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LECTURE 5

Sources of Law III: Custom


ORIGIN AND IMPORTANCE OF CUSTOM
There are several theories concerning the origin of custom, and its
relationship with the law. A discussion of those theories is not necessary
for our purpose. However, a conclusion which emerges as a consensus of
all the theories and is established by actual study of primitive
communities is that custom is anterior to Kings and courts. The origin of
custom may be traced to the very inception of the community itself. A
community involves three essential elements: (i) the group; (ii) the
existence of the divergent desires within the group; and (iii) the claims
made by some members against others or against the group. Conflicting
claims and desires within the group naturally generate problems. If the
group is to remain a community, these problems must be resolved, for
which certain norms are required. Even in a primitive community, a
distinction must be made between what is actually done, and what ought
to be done. It may also become necessary to reconcile the norms of the
family, or the tribe with those of the community. When a problem arises,
an answer must be found. Tact and sense of the merits and appreciation
of the strength of each party, play a greater part than the desire to find a
rule that is just and logically justifiable. Once a rule is adopted, practice
generates conviction. Practice grows into convention. What makes
convention a custom is the recognition that there is authority behind it. In
other words, custom comes into existence when the community in some
way backs a particular rule. In the modern state, the legally recognised
custom is supported by the courts, and an apparatus of coercion.
Custom is not necessarily linked to any sense of justice. The existence of a
custom may be justified by expediency or power relations in a
community.
The obvious example of a custom, which has no element of justice slavery.
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The importance of custom diminishes with the growth of a legal system
since custom is superseded by legislation and precedent. Nevertheless
custom is useful to the framers of law in two ways: (i) it provides the material
out of which the law can be fashioned by saving the intellectual effort needed
to create a law, de novo; and (ii) psychologically, it is easier to secure obedience
to a law if it claims to be based on a custom immemorially observed. There is
inevitably a tendency to adopt what has been followed in the past as safe
guide for the future.
The main reasons for the reception of Customary Law into the law of the
modern state are:
(i) Custom is frequently the embodiment of those principles, which
have commended themselves to the national conscience as
principles of justice and public utility, and are embodied in the
maxim via trita via tuta, ie, frequented path is reliable path. The law
embodies those principles that have been acknowledged and
approved by the state in the exercise of its sovereign power.
Custom embodies those principles that have been acknowledged
and approved not by the power of the state, but by the public
opinion of the society at large. It is, therefore, said that custom is to
the society, what law is to the state.
(ii) The existence of an established usage is the basis of a rational
expectation of its continuance in the future. As far as possible the
state tries to fulfill peoples rational expectations rather than
frustrate them. Even in fully developed legal systems, customs are
not totally replaced by positive law. Customs which are not
contrary to the prevalent mores of the community are either
recognised and incorporated into the law, or are merely tolerated.
An early example of custom gaining statutory recognition is the
Native Rights Act 1865 of New Zealand, which allowed the
aboriginal Maoris to continue to be governed by their own tribal
customs. In India, during the colonial period, there was an attempt
to codify the civil law and criminal law, but the religious personal
laws were left untouched by the British. Even after independence,
the Hindu personal law alone was reformed and codified, leaving
the personal laws of other major religious communities as they
were before independence. The tribals in India are also mostly
governed by their customary laws. It is, thus, clear that the
influence of custom is still a factor to be reckoned with even in a
modern legal system.
KINDS OF CUSTOMS
t
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Custom is usually divided into legal, and conventional. Legal custom is
one whose authority is absolute, and which in itself and proprio vigorc
possesses the force of law. It is operative per se as a binding rule of law,
independent of any agreement on the part of those subject to it.
Conventional custom, which is also called usage, operates only
indirecdy through the medium of agreements, where it is accepted and
adopted in individual instances as conventional law between the parties.
It is an established practice which is legally binding not because of any
legal authority independently possessed by it, but because it has been
expressly or implicitly incorporated in a contract between the parties
concerned. Most agreements consist of two partsnamely, expressed
terms, and implied terms. It is for the law to supply implied terms
supplementing the terms expressed by the parties. Courts deem
conventions as implied terms of contract, when the following conditions
are satisfied:
(i) The usage must be so well established as to be notorious. No
particular period of longevity, however, is necessary to satisfy the
requirement of notoriety.
(ii) The usage cannot alter the general law of the land, whether
statutory or Common Law. Usage derives its force from its
incorporation into an agreement and, therefore, can have no more
power to alter the law than an express agreement.
(iii) The usage should be a reasonable one.
(iv) It need not have any particular scope. Usages may be, and usually
are, limited to a trade or locality, but they may be common to the
whole country or even the world.
(v) The usage will not be enforced in a particular case if it purports to
nullify or vary the express terms of a contract. Its sole function is
to imply a term when the contract is silent. The parties cannot be
understood to have contracted in the light of a usage, which they
have expressly contradicted.
Law originating in usage normally passes through three successive
historical stages. First is the existence of the usage, which is a question of
fact. Then the courts take judicial notice of it. Finally, it may be embodied
in a statute, and then it assumes its ultimate form as enacted law.
Once a general usage has received judicial or statutory recognition, it
cannot be altered by the growth of any other later usage in conflict with it.
As Buckland remarks, what is law is not usage, but the statement of the
characteristics which it should possess.

Sources of Law III: Custom
67


Custom has also been classified into local custom, and general custom of the
realm. A local custom prevails in some defined locality only, and constitutes a
source of law for that place only. In order that a local custom may be valid and
operate as a source of law, certain requirements must be satisfied.
REQUISITES OF A CUSTOM
In order to operate as a source of law, a custom must have the following
attributes:
Reasonableness
A custom must be reasonable. Malus usus abolendus est. The authority of usage
is not absolute, but conditional upon its conformity with justice and public
utility. It is not meant that the courts are at liberty to disregard a custom
whenever they are not satisfied as to its absolute rectitude and wisdom, or
whenever they think that a better rule could be formulated in the exercise of
their own judgment. This would be to deprive custom of all authorityeither
absolute or conditional. The true rule is, or should be, that a custom, in order to
be deprived of legal efficacy, must be so obviously and seriously repugnant to
right and reason that to enforce it as law would do more mischief than that
which would result from overturning the expectations and arrangements based
on its presumed continuance and legal validity.
Conformity with Statute Law
A custom must not be contrary to an Act of Parliament. In the words of Coke,
No custom or prescription can take away the force of an Act of Parliament/
Observance as of Right
The third requisite of the operation of custom as a source of law is that it must
have been observed as of right. However, this does not mean that a custom
must be acquiesced in as a matter of moral right.
Immemorial Antiquity
The fourth and the last requirement of a legal custom relates to the length of
time during which it has been established. A custom, to have the force

of law, most be immemorial. A custom is said to be immemorial when its
origin is so ancient that the beginning of it is beyond human memory,
and no testimony is available as to a time when it did not exist.
In addition to the aforesaid requirements, continuity, peaceableness,
certainty, and consistency with other customs, are also considered as
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requisites for a valid custom.
GENERAL CUSTOM OF THE REALM
A custom prevailing throughout England since 1189 is considered as
part of the Common Law. The expression general custom of the realm,*
is, therefore, synonymous with Common Law. It is no longer a living
and an operative source of English law. All the general customs of the
realm have been transformed into case law, which has its immediate
source in precedent.
CUSTOM AND PRESCRIPTION
Historically, the law of prescription has been regarded as a branch of the
law of custom. A prescription was conceived as a custom limited to a
particular person and his ancestors or predecessors. It may, therefore, be
described as a personal custom, and may be distinguished from a local
custom which was limited to a place.
The difference between a local custom and prescription will be clear
from the following example. If on the death of an owner intestate all
lands belonging to him have, from time immemorial, descended to his
youngest son, it is a custom, and is the source of a rule of special and
Customary Law. Similarly, if the owner of a farm and all his
predecessors in title from time immemorial have used a way over the
adjoining farm, it is a prescription and is the source of a prescriptive
right of way vested in the owner. Therefore, we can say that custom is a
long practice operating as a source of law; while prescription is a long
practice operating as a source of rights.
Both prescription and custom are essentially governed by similar
rules of law. The requisites of a valid prescription are in essence the
same as those of a valid custom, namely, it must be reasonable,
immemorial, and consistent with statute law. Gradually, other forms of
prescription not known to the early law came to be recognised. The
requirement of immemorial antiquity is not insisted on in the case of
prescription. In cases of easements, enjoyment for 20 years confers a
prescriptive right. Thus, when a person has been enjoying a right for 20
years, he now has an absolute title instead of a mere evidence of user.


















































LECTURE 6


Approaches to Law I: Historical Approach
OVERVIEW
Different people have different ideas about law. Everyone tries to explain
the meaning, nature, and function of law from his own perspective. This is
the reason behind the existence of multiple theories of law, and different
approaches to law. Legal philosophers who had devoted a lifetime of
study and analysis to the fundamental issues of law, as distinct from any
particular branch of law, have contributed much to our understanding of
law. Textbooks on jurisprudence usually classify these contributions
under theories of law, approaches to law or schools of jurisprudence. For
analytical purposes, we may classify the theories under several broad
titles. However, the truth is that under every category we find several
varied versions and views. Each theory or approach has been accepted or
rejected at various points in time. Each theory has been criticised, re-
interpreted, or modified. Students of law generally feel that the most
difficult part of jurisprudence is the one that deals with theories of law.
While it is true that the task to grasp the intricacies of various theories of
law is not easily accomplished, a preliminary understanding of the
important aspects of these theories is intellectually well within the reach of
an average student of law. Infact, the syllabus requires study only to that
extent, leaving a deeper and more critical study for those who are really
interested and motivated.
The questions which arise are as to why we should study these abstract
theories and approaches, and in what way does the study help us in
understanding particular branches of law, or in solving practical problems
or law? These are the questions frequently asked by the law students. It
must be understood that no branch of law can stand in isolation, and no
legal problem can be solved with the help of a readymade rule alone. Each
legal rule and each branch of law must be conceived as part of a legal
system. Various approaches to law, and theories of law help in
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understanding a legal system.
A word of caution is necessary here. The approaches and theories,
which we will discuss in this and the subsequent lectures, will help i
n

understanding the nature and function of law and the legal system.
Finally, one may feel that no single theory provides a totally satisfactory
explanation. That is precisely the reason why it becomes necessary to
undertake a study of all these theories. While each theory offers only a
partial view and has many defects and limitations, an understanding of all
the theories will certainly give a broad vision of law.
Let us begin our discussion with the historical approach. It considers
law in direct relationship with the life of the community. The central
question that this approach raises is as to how did law evolve? The
historical approach believes that law evolved, as did language, by a slow
process, and law, like language, is a peculiar product of a nations genius.
Later, when we discuss the positivist approaches to law, we will find that
Austin defined law as the command of the sovereign. The historical
approach rejects this definition, and states that the source of law is not the
command of the sovereign, not even the habits of the community, but the
instinctive sense of right possessed by every race. The real source of law
lies deep in the mind of men.
The historical approach comprises inquiries into the past and evolution,
with the object of elucidating the position today. The inquiry is
undertaken mainly to find out the extent to which the oughts of
contemporary laws have been fashioned by the past. Inquiry into the past,
especially into primitive and undeveloped communities, conducted to
discover what law might appropriately be taken to mean, is known as the
anthropological approach. It is a variant of the historical approach.
There are several factors which paved the way for the rise of the
historical approach. First of all, it was a reaction against the non-historical
assumption of the natural law theory, which we will examine later. The
need for a realistic investigation into historical truths was recognised. The
French revolution, with all its brutalities, was considered as the
culmination of the attempt to establish a legal system based on reason,
without reference to past or existing circumstances. It was French conquest
by Napoleon that aroused the growth of nationalism in Europe. Since
there was hostility towards everything associated with French, the idea of
codification, which arose in France, was also treated with hostility, and the
historical approach provided a theoretical foundation to the opponents of
codification. The influence of thinkers like Montesquieu, who maintained
that law was shaped by social, geographical and historical considerations,
was another
significant factor. In England, Edmund Burke echoed this view, and
referred to the importance of tradition as a guide to social change.
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74


The most influential and important jurist of the historical school was
Savigny. He warned that reforms which went against the stream of a
nations continuity were destined to fail. The essential prerequisite to the
reform of law was a deep knowledge of history. Historical research was
the indispensable means to the understanding and reform of the present.
Savigny emphasised that the muddled and outmoded nature of a legal
system was usually due to a failure to comprehend its history and
evolution.
The most important contribution of Savigny to the understanding of
law was his theory that the nature of any particular system of law was . a
reflection of the spirit of the people who evolved it. He called it
4
Volksgeist
Puchta, a disciple of Savigny, asserted that law was the manifestation of a
common conscience. Law grows with the growth and strengthens with the
strength of the people and finally dies as the nation loses its nationality.
The broad principles of the system are to be found in Volksgeist, which are
manifest in customary rules. It follows that law is a matter of unconscious
growth. Law making should, therefore, follow the course of historical
development. Savigny considered custom as preceding and superior to
legislation. Legislation should always conform to the popular
consciousness. Law is, thus, not of universal application. It varies with
people and ages. Volksgeist, according to Savigny, is the standard by which
laws are to be justified.
Savigny clearly admitted that Volksgeist only formulated the rudimentary
principles of a legal system, and it did not provide all the necessary details.
As society, and consequently law, becomes more complex, a special body of
persons is called into being whose business is to give technical, detailed
expression to Volksgeist. These are the lawyers whose task is to reflect
accurately the prevailing geist. In the branches of law the Volksgeist manifests
itself; it would be helpful if legislators took account of traditions when
framing new laws. Even though Savigny maintained that legislation was
subordinate to custom and should conform to Volksgeist, he did not oppose
legislation or reform by way of codification at some appropriate time in the
future. The only requirement is that codification should be preceded by an
organic, progressive, scientific study of the law.
Comments on VOLKSGEIST
Even those who accept the idea of Volksgeist point at the difficulties in fixing
it with precision. Savigny treated it as a discoverable thing. However,
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our experience is that even in a small group, people hold different views on
different subjects. This is all the more true for a nation. Some critics go to
the extent of saying that the geist does not exist.
History is replete with examples of transplantation of law in alien lands.
Roman Law was transplanted in Europe. Roman-Dutch Law was taken to
distinct places, and it still survives in South Africa and Sri Lanka, long
after it has disappeared from its homeland. The reception of English Law
in so many parts of the world, including India, is also an evidence of
supra-national adaptability and resilience. All this is inconsistent with
Savingys idea of Volksgeist, and goes to show that there is some quality in
law other than just popular consciousness.
It has been pointed out that the influence of Volksgeist is only a limited
one. Its influence seems to manifest itself more strictly in some branches of
law than in others. For instance, inspite of the successful introduction of an
alien system of law into India and Turkey, the indigenous family laws
remained practically unaffected.
Some commentators have drawn attention to the distinction between the
creative influence of Volksgeist, and its adaptative and abrogative influence.
In modern times, the function of Volksgeist is that of modifying and
adapting, rather than creating. The fact that law is sometimes used
deliberately to change existing ideas and may also be used to further inter-
state co-operation in many spheres, is not recognised by the historical
school.
Some other limitations of Volksgeist also need to be mentioned. Many
institutions have originated, not in Volksgeist, but in the convenience of a
ruling oligarchy. Slavery is a clear example of this. In India, the practice of
untouchability was started by the dominant classes. It is pertinent to point
out that many customs owe their origin to the force of imitation, and not to
any innate conviction of their righteousness.
Volksgeist does not adequately explain the existence of local custom. The
question is if law is the product of Volksgeist, how is it that only some people
and not all have evolved a special rule? Savigny tries to explain this by
recognising the existence of inner circles within a society.
In any modern state important rules of law very often develop as the
result of conscious and violent struggle between conflicting interests, and
not as a result of imperceptible growth. The laws protecting the rights of
workers is a conspicuous example. In India, the conflict between the
landless labourers and the landowners has seen violent agitation and
intervention of law in the form of land reform legislation. Thus, at least in
som cases, instead of being a reflection of Volksgeist, law has in effect shaped
Volksgeist. .
Roscoe Pound was critical of Savigny s juristic pessimism in distrus


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i
74
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Approaches to Law I: Historical Approach
75


I
any deliberate attempt to reform the law, and in not recognising the
creative work of judges and jurists. Dias observes that Savigny did grasp valuable
truth about law, but ruined it by over emphasis.
Inspite of its limitations, the historical approach has made many significant
contributions to the legal theory. It provided a great stimulus
Vinogradoff, Pollock, Maitland, and Holdsworth. It clearly demonstrates the close
connection between the Common Law, and the social and political history of
England.
By insisting that law cannot be understood without an appreciation of
the social milieu in which it had developed, the historical school
destroyed the idea of immutable rules of law discovered by abstract
reason. In the place of moral authority behind law, the historical school
substituted social pressure. This bridged the gap between historical, and
sociological schools. Though the historical school challenges most of the
assumptions of the natural law school, there is one point where both these
theories concur. Both consider formal criteria of validity of law to be of
subordinate importance. Thus, the growing influence of the historical
school indirectly paved the way for the resurgence of natural law.
In a period when the emphasis was shifting from custom to legislation
and attempts for law reforms through legislations were in full swing, the
historical school demonstrated its perils and taught the lesson that
development should flow within the channels of tradition. It also
demonstrated the connection between some parts of law and cultural
evolution, and the need to delve into the past sometimes in order to
obtain a full understanding of the law as it is at present.
We have now seen the contribution and limitation of the historical
approach. Now how do we conclude our discussion? We borrow from
Paton who observed: The historical method in jurisprudence should be
supplemented by a critical approach based on a philosophy of law, in order
that true perspective may be maintained.
There are some other approaches to law closely allied to the historical approach,
which are also generally discussed along with the historical school. We will examine
them briefly.
ANTHROPOLOGICAL APPROACH
Henry Maine, who is considered to be the greatest representative of the
historical school in England, inaugurated both the comparative and
111 sense of historical perspective in the outlook of lawyers. In England, the
WQ Q ij influence of the historical approach can be seen in the writings of Maine,

I
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anthropological approaches to the study of law. Instead of stressing the
uniqueness of national institutions, he brought to bear a scientific urge to unify,
classify, and generalise the evolution of different legal orders.
Tracing the pattern of legal development, Maine identified four stages,
(i) law-making by personal command believed to be of divine inspiration;
(ii) commands crystallise into customs; (iii) the ruler is superseded by a minority
who obtain control over the law; and (iv) revolt of the majority against oligarchic
monopoly and publication of law in the form of a code. According to Maine, static
societies do not progress beyond this point. However, progressive societies
proceed to develop the law by three methods, viz legal fiction, equity, and
legislation. By the use of fiction, law could be extended or changed to meet the
changing needs of society, while it was pretended that law remained unchanged.
Equity was a set of principles that were conceived to have a higher sanctity than
the current rules of law, and, therefore, could supersede law. Legislation is the
direct law making by the authority of the state. Maine recognised that the progress
of civilisations demanded an increasing use of legislation. Codification is an
advanced form of legislative development, and represents the stage at which all
the preceding phases of development are woven into a coherent whole.
According to Maine, in early societies the legal condition of the individual was
determined by status. It means that his claims, duties, liberties etc, were
determined by law. The march of progressive society witnessed the disintegration
of status and the determination of the legal condition of the individual by free
negotiation on his part. This is summarised in Maines famous observation: The
movement of progressive societies has hitherto been a movement from status to
contract.
Maines status to contract theory may be illustrated with reference to the early
Indian society. In the age of ancient codes, such as the Smritis, family was a unit of
the society. Legal conditions of the individual, his rights, duties, privileges etc,
depended on his status in the family. Subsequent social developments reduced the
authority of the pater family or the karta of the joint family. The rigid dependency of
the individual status gave way to a greater freedom of will and movement. The
individual acquired the capacity to enter into contracts, and to involve himself in
personal obligations. Another example is the position of slaves who were not
recognised as persons by law. Gradually, they acquired freedom, eventually
slavery evolved into contractual relation of employer an employee. Early history
also reveals the denial of many legal rights, i
nC
*
uC
^ the right to own property and
the right to vote, to women. In society, a persons status determined his relation to
land. However, all are now things of the past.
Legal scholars have raised doubts about the relevance of Maines status to
contract theory in modern times. Some trends now indicate even a return to
status. Collective bargaining has reduced the worker to the status of mere member
of a trade union, curtailing his individual freedom of contract. The growing power
of employers and the standardised forms of contracts, which leave no choice to the
employee, show the swing of the pendulum to the other extreme of making the
worker a slave again. In other fields also a return to status from contract is
Approaches to Law I: Historical Approach


becoming visible, eg, standardisation of landlord-tenant relations, debtor-creditor
relations, insurance, supply of services etc. The terms and conditions of social
relations in these fields are now fixed by law, and not by free contracts.
Fieldwork carried out by anthropologists, notably Malinowski, brought to light
several inadequacies of Maines theory. It revealed that primitive law was neither
as rigid as Maine had thought, nor were people inflexibly bound by it. Primitive
societies exhibited a wide range of institutions, and considerable latitude was
inherent in the conduct of their customary practices. Even in primitive societies
people controlled their destinies. They were by no means blindly subservient to
customs.
Maine was of the opinion that law and religion were indistinguishable in
primitive societies. This assertion has been rejected by Diamond who says that it is
a comparatively recent development. In primitive societies a phenomenon could
be isolated from religion and other social observances, for which the term law
would be convenient. This view emphasises the secular character of primitive law.
Malinowski held the view that obedience to custom rested on the reciprocity of
services. People did unto others what the law bade them to do, because they
depended on some service in return or as part of this mutual co-existence. He
underestimated the part played by sanction.
Most anthropologists agree that what is called law should be described in terms
of its functions and the attitude of the people towards it, rather than in terms of
form or enforcement.
DIALECTICAL INTERPRETATION
This theory, associated with the great thinker Hegel, distinguishes between laws of
nature, and positive laws. Laws of nature are outside human consciousness, and
can never be improved. They have to be accepted because they exist. Positive laws,
on the other hand, are man-made and, as such, do not have to be accepted because
they exist.
Hegel considered evolution as a process of action and reaction between
opposites, thesis and anti-thesis, which results in their synthesis. The idea is thesis
and its anti-thesis is the idea outside itself, which is nature. The synthesis is spirit,
of which the Volksgeist is possibly an aspect. The subjective spirit (thought and
consciousness) and its anti-thesis, the objective spirit (legal and social institution)
are synthesised in the absolute spirit. Law comes into the category of objective
spirit. Law and other social institutions, according to the Hegelian theory, are the
result of free subjective will endeavouring to realise freedom objectively.
BIOLOGICAL INTERPRETATION
Herbert Spenzer advanced a theory of law, drawing parallels between the social
organism, and the biological organism. According to him, the adaptation of the
individual to social conditions is due to heredity. He inherits a social instinct from
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his ancestors, including ideas of morality, obligation, right, and justice. In this
manner different sociological groups evolve differently, and so do their laws and
institutions.
Spencer identifies two stages in the process of evolution. In the first, which is
primitive, war and compulsion figure prominently. In the second, which is
advanced, peace and freedom are prominent. Spencer was a strong individual with
a laissez faire approach to government. He denied the complete absorption of the
individual in the state, and maintained that the duty of government was to secure
individual to the greatest possible extent. With his strong belief in the evolution of
law, Spencer naturally did not have much faith in legislative reform.
RACIAL THEORY OF LAW
This theory, which prevailed in National Socialist Germany under Hider, is based
on the following two cardinal principles:
Leadership Principle
The state is a group, and a group has no strength or unity without a leader. The
leader, therefore, becomes the mystical personification of national unity. Law and
the states become the same thing and since the leader is the embodiment of the
state, law is what the leader commands. This implies the following: (i)
unquestioning obedience; (ii) law should serve political ends; and (iii) nothing, not
even reverence for statutes, should stand in the way of implementing the will of the
leader.
Racial Principle
According to this theory, law was inherited by blood. It should (i) save the ends of
the state and its policies; and (ii) help to preserve racial purity, for the state cannot
be strong, unless it is racially pure.
According to this theory, the only international system, which could be tolerated,
was a nordic one, ie, one based on a blood tie. Every state has a natural privilege
and power to prevail over other states, and to take their land for its own people.
This theory derived inspiration from the historical school, biological
interpretation, and the Hegelian theory, but in a perverted way. From the historical
school, the idea that the roots of law lie deep in the past was adopted to lend a
nationalist flavour to the racial theory. The biological theory was used to
perpetuate the idea that law was inherited by blood. The Hegelian theory, which
showed how the individual could be integrated into society, was utilised to
suppress individual rights.
GIERKE: A HISTORIAN WITH A SOCIOLOGICAL PERSPECTIVE
Approaches to Law I: Historical Approach


Gierke, who carried on the survey of the historical school further, represented a
collectivist rather than an individualist approach. To this extent, his work is closer
to that of the sociologists, but his interpretation of this development on historical
lines earns him a place among the front-runners of the historical schools.
The distinct contribution of Gierke lies in his emphasis on the significance of
associations. Gierke denied that the recognition of an association as a person
depended on the state. According to him, the reality of social control lies in the way
in which autonomous groups within society organise themselves. He then
proceeded to trace the progress of social and legal development in the form of
history of the law, and practice of associations.
Gierkes critics point out that he never quite succeeded in reconciling the
independence of autonomous bodies with the supreme power of the state.


















































SOURCES OF LAWCUSTOM 181


the Parliament or the courts for regulation of human conduct. The material
source of law is that from where the matter of law is derived, e.g., custom
which is the product of community practices and traditions. However, all
jurists agree that there are three main sources of law, e.g., custom, legislation
and judicial precedent. An effort is made herein to study custom in this
chapter.
Custom and Its Position in Indian Law
In all societies whether of the West or East, developed or
undeveloping, primitive or modem, custom has enjoyed a respectable place
in varying degree in the regulation of human conduct. It has been
considered as the outward expression of latent principles of justice, social
values and moral norms of each society which it cherished as fundamental
in the governance and administration of justice. With the historical process
and gradual evolution of societies the institution of custom also acquired
great potency and came to be regarded as one of the important sources of
law. In England the entire English law including the law of merchants ; in
Germany the codification of German Civil Code in 1901 is based on
German customs. In India the Hindu and Muslim personal laws have been
mostly based on customs. In ancient India Manu declared that it is the duty
of the king to decide all cases according to principles drawn from local
1

usages. Narada also says 'custom decides everything and overrules the
sacred law'. Likewise Asahayaone of earliest writers says 'immemorial
usage of every country (or province) handed down from generation to
generation can never be overruled on the strength of the Sastras'. Thus all the
ancient Hindu jurists Manu, Narada, Brihaspati, Katyayana and
Yajnavalkya gave to custom . a high place which even was obligatory on
the monarch in administration of justice. The Muslim law equally
recognised customs urfs which have accepted to suit the needs of different
classes of people who embraced Islam. Hedaya says, 'custom does not
command any spiritual authority like ijma of the learned, but a transaction
sanctioned by custom is legally operative, even if it be in violation of a rule
of law derived from analogy. It must not, however, be opposed
2
to a clear
test of Koran or of an authentic tradition. In modem India
3
in the face of
march of legislation over other sources custom has not altogether

1 Manu VIII, 3.
2 See also Jowla v. Dlmrinu Singh, 101.A. 511.
3 For critical evaluative study of Customsee Jain, M. P., Custom As a Source of Lmo,
3 Jaipur Lew Journal, 96-130 (1963).


JURISPRUDENCEA STUDY OF INDIAN LEGAL THEORY
been abrogated by legislation. Articles 25, 26 and 28 of the Constitution
indirectly guarantees the protection of such customary practices of a
community which of course are not. contrary to the concept of secularism
and democratic socialism. The existing enacted Hindu law concerning
marriage, succession, adoption, divorce, etc., in essence retains the
customary feature of old Hindu law which are still considered useful and
necessary by our social reformers. The contemplated movement of a
uniform civil code as envisaged in Article 44 of the Constitution too
cannot altogether be shorn of principles, values and goals which have
been cherished by the Indian people irrespective of their race, or, religion
or language, etc.
CustomMeaning
Jn Sanskrit there are three terms AchqrnJrules relating religious
observances) Vyavahara jthe rules of civil law) and Sadachara (the) usage >of
virtuous men). The word Sndachara
4
therefore, has been used for custom
which means The custom" "handed down in regular succession from
times immemorial
a ^ I I ' I I I S B . . . . . . . . . . . . . . . . . . . . . . . . . . . . . rv" ..Vr - 1
among the four chieT castes (Vama) and mixed races of the
counlry\__Accordingly iJadachdra "or approved'usage only means that it
shoulcTnot be contrary to Pharma. According to Webster^" 'Long
established practice considerecT as unwritten law and resting for
authority on long consent; a usage that has by long continuance acquired
a legally binding force'. As such 'custom' is not to be understood in the
sense of 'usage' which is also based on long practice but has not acquired
binding or obligatory character. Nor a usage can be exercised as of right
inhering in one individual and binding pn the other against whom such
usage is claimed. Salmond says
5
'Customary law is that which is
constituted by those customs which fulfil the requirements laid down by
law as the condition of their recognition as obligatory rules of conduct'.
Hence a legal custom can be easily distinguished from social customs and
general user in the sense the former is obligatory, binding accompanied
with sanction while the latter ones are merely the norms of social conduct
without being legally binding or enforceable.

4 Quoted by Mayne on his classic work on Hindu Law and Usage 61 (Ed. Aiyer
(1953).
5 Jurisprudence, 136 (1957).
182




















































any, tentatively, by the action of the legal profession". The high quality of the
Roman system of private law is largely due to the existence of "an organ of
government specially charged with the duty of watching, guiding and from
time to time summing up in a concise form the results of the natural
development of the law". The law more directly influenced by political
changes is most successfully created "by the direct action of the sovereign
power in the State, whether the monarch or the Legislative Assembly acting
at the instance of the executive". The view of Dr. Friedmann is that the
studies of Bryce serve as a corrective to Savigny's overemphasis on the law,
influenced by the juristic profession, as compared with the "spontaneous
and irregular" development of law due to economic and social
phenomena.
11

Estimate of Historical School
The one invaluable contribution which the Historical School has made to
the problem of the boundaries of jurisprudence is that law cannot be
understood without an appreciation of the social milieu in which it has
developed. Historical jurisprudence is a movement for fact against fancy, a
call for a return from myth to reality. In this sense it cannot be said to be a
juristic school, independent of history, unless it furnishes a method of
progress and evolution for interpreting and developing law. If law evolves,
the Historical School must tell us how it evolves. If it is incapable of that or
refuses to do that, it ceases to be a juristic school since it is powerless to
furnish a creative method.
The view of Paton is that the historical method in jurisprudence should
be supplemented by a critical approach based on a philosophy of law in
order that a true perspective may be obtained. Evolution is not necessarily
progress and one of the best aids to our own shortsightedness in dealing
with the familiar common law is an acquaintance with many systems. This
is well recognised by those who pursue the historical method today.
Saleilles gives his criticism of the Historical School of Law in these
words: "The Historical School had opened the way; it remained as if glued
to the spot, incapable of using the instrument of evolution and
" Legal Theory, p. 172.


JURISPRUDENCE AND LEGAL THEORY [CHAP.
practice which it had just proclaimed. The reason was that it had in advance
clipped its wings and disarmed itself by declaring that it could not
scientifically exert an influence on the development of the phenomena of law;
it could merely wait, register and observe. It refused to become a method
either of creative legislation or interpretation. The Historical School had
abdicated... . To note after all is not to create. History in its application to the
social sciences must become a creative force. The Historical School had
stopped halfway".
Comparison of Historical and Analytical Schools
According to Dias and Hughes: "The distinction between analytical and
historical jurisprudence is not one of kind, but of emphasis. They are both
analytical in method, the distinction between them being that in the one case
attention is fixed on concepts as they are today, while in the other case account
is taken of a process over a period of time. Not only does it seem misleading to
indicate this distinction by affixing the term analytical to one, but the
distinction itself breaks down in the case of some concepts, notably ownership,
where it is not possible to
understand their nature at the
present time without reference to
their history
12
".
Historical School
1. Historical School concentrates its
attention on the primitive legal
institutions of society.
2. Law is found and not made.
Law is self-existent.
3. Law is antecedent to the State and exists
even before a State comes into existence.
4. Law is independent of political
authority and its enforcement. Law
does not become law merely
because of its enforcement by the
7. New International Dictionary 650 (1957).
506
Analytical School
1. Analytical School confines itself to
mature legal systems.
2. Law is an arbitrary command of
the sovereign.
It is the deliberate product of
legislation.