Legal Methods.doc

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Customs: As a source of Law

LEGAL METHODS

FACULTY OF LAW

JAMIA MILLIA ISLAMIA

SUBMITTED BY:

Farhan Ghazi

B. A. LL.B. (Hons.)

Class: 2nd yr

SUBMITTED TO:

Mr. Eqbal Hussain


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ACKNOWLEDEMENT

I have taken efforts in this project however it would

not have been possible without the kind support and

help of many individuals, websites and books. I

would like to extend my sincere thanks to all of

them.

I am highly indebted to Mr. Eqbal forguidance and

constant supervision as well as for providing

necessary information regarding the project and also

for his support in completing the project.

Farhan GhaziB. A. LL.B. (Hons.)

Class: 2nd yr

Batch: 2012-17

INDEX


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1. Introduction

2. Background

3. Sources of Law : A Brief

4. Custom

5. Origin of Custom

6. Binding force of custom

7. Theories regarding transformation of Custom into law

- Historical Theory

- Analytical Theory

8. Kinds of Custom

- Legal CustomLocal Custom

General Custom

- Conventional Custom or Usage

9. Requisites of a Valid Custom

10. Custom and Prescription

11. Conclusion

INTRODUCTION


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Why should there be a special study of jurisprudence? Every one knows why there should

be a study of law. It is obvious, for instance, that in order to draw up a will, or to enforce

claims arising out of an agreement, one has to know the law. Some lawyers will say thatthey must attend to the actual rules of law and to the requirements of their clients and

have no time to read books on general topics. But the craftsmans point of view can

hardly be carried very far. Even in pleading as to the rescission of a contract you mayhave to rely on considerations of morality and of public utility. It will, I suppose, be

conceded that a wide range of culture and knowledge is desirable in the case of the

legislator and of the judge; but then barristers and solicitors prepare the way for judicialdecisions and deal with the same elements of right as the judges, although their

arguments are presented from more one-sided points of view. Some practising lawyers

will neverthelessas Leslie Stephen has put itconsider all theory of law with serene

indifference; if so, they will have to be left to their own devices. Jurisprudence addressesitself to those who study law as a part of a system of knowledge.

The subject has an interest of its own apart from any consideration as to immediate

utility. Law is one of the great departments of human thought and of social activity. As

such, it claims the attention not only of the jurist but of the student of social science, ofthe philosopher and, in a wider sense, of every educated man. We may systematize our

knowledge of the world from two different points of view: either by reducing complexphenomena to their causes and ascertaining, as far as possible, the laws of their

recurrence, or by using our knowledge as a guiding light for our actions. In the first

direction, when we study things as they are, there arise theoretical sciences, such asmathematics, physics, economics. In the other direction, when we study the means of

making things as we want them to be, we have to turn to applied sciences, such as

engineering, medicine, law. Comparing laws with medicine, we may say that both aim at

providing a rational background for a vast body of practical precepts; both areindispensable for the intelligent exercise of an art; both derive their teaching from the

application of various sciences to the concrete problems of health and disease, of civil

intercourse and crime. The physician combines for a specific purpose doctrines, ofphysics and chemistry, of biology and psychology; the lawyer draws on the study of

logic, of psychology and of social science in order to co ordinate and explain legal rules

and to assert rights. Our enumeration of the sciences on which the lawyer has to rely mayseem scanty at first sight. Why is ethics not mentioned among them, why not history and

philosophy? As to ethical doctrines, they are, of course, closely related to jurisprudence,

but they present themselves to jurists chiefly in their practical aspect as influencing

conduct.

In this sense the data of ethics form a most important chapter of psychology, as the

operations of the mind bearing on conduct. Of the connection between history andjurisprudence we shall have to speak on many occasions. It may be sufficient to state now

that history cannot be contrasted with the theoretical study of law because it provides one

of the essential elements of legal method. As for philosophy, its influence is all-pervadingand is bound to make itself felt. In the treatment of any subject: it forms, as it were, the

atmosphere for all scientific studies. At the same time it cannot and ought not to direct

the investigation of any particular point, for the very reason that it aims at a synthesis of

all. Every jurist is left to face the problems of law in his own way, and by such help as he


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can derive from those branches of special knowledge which have a direct bearing on legal

questions. And these are logic, psychology and social science.

BACKGROUND


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The Law of the State or of any organized body of men is composed of the rules

which the courts, that is, the judicial organs of that body, lay down for the determination

of legal rights and duties. The difference in this matter between contending schools ofJurisprudence arises largely from not distinguishing between the Law and the Sources of

the Law. On the one hand, to affirm the existence of nicht positivisches Recht, that is, of

Law which the courts do not follow, is declared to be all absurdity; and on the other hand,it is declared to be an absurdity to say that the Law of a great nation means the opinions

of a half-a-dozen old gentlemen, some of them, conceivably, of very limited intelligence.

The truth is, each party is looking at but one side of the shield. If those half-a- dozen old

gentlemen formed the highest judicial tribunal of a country, then no rule or principle

which they refuse to follow is Law in that country. However desirable, for instance, it

may be that a man should be obliged to make gifts which he has promised to make, yet ifthe courts of a country will not compel him to keep his promise, it is not the Law of that

country that promises to make a gift are binding. On the other hand, those six men seek

the rules which they follow not in their own whims, but they derive them from sources

often of the most general and permanent character, to which they are directed, by theorganized body to which they belong, to apply themselves.

Of the many definitions of the Law which have been given at various tunes and

places, some are absolutely meaningless, and in others a spark of truth is distorted by a

mist of rhetoric. But there are three theories which have commended themselves toaccurate thinkers, which have had and which still have great acceptance, and which

deserve examination. In all of them it is denied that the courts are the real authors of the

Law, and it is contended that they are merely tile mouthpieces which give it expression.

LAW AS THE COMMAND OF THE SOVEREIGN

The "first of these theories is that Law is made up of the commands of thesovereign. This is Austin's view. "Every Positive Law," he says, "obtaining in any

community, is a creature of the Sovereign or State, having been established immediately

by a subject individual or body, as exercising rights or powers of direct or judiciallegislation, which the monarch or supreme body has expressly or tacitly conferred.

In a sense, this is true the State can restrain its courts from following this or that

rule; but it often leaves them free to follow what they think right; and it is certainly aforced expression to say that one commands things to be done, because he has power

(which he does not exercise) to forbid their being done.

Mr. A. B., who wants a house, employs an architect, Mr. Y. Z., to build it for him.Mr. Y. Z. puts up a staircase in a certain way; in such a case, nine times out of ten, he

puts it up in that way, because he always puts up staircases in that way, or because the

books on construction say they ought to be so put up, or because his professional brethrenput up their staircases in that fashion, or because he thinks to put it up so would be a good

building, or in good taste, or because it costs him less trouble than to put it up in some

other way; he seldom thinks whether Mr. A. B. would like it in that way or not; and

probably Mr. A. B. never thinks whether it could have been put up in any other fashion.


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Here it certainly seems strained to speak, as Austin would do, of the staircase as being the

"creature" of Mr. A. B.; and yet Mr. A. B. need not have had his staircase put up in that

way, and indeed need never have had any staircase or any house at all.When an agent, servant, or official does acts as to which he has received no

express orders from his principal, he may aim, or may be expected to aim, directly at the

satisfaction of the principal, or he may not. Take an instance of the first--a cook, inroasting meat or boiling eggs, has, or at any rate the ideal cook is expected to have,

directly in view the wishes and tastes of her master. On the other hand, when a great

painter is employed to cover a church wall with a picture, he is not expected to keepconstantly in mind what will please the wardens and vestry; they are not to be in all his

thoughts; if they are men of ordinary sense, they will not wish to be; he is to seek his

inspiration elsewhere, and the picture when done is not the "creature" of the wardens and

vestry; whereas, if the painter had adopted an opposite course, and had bent his wholeenergies to divining what he thought would please them best, he would have been their

"tool," and the picture might not unfairly be described as their creature.

Now it is clear into which of these classes a judge falls. Where he has not

received direct commands from the State, he does not consider, he is not expected toconsider, directly what would please the State; his thoughts are directed to the questions

What have other judges held? What does Ulpian or Lord Coke say about the matter?What decision does elegantia juris or sound morals require?

It is often said by hedonistic moralists that, while happiness is the end of human

life, it is best attained by not aiming directly at it; so it may be the end of a court, as ofany other organ of a body, to carry out the wishes of that body, but it best reaches that

object by not directly considering those wishes.

Austin's statement that the Law is entirely made up of commands directly or

indirectly imposed by the State is correct, therefore, only on the theory that everythingwhich the State does not forbid its judges to do, and which they in fact do, the State

commands, although the judges are not animated by a direct desire to carry out the State's

wishes, but by entirely different ones.

"A LAW" AND "THE LAW"

In this connection, the meaning of "Law," when preceded by the indefinite is to be

distinguished from that which it bears when preceded by the definite, article. Austin,

indeed, defines the Law as being the aggregate of the rules established by political

superiors; and Bentham says, "Law, or The Law, taken indefinitely, is an abstract andcollective term; which, when it means anything, can mean neither more nor less than the

sum total of a number of individual laws taken together. But this is not, I think, the

ordinary meaning given to "the Law." A law ordinarily means a statute passed by thelegislature of a State. "The Law" is the whole system of rules applied by the courts. The

resemblance of the terms suggests the inference that the body of rules applied by the

courts is composed wholly of the commands of the State; but to erect this suggestion intoa demonstration, and say:--"the Law," "the Law" consists of nothing but an aggregate of

single laws, and all single laws are commands of the State,--is not justifiable.

It is to Sir Henry Maine that we owe the distinct pointing out that Austin's theory


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"is founded on a mere artifice of speech, and that it assumes courts of justice to act in a

way and from motives of which they are quite unconscious. ...Let it be understood that it

is quite possible to make the theory fit in with such cases, but the process is a merestraining of language. It is carried on by taking words and propositions altogether out of

the sphere of the ideas habitually associated with them.

Austin's theory was a natural reaction against the views which he found inpossession of the field. Law had been defined as "the art of what is good and equitable";

"that which reason in such sort defines to be good that it must be done"; "the abstract

expression of the general will existing in and for itself'; "the organic whole of the externalconditions of the intellectual life." If Austin went too far in considering the Law as

always proceeding from the State, he conferred a great benefit on Jurisprudence by

bringing out clearly that the Law is at the mercy of the State.

LAW IN THE CONSCIOUSNESS OF THE PEOPLE

The second theory on the nature of Law is that the courts, in deciding cases, are,

in truth, applying what has previously existed in the common consciousness of thepeople. Savigny is the ablest expounder of this theory. At the beginning of the System

des heutigen romischen Rechts, he has set it forth thus: "It is in the commonconsciousness of the people that the positive law lives, and hence we have to call it

Volkrecht

...it is the Volksrecht, living and working in all the individuals in common, whichbegets the positive law, so that for the consciousness of each individual there is, not by

chance but necessarily, one and the same law.. The form, in which the Law lives in the

common consciousness of the people, is not that of abstract rule, but the living intuition

of the institute of the Law in its organic connection ...When I say that the exercise of theVolksrecht in single cases must be considered as a means to become acquainted with it,

an indirect acquaintance must be understood, necessary for those who look at it from the

outside, without being themselves members of the community in which the Volksrechthas arisen and leads its continuous life. For the members of the community, no such

inference from single cases of exercise is necessary, since their knowledge of it is direct

and based on intuition.Savigny is careful to discriminate between the common consciousness of the

peop1e and custom: "The foundation of the Law," he says, "has its existence, its reality,

in the common consciousness of the people. This existence is invisible. How can we

become acquainted with it? We become acquainted with it as it manifests itself inexternal acts, as it appears in practice, manners, and custom: by the uniformity of a

continuous and continuing mode of action, we recognize that the belief of the people is its

common root, and not mere chance. Thus, custom is the sign of positive law, not itsfoundation.

OPINIONS OF JURISTS


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Savigny is confronted by a difficu1ty of the same kind as confronted by Austin.

The great bulk of the Law as it exists in any community is unknown to its rulers, and it is

only by aid of the doctrine that what the sovereign permits he commands, that the Lawcan be considered as emanating from him; but equally, the great bulk of the Law is

unknown to the people; how, then, can it be the product of their "common

consciousness"? How can it be that of which they "feel the necessity as law"?Take a simple instance, one out of thousands. By the law of Massachusettes, a

contract by letter is not complete unti1 the answer of acceptance is received. By the law

of New York, it is complete when the answer is mailed. Is the common consciousness ofthe people of Massachusettes different on this point from that of the people of New

York? Do the people of Massachusettes feel the necessity of one thing as law, and the

people of New York feel the necessity of the precise opposite" In truth, not one in a

hundred of the people of either State has the dimmest notion on the matter. If one of themhas a notion, it is as likely as not to be contrary to the Law of his State.

Savigny meets the difficulty thus: "The Law, originally the common property of

the collected people, in consequence of the ramifying relations of real life, is so

developed in its details that it can no more be mastered by the people generally. Then aseparate class of legal experts is formed which, itself an element of the people, represents

the community in this domain of thought. In the special consciousness of this class, theLaw is only a continuation and peculiar development of the Volksrecht. The last leads,

henceforth, a double life. In its fundamental principles it continues to live in the common

consciousness of the people; the exact determination and the application to details is thespecial calling of the class of jurisconsults."

But the notion that the opinions of the jurisconsults are the developed opinions of

the people is groundless. In the countries of the English Common Law, where the judges

are the jurists whose opinions go to make up the Law, there would be less absurdity inconsidering them as expressing the opinions of the people; but on the Continent of

Europe, in Germany for instance, it is difficult to think of the unofficial and

undeterminate class of jurists, past and present, from whose writings so great a part of theLaw has been derived, as expressing the opinions of the people. In their reasonings, it is

not the opinions of the people of their respective countries, Prussia, or Schwartzburg-

Sonderhausen, which guide their judgment. They may bow to the authority of statutes,but in the domain of Law which lies outside of statue, the notions of Law, if they exist

and are discoverable, which they are mostly not, of the persons wrong whom they live,

are the last things which they take into account. What they look to are the opinions of

foreign lawyers, of Papinian, of Accursius, of Cujacious, or at the elegentia juris, or atjuristic necessity.

The jurists set forth the opinions of the people no more and no less than any other

specially educated or trained class in a community set forth the opinions of that commu-nity, each in its own sphere. They in no other way set forth the Volksgeist in the domain

of Law than educated physicans set forth the Volksgeist in the matter of medicine. It

might be very desirable that the conceptions of the Volksgeist should be those of the mostskillful of the community, but however desirable this might be, it is not the case. The

Volksgeist carries a piece of sulphur in its waistcoat pocket to keep off rheumatism, and

thinks that butchers cannot sit on juries.


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Not only is popular opinion apart from professional opinion in Law as in other

matters, but it has been at times positively hostile. Those who hold that jurists are the

mouthpieces of the popular convictions in matters of law have never been able to dealsatisfactorily with the reception of the Roman law in Germany, for that Law was brought

in not only without the wishes, but against the wishes, of the great mass of the people.

JUDGES AS DISCOVERERS OF THE LAW

A third theory of the Law remains to consider. That theory is to this effect: Therules followed by the courts in deciding questions are not the expression of the State's

commands, nor are they the expression of the common consciousness of the people, but,

although what the judges rule is the Law, it is putting the cart before the horse to say that

the Law is what the judges rule. The Law, indeed, is identical with the rules laid downby the judges, but those rules are laid down by the judges because they are the law, they

are not the Law because they are laid down by the judges; or, as the late Mr. James C.

Carter puts it, the judges are the discoverers, not the creators, of the Law. And this is the

way that judges themselves are apt to speak of their functions.

ONLY WHAT THE JUDGES LAY DOWN IS LAW

This theory concedes that the rules laid down by the judges correctly states the

Law, but it denies that it is Law because they state it. Before considering the denial, let uslook a moment at the concession. It is a proposition with which I think most Common-

Law lawyers would agree. But we ought to be sure that our ideas are not colored by the

theories or practice of the particular system of law with which we are familiar. In the

Common Law, it is now generally recognized that the judges have had a main part inerecting the Law; that, as it now stands, it is largely based on the opinions of past

generations of judges; but in the Civil Law, as we shall see hereafter, this has been true to

a very limited extent. In other words, judicial precedents have been the chief material forbuilding up the Common Law, but this has been far otherwise in the systems of the

Continent of Europe. But granting all that is said by the Continental writers on the lack of

influence of judicial precedents in their countries to be true, yet, although a past decisionmay not be a source of Law, a present decision is certainly an expression of what the Law

now is. The courts of France today may, on the question whether a bank endorsement of a

bill of exchange passes title, care little or nothing for the opinions formerly expressed by

French judges on the point, but, nevertheless, the opinion of those courts today upon thequestion is the expression of the present law of France, for it is in accordance with such

opinion that the State will compel the inhabitants of France to regulate their conduct. To

say that any doctrine which the courts of a country refuse to adopt is Law in that country,is to set up the idol of nicht positivisches Recht, and, therefore, it is true, in the Civil as

well as in the Common Law, that the rules laid down by the courts of a country state the

present Law correctly.The great gain in its fundamental conceptions which Jurisprudence made during

the last century was the recognition of the truth that the Law of a State or other organized

body is not an ideal, but something which actually exists. It is not that which is in accor-

dance with religion, or nature, or morality; it is not that which ought to be, but that which


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is. To fix this definitely in the Jurisprudence of the Common Law, is the feat that Austin

accomplished. He may have been wrong in treating the Law of the State as being the

command of the sovereign, but he was right in teaching that the rules for conduct laiddown by the persons acting as judicial organs of the State are the Law of the State, and

that no rules not so laid down are the Law of the State.

The Germans have been singularly inappreciative of Bentham and Austin, and, asso often happens, the arrival at a sound result has been greatly hampered by nomencla-

ture. Ethics is, in Continental thought, divided into two parts, one dealing with matters

which can be enforced by external compulsion, and the other with those which cannot.The former of these is called Rechtslehre. According to Kant, Moral philosophy (Meta-

physik der Sitten) is divisible into two parts: (1) the metaphysical principles of Jurispru-

dence (Rechtslehre), and (2) the metaphysical principles of ethics (Tugendlehre). Juris-

prudence has for its subject-matter the aggregate of all the laws which it is possible topromulgate by external legislation. All duties are either duties of justice (Rechtspflict) or

duties of virtue Tugendpflicht). The former are such as admit of external legislation; the

latter are those for which such legislation is not possible. Rechtslehre, that is, deals not

only with the ru1es which the State has actually imposed upon conduct, but also with allconduct which can be potentially subjected to such rules; and this has tended to obscure

the distinction between the rules which have actually been laid down from those whichmight have been laid down. But of late years, the Germans, in their own way, have been

coming round to Austin's view; and now the abler ones are abjuring all nicht

positivisches Recht.

QUESTIONS NOT PREVIOUSLY DECIDED

To come, then, to the question whether the judges discover preexisting Law, orwhether the body of rules that they lay down is not the expression of preexisting Law, but

the Law itself. Let us take a concrete instance: On many matters which have come in

question in various jurisdictions, there is no doctrine received, semper, ubique, et abomnibus. For instance, Henry Pitt has built a reservoir on his land, and has filled it with

water; and, without any negligence on his part, either in the care or construction of his

reservoir, it bursts, and the water, pouring forth, floods and damages the land of Pitt'sneighbor, Thomas Underhill. Has Underhill a right to recover compensation from Pitt?

In England, in the leading case of Rylands v. Fletcher, it was held that he could recover,

and this decision has been followed in some of the United States--for instance, in Massa-

chusettes; but in others, as, I believe, in New Jersey, the contrary is held.Now, suppose that Pitt's reservoir is in one of the newer States, say Utah, and sup-

pose, further, that the question has never arisen there before; that there is no statute, no

decision, no custom on the subject; the court has to decide the case somehow; suppose itshould follow Rylands v. Fletcher and should rule that in such cases the party injured can

recover. The State, then, through its judicial organ, backed by the executive power of the

State, would be recognizing the rights of persons injured by such accidents, and, there-fore, the doctrine of Rylands v. Fletcher would be undoubtedly the present Law in Utah.

Suppose, again, that a similar state of facts arises in the adjoining State of

Nevada, and that there also the question is presented for the first time, and that there is no

statute, decision, or custom on the point; the Nevada court has to decide the case


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somehow; suppose it should decline to follow Rylands v. Fletcher, and should rule that in

such cases the party injured is without remedy. Here the State of Nevada would refuse to

recognize any right in the injured party and, therefore, it would unquestionably be thepresent Law in Nevada that persons injured by such an accident would have no right to

compensation.

Let us now assume that the conditions and habits of life are the same in these twoadjoining States; that being so, these contradictory doctrines cannot both conform to all

ideal rule of Law, and let us, therefore, assume that an all-wise and all-good intel1igence,

considering the question, would think that one of these doctrines was right and the otherwrong, according to the true standard of morality, whatever that may be. It matters not,

for the purposes of the discussion, which of the two doctrines it is, but let us suppose that

the intelligence aforesaid would approve Ryland v. Fletcher, that is, it would think the

Law as established in Nevada by the decision of its court did not conform to the eternalprinciples of right.

The fact that the ideal theory of Law disapproved the Law as established in

Nevada would not affect the present existence of that Law. However wrong intellectually

or morally it might be, it would be the Law of that State-to-day. But what was the Law inNevada a week before a rule for decision of such questions was adopted by the courts of

that State? Three views seem possible: first, that the Law was then ideally right, andcontrary to the rule now declared and practised on; second, that the Law was then the

same as is now declared practised; third, that there was then no Law on the matter.

The first theory seems untenable on any notion of discovery. A discoverer is adiscoverer of that which is, --not of that which is not. The result of such a theory would

be that when Underhill received the injury and brought his suit, he had an interest which

would be protected by the State, and that it now turns out that he did not have it, --a

contradiction in terms.

NO LAW PREVIOUS TO DECISION

We have thus to choose between the theory that the Law was at that time what it

now is, and the theory that there was then no law at all on the subject. The latter is cer-

tainly the view of reason and common sense alike. There was, at the time in question, exhypothesi, no statute, no precedent, no custom on the subject; of the inhabitants of the

State not one out of a hundred had an opinion on the matter or had ever thought of it; of

the few, if any, to whom the question had ever occurred, the opinions were, as likely as

not, conflicting. To say that on this subject there was really Law existing in Nevada,seems only to show how strong a root legal fictions can strike into our mental processes.

When the element of long time is introduced, the absurdity of the view of Law

preexistent to its declaration is obvious. What was the Law in the time of Richard Coeurde Lion on the liability of a telegraph company to the persons to whom a message was

sent? It may be said that though the Law can preexist its declaration, it is conceded that

the Law with regard to a natural force cannot exist before the discovery of the force. Letus take, then, a transaction which might have occurred in the eleventh century: A sale of

chattels, a sending to the vendee, his insolvency, and an order by the vendor to the carrier

not to deliver. What was the Law on stoppage in transitu in the time of William the

Conqueror?


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The difficulty of believing in preexisting Law is still greater when there is a

change in the decision of the courts. In Massachusetts it was held in 1849, by the

Supreme Judicial Court, that if a man hired a horse in Boston on a Sunday to drive toNahant, and drove instead to Nantasket, the keeper of the delivery stable had no right to

sue him in trover for the conversion of the horse. But in 1871 this decision was overruled,

and the right was given to the stable-keeper. Now, did stablekeepers have such rights,say, in 1845? If they did, then the court in 1849 did not discover the Law. If they did not,

then the court in 1871 did not discover the Law.

COURTS MAKE EX POST FACTO LAW

All this brings us to the reason why courts and jurists have so struggled to main-

tain the preexistence of the Law, why the common run of writers speak of the judges asmerely stating the Law, and why Mr. Carter, in an advance towards the truth, says of the

judges that they are discoverers of the Law. That reason is the unwillingness to recognize

the fact that the courts, with the consent of the State, have been constantly in the practice

of applying, in the decision of controversies, rules which were not in existence and were,therefore, not knowable by the parties when the causes of controversies occurred. It is the

unwillingness to face the certain fact that courts are constantly making ex post facto law.The unwillingness is natural, particularly on the part of the courts, who do not

desire to call attention to tile fact that they are exercising a power which bears so

unpopular a name, but it is not reasonable. Practically in its application to actual affairs,for most of the laity, the Law, except for a few crude notions of the equity involved in

some of its general principles, is all ex post facto. When a man marries, or enters into a

partnership, or buys a piece of land, or engages in any other transaction, he has the

vaguest possible idea of the Law governing the situation, and with our complicatedsystem of Jurisprudence, it is impossible it should be otherwise. If he delayed to make a

contract or do an act until he understood exactly all the legal consequences involved, the

contract would never be made or the act done. Now the Law of which a man has noknowledge is the same to him as if it did not exist.

Again, the function of a judge is not mainly to declare the Law, but to maintain

the peace by deciding controversies. Suppose a question comes up which has never beenDecided--and such questions are more frequent than persons not lawyers generally sup-

pose, --the judge must decide the case somehow; he will properly wish to decide it not on

whim, but on principle, and he lays down some rule which meets acceptance with the

courts, and future cases are decided in the same way. That rule is the Law, and yet therights and duties of the parties were not known and were not knowable by them. That is

the way parties are treated and have to be treated by the courts; it is solemn juggling to

say that the Law, undiscovered and undiscoverable, and which is finally determined inopposite ways in two communities separated only by an artificial boundary, has existed in

both communities from all eternity. I shall recur to this matter when we come to consider

the topic of Judicial Precedents.

LAW AND THE NATURAL SCIENCES


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It may be said that there are reasons, based on the highest welfare of the human

race, why the Law should be so or otherwise, and that it is one of the functions and duties

of a judge to investigate those reasons; that he is an investigator as much as, in his sphere,was Sir Isaac Newton; that he may make mistakes, just as Newton did; and yet that troth

is largely discovered by his means. But the difference between the judges and Sir Isaac is

that mistake by Sir Isaac in calculating the orbit of the earth would not send it spinninground the sun with an increased velocity; his answer to the problem would be simply

wrong; while if the judges, in investigating the reasons on which the Law should be

based, come to a wrong result, and give forth a rule which is discordant with the eternalverities, it is none the less Law. The planet can safely neglect Sir Isaac Newton, but the

inhabitants thereof have got to obey the assumed pernicious and immoral rules which the

courts are laying down, or they will be handed over to the sheriff.

DECISIONS AS CONCLUSIVE EVIDENCE OF THE LAW

It is possible to state the facts in the terms of discovery by use of a device familiar

enough in the Common Law. We may say that the rule has always existed, and that theopinions and consequent action of the judges are only conclusive evidence that such is

the rule; but this is merely a form of words to hide the truth. Conclusive evidence is notevidence at all; it is something which takes the place of evidence and of the thing to be

proved, as well. When we say that men alone conclusively presumed to know the

Criminal Law, we mean that men are to be punished for certain acts without regard towhether they know them to be against all the world, we mean that all the world are (sic)

bound by a registered deed whether they know or not of its existence.

Rules of conduct laid down and applied by the courts of a country are

coterminous with the Law of that country, and as the first change, so does the latter alongwith them. Bishop Hoadly has said: "Whoever hath all absolute authority to interpret any

written or spoken Laws, it is he who is truly the Law-giver to all intents and purposes,

and not the person who first wrote or spoke them"; a fortiori, whoever hath all absoluteauthority not only to interpret the Law, but to say what the Law is, is truly the Law-giver.

Entia non multiplicanda. There seems to be nothing gained by seeking to discover the

sources, purposes, and relations of a mysterious entity called "The Law," and then to saythis Law is exactly expressed in the rules by which the courts decide cases. It is better to

consider directly the sources, purposes, and relations of the rules themselves, and to call

the rules "The Law."

There is a feeling that makes one hesitate to accept the theory that the rulesfollowed by the courts constitute the Law, in that it seems to be approaching the Law

from the clinical or therapeutic side; that it is as if one were to define medicine as the

science of the ru1es by which physicians diagnose and treat diseases; but the differencelies in this, that the physicians have not received from the ruler of the world any

commission to decide what diseases are, to kill or to cure according to their opinion

whether a sickness is mortal; whereas, this is exactly what the judges do with regard tothe cases brought before them. If the judges of a country decide that it is Law that a man

whose reservoir bursts must pay the damage, Law it is; but all the doctors in town may

dec1are that a man has the yellow fever, and yet he may have only the German measles.


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If when a board of physicians pronounced that Titius had the colic, ipso facto Titius did

have the colic, then

I conceive the suggested definition of medicine would be unobjectionable.To sum up. The State exists for the protection and forwarding of human interests,

mainly through the medium of rights and duties. If every member of the State knew

perfectly his own rights and duties, and the rights and duties of everybody else, the Statewould need no judicial organs; administrative organs would suffice. But there is no such

universal knowledge. To determine, in actual life, what are the rights and duties of the

State and of its citizens, the State needs and establishes judicial organs, the judges. Todetermine rights and duties, the judges settle what facts exist, and also lay down rules

according to which they decide legal consequences from facts. These rules are the Law.


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Our course of advance... is neither a straight line nor acurve. It is a series of dots and dashes. Progress comesper saltum, by successive compromises betweenextremes, compromises often between "positivism and

idealism.

It comes down to this. There are certain forms ofconduct which at any given place and epoch arecommonly accepted under the combined influence ofreason, practice and tradition, as moral or immoral. ...Law accepts as the pattern of its justice the morality ofthe community whose conduct it assumes to regulate. Insaying this, we are not to blind ourselves to the truth

that uncertainty is far from banished. Morality is notmerely different in different communities. Its level is notthe same for all the component groups within the samecommunity. A choice must still be made between onegroup standard and another. We have still to face theproblem, at which one of these levels does the socialpressure become strong enough to convert the moralnorm into a jural one? All that we can say is that the linewill be higher than the lowest level of moral principle

and practice, and lower than the highest. The law willnot hold the crowd to the morality of saints and seers. Itwill follow, or strive to follow, the principle and practiceof the men and women of the community whom thesocial mind would rank as intelligent and virtuous.

- Benjamin N. CardozoThe Paradoxes Of Legal Sciences (1928)

Sources of Law: A Brief

Law, as it exists today, is derived from various sources which according to Holland are

Customs, Religion, Equity, Judicial Decisions, Scientific Discussion and Legislation.


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Customs:

Customs constitute a very powerful source of law. Social life of people in the primitive

society was regulated according to certain customs, practices, traditions and usages.

Customs originate in imitation.

When a person invents a particular method of doing a thing and is imitated by others, acustom gradually comes into existence. A custom is formed in much the same way as

path is formed across a field.

These customs and usages had found acceptance in the primitive society because they

were held to be conducive to public order or justice. These customs descended down

from generation to generation.

With the lapse of time, they developed a very strong hold over the psychology of thepeople. In modern times when law began to be written down, all these customs had to be

codified amalgamate in the law proper. The best example of customary law is furnished

by the Common Law of England.

Religion:

The influence of religion in early society was especially strong and the social conduct of

the people was regulated according to the religious principles because society in almostevery country was dominated by the priestly class who were law givers.

The Brahmins were the dominating class in the Hindu Community for several centuries.

The Pontiffs held sway in ancient Rome and so did the ecclesiastics in England. Religion

was a necessary supplement to the prevalent customs.

With the passage of time, the religious principles went deep into human psychology. Themodern jurists had to incorporate the religious principles in the body of law.

In India we have got the Mohammedan Law based on the Quran, the Hindu law based onthe Code of Manu and Christian Law based on the Bible. These laws regulate

matrimonial relations and problems arising out of inheritance.

Equity:

Judges in every country have contributed a lot towards the process of law-making. Judges

make new laws in the course of their judicial decisions. They cannot always interpret

different cases according to the existing law. Sometimes a novel ease about whichexisting laws are silent may come up before a judge.

The judge cannot dispose of the case without giving any judgment. In such a situation,the judge will give his judgment by consulting his own sense of justice and fair-play.

Such judgments give rise to the laws of equity which assume the force of well-

recognized law.


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In England, there is the Court of Chancery which is the supreme organization for the

administration of equity. The Court is said to be the keeper of the King's or Queen's

conscience and is authorized to remedy injustice according to equity.

The Indian courts have also been authorized to decide cases according to equity in theabsence of positive law on the point. We can conclude with the remarks of Gilchrist that

"equity as a source of law, arises from the fact that the positive law, as thc world

advances, tends to become unsuitable for new conditions.

Equity is an informal method of making new laws or altering old laws; depending on

intrinsic fairness or equality of treatment."

Adjudications or Judicial Decisions:

Adjudication means the decisions of a court. Judges while deciding cases give their owninterpretation to a law. They clarify ambiguities and obscurities and give it a new

meaning and a new spirit.

These decisions especially when they emanate from eminent judges, serve as precedents

for further cases of a similar nature. These judicial precedents or case made-laws are as

good as law proper.

In England, a judicial precedent is cited with as much confidence as an Act of Parliament.The Common Law of England is mainly judge- made law. It developed through a long

period of time and is based on numerous judgments given in the past by the judges of the

King's Courts.

Commentaries of Eminent Jurists:

Legal authorities and eminent jurists write comments on the existing laws. Thesecomments arc published in the law books and journals. They are valuable both for thelawyers and the judges. These comments are referred to during discussions over a

particular case before a court of law.

The judgments are very often influenced by these comments. As for example, the views

of Coke and Blackstone have actually influenced the legal system in England to a greatextent.

Although these comments arc mere legal arguments, yet these opinions cannot be easilyignored since they throw a flood of light on the spirit in which a particular law should be

interpreted.

As Gilchrist puts it, "The Commentator by collecting, comparing and logically arranging

legal principles, customs, decisions and laws lays down guiding principles for possiblecases. He shows the omission and deduces Principles to govern them".


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Legislation:

In modem democratic times every country has its own legislature. These legislatures are

constantly repealing and amending the old laws which have gone out of date. New laws

arc formulated to suit requirements of society. There is an ever-widening scope oflegislative activity.

Legislation is absorbing other sources of laws.. Hence in the words of Woodrow Wilson,

"All means of formulating laws tend to be swallowed up in the one great, deep and

broadening sense, legislation.

" The legislatures codify and systematize the existing law and remove ambiguities,

lacunae and defects as come to their notice. Customs, religion and equity are no longerimportant sources of laws.

The judges also have less scope these days of making addition to the law as legislatures

are there to remove the defects in the existing law and to reenact legislation declared null

and void by the courts in a form which is intra vires.

The commentaries of eminent jurists too arc not regarded today as important except that

they may provide suggestions promoting new legislation to Government in certainspecific matters.

Legislatures today are very prolific in enacting new laws as the modem states have

assumed a large variety of functions and have enlarged their sphere of activities.

Oppenheim on sources of law:

In the opinion of Oppenheim, there are not many sources of laws but there is only one

source of law and it is the common consent of community.

According to him, customs, religion, adjudication, equity etc, are not, strictly speaking,

so many sources of laws. Every law is based on the common consent of the people andthis common consent is expressed in different channels variously known as customs,

religion, adjudication, equity etc. These merely mark out the different stages in the

development of law.

We like to picture to ourselves the field of law asaccurately mapped and plotted. We draw our little lines,and they are hardly down before we blur them. As intime and space, so here. Divisions are workinghypotheses, adopted for convenience. ... So also theduty of a judge becomes itself a question of degree, and


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he is a useful judge or a poor one as he estimates themeasure accurately or loosely. He must balance all hisingredients, his philosophy, his logic, his analogies, hishistory, his customs, his sense of right, and all the rest,

and adding a little here and taking out a little there,must determine, as wisely as he can, which weight shalltip the scales.

- Benjamin N. CardozoThe Nature of the Judicial Process (1921)

CUSTOM

Custom is an important source of law and it is desirable to define the same.

According to Salmond, Custom is the embodiment of those principles which havecommanded themselves to the national conscience as principles of justice and public

utility.

According to Keeton, customary law may be defined as those rules of human action

established by usage and regarded as legally binding by those to whom rules are

applicable, which are adopted by the courts and applied as a source of law because they

are generally followed by the whole political society as a whole or by some part of it.

According to Carter: The simplest definition of custom is that it is the uniformity of

conduct of all persons under like circumstances.

According to Holland, custom is a generally observed course of conduct. The best

illustration of the formation of such habitual course of action is the mode in which a pathis formed across a common: one man crosses the common in the direction which is


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suggested either by the purpose he has in view or by mere accident. If others follow in the

same track- which they are likely to do after it has once been trodden- a path is made.

According to Austin, Custom is the rule of conduct which the governed observed

spontaneously and not in pursuance of law settled by a political supervisor.

According to Allen, Custom as a legal and social phenomenon grows up by forces

inherent in society, forces partly of reason and necessity and partly of suggestion and

limitation.

According to Halsbury, a custom is a particular rule which has existed either actually or

presumptively from time immemorial and has obtained the force of law in a particular

locality although contrary to or not consistent with the general common law of the realm.

The Judicial Committee of The Privy Council has defined custom as a rule which in a

particular family or in a particular district has from long usage obtained the force of law.

In the Tamistry case1, Custom was described in these words: It is jus non scriptum and

made by the people in respect of the place where the custom obtains. For where thepeople find any act to be good and beneficial and apt and agreeable to their nature and

disposition, they use and practice it from time to time, and it is by frequent iteration and

multiplication of this act that the custom is made and being used from time to whichmemory runneth not to the contrary obtains the force of law.

ORIGIN OF CUSTOM

Custom is the oldest form of law making. A study of ancient law shows that in primitivesociety, the lives of the people were regulated by customs which developed

spontaneously according to circumstances. It was felt that a particular way of doing

things was more convenient than others.

Customs do not concern themselves with right or wrongor reason. But they have to be obeyed; one reasons allaround them until he is tired, but he must not transgressthem, it is sternly forbidden.

Mark Twain

When the same thing was done again and again in a particular way, it assumed the force

of custom. Holland rightly points out that custom originated in the conscious choice by

1 30 ER 516.
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the people of the more convenient of the two acts. Imitation also must have played an

important part n growth of customs.

According to Maine: The usages which a particular community is found to have adopted

in its infancy and in its primitive seats are generally those which are on the whole best

suited to promote its physical and moral well-being; and, if they are retained in theirintegrity until new social wants have taught new practices, the upward march of society is

certain. But unhappily there is a law of development whichever threatens to operate upon

the unwritten usages. The customs are of course obeyed by multitudes who are incapableof understanding the true nature of their expediency, and who are therefore left inevitably

to invent superstitious reasons for their permanence. A process then commences which

may be shortly described by saying that usage which is reasonable generates usage

which is unreasonable. Analogy, the most valuable of instruments in the maturity ofjurisprudence is the most dangerous f snares in its infancy. Prohibitions and ordinances,

originally confined, for good reasons to a single description of acts, are made to apply to

all acts of the same class, because a man menaced with the anger of the gods for doing

one thing, feels a natural terror in doing any other thing which is remotely like it.

According to Baghot: The most intellectual of men are moved quite as much bycircumstances which they are used to as by their own will. The active voluntary part of a

man is very small and if it were not economized by a sleepy kind of habit, its results

would be nil. We could not do everyday out of our heads all we have to do. We shouldaccomplish nothing, for all our energies would be frittered away in minor attempts at

petty improvements. One man, too, would go off from the known track in one direction

and one in another; so that when a crisis came requiring massed combination, no two men

would be near enough to act together. It is the dull traditional habit of mankind thatguides most mens actions, and is the steady frame in which each new artist must set the

picture that the paints. And all this traditional part of human nature, ex vi termini, most

easily impressed and acted on by that which is handed down. According to Trade,imitations is not merely curiosity of psychology, it is one of the primary laws of nature.

Nature perpetuates itself by repetition and the three fundamental forms of repetition are

rhythm, undulation, generation, and imitation.

According to Vinogradoff: Social customs themselves obviously did not take their

origin from an assembly or tribunal. They grew up by gradual process in the households

and daily relations of the clans, and magistrate only came in at a later stage, when thecustom was already in operation, and added to the sanction of general recognition the

express formulation of judicial and expert authority.2

A study of ancient society shows that law making was nor the business of the Kings. Law

of the country was to be found in their customs of the people. The people were

accustomed to a particular way of living and doing things and that was to be found in thecustoms of the society. The King was anxious to the rule the people according to the

notions of right and wrong and those were to be found in their customs. Later on, the

same custom was recognized by the sovereign by putting an imprimatur on it. It was in

2 Historical Jurisprudence


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this way that custom was transformed into law. Custom was vague in the beginning but it

became definite and concrete with the passage of time. It became a rule of law when it

was recognized by the sovereign. Sometimes it was adopted by the legislature in itsenactments and sometimes it was recognized by the courts in their decisions. The Judicial

decisions on Hindu law are based on the customs of the Hindus. Custom is considered as

the transcendental law. According to Salmond, the importance of custom diminishes asthe legal system grows. In countries like England, it has been almost entirely superseded

by legislation and precedent. Even the common law of England was based originally on

the customs of the country. The traveling judges went from place to place to try cases andbased their decisions on the customs prevailing in various parts of the country. As they

gave similar decisions in similar cases in all parts of the country, a law common to the

whole country came into existence and this came to be known as the common law. It is

true that the common law of England grew out of the decisions given by the travelingjudges but the decisions of the traveling judges were originally based on customs of the

country.

According to Ancel: Writers are in the habit of giving their own interpretations of thelaw, which are sometimes contrary to the solutions of the courts, but which the

nevertheless consider as the only real expression law. On many important pointsthereexists a doctrine of the courts and of the law writers, which differ from each other even

when not contrary to, the law applied by the courts of Justice. Writers nowadays take care

to state not only their own opinion, but also the opinion of the jurisprudence, but yet theyput forward their solution as the only legal one.

BINDING FORCE OF CUSTOM

There are many reasons why custom is given the force of the law:

(1) Custom is the embodiment of those principles which have commendedthemselves to the national conscience as principles of truth, justice and publicpolicy. The very fact that any rule has the sanction of custom raises a presumption

that it deserves the sanction of law also. Judges are inclined to accept those rules

which have their favor the prestige and authority of long acceptance. Custom isthe external and visible sign of the national conscience and as such is accepted by

the courts of law as an authoritative guide. To quote Salmond: custom is to

society what law is to the state. Each is the expression and realization of themeasure of mans insight and ability, of the principles of right and justice. The law

embodies those principles as they commend themselves to the incorporate

community in the exercise of its sovereign power. Custom embodies them as

acknowledged and approved, not by the power of the state, but by the publicopinion of the society at large.

(2) Another reason for the binding force of custom is that the existence of an

established usage is the basis of a rational expectation of its continuance in thefuture. Justice demands that this expectation should be fulfilled and not frustrated.

The observance of a custom may not be ideally just and reasonable, but it cannot

be denied that it brings stability and certainty in the legal order.


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(3) Sometimes a custom is observed by a large number of persons in society and in

course of time the same comes to have the force of law. Reference may be made

in this connection to the custom of giving three days of grays in Bills ofExchange.

(4) Custom rests on the popular conviction that it is in the interests of society. This

conviction is so strong that it is not fund desirable to go against it.(5) According to Paton: Custom is useful to the law-giver and codifier in two ways.

It provides the material out of which the law can be fashioned- it is too great an

intellectual effort to create law. Psychologically it is easier to secure reverence fora code if it claims to be based on customs immemorially observed and themselves

true even though historically the claim cannot be substantiated. There is inevitably

a tendency to adopt the maxim Whatever has been authority in the past is a safe

guide for the future.

Customs tell a man who he is, where he belongs,what he must do. Better illogical customs than none;men cannot live together without them.

Robert A. Heinlein

Theories regarding transformation of Custom into Law

There are two theories regarding the question as to when a custom is transformed intolaw. Those are Historical Theory and Analytical Theory.

(a) Historical Theory

According to the Historical theory, the growth of law does not depend upon thearbitrary will of any individual. It does not depend upon any accident. It grows as a

result of the intelligence of the people. Custom is derived from the commonconscience of the people. It springs from an inner sense of right. Law has its existence

in the general will of the people. To quote Savigny: Law like language stands in

organic connection with nature or character of the people and evolves with thepeople Again, the foundation of the law has its existence, its reality in the common

conciousness of the people. We become acquainted with it as it manifests itself in
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external acts, as it appears in practice, manners and custom. Custom is the sign or the

badge of positive law and not is foundation or a ground of origin. The view of

Savigny is that custom is the type of all law and law is valid and just only in so far asit makes known and objectifies in concrete forms the true legal instinct of the

community which it purports to govern.

According to Puchta, Custom is not only self-sufficient and independent of state

imprimatur but is a condition to all sound legislation.

According to Arndt: Customary law contains the ground of its validity in itself. It islaw by virtue of its own nature, as an expression of the general consciousness of right,

not by virtue of the sanction, express, tacit of any legislature.

James Carter writes: What has governed the conduct of men from the beginning will

continue to govern it till the end of time. The human nature is not likely to undergo aradical change and therefore that to which we give the name of law always has been,

still is, and will forever continue to be, Custom.

The Historical theory has been criticized by many writers. According to Paton, thegrowth of most of the customs is not the result of any conscious thought but of

tentative practice. According to Gray: Not only does Custom play a small part at thepresent day as a source of non-contractual law, but it is doubtful if it ever did,

doubtful whether at all stages of legal history, rules laid down by judges have not

generated custom, rather than custom generated legal rules. It has often beenassumed, almost as matter of course, that legal customs preceded judicial decisions

and that the latter have served to give expression to the former but of this there

appears to be little proof. It seems atleast as probable that customs arose from legal

decisions. According to Jethrow Brown: That custom is often posterior to judicialdecisions is another fact about which no difference of opinion is possible. Under the

pretence of declaring custom, judges frequently give rise to it. According to Allen,

all customs cannot be attributed to the common consciousness of the people. In manycases, customs have arisen on the account of the convenience of the ruling class.

According to Sir Henry Maine: Custom is a conception posterior to that of

Themistes or judgments. Themistes were the awards which were dictated to the Kingby the Greek goddess of Justice. It is later on that, this custom came into existence.

The view of Historical school is not balanced. Customs have not always arisen out of

convenience or the needs of people. Sometimes they have been imposed upon thepeople by the ruling class. Though there are some rules of law which are based on the

common conviction of the people, the majority of them are so complicated and

technical that the common conviction might never have thought of them. TheHistorical jurists did not pay proper attention to the fact that the state has power of

abrogating a custom. They underestimated the creative role of judges and legislators

which are so important in modern times.

(b) Analytical Theory

The great advocates of the Analytical theory are Austin, Holland, Gray, Allen and

Vinogradoff. Customs are not positive laws until their existence is recognized by the


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decisions of the courts. A custom becomes law when it is embodied in an act of the

legislature. It becomes law when it is enforced by the state. It is not every custom that

is binding. Only those customs are valid which satisfy the judicial test. The sovereigncan abolish a custom. A custom is law only because the sovereign allows it to be so.

Austin writes: A customary law make take the quality of a legal rules in two ways: It

may be adopted by a sovereign or subordinate legislature and turned into a law in thedirect mode (statute law) or it may be taken as a ground of a judicial decision, which

afterwards obtains as a precedent and in this case it is converted into a law after the

judicial fashion. In whichever of these ways it becomes a legal rule, the law intowhich it is turned emanates from the sovereign. Austin maintains that custom has

only persuasive value. Customary practices have to be recognized by the courts

before they become law. While deciding a case, if the judge finds that no statute

governs the facts of the case, he can seek the help of custom but he may follow it ornot. That depends upon his discretion, customs thus have only persuasive value and

does not become law until it is followed by the courts. In the words of Austin, Law

styled customary is not to be considered a distinct kind of law. It is nothing but

judiciary law founded upon anterior custom.

According to Holland, customs are not laws when they arise but they are largelyadopted into laws by state recognition. English courts require that not only the

existence of the custom be proved but it should also be proved that the same is

reasonable. The legislature can also abrogate customs whether partially or wholly. Toquote Holland: Binding authority has thus been conceded to custom, provided it

fulfils certain requirements the nature of which has also long since been settled and

provided it is not superseded by law of a higher authority. When, therefore, a given

set of circumstances is brought into court and the court decides upon them bybringing them within the operation of a custom, the court appeals to that custom as it

might to any other pre existent law. It does not proprio motu then for the first time

make that custom a law; it merely decides as a fact that there exists a legal customabout which there might upto that moment have been some questions, as there might

about the interpretation of an Act of Parliament.

According to Gray: The true view, as I submit, is that the law is what the judgesdeclare; that salute, precedents, the opinions of the learned experts, customs and

morality are the source of the law; that at the back of everything lies the opinions of

the ruling spirit of the community, who have the power to close any of the sources;

but that so long as they do not interfere, the judges in establishing law have recourseto these sources. Custom is one of them, but to make it not only one source but the

soul source of law itself, requires a theory which is as little to be trusted as that of

Austin.

The analytical theory has been criticized by Allen in these words: Custom grows by

conduct and it is therefore a mistake to measure its validity solely by the element ofexpress sanction accorded by Courts of Law or by other determinate authority. The

characteristic feature of the great majority of customs is that they are essentially non

litigious in origin. They arise from any conflict of right adjusted by a supreme arbiter

not from any claim of meum against tuum, but from practices prompted by the


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convenience of the society and of the individual, so far as they prompted by any

conscious purpose at all. The starting point of all custom is convention rather than

conflict, just as the starting point of all society is cooperation rather than dissention.According to Vinogradoff: It is not conflicts that initiate rules of legal observance,

the practices of everyday directed by the give and take considerations of reasonable

intercourse and social cooperation. Neither their succession nor property, norpossession nor contract, started from direct legislation or from direct conflict.

Succession has its roots in the necessary arrangements of the household on the death

of it manager; property began with occupation; possession is reducible to de factodetentions; origins of contact go back to the customs of barter.

The analytical theory contains some truth but that is only partial and not the whole

truth. The analytical approach is defective due to many reasons. The bulk of customsis non-litigious and hence it does not come before the courts. The society regulates its

conduct in accordance with those customs. In most cases, customs are recognized not

with the assumption that that recognition gives them the sanctity of law but with the

assumption that they are law and have to be treated as such.The correct position lies in a synthesis of the two views and by adopting a

sociological point of view. Customs lie in the foundation of all legal systems. Theycome into existence with the existence of society. Custom is to society what law is to

the state. Each is the expression and realization of the principles of right and justice.

Sometimes we can trace some reason, need or convenience behind some custom butthat is not so in every case. It is also not correct that customs are always of local

origin and they arise out of conviction of the people. Sometimes foreign customs of

the ruling class and sometimes international customs, such as the commercial

customs, are adopted and observed. When society develops judicial organs, itexercises some control over them. With the development of society, many other

forces exercise their influence on customs, e.g., jurists, codifiers, law-givers etc.

Customs are rationalized, systematized and incorporated and embodied in legal rules.These influences can be traced in any legal system. There was the creative role of

magistrates in Roman law. Equity judges played their part in English law. English

writers from Bracton and black stone made their own contributions. A similarcontribution was made to Hindu law by the Smritikaras and the Privy Council. They

interpreted and moulded the customs. One must appreciate their contributions if one

wants to understand the proper course of the development of customs. In developed

legal systems, courts always exercise some control over customs. Their function isessentially that of scrutiny. They have to find out how far an alleged custom is a rule

of conduct or is observed and how far it satisfies the tests laid down for customs. If

the court comes to the conclusion that an alleged custom is in existence and isgenerally observed and satisfies the tests, its duty is to declare it. The function of the

court is declaratory rather than constitutive.

The view of Vinogradoff is that most of the branches of law did not start fromlegislation or from any other source. They started from customs. This applies to the

law of succession, property, possession and contract. Customs started in one form or

the other in primitive society. Succession started from the necessary arrangements of

the household on the death of the manager or the head of the family. Property began


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from occupation, possession from de facto retention, and contract from the custom of

barter. Those customs do not have the same form and substance which they had in the

beginning. They are no longer customs into laws. The conclusion is that customs arethe basis of most of the laws but those has been moulded by judges, legislators and

jurists in course of time.

KINDS OF CUSTOMS

Legal customCustoms are of two kinds, legal and conventional. The legal custom is one whose

legal authority is absolute. It possesses the force of law proprio vigore. The parties

affected may agree to a legal custom or not but they are bound by the same. Legalcustoms are of two kinds, local customs and general customs. Local customs apply

only to a locality and general custom applies to the whole country.

Conventional Custom Or Usage

A conventional custom is one whose authority is conditional on its acceptance andincorporation in the agreement between the parties to be bound to it. A conventional

custom is an established practice which is legally binding because it has beenexpressly or impliedly incorporated in a contract between the parties concerned.

When two parties enter into an agreement, they do not put down in a black and white

all the terms of the contract. The expressed terms of the contract are merely itsframework or skeleton. The contract becomes complete only when we take into

consideration the implied terms. The intention of the parties to the contract can be

gathered from the customary law and other things which can reasonably be taken tobe implied in the contract. The customs of the locality or trade or profession are taken

to be included in the contract. The courts are bound to take notice of these customs.

In the case ofHutton v. Warren, the Court of Exchequer held that a lease ofagricultural land must be read subject to the custom of the locality that the tenant was

bound to observe a certain course of husbandry and that he was entitled to an

allowance for seed and labor on quitting the land.Baron Parke observed thus: It haslong been settledthat in commercial transactions extrinsic evidence of custom and

usage is admissible to annex incidents to written contracts in matters with respect to

them are silent This has been done upon the principles of presumption that in suchtransactions the parties did not mean to express in writing the whole of the contract

by which they intended to be bound, but to contract with reference to these knows

usages.

Certain conditions must be satisfied before a court is entitled to incorporate the

usages into contracts. The usage must be so well-established as to be notorious. This

is necessary because without notoriety, it will be impossible to show that both partieswere contracting in the light of the usage. Another condition is that the usage cannot

alter the general law of the land whether statutory or common law. The reason is that

usage derives its force from its incorporation into an agreement and can have nopower to alter the law than express terms of the contract. The sole function of such


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usage is to imply the terms when the contract is silent. The parties cannot be

understood to have contracted in the light of a convention which they have expressly

contradicted. To quote Lord Birkenhead: The learned judge has in effect declaredthat a custom may be given effect to in commercial matters which is entirely

inconsistent with the plain words of an agreement into which commercial men,

certainly acquainted with so well-known a custom, have nevertheless thought properto enter.

There is a process by which conventional usage comes to have the force of law. Tobegin with, when a usage begins to emerge, the court will not take the notice of it

unless it is expressly provided in each case. However, in course of time, the usage

becomes sufficiently notorious before the courts for them to dispense with proof in

the particular case and to take judicial notice of it. At this stage, the usage alreadyacquires the character of settled law. Later on, the legislature may wish to codify or

enact upon the particular branch of law in which this body of usage occurs. The

enactment normally takes the form of a statement of law as it is found in the decision

of the courts. This process has actually been employed in the case of the Bills ofexchange Act, The Marine Insurance Act, and The Sale of Goods Act.

There is a distinction between a custom and a usage. A custom is binding irrespective

of the consent of the parties to be bound thereby. A usage is binding only when it is

not expressly excluded by the terms of the agreement entered into by the parties. Acustom to be valid should have existed from time immemorial but that is not so in the

case of a usage. A usage of a recent origin can be given effect to by the courts on the

ground that the parties had contracted with reference to that usage. A local custom

can freely derogate from the general or the common law of the realm but not from thestatute law. A usage can derogate from the general or common law to the extent to

which it is possible to exclude the common law by specific and express contract

between the parties. If in any particular case, common law cannot be excluded byexpress agreement it cannot be excluded by usage also. However, custom can

override the common law.

Legal Custom

Legal custom is of two kinds. It is either local custom or the general custom of the

realm. Local custom is that which prevails in some defined locality only such as

borough or country and constitutes a source of law for that place only. The generalcustom prevails throughout and constitute one of the sources of the common law of

the country. The term custom in its narrowest sense means Local custom exclusively.

At the present day, local custom consists for the most part of customary rights vestedin the inhabitants of a particular place to the uses for diverse purposes of land held by

others in private ownership, example, a custom for the inhabitants of a parish to enter

on certain land for the purpose of dancing, games and recreation.

In order that a local custom may be valid and operative as a source of law, it must

conform to certain requirements. It must be reasonable. It must confirm the statute

law. It must have been observed as obligatory. It must be of immemorial antiquity.


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A custom must be reasonable. The authority of usage is not absolute but conditional

on a certain measure of conformity with justice and public utility. This does not meanthat courts are at liberty to disregard a custom whenever they are not satisfied as to its

absolute rectitude and wisdom or whenever they think that better rule could be

formulated in the exercise of their judgment. That would deprive custom of allauthority, whether absolute or conditional. The true rule is that in order to be deprived

of legal efficacy, a custom must be so obviously and seriously repugnant to right and

reason that to enforce it as a law would do more mischief than that which wouldresult from the overturning of the expectations and arrangements based on its

presumed continuance and legal validity.

Another requirement is that a local custom must be in conformity with statute law. Inwords of Coke: No custom or prescription can take a way the force of an Act od

Parliament.

General Custom

A general custom is that which prevails throughout the country and constitutes one ofthe sources of the law of the land. There was a time when common law was

considered to be the same as the general custom of the realm followed from ancient

times. To quote: The common law of the realm is the common custom of the realm.This view held the field up to the end of the 18 th century. However, it cannot be

denied that it is incorrect to regard common law as the embodiment of the general

custom of the land. No doubt common law is partly based on the customs of England

as the traveling judges adopted some of the local customs in their decisions, but theyalso used their own discretion in taking help of natural law, Canon law and the

principles of Roman Civil Law.

There is no unanimity of opinion on the point whether the general custom must be

immemorial or not. According to one decision a recent trade usage treating

debentures payable to bearer cannot be recognized as it is against the common law. Inanother case, it has been held that an instrument which is transferable by delivery

under a trade usage, though recently developed, is a negotiable instrument. If we

insist that a general custom must be immemorial, the result is that one such a custom

is recognized by the court of law, it cannot be changed or abrogated by new customand thus the growth of customary law is checked. The general custom which forms

the part of the law merchant prevents new trade customs of a general nature from

developing.

The view of Salmond is that the general custom must be immemorial. It is true that

trade custom of a comparatively recent growth are occasionally recognized by thecourts but those are exceptions only. The general law is that a general custom cannot

have the force of law until and unless it is also immemorial. According to Parker,

when a general custom is adopted as a precedent, it is accepted as a form of

conventional law. It is adopted because common law provides that an agreement


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should be enforced according to its terms. A general custom, once recognized, cannot

be set aside by a later general custom.

According to Keeton, a general custom must satisfy certain conditions if it is to be a

source of law. It must be reasonable. It must be generally followed and accepted as

binding. It must have existed from time immemorial. It must not conflict with thestatute law and the common law of the country.

Requisites of a Valid Custom

(1) A custom to be valid must be proved to be immemorial. According to Blackstone:

A custom, in order that it may be legal and binding must have been used so long thatthe memory of the man runneth not to the contrary. So that if anyone can show the

beginning of it, it is no good custom.

According to Littleton: No custom is to be allowed but such custom as hath been

used by title of prescription, that is to say from time out of mind. The idea of

immemorial custom was derived by the Law of England from the canon law and bythe canon law from the civil law. English law places a limit to legal memory and fixes

1189 A.D as enough to constitute the antiquity of a custom. Undoubted fully the year1189 is an arbitrary limit. If we can trace back a certain custom as being prevalent

from 1189 without interruption, the validity of a custom is established. It is to be

observed that in the case of India, the English law regarding legal memory is notapplied. All that is required to be proved is that the alleged custom is ancient. In the

case ofSuhani v. Nawab, the Privy Council observed: It is undoubted fully that a

custom observed in a particular district derives its force from the fact that it has, fromlong usage, obtained in that district the force of law. It must be ancient: but it is not of

the essence of the rule that its antiquity must be in every case be carried back to a

period beyond the memory of man-----still less that it is ancient in the Englishtechnical sense. It will depend upon the circumstances of each case what antiquitymust be established before the custom can be accepted. What is necessary to be

proved is that the usage has been acted upon in practice for such a long period and

with such invariability as to show that it has, by common consent, been submitted toas the established governing rule of the particular district.3 In Baba Narayan v.

Saboosa, Sir george Rankin observed: In India while a custom need not be

immemorial, the requirement of long usage is essential since it is from this thatcustom derives its force as governing the parties rights in place of general law.4

(2) Another essential of a valid custom is that it must be reasonable. It must be useful

and convenient to the society. If any party challenges a custom, it must satisfy thecourt that the custom is unreasonable. To ascertain the reasonableness of a custom it

must be traced back to the time of its origin. The unreasonableness of a custom must

be so great that its enforcement results in greater harm than if there were no custom atall. Where the courts find a custom in existence which, either by aberration or by

change in law, since its origin, not merely differs from but directly conflicts with an

3 ILR (1941) Lah 154 (PC)4 (1943) 2 MLJ 186


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essential legal principle (including the principle of public policy), these have power in

modern communities to put an end to the custom. According to Prof. Allen, the

unreasonableness of a custom must be proved not its reasonableness.

(3) Only that custom is valid which has been continuously observed without an

interruption from time immemorial. If a custom has not been followed continuouslyand uninterruptedly for a long time, the presumption is that it never existed at all.

(4) The enjoyment of a custom must be a peaceable one. If that is not so, consent ispresumed to be wanting in it.

(5)A valid custom must be certain and definite. In one case, a customary easement

was claimed to cast on the lands of neighbors the shadow of overhanging trees. It washeld to be vague and indefinite on the ground that the shadow of overhanging trees

was a changing occurrence.

(6) A custom is valid if its observance is compulsory. An optional observance isineffective. It is the duty of the court to satisfy itself that the custom is observed by all

concerned and not by anyone who pleases to do so. Blackstone says, A custom thatall the inhabitants shall be rated towards the maintenance of a bridge, will be good,

but a custom that every man is to contribute thereto at his own pleasure, is idle and

absurd and indeed no custom at all.

(7) The custom must be general or universal. According to Carter, custom is

effectual only when it is universal or nearly so. In the absence of unanimity of

opinion, custom becomes powerless, or rather does not exist.

(8) A valid custom must not be opposed to public policy or the principles of morality.

In Raja Varma v. Ravi Varma, the question for decision was whether a customrecognizing the sale of the trusteeship of a temple was a valid custom or not. The

Privy Council held: if the custom set up was one to sanction not merely the transfer

of the trusteeship, but as in this case the sale of a trusteeship is for the pecuniaryadvantage of the trustee, they would be disposed to hold that circumstance alone

would justify a decision that the custom was bad in law.5

(9) A valid custom must not conflict with the statute law of the country. According to

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