |
Legal custom: local | Prevails in a particular locality, community, tribe or family | Binds those within it; must pass the tests of validity |
Conventional custom (usage) | A practice of a trade or market (for example, a banking usage) | Binds only as an express or implied term of an agreement |
The distinction between legal and conventional custom is Salmond's. A legal custom is operative per se: it binds whether or not the parties intended it. A usage binds only because the parties are taken to have contracted with reference to it. Indian law also recognises family custom, as the definition in the Hindu Marriage Act shows.
4. When Custom Becomes Law: the Tests, Precisely Stated
Note 25 sets out the tests in full. Two points are commonly stated wrongly and need precision here.
Two points of precision ▪ Antiquity. In England a local custom must have existed from time immemorial, fixed by the Statute of Westminster I (1275) as the beginning of the reign of Richard I in 1189. Indian law does not adopt that date. It is enough that the custom is ancient, has been observed for a long time, and has obtained the force of law; courts judge the length of time on the evidence. ▪ Reasonableness works negatively. The party relying on a custom need not prove that it is reasonable. Salmond explains that a custom is valid unless it is shown to be unreasonable, and unreasonable to a serious degree, so that its enforcement would cause more harm than good. The burden lies on the party who attacks it. |
The other requirements are that the custom be continuous, certain, observed peaceably and as of right (not by permission or force), consistent with other customs, and not opposed to statute, morality or public policy. The person alleging a custom must prove it by clear evidence. The Privy Council in the Collector of Madura case stressed how powerful such proof can be.
Collector of Madura v Moottoo Ramalinga Sathupathy Privy Council, 1868 The Privy Council held that under the Hindu system of law, clear proof of usage will outweigh the written text of the law. Proved custom could displace the rules of the Smritis, which is why custom was so important in pre-codification Hindu law. |
5. Law Prevails over Custom: the Indian Statutory Position
The common statement that 'in personal law a proved custom can prevail over the general law' needs care. It was true of uncodified Hindu law, as Collector of Madura shows. Once personal law was codified, custom survives only where the statute expressly saves it, and some statutes deliberately abolish contrary custom.
Statute | Provision | Effect on custom |
|---|---|---|
Hindu Marriage Act 1955 | s. 3(a) | Defines custom and usage (long, continuous, uniform, certain, reasonable, not against public policy) |
Hindu Marriage Act 1955 | s. 5(iv), s. 5(v) | Marriage within prohibited degrees or between sapindas is barred unless a custom or usage governing both parties permits it |
Hindu Marriage Act 1955 | s. 7 | A Hindu marriage may be solemnised by the customary rites and ceremonies of either party |
Hindu Marriage Act 1955 | s. 29(2) | Saves any right recognised by custom to obtain a dissolution of marriage |
Hindu Succession Act 1956 | s. 4 | Overriding effect: any custom or usage ceases to have effect on matters for which the Act provides |
Muslim Personal Law (Shariat) Application Act 1937 | s. 2 | Notwithstanding any contrary custom, Muslim personal law is the rule of decision in the listed matters (succession, marriage, dissolution, maintenance, dower, guardianship, gifts, trusts, wakfs, and others) |
The pattern is clear. The Hindu Marriage Act saves custom in specific places; the Hindu Succession Act overrides it; and the Shariat Act 1937 was passed precisely to abrogate customs (for example, those that denied women shares of inheritance in some communities) contrary to Shariat in the matters it lists. In every case it is the statute that decides how much room custom has. That is the most exact sense in which law prevails over custom in India.
6. Custom and the Constitution
Article 13(3)(a) defines 'law' to include any ordinance, order, bye-law, rule, regulation, notification, custom or usage having in the territory of India the force of law. So a custom with legal force is subject to Part III and is void to the extent it violates fundamental rights. (The Bombay High Court in State of Bombay v Narasu Appa Mali, 1952, held that uncodified personal law as such is not 'law' under Art. 13, a view whose scope remains debated.)
Madhu Kishwar v State of Bihar Supreme Court of India, 1996 Tribal women challenged customary rules, reflected in the Chotanagpur Tenancy Act, that excluded them from succession to land. The Court declined to strike down the custom wholesale, but protected the women's right to livelihood from the land. It shows the courts' caution in confronting tribal custom with equality. |
Shayara Bano v Union of India Supreme Court of India, 2017 (5 judges, 3:2) The majority set aside instant triple talaq. Nariman J (with Lalit J) held that the Shariat Act 1937 had made the practice part of the law in force, so it was subject to Art. 14 and void as manifestly arbitrary; Kurian Joseph J held it had no basis in Islamic law. A practice with the force of law cannot escape fundamental rights. |
Indian Young Lawyers Association v State of Kerala Supreme Court of India, 2018 (5 judges, 4:1) The majority held that the customary exclusion of women aged 10 to 50 from the Sabarimala temple was not an essential religious practice and violated equality and freedom of worship; the rule enforcing it was struck down. Indu Malhotra J dissented. Custom and usage cannot override Part III. |
7. How They Differ
Basis | Law | Custom |
|---|---|---|
Source | Laid down or recognised by the State | Long practice of a community |
Origin | Deliberate: enactment or decision | Spontaneous and gradual |
Sanction | Courts and State power | Habit and opinion, until the courts recognise it |
Form | Usually written and definite | Usually unwritten; must be proved |
Reach | General, across the territory | Often local, tribal or family |
Hierarchy | Statute prevails | Yields to statute and to Part III |
Age | Later, developed form | Oldest source of rules |
Memory Aid ▪ Analogy: custom is the footpath worn by generations of feet; law is the paved road the State builds. Often the road follows the old path, but where the State lays a new road the path is closed. ▪ Mnemonic for the theories: 'A Poor Monk Always Carries'. Austin: positive morality until adopted; Puchta (with Savigny): the true source; Maine: themistes, custom, codes; Allen: law from below; Carter: the source of all law. ▪ Year hook: '1189, Richard's time'. Time immemorial in England; no such fixed date in India. ▪ Statute sorting: 'Marriage saves, Succession overrides, Shariat abrogates'. |
Exam Corner: Likely Questions ▪ Distinguish law from custom. When does a custom acquire the force of law? ▪ Examine the theories of custom with reference to Austin, Savigny, Maine and Allen. ▪ 'Codified personal law leaves room for custom only where it expressly saves it.' Discuss with reference to the Hindu Marriage Act, the Hindu Succession Act and the Shariat Act. ▪ Is custom subject to fundamental rights? Discuss with reference to Art. 13(3)(a) and recent cases. |
Exam Corner: MCQ Traps ▪ Time immemorial in England means 1189 (the accession of Richard I); Indian law does not require this date. ▪ Austin treats custom as positive morality until adopted by the courts; Savigny treats it as the true source of law. ▪ Themistes, custom, codes is Maine (Ancient Law, 1861). ▪ Custom having the force of law is 'law' under Art. 13(3)(a). ▪ Section 4 HSA overrides contrary custom; the HMA saves custom in ss. 5(iv), 5(v), 7 and 29(2). |
8. Frequently Asked Questions
Q. Does custom prevail over law?
A. No. A valid statute overrides an inconsistent custom, and in codified personal law custom survives only where the statute saves it, as the Hindu Marriage Act does in ss. 5(iv), 5(v), 7 and 29(2). Before codification, proved custom could outweigh the texts of Hindu law, as Collector of Madura (1868) held.
Q. Must a custom in India date from 1189?
A. No. That is the English rule of time immemorial. Indian courts require that a custom be ancient and long observed, but set no fixed starting date.
Q. Who has to prove that a custom is reasonable?
A. No one has to prove it reasonable. The test works negatively: the custom is valid unless the party attacking it shows that it is unreasonable.
See also: Note 25 (custom as a source of law, in full), Note 13 (historical school), Note 22 (sources of law), Note 67 (Savigny versus Maine).
SEO METADATA URL slug: law-versus-custom-jurisprudence SEO title: Law versus Custom Meta description: Law versus custom for judiciary exams: definitions by Salmond, Holland and Austin, theories of Savigny, Maine, Allen and Carter, legal and conventional custom, time immemorial, the Hindu Marriage Act, Hindu Succession Act and Shariat Act, and Art. 13(3)(a). Keywords: law versus custom, custom as source of law, time immemorial 1189, Austin custom positive morality, Savigny custom, Maine themistes, Hindu Succession Act section 4, Shariat Act 1937, Article 13(3)(a) custom, judiciary exam notes |