Definition of Custom | View Of Jurists On Customs | Observations

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Before we see the view of jurists on customs, we need to understand the basic meaning of custom. So, the custom is the earliest source of law which has been formulated through constant practice and tradition of the group of people in general or in particular. For instance- there is a Hindu custom that the bridegroom will wear a red dress or saree on their marriage. They should not wear black color. This is not enforceable by law but still, people follow this due to their culture. It is actually taken in a negative sense, for eg- If marriage is not performed according to the customs then the child born out of the marriage will be considered as an illegitimate child.

 

John Salmond

According to him, "Custom is the embodiment of those principles which have commended themselves to national conscience as principles of justice and public utility". So John Salmond tried to define custom in terms of principles and national consciousness. He tried to explain that custom is something which is followed by people at large and there must be equality among each other.

He further divided the custom into two parts -

1. General custom which is followed throughout the territory of the state such as common law in England.

2. Local custom which is followed in a particular locality but its authority is much higher than that of general custom.

 

John Austin

According to him, "Custom is a rule of conduct which the governed observe spontaneously and not in pursuance of law settled by a political superior". John Austin has given more emphasis on political superiority rather than custom. He further added that Custom was not the real law because it needs assent and command of political superior to be considered as Law.

 

CK Allen 

According to him, "Custom is a legal and social phenomenon, growing up by forces inherent in a society which is part of reason and necessity and partly of suggestion and imitation". He clearly depicts that Custom us made due to society and the reason behind the formulation of custom is necessity, suggestions, and limitations.

 

Robert Keeton

He defined customary law as it is the rules of human action which were established by usage or repetition apart from this, they are legally binding on people to whom it is applicable and also adopted by courts. He further added that it is a source of law because it is generally followed by a superior or political society in general or particular.

 

So, when we will go through the views of philosophers, we will observe that few things are common, such as - 

1. Custom is based on certain principles due to its usage in society.

2. It is usually followed by people in general or in particular.

3. Custom needs the assent of a political superior to become a law.

 

 

 

 

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