(1) Introduction:-
If some practice has been commonly adopted and has remained unvaried for a long period, then such practice assumes force of law. And such practice is called custom. According to some scholars, it is not necessary that a custom should be in written form, but it is necessary that custom should be used for a long period and should be followed regularly.
(2) Definition Of Custom:-
Various scholars have suggested different definitions of custom. From these definitions, this very term custom can be defined in these simple words that custom means those principles of right and truth, which have been admitted by society for a long period and which have been followed willingly without any force.
(3) Custom as A Source of Law and its Importance:-
Custom has always remained an important source of law. In fact, custom has been given great significant as law throughout whole human history. In primitive time, custom was not only a source of law, but was also regarded as law. It has been observed that any law, which has been enforced in contradiction to customs of any area, has never achieved sanctity as society has refused to accept such law. However, a custom is usually considered as a source of law when the same has remained famous, has been in conformity with positive or imperative law, has been practiced for along period, and has belonged to some ancient period.
(4) Requisites Of A Valid Legal Custom:-
To achieve status of a valid legal custom and of a law, a custom has to fulfill the following requisites:
(i) Custom should be in conformity with positive law
(ii) Custom should be in conformity with morality
(iii) Custom should belong to ancient period
(iv) Custom should be observed regularly
(v) Custom should be followed willingly
(vi) Custom should be reasonable
(i) Custom Should Be In Conformity With Positive Law:-
A custom fails to achieve status of law if the same is not in conformity with positive law. The reason is that a custom, which is in contradiction to positive law, loses its popularity and therefore, is not considered as source of law.
(ii) Custom should be in Conformity with Morality:-
A custom, due to which morality is ruined, cannot be considered as valid legal custom. Rather the same is regarded as illegal one. For this reason, a custom can only become a valid legal one when the same is in conformity with morality and does not negatively influence principles of morality.
(iii) Custom Should Belong to Ancient Period:-
According to some scholars, an ancient and old custom becomes legally more authenticated and influential. Therefore, a requisite of a valid legal custom is that it should belong to ancient period.
(iv) Custom Should Be Observed Regularly:-
Belonging to ancient period is not sufficient, a valid legal custom should also be observed regularly without any interval. In other words, it is necessary for a valid legal custom that it should be observed continuously without any suspension from that date when its observance has been once started.
(v) Custom Should Be Followed Willingly:-
Another requisite of a valid legal custom is that it should not be enforced through some use of force or threat, and it should be followed by people with their free will and desire.
(vi) Custom Should Be Reasonable:-
A custom can only become a valid legal one when the same is convenient for achievement of justice and rights. However, a custom, which fails to check cruelty, violation and injustice and which is not famous in respect of reason and practice, cannot be considered a valid legal custom.
(5) Kinds of Custom:-
Following are most prominent kinds of custom:
(i) Conventional custom
(ii) Legal custom
(iii) Local custom
(iv) General custom
(i) Conventional Custom:-
Conventional custom means that custom, which is established through agreement among people.
(ii) Legal Custom:-
Legal custom can be defined as that custom, which operates as a binding rule of law. Such kind of custom has legal authenticity.
(iii) Local Custom:-
Local custom means that custom, which prevails only in some defined locality such as a city or county and constitutes source of law for that place only.
(iv) General Custom:-
General custom is that custom, which prevails throughout a country or society and constitutes source of law for that country or society.
Features Of A Valid Local Custom:-
Following are main features of a valid local custom:
(i) Local custom should be observed in some defined locality
(ii) Local custom should be in conformity with positive law
(iii) Local custom should be in conformity with morality
(iv) Local custom should belong to ancient period
(v) Local custom should be observed regularly
(vi) Local custom should be followed willingly
(vii) Local custom should be reasonable
(i) Local Custom Should Be Observed In Some Defined Locality:-
One of features of local valid custom is that it prevails only in some defined locality and not in the whole region.
(ii) Local Custom Should Be In Conformity With Positive Law:-
A local custom fails to achieve status of law if the same is not in conformity with positive law of that locality where it is observed. The reason is that a custom, which is in contradiction to positive law, loses its popularity and, therefore, is not considered as source of law.
(iii) Local Custom Should Be In Conformity With Morality:-
A local custom, due to which morality is ruined, cannot be considered as valid local custom. Rather the same is regarded as illegal one. For this reason, a local custom can only become a valid one when the same is in conformity with morality and does not negatively influence principles of morality.
(iv) Local Custom Should Belong To Ancient Period:-
According to some scholars, an ancient and old custom becomes legally more authenticated and influential. Therefore, a requisite of a valid local custom is that it should belong to ancient period.
(v) Local Custom should be observed Regularly:-
Belonging to ancient period is not sufficient, a valid local custom should also be observed regularly without any interval. In other words, it is necessary for a valid local custom that it should be observed continuously without any suspension from that date when its observance has been once started.
(vi) Local Custom Should be Followed Willingly:-
Another requisite of a valid local custom is that it should not be enforced through some use of force or threat, and it should be followed by people of some defined locality with their free will and desire.
(vii) Local Custom Should Be Reasonable:-
A local custom can only become a valid local one when the same is convenient for achievement of justice and rights. However, a local custom, which fails to check cruelty, violation and injustice, and which is not famous in respect of reason and practice, cannot be considered a valid local custom.
(6) Conclusion:-
To conclude, it can be pointed out that custom is one of the most ancient sources of law. The reality is that various concepts in respect of law can be traced out in ancient customs of various human societies.