Jurisprudence
Legislation versus Custom
At a Glance ▪ Legislation is deliberate, conscious law-making by a competent authority; custom is the unconscious growth of rules from the long practice of a people. One is made from above; the other grows from below. ▪ Savigny and Puchta made custom the truest law and legislation its servant; Maine put legislation last among the agencies of change; Austin held custom to be positive morality until adopted by courts or legislature. ▪ They differ in source (State against people), form (written and enacted against unwritten), proof (statutes are judicially noticed; custom must be pleaded and proved with its requisites), certainty, speed of change and authority. ▪ A valid statute overrides a custom unless the statute saves it. Hindu Marriage Act s.3(a) defines custom and usage and s.29(2) saves customary divorce; Hindu Succession Act s.4 overrides custom; Shariat Act, 1937 s.2 abrogates contrary custom; Art. 13(3)(a) subjects custom to Part III. ▪ Cases: Collector of Madura (Privy Council, 1868), Madhu Kishwar (1996), Shayara Bano (2017), Indian Young Lawyers Association (2018). |
Nobody decreed the grammar of Hindi or Punjabi; it grew over centuries as millions of people spoke and settled into patterns they follow without thinking. That is custom. Now suppose a language board orders that a word shall henceforth be spelt differently in all official documents. That is legislation: a conscious decision, taken on a date, written down and binding from then on. The order changes official spelling overnight, which speech never could; but if it tries to change how people actually talk, it may be ignored. Savigny himself compared law to language. Custom as a source is in Note 25 and the contrast of law and custom in Note 53; this note views custom from the side of legislation, the source that has largely replaced it.
1. The Two Defined
Legislation is conscious law-making: a competent authority decides that the law shall be so, from a stated date. Custom is a rule of conduct that, followed by a community for a long time, has come to be regarded as obligatory; it combines long and uniform practice with the conviction that the practice binds. Nobody decides that a custom shall exist; it forms unconsciously, and the courts discover it rather than create it.
Classic Definitions ▪ Salmond (Jurisprudence): 'Legislation is that source of law which consists in the declaration of legal rules by a competent authority.' ▪ Salmond (Jurisprudence): 'Custom is the embodiment of those principles which have commended themselves to the national conscience as principles of justice and public utility.' ▪ Austin (The Province of Jurisprudence Determined, 1832): custom is a rule of positive morality, which becomes positive law only when the courts or the sovereign legislature adopt it (paraphrase). ▪ Savigny (On the Vocation of Our Age for Legislation and Jurisprudence, 1814): law, like language, grows out of the common consciousness of the people; it is first developed by custom and popular belief, then by jurisprudence, and only then, if at all, by the legislator (paraphrase). |
2. Conscious Making and Unconscious Growth: The Theories
The historical school made the contrast its central theme (Note 13). For Savigny, law is not made by the arbitrary will of a lawgiver but grows from the common consciousness of the people, the idea Puchta popularised as the Volksgeist. Custom is its direct expression; legislation is useful only when it declares and systematises what custom has produced. Hence Savigny's opposition in 1814 to Thibaut's proposed German code. Puchta treated customary law as the primary form of law, with the legislator following behind.
Maine, in Ancient Law (1861), traced an order of development: themistes (judgments of kings believed divinely inspired), then customary law kept by a privileged class, then codes such as the Twelve Tables. Progressive societies then change their law through three agencies, in order: legal fictions, equity and legislation, the last being the most direct and powerful. Maine did not distrust legislation; he was Law Member in India from 1862 to 1869 (Note 67).
The analytical school reversed the order of dignity. For Austin a custom, not being a command of the sovereign, is only positive morality until a court enforces it (the sovereign tacitly commanding what his judges enforce) or the legislature adopts it. Legislation is the paradigm of law; custom is raw material. Later, Ehrlich (1913) restored part of the historical insight: the centre of gravity of legal development lies in society itself, so a statute that ignores the living law may remain a dead letter (Note 14).
3. The Differences Explained
Source
Legislation comes from the State, through an organ given law-making power. Custom comes from the people, or a section of them: a locality, caste, tribe, community or family. The one has the authority of its maker; the other, of long and general acceptance.
Form
Legislation is written and enacted, with an authoritative text and a date of commencement. Custom is unwritten; it lives in conduct and belief until a court records it or a statute adopts it.
Proof
Courts take judicial notice of statutes: the Evidence Act (Section 57, now carried into the Bharatiya Sakshya Adhiniyam, 2023) required them to notice all laws in force in India. A custom must be pleaded and proved by the party relying on it, with clear evidence of its requisites (Note 25). The Privy Council said in Ramalakshmi Ammal v Sivanantha Perumal Sethurayar (1872) that special usages modifying the ordinary law must be ancient and invariable, and established by clear and unambiguous evidence (paraphrase). Only after repeated proof and recognition may courts notice a custom without fresh proof.
Certainty
A statute's words may need interpretation, but the rule is on the page. A custom's content, extent and even existence are often uncertain until a court declares them, which is why certainty is one of its requisites.
Speed of change
Legislation changes the law at once; custom changes slowly, over generations, and cannot be altered by a vote. In a society undergoing rapid change, that is legislation's great advantage.
Relative authority
A valid statute overrides an inconsistent custom unless the statute saves it. The reverse does not hold: English law does not recognise desuetude, and although the Indian Supreme Court has not ruled the doctrine out in principle, no Indian statute has been held repealed by it, so a statute is not repealed by mere disuse or contrary practice. Above both stands the Constitution: custom having the force of law is 'law' under Art. 13(3)(a) and is void to the extent it violates fundamental rights.
Basis | Legislation | Custom |
|---|---|---|
Nature | Conscious, deliberate law-making | Unconscious, spontaneous growth from practice |
Source | The State, through a competent authority | The people, or a locality, tribe, caste, community or family |
Form | Written and enacted, with a date of commencement | Unwritten until recorded by a court or adopted by statute |
Proof | Judicially noticed; need not be proved | Must be pleaded and proved with its requisites |
Certainty | A fixed text, subject to interpretation | Content and extent often uncertain until declared |
Change | Immediate, from a stated date | Slow, over generations |
Authority | Overrides inconsistent custom | Yields to statute unless the statute saves it; no desuetude of statutes |
Favoured by | Bentham, Austin | Savigny, Puchta |
4. Legislation as the Reformer of Custom
Much of modern Indian law is legislation deliberately reforming custom: the Bengal Sati Regulation, 1829; the Caste Disabilities Removal Act, 1850, protecting converts' rights of inheritance; the Hindu Widows' Remarriage Act, 1856; the Child Marriage Restraint Act, 1929, later the Prohibition of Child Marriage Act, 2006; and the Dowry Prohibition Act, 1961. This is the conscious lawmaker at work, which custom by its nature cannot be. The same history shows legislation's limit: child marriage and dowry outlived the statutes forbidding them for decades, which is the historical school's warning and Ehrlich's point. A statute changes the law in a day; the custom beneath it changes more slowly.
5. The Indian Statutory Pattern: Define, Save, Override
Once personal law was codified, the statute decided how much room custom kept. Indian statutes use three techniques (Note 53 gives the section-by-section table).
Three statutory techniques ▪ Define and save. The Hindu Marriage Act, 1955 defines 'custom' and 'usage' in Section 3(a) as a rule continuously and uniformly observed for a long time that 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. It then saves custom in named places, including marriages within prohibited degrees or between sapindas, customary rites (Section 7) and, by Section 29(2), any customary right to obtain a dissolution of marriage. ▪ Override. Section 4 of the Hindu Succession Act, 1956: save as the Act expressly provides, any text, rule or interpretation of Hindu law, or any custom or usage as part of that law, ceases to have effect on any matter for which the Act provides. ▪ Abrogate. Section 2 of the Muslim Personal Law (Shariat) Application Act, 1937: notwithstanding any custom or usage to the contrary, in the listed matters (including intestate succession, marriage, dissolution, maintenance, dower, gifts and wakfs), the rule of decision where the parties are Muslims is the Muslim personal law, questions relating to agricultural land being excepted. It displaced customs, such as those excluding women from inheritance. |
Collector of Madura v Moottoo Ramalinga Sathupathy Privy Council, 1868 Before codification the position was the reverse. On whether a widow in the Dravida country could adopt with the consent of her husband's kinsmen, 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 Smriti texts; after codification only the statute can give custom such force. |
6. Custom, Legislation and the Constitution
Article 13(3)(a) includes 'custom or usage having in the territory of India the force of law' within 'law', so custom stands in the same line as legislation before Part III.
Madhu Kishwar v State of Bihar Supreme Court of India, 1996 Tribal women challenged customary rules, reflected in the Chotanagpur Tenancy Act, excluding them from succession to land. The majority declined to strike down the custom wholesale, but held that the male heirs' exclusive right must remain in suspension so long as the women depend on the land for their livelihood: caution where legislation has left tribal custom in place. |
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, enacted to replace custom with Muslim personal law, was a law in force under Art. 13, so the talaq it recognised could be tested under Art. 14 and was manifestly arbitrary; Kurian Joseph J held the practice had no basis in the Quran. Legislation that absorbs a practice brings it within constitutional review. |
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 (Note 53). |
7. Evaluation
Legislation has largely displaced custom because it offers certainty, speed and deliberate reform; a constitutional society cannot wait for discriminatory customs to fade. But custom carries the consent of those who live by it and fits their circumstances in ways no drafter foresees, which is why the Hindu Marriage Act still saves customary divorce and the Court in Madhu Kishwar moved carefully. The sound view is the historical school's corrected by the Constitution: legislation should build on living custom where it is just, and override it where it is not.
Memory Aid ▪ Analogy: the growth of a language and the language board's order. Speech grows unconsciously (custom); the board's order changes official spelling from a date (legislation), but cannot easily change how people talk. ▪ Six differences: 'S-F-P-C-S-A', 'Some Farmers Plant Crops Slowly Always'. Source, Form, Proof, Certainty, Speed of change, Authority. ▪ Statute sorting: 'Marriage saves, Succession overrides, Shariat abrogates' (HMA ss.3(a), 29(2); HSA s.4; Shariat Act s.2). ▪ Theory hook: Savigny says legislation should follow custom; Maine puts legislation last among fictions, equity and legislation; Austin says custom waits for the court or legislature. |
Exam Corner: Likely Questions ▪ Distinguish legislation from custom as sources of law. Which is superior, and why? ▪ 'Law is found, not made.' Discuss the historical school's view of custom and legislation with reference to Savigny, Puchta and Maine. ▪ Examine how codified personal law in India defines, saves or overrides custom, with reference to the Hindu Marriage Act, the Hindu Succession Act and the Shariat Act, 1937. ▪ Is custom subject to fundamental rights? Discuss Art. 13(3)(a) with reference to Madhu Kishwar, Shayara Bano and Indian Young Lawyers Association. |
Exam Corner: MCQ Traps ▪ Statutes are judicially noticed; a custom must be pleaded and proved. ▪ A statute is not repealed by mere disuse: English law does not recognise desuetude, and no Indian statute has been held repealed by it. ▪ Section 4 HSA overrides custom; Section 29(2) HMA saves customary divorce; Section 2 of the Shariat Act applies notwithstanding contrary custom, but excepts agricultural land. ▪ Maine's agencies of change, in order: legal fictions, equity, legislation. Maine did not distrust legislation. ▪ 'Clear proof of usage will outweigh the written text of the law': Collector of Madura (Privy Council, 1868). |
8. Frequently Asked Questions
Q. Can a custom override a statute?
A. No. A valid statute overrides an inconsistent custom, and custom survives only where the statute saves it, as Section 29(2) of the Hindu Marriage Act saves customary divorce. Nor does mere disuse or contrary practice repeal a statute; no Indian statute has been held repealed by desuetude.
Q. Why must custom be proved but not a statute?
A. Because courts take judicial notice of all laws in force, while a custom is a departure from the general law whose existence, content and extent are facts. The party relying on it must prove it by clear evidence, until repeated judicial recognition makes it part of the law of the land.
Q. Did the historical school reject legislation altogether?
A. No. Savigny opposed premature codification, not legislation as such; he thought the legislator should declare and systematise law that had already grown in the people's consciousness. Maine treated legislation as the most powerful agency of legal change in progressive societies.
See also: Note 25 (custom), Note 23 (legislation), Note 53 (law versus custom), Note 13 (historical school), Note 67 (Savigny versus Maine), Note 102 (legislation versus precedent), Note 104 (custom versus usage).
SEO METADATA URL slug: legislation-versus-custom SEO title: Legislation versus Custom Meta description: Legislation versus custom for judiciary exams: conscious law-making against unconscious growth, Savigny, Puchta, Maine and Austin, differences of source, form, proof, certainty, speed and authority, legislation reforming custom, Hindu Marriage Act s.3(a) and s.29(2), Hindu Succession Act s.4, Shariat Act s.2, Art. 13(3)(a) and leading cases. Keywords: legislation versus custom, difference between legislation and custom, custom as positive morality Austin, Savigny Volksgeist custom, Maine fictions equity legislation, statute overrides custom, Hindu Succession Act section 4 overriding effect, Hindu Marriage Act section 29(2), Shariat Act 1937 section 2, Article 13(3)(a) custom, Madhu Kishwar, Sabarimala, judiciary exam jurisprudence |