CUSTOM AS

A SOURCE
OF LAW

Salmond's View
Salmond preferred to emphasis on
two main sources of law

Material
Sources

Formal
Sources

Material Sources: The material

sources are further sub-divided into
legal sources and historical sources.
From the material source, the law
derives only its matter and not the
validity.
Formal Sources: These sources are
those sources from which a rule of
law derives its force and validity.
Thus the will of the state as
manifested in the statute book or
decisions of courts are the formal

Keetons
View
According to Keeton, the sources of law
can be classified into two broad
categories

Binding
sources of law

Persuasive
sources

Binding Sources of Law: These

sources may further be
classified as :
(i) Legislation
(ii)Judicial Precedent
(iii)Customary Law
Persuasive Sources: These
sources are of three kinds:
(i) Principles of Equity
(ii) Professional Opinions

Kinds of Custom

Convention
al Custom

Legal
Custom

Conventional Custom: A conventional

custom is also called usage. It is an
established practice whose authority is
conditional on its acceptance and
incorporation in the agreement between
the parties bound by it. Conventional
custom is legally binding not because of
any legal authority independently
possessed by it, but because it has been
expressly or impliedly incorporated in a
contract between the parties concerned.
The development of customs essentially
involves three stages .Firstly, it must be
so well established as to have attained the
notoriety of a usage. In its second stage, a

Legal Custom:

Legal
customs are those which are
operative as binding rules of law
independent of any agreement
between the parties.

Legal customs are of

two kinds
Local
Custom

General
Custom

(i) Local Custom: A local custom is

that which prevails in some defined
locality whereas a general custom is
operative throughout the realm.
When the word custom is used it
refers to local custom. Halsbury
defined local custom as a particular
rule which has existed actually or
presumptively from time
immemorial, and has obtained the
force of law in a particular locality,

(ii) General Custom: A general

custom prevails throughout the realm
and constitutes on of the common law
of the country. A general custom is
usually practiced by all the people
living in the country and it is prevalent
throughout the land. According to
Keeton, a general custom must satisfy
certain conditions if it is to be a source
of law. It must not only be reasonable
but also be followed and accepted as
binding. It must be in existence from

Requisites of a
Valid Custom
In order to be a valid custom, it must
confirm to certain requirements laid
down by the law. The essential
requirements of a valid custom are :
Reasonablene
ss

Compulsory
Observation

Consistenc
y

Certainty

Continue and
Immemorial Antiquity

THEORIES REGARDING
TRANSFORMATION OF
CUSTOM INTO LAW
There are two main theories in this regard,
namely :

HISTORICA
L THEORY

ANALYTICAL
THEORY

HISTORICAL
The main exponent of historical school,
THEORY
namely, Savigny,
Puchta, Blackstone and

Henry Maine have suggested that law has

its existence because of the common
consciousness of the people and
customary laws completely modify or
repeal a statute; it may create a new law
and substitute it for statutory rule which it
has abolished. James Carter also supports
historical view and says, what has
governed the conduct of men from the
beginning of time will continue to govern to

ANALYTICAL THEORY
The main exponent of the analytical
theory of customary law was John
Austin who regarded custom as a
historical material source. He pointed
out that custom derives its binding
force not from its own nature but by
an Act of the Parliament or its validity
has been established by judicial
decisions. Thus a customary rule may
become a legal rule either by