The birth of law and the role of custom
Indian Courts face frequent confrontation and discussion upon the matter concerning the relevance of custom’s as a source of law in India. This includes the question of whether relevancy lies or not in respect to the dynamic, flexible and uplifting nation to which India partakes.
According to Austin command is an expression. An expression of desire by the political superior example like the king or parliament. It goes towards the political inferior that is the subjects or the citizens. The one who is inferior is either obligated to do or omit that act; to obey the command. And upon disobedience, the inferior is liable for punishment. Prescription of commands lies upon the sovereign, and these become the modes of conduct.
The most prominent character that is distinctive in nature is the characteristic of the positive law and this idea of command and punishment for not obeying the command is a part of it.
Positive law distinguishes itself from that of the principle of morality which considers itself the law of the divine. On the other side positive morality which considers law as the made-up rules like the customary rules and international law. These laws do not originate from a ‘sovereign’. The analytical school of law later faced rejection by some jurists such as Fuller, Dworkin and Finnis. This school of law emphasized too much on the law as a command furthermore it rejected custom as the source of law. Legal positivism criticism is that it fails to give morality its due importance.
Friedman, a jurist whose views are very much looked upon, according to him the main features of Savigny’s historical school can be summarized as:
● Reflection of the common people spirit and their custom.
● It is not universal, it is like the language of a society or a particular community.
● It has never been static in nature and has a relationship with the development of society.
● The political superior does not provide the law, rather the people do.
The sequence in which the growth of law took place under the static society is first, the divine law came into existence second. The customary law made by the priestly case were made and then the era of codification was there.
To have an unmistakable and complete comprehension of law, it is basic to comprehend the wellsprings of law. Wellsprings of law mean the sources from where law or the coupling rules of human lead start. At the end of the day, law emerged from sources. Legal scholars have various perspectives on the birthplace and wellsprings of law, as they have with respect to the meaning of law.
As the term law has a few implications, lawful specialists approach the wellsprings of law from different edges. Austin thinks about sovereign as the wellspring of law; while Savigny and Henry Maine think about custom as the most significant wellspring of law. Regular graduate school thinks about nature and human explanation as the wellspring of law. On the other hand, scholars think about the strict contents as wellsprings of law. There are different cases and counter cases with respect to the wellsprings of law. In spite of it, the facts confirm that in practically all social orders, law has been gotten from comparable sources.
Meaning
To know about customs, we first need to know about the personal laws. Personal Laws is a branch of law related to succession, marriage, divorce and inheritance. Such laws are based and emerge out of the religion, custom and customs of marriage, separation, and legacy. Particular communities mostly follow the laws laid down in the name of religion and govern on its basis.
For Example, the marriage of Hindus represents Personal laws like the Hindu Marriage Act, 1955 ; while Muslim relationships administered through the Muslim individual law dependent on a Muslim standard law which, to a great extent, remains unmodified.
Can custom be a law?
There is no uncertainty about the way that custom is a significant wellspring of law. Comprehensively, there are two perspectives which win in such a manner on whether custom is law. Austin restricted custom as law since it didn’t begin from the desire of the sovereign. Legal advisers like Savigny think about custom as the primary wellspring of law. As per him, the genuine wellspring of law is the desire of the individuals. It is not the desire of the sovereign. The desire of the individuals consistently reflects in the custom and conventions of the general public. Custom is thus a fundamental wellspring of law.
For instance, the customary practice of saptapadi lays in Sec.7 of the Hindu Marriage Act. It is a solid example of customs as a source of law. It is an important act in the Hindu Marriage Ceremony. The word saptapadi denotes ‘seven steps’. First there is the tying of mangal sutra; after which, the newly wedded couple are said to take seven steps around the holy fire as an act of saptapadi.
Types of Custom
Customs can be divided into two categories:
- Customs without sanction: refers to non-mandatory customs in nature, followed in light of general feeling.
- Customs with sanction: binding and mandatory customs in nature, imposed and enforced by the State.
Legal Custom: Legal custom is a custom whose authority is absolute; it possesses the force of law. It is recognized and enforced by the courts. Legal custom may be further classified into the following two types:
● General Customs: These types of customs were are applicable throughout the territory of the State.
● Local Customs: These are applicable to some part of the State, or a particular region of the country.
The Essential Elements of Custom
All customs aren’t acknowledged as wellsprings of law, nor can all customs be perceived and implemented by the courts. The legal scholars and courts have set out some basic tests for perceiving of customs as substantial wellsprings of law. These tests are abridged as follows:
Ancientness or Antiquity: So as to be legitimately substantial customs ought to have been in presence for quite a while, even past human memory. In England, the year 1189, for example, the rule of Richard I King of England has been fixed for the assurance of legitimacy of customs. Be that as it may, in India there is no such time limit for choosing the artifact of the customs. The main condition is that those ought to have been practically speaking since days of yore.
Continuous: A custom procures legitimacy when it is in constant practice. It is more likely to be a custom when no sort of interference is there in it. Long interim and disturbed acts of a custom raise questions about legitimacy.
Practicing it as an issue of right: Delegation of custom done in a straightforward way and with the information. A custom must end up being a matter of right. An unimportant far-fetched exercise of a privilege isn’t adequate to a case and cannot be made a legitimate custom.
Sensibility: A custom must fit in with the standards of equity and public utility. For a substantial custom, its foundation should lie on judiciousness and various reasons. If a custom cause more inconvenience problems and mischief then such a custom will not be considered valid.
Moral and Immoral: A custom which seems improper or contradicted to open approach fails as a substantial custom. Courts have proclaimed numerous customs as invalid as they drilled for improper reason or went against public approach. Bombay High Court on account of Mathura Naikon v. Esu Naikin, ((1880) ILR 4 Bom 545) held that the custom of receiving a young lady for corrupt and wrong reasons is illicit.
Status with regard to: In any cutting-edge State, when another enactment is sanctioned, it is preferred to be the custom. Restriction or contradiction of enactment of a custom shouldn’t happen along these lines. In India numerous laws faced revocation authorized under authoritative bodies. For example, the calling of the customary act of youngster marriage as an offence. Also, Indian legislature changed appropriation laws.
Importance
Custom was the most important source of law in ancient India. Even the British initially adopted the policy of non-intervention in personal matters of Hindus and Muslims. The British courts, in particular had a Privy Council, in cases such as Mohammad Ibrahim v. Shaik Ibrahim (AIR 1922), observed and underlined the importance of custom in moulding the law. At the same time, it is important to note that customs were not uniform or universal throughout the country. Some regions of the country had their own customs and usages.
These variances in customs were also considered a hindrance in the integration of various communities of the country. During our freedom struggle, there were parallel movements for social reform in the country. Social reformers raised many issues related to women and children such as widow re-marriage and child marriage.
Custom leading to Customary Laws
The advent of the British rule governing of Indian society rooted its basis in customary laws. The law earlier was either based on Hindu Dharmashastra or Islamic religious scripts. These were followed by the rulers and the ruled. Customary laws were considered as rigid and averse to the idea of social change.
Customary law must follow the Constitution. For example, the Constitution says that no person may be tortured or given cruel, inhuman or degrading punishment. This applies to customary law. Customary law also shouldn’t allow involvement of sex discrimination. The legislature can invalidate a customary law on the grounds that it is unconstitutional in some way.
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