When Does a Custom Become Law? —There are two opposite views, about the question as to when does a custom become law? The one view is the Analytical school and the other is that of the Historical school. According to Austin, the founder of Analytical school, “a custom be-comes’ law only when it is recognised by the sovereign.”
Austin says that custom is a source of law and it itself is not law. His definition of law that it is command of the sovereign does not allow the customs to be included in law. A custom is not ‘positive law” unless it is so declared by the court, or, in other words, it is not law until it has received the judicial recognition, or it has been embodied in some statute. Its recog-nition by the court or its incorporation in the statute puts upon it the implied or the express seal of the sovereign and it becomes law.
Historical View—According to Savigny, the founder of Historical school, custom is per se law, i.e., custom is law in itself and derives its binding force from its own nature. Custom possesses the force of law before it is recognised and applied by the courts of the State. A custom carries its justification in itself The very existence of custom indicates that it must have : arisen due to the strong need and by the approval of the people. The state has no discretion or power over them except to accept them. The judge in interpreting, or moulding them work as the representatives of the people j and no more than that. Thus, the validity of a custom does not depend upon their approval. According to Puclita, “custom is not only self-sufficient, and independent of legislative authority, but is a condition precedent of all sound legislation.” Thus, according to Historical school, custom is law independent of any declaration or recognition by the state. Thus, “custom is superior and prior to law.”
Criticism — It is submitted that both the views arc full of exaggerations. The view of the Analytical school that customs are not law until recognised by the sovereign, undoubtedly, contains some truth, but it contains only partial and not the whole truth. This approach is defective due to many reasons. Firstly, a bulk of the customs is non-litigious, and hence it does not come before the courts but the society regulates its conduct in accordance with them. Secondly, in most cases the customs are recognised not with the assumption that this recognition given them the sanctity of law but with this assumption that they are already law and have been treated so. Thirdly, though the court plays a creative role in rationalizing and shaping them, it draws its raw material from the customs.
On the other hand, the view of the Historical school also is not balanced. Firstly, customs have not always arisen out of convenience or the need of the people. Sometimes they have been imposed upon the people by the ruling class. Secondly, though there are some rules of law which are, undoubtedly based on the common conviction of the people, the majority of the rules are so complicated and technical that the common conviction might never have thought of them. Thirdly, the Historical jurists did not pay proper heed to the fact that the state has the power of abrogating a custom. Fourthly, they underestimated the creative roles of the judges and of the legislators which arc so important in modern times. It is submitted that the correct position lies in a synthesis of the two views given above and by adopting a sociological point of view. The customs lie in the foundation of all the legal systems. They come into existence witb the existence of the society. The conduct embodied in customs is the corporate action. Balancing the two views, Salmond has rightly remarked that although custom is not the formal source of law yet it is a material source which is called legal source.
Kinds of Sources of Law—According to Salmond, sources of law can be divided into two parts—
(i) Formal and (ii) Material.
(i) Formal Source —A formal source is that from which a rule of law derives its force and validity.
(ii) Material Source —A material source is that from which is derived t e matter and not the validity of the law. The material sources are further describe into legal sources and historical sources. Thus, Salmond’s of sources of law can be summarised as under —
Besides the historical and legal sources of law, Salmond also speaks about literary source of law which refers to original and authoritative sources of knowledge of law. It consists of all text books, commentaries and law reports from where we trace any rule of law. According to Salmond (the legal source is authoritative while the Historical source is unauthoritativc.
For Example —an Act passed by the Legislature be-comes a law which has a binding force, therefore, it is a legal material source of law. On the other hand, opinions of eminent jurists have only a persuasive value and are not binding upon the courts. Therefore, they are a historical material source which are unauthoritative. They are sources infact but they have no legal recognition.
According to Austin, the term ‘source of law’ denotes three distinct meanings —
(a) The Sovereign acting as a legislature or judiciary,
(b) A political subordinate acting either as a political legislature or judiciary,
(c) The persons whose conduct forms custom or persons who by contract submit themselves to a rule of conduct towards each other.
Recognition of Custom as a Source of Law—Custom was the sole source of law in ancient age. The laws were unwritten and the common law in England is nothing but the rules of customary law which prevailed in English society for regulating human conduct and intercourse inter-se. These customary rules had the approval of public opinion. As Salmond puts it “custom is to society what law is to state. Each is the expression and realization to the measure of men’s insight and ability, of the principles of right and justice.” When states came into existence, they gave immediate recognition to the customs prevailing at that time and thus they were recognised as valid laws. However, with the passage of time legislatures began to enact law and modify customary law or supplant it.
Custom occupies an important place as a source of law even to this day because most of the material contents of developed systems of law have been drawn from ancient customs. The laws relating to succession, inheritance, property, contract etc. are evolved from early customary rules. In India, the personal law of Hindus e.g., the Hindu Ma rraige Act, 1955, the Hindu Adoption & Maintenance Act 1956, the Hindu Dowry Abolition Act, 1961 etc., which have been codified after the Indian Independence, is nothing but customary law which has been recognised by courts and embodied injudicial decisions from time to time.
Custom only Persists where Legislation has yet not Peneterated —With the emergence of Legislation as a potential source of law-making, the law-creative efficacy of custom has declined. The doctrine of prece-dent has also gained primary over customary law in modern times but even then at times courts have a resort to ancient custom in order to remove inconsistency or ambiguity in an existing law. Codified Hindu Law have abolished all the customs that are contrary to enacted laws e.g., child marraige, untouchability etc.
Importance of Custom as a Source of Law —Although custom has lost its place as a source of law in modern age but it still exerts great influence in certain areas such as personal laws, mercantile law and even the international law. Particularly, in the area of personal law, the need for a uniform civil code as directed by the Art. 44 of Indian Constitution has been emphasised time and again SQ that a rational law applicable to all-alike may be evolved. The Supreme Court of India has in the historic case of Mohammed Ahmad Khan Vs. Shahbano has reiterated the need for a uniform civil code which could be uniformly applicable to all the castes and communities living in India so that differences as to caste and religion may be mitigated. It would be a progressive step towards the attainment of the goal of welfare State. In this process, the ancient customs of different communities shall have to be taken into consideration so that the uniform law so evolved conforms to Indian traditions.
