Introduction:
Definition of a community: A social group of any size whose members reside in a specific locality, share government, and often have a common cultural and historical heritage, a locality inhabited by such a group, a social, religious, occupational, or other group sharing common characteristics or interests and perceived or perceiving itself as distinct in some respect from the larger society within which it exists.
Definition of Law: the principles and regulations established in a community by some authority and applicable to its people, whether in the form of legislation or of custom and policies recognized and enforced by judicial decision, any written or positive rule or collection of rules prescribed under the authority of the state or nation, as by the people in its constitution. The controlling influence of such rules; the condition of society brought about by their observance. Maintaining law and order, a system or collection of such rules. The concept of community and Law go hand in hand because there is a need for law in a community to keep order in it. Community is a group of people who live in a common area and need to follow a social structure in form of rules or set of rules which are basically called law. The motive to make law is to maintain peace in the community.
Importance of Community and Law Relationship
Law is very important for society and it serves as a common thing for the people of a community. Any Law is made to provide a proper way to order and peace in the community. Without law, there will be chaos in the society and it won’t be an ideal life for anyone in the community. Law provides a guideline which is socially accepted in the community. It is important that we must follow the Law. Community and Law is dependent relation which depends on each other. Law plays a critical role in regard to a change by shaping a direct on the community e.g. a law for the compulsory education system. Law is an effective agency which brings about social change in the community which therefore rejuvenates our belief and social structure and in the relationship between community and Law. The social rules are made by the members of the society. Disobedience causes the punishment of social disapproval. Therefore, the relation between community and law is very much important.
Notion and Characteristics Feature of Community Law
The custom of the community should fulfil certain essential to be valid as a law for a community and these are:
1. The custom must be ancient to be a community law.
To be described as law the custom must be followed for years by the community by the legal and binding rule that man does not remember the beginning of it. The custom of the community must hold antiquity value to be described as a law for the community.
2. The law must be reasonable; the customary law of the community must be reasonable and custom cannot be described as law for a community if it does not have any reason behind this. The reasonableness can vary from time to time and from community to community.
3. Community law must not Violate the statute law. The community law cannot be contrary to the law of the country if it violates the law of the country it must be held void. Any custom cannot take away by the law of the country.
4. Certainty, the community law must be certain and so the custom to be a part of the community law.
5. Observance as of a right, the valid community law must have been observed as a right, mere practice of a custom does not make it a community law.
6. Peaceful enjoyment, the community law must be enjoyed peacefully by the whole community if it is being opposed by the high percentage of the community legal enforcement of the same will be difficult.
7. Community law must not be immoral; any law should not be immoral. Although there are no criteria to judge what is moral or what is immoral if should be judged by the sense of the whole community.
8. Community law should be based on the general principle of equity, justice and good conscience. The custom must not contradict the principle of equity justice and good conscience to be a community law. This means it should not violate the public policy or the welfare of the public of the particular community. Problems of the customary law
9. Customary law is rigid; the customary laws are very rigid in nature as the custom is directly followed by the individual at large and they have a sentimental value attached to it and therefore it becomes very difficult for the legislature to make changes in the customary law
10. Customary laws are not uniform, Different communities follow different customs and therefore each community in the country have a different customary law which is difficult and unfair to apply when the basic structure of the constitution works on the theory of equality of all.
11. Customary laws are not applicable to a dynamic society, the communities and societies keep changing with the time but the customs they follow remain intact and thus they lose their value as the thinking of the individual of the community changes and they start thinking that there is no logical reasoning behind this custom.
12. Conservative Nature, in most cases the custom shows the conservation mindset if the society and the thinking of the people do not change with time because they follow this law for a very long time and thus it sometimes acts as a hurdle in the development of the society or the community.
Some Problems of Customary Law Theory
First, we need to understand what is custom. It is any body of rules which exist by the side of the original law, that created by the traditions and the habits of the people for a long time. There are two types of customs first being legal custom second conventional custom, the legal custom is an operative or a binding agreement in the general public. There are some advantages of customary law and then there are the disadvantages which are as follows
- Customary rules are often ambiguous
- Customary rules develop very slowly
- Customary rules may or may not facilitate the evolution of the rules in a peaceful manner in one country to others.
There are some conditions to customs some of them being that they should often be general, they should have existed for a long time, it should be constant, they should not be against the public policy and lastly, it should not violate freedom and liberty of any individual. Talking about the disadvantages sometimes the rules made are often very ambiguous in nature meaning that it may apply to one community of people but not to any other resulting in the confusion of the rule. The nature and evolution of customary rule is very slow in nature it takes a lot of time to be established and to be implemented and it takes even longer time to change them once they are established is difficult to modify them. The evolution of customary law may not be done in a peaceful manner causing a problem in the community and cause a problem to the people present there and may cause social and communal problem. Therefore, in making these customary laws special precaution must be taken.
Conclusion
The relationship between community and law is very important because the customs of a community plays an important role in developing the laws for the country. In my belief people follows laws more obediently when they have a sense of sentiment attached to the law. However, the law can even contrary to the beliefs of the community as we observed than in many cases the community beliefs violate the human rights of the individual, for example, the sati pratha was observed by the Hindus for a very long time but lately, it got abolished by the statute as it was an inhumane custom. Similarly, the child marriage in the village communities of India also got abolished by the law as it destroys the life a child when he/she are married at a young age and because of that their innocence get lost. But some customs are not violating the rights of the individual but it gives a way of Living to the Individuals like the pratha of “seven Pheras” was even recognised by the Hindu Marriage act of 1955. Recently the custom of the Muslim community of triple talaq was held unlawful by the supreme court of India as it violates the rights of women of the Muslim community. So, the relationship between the community and law should be thoroughly examined and before Declaration of custom as a law, it needs to carefully observe that it does more wrong than the right to the community. And whenever there is a conflict between the community and law the law should prevail because the law is made after the required research and is a set of rules and regulations that the legislature has enforced after the most learned person of the community has carefully examined them. Law is every possible way is more reliable than the belief or the customs of the community. Lastly, in my opinion, there should be a uniform law for each community then only we can achieve equality and the differences between the individual can be reduced.
References:
- DICTIONARY.COM, Idioms and phrase,https://www.dictionary.com/browse/law
- WIPO, customary traditional knowledge and intellectual property,
https://www.wipo.int/export/sites/www/tk/en/resources/pdf/overview_customary_law.pdf
3. Gad Brazilai, Communities and Law, Michigan publishing,2004
https://www.press.umich.edu/123749/communities_and_law
4 Research Guide, customary law in India,8/12/2019
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