Customs As a source of law, the custom is seen as important not only for getting to know the people but also for the growth of communities. It is one of the oldest sources of law and requires a consistent course of action in which its ideas are recognized, valued, and acknowledged not only by the power of the official authority but also by the general public opinion. Even though it is one of the most important sources of law, its importance is decreasing over time as civilizations and legal systems become more complex and change.
Customs is no longer a source of law because the state has more responsibilities and people have higher expectations. Instead, laws are made by the government. Custom is a practice of the people and a product of nature that is related to an attitude of deference and acceptance by the people. The custom as a source is firmly rooted in the fact that these practices are part of the traditions followed by their ancestors and are now recognized and observed by the populace.
Classifications of Customs:
Conventional Practices:
This type of custom is referred to as use. It is a well-known practice whose legitimacy is contingent on the acceptance and incorporation of its adherents into the larger society. The ordinary custom is legally obligatory not because it possesses independent legal authority, but because it is openly or tacitly accepted by the people.
The ordinary custom evolves through the following three stages:
In the first step of making it, it must be built so that everyone knows what it does and how it helps.
The second part says that this kind of custom is accepted by a court ruling, which means that it is used as an example. After these two steps are done, the custom is finally recognized as a constitutional law.
The third stage of evolution is how people have been doing things since the beginning of time.
Legal Customs: This type of custom is “operative per se,” which means that it is self-evident and is recognized and adopted by itself, regardless of public opinion.
Also Read 10 Things You Need to Know about Business Law and UNCITRAL
Additionally, the legal customs are divided into two categories:
Local Traditions:
Typically, such customs are prevalent in a particular region. To be considered valid, a local custom must be Certain, Continuous in its practice, Reasonable, and not in conflict with any existing common law or custom. Where such customs are practiced, they must be done willingly by the people and should not be imposed by the state power.
These customs are prevalent throughout the entire nation. It is something that most people in the country do and that is respected by everyone. For these customs to be valid in nature, they must not only be reasonable, but they must also be observed, acknowledged, and accepted as binding rules. Also, these customs must have been followed by the people for a long time and be in line with the country’s common laws or judgments.
Essentials of Customs
Essentials of a Valid Custom: Reasonableness: The customs must be reasonable, which entails that the people must understand that the authorities controlling these customs are not absolute in nature, despite the fact that they are sometimes authoritative in nature, and have always been in accordance with the norms of justice, equality, and public service. A custom will not be recognized as legitimate if it is offensive or in disagreement with any right or law, and it is likely to cause more harm than good.
Consistency: The customs should be practiced in accordance with the constitutional laws; that is, they should not clash with or be opposed to any state legislation. In order for a custom to be considered a source of law, a court must be convinced that it will benefit the people in the future.
For a custom to be required, it must be recognized by the law and seen as a right. It means that everyone should follow the custom without being forced to by the government. If people decide for themselves whether or not to follow a custom, it will not be kept as customary law.
Continuity in practice: The acknowledgment and practice of the tradition should be unbroken and consistent, and its existence should date back to a time that is well-established or predates human memory.
Certainty: When any course of behavior is followed over an extended period of time, this experience or practice of “custom” gives rise to a rule of law, and this rule of law is known as a “custom.” To establish the existence of a custom, it must be demonstrated that it has been practiced consistently, constantly, uninterruptedly, with certainty, and since time immemorial; all of this must be proven beyond a reasonable doubt.
Conclusion: It is evident that, as time passes, communities, judicial systems, and legal procedures are rapidly evolving, and thus the significance of custom as a source of law is diminishing. Despite the diminishing function of customs in modern administrations, it was the sole source of law in earlier ages, supported not only by authorities but also by popular opinion.
Even though judicial precedents have taken their place, they still have a central place in the hearts of law sources. This is because most of the facts in these new systems of the law came from old customs that weren’t written down but were still widely accepted by the public.
