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Concept of Custom with reference to Historical School of Law

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Concept of Custom with reference to Historical
School of Law

Project submitted to
Miss Anukriti Mishra
(Faculty of Law)




Project Submitted by
Vinay Kumar Sahu
(Sociology Major)
Semester Six
Roll No - 169





HIDAYATULLAH NATIONAL LAW UNIVERSITY
RAIPUR, C.G.


Concept of Custom with reference to Historical School of Law

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TABLE OF CONTENTS

Acknowledgement .....................................................................................................03
Introduction ................................................................................................................04
Reasearch Methodology .............................................................................................05
Objectives ..................................................................................................................05
Kinds of Customs ......................................................................................................07
Requisites of a Custom ..............................................................................................08
Historical Approach .................................................................................................09
Comments on Volksgeist 12
Anthropological Approach ...14
Dialectical Interpretation ..16
Biological Interpretation ...16
Custom and its position in Indian law 17
Conclusion .19
Bibliography 20






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ACKNOWLEDGEMENTS

At the outset, I would like to express my heartfelt gratitude and thank my teacher, Miss
Anukriti Mishra for putting her trust in me and giving me a project topic such as this and
for having the faith in me to deliver.
My gratitude also goes out to the staff and administration of HNLU for the infrastructure in
the form of our library and IT Lab that was a source of great help for the completion of this
project.

- Vinay Kumar Sahu













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INTRODUCTION

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 in it, is slavery.
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:
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1.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.

2.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.








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RESEARCH METHODOLOGY
The researcher has followed the non doctrinal method for research design. The research is
based on both primary and secondary sources. Books from the universitys library have been
used. Computer from the computer laboratory of the university has been used for the purpose
of secondary research and is the main source of project.


Doctrinal research is concerned with legal prepositions and doctrines
whereas non doctrinal method is concerned with social values, people and
social institutions in this more importance is given to society and people.


OBJECTIVES

The objective of this project is to
To discuss about Custom as a Source of Law.
To analyse Custom with reference to Historical School of Law.







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KINDS OF CUSTOMS

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 indirectly 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:
1.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.
2.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.
3. The usage should be a reasonable one.
4.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.
5.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
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not usage, but the statement of the characteristics which it should possess. 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
authority either 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.
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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 oflaw, 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 requisites for a valid custom.
1


HISTORICAL APPROACH
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 criticized, 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

1
Mahajans V.D, Jurisprudence and Legal Theory, 5
th
edition, Eastern Book Company.

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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 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 in 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
recognized. The French revolution, with all its brutalities, was considered as the culmination
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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.
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 basic 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
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time in the future. The only requirement is that codification should be preceded by an
organic, progressive, scientific study of the law.
2


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, 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. 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.

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

2
Jayakumar N.K, lectures in Jurisprudence 2
nd
edition, Lexis Nexis Butterworths Wadhwa, Nagpur.


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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
interstate co-operation in many spheres, is not recognised by the historical school.
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 some 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 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 to the historical study of law
and legal institutions, which has ingrained a sense of historical perspective in the outlook of
lawyers.
In England, the influence of the historical approach can be seen in the writings of Maine,
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
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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.

ANTHROPOLOGICAL APPROACH
Henry Maine, who is considered to be the greatest representative of the historical school in
England, inaugurated both the comparative and 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,
1.law-making by personal command believed to be of divine inspiration;
2.commands crystallise into customs;
3. the ruler is superseded by a minority who obtain control over the law; and
4. 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
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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, including 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 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
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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 (HEGEL)
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 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.
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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.

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
3
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
4
to a

3Manu VIII, 3.
4 See also Jowla v. Dlmrinu Singh, 101.A. 511.
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clear test of Koran or of an authentic tradition. In modem India
5
in the face of march of
legislation over other sources custom has not altogether 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.
6





















5 For critical evaluative study of Customsee Jain, M. P., Custom As a Source of Law, 3 Jaipur Lew
Journal, 96-130 (1963).
6
Dr. Paranjape N.V, Studies in Jurisprudence and Legal Theory, 6
th
Edition, Central Law Agency.

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CONCLUSION

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. Savigny
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 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.
History in its application to the social sciences must become a creative force. The Historical
School had stopped halfway".










Concept of Custom with reference to Historical School of Law

20

BIBLIOGRAPHY

Jayakumar N.K, lectures in Jurisprudence 2
nd
edition, Lexis Nexis Butterworths
Wadhwa, Nagpur.
Mahajans V.D, Jurisprudence and Legal Theory, 5
th
edition, Eastern Book
Company.
Dr. Paranjape N.V, Studies in Jurisprudence and Legal Theory, 6
th
Edition, Central
Law Agency.
Jain, M. P., Custom As a Source of Law, 3 Jaipur Law Journal, 96-130 (1963).