Sources of Law CUSTOM PRECEDENT LEGISLATION RATIO OBITER

CUSTOM Custom is the oldest form of law making. In law, custom can be described as the established patterns of behavior that can be objectively verified within a particular social setting. A claim can be carried out in defense of "what has always been done and accepted by law.

Generally, customary law exists where: a certain legal practice is observed and the relevant actors consider it to be law (opinio juris). Related is the idea of prescription; a right enjoyed through long custom rather than positive law.

Binding force of Customs 1. The very fact that any rule has the sanction of custom raises a presumption that it deserves the sanction of law. 2. Prestige and long acceptance. 3. It is external and visible sign of national conscience and as such is accepted by the courts of law as an authoritative guide. 4. The existence of an established usage is the basis of a rational expectation of its continuance in the future. 5. It rests on the popular conviction that it is in the interest of society.

Theories regarding transformation of Custom into LAW

Historical Theory Custom is the derived from the common conscious of the people. It does not depend upon the arbitrary will of a person. Not upon any accident. Springs from an inner sense of right.

Criticism Views of this theory are not balanced. Not always by will or convenience of people. Sometimes imposed by ruling class. State has power to abrogate a custom. Judges and legislations have creative role in modern times.

Analytical Theory Austin, Holland, Gray, Allen, Vinogradoff. Austin : Custom is a source of law not law itself. They are not positive laws until their existence is recognized by the decisions of the courts. Customs become law when it is embodied in an Act of the Legislature. When sovereign allows it to be so.

Customs have only persuasive value. Holland : customs are not always laws when they arise but they are largely adopted into laws by state recognition. DEFECTS : Bulk of Customs is non litigious and it does not come before the Courts. Society regulates its customs according to those customs.

KINDS OF CUSTOMS • CONVENTIONAL • LEGAL Or USAGE • Absolute legal right. • • Possesses force of law properio vigore. • Conditional authority. • Parties may agree to a legal custom but are not bound by the same. • Legally binding because it has been expressly or impliedly incorporated in a contract between the parties concerned. • Kinds : • Local custom • General custom • The customs of the locality or trade or profession are taken to be noticed in the contract.

• CUSTOMS • Custom is binding irrespective of the consent of the parties to be bound thereby. • Should exist from time immemorial. • A local custom can freely derogate from the general or common law of the realm but not from the statute law. • USAGE • It is binding only when it is not expressly excluded. • Recently originated usage can be given effect by the courts. • It can derogate from the general or common law to the extent to which it is possible to exclude the common law by specific contract.

LEGAL CUSTOM • LOCAL CUSTOM • GENERAL CUSTOM • Prevailed in some Defined Locality. • Prevails throughout state. • May be valid and operative as a source of law. • It must not conflict with statute of the country. • Must be reasonable. • Once recognized can not be changed. • Must conform to statute law. • Must have been observed as obligatory. • Must be of immemorial antiquity.

Requisites of a Valid Custom • Must be proved to be immemorial. • Must be reasonable. • Must be continuously observed. • Must be certain and definite. • Must be favoring public policy and morality. • Must not be in conflict with statute law of the country. • Must be general and universal.