INTRODUCTION
Customs are government regulations and procedures that control the flow of goods and people across international borders. They involve the collection of duties and taxes, the enforcement of import and export restrictions, and the prevention of illegal activities such as smuggling and trafficking.
MEANING OF CUSTOM
Custom means a practice that has come to have the force of law by its joint adoption and the long unvarying habit.
DEFINITION OF CUSTOM
According to Prof. Keeton:
Custom is the uniformity of conduct of all people under like circumstances.
According to Austin:
Custom is a rule of conduct that the governed observe spontaneously and not in pursuance of law settled by a political superior.
ESSENTIALS OF A VALID CUSTOM
To be fully operative as a source of law, a custom must satisfy the following requirements.
1. Reasonableness:
A custom must be reasonable because no court will enforce an unreasonable business. The cheap custom should be judged concerning the general principles at the root of the legal system. A tradition is contrary to reason if it opposes the principles of justice and equity.
2. Continuous Observance:
For valid custom, it should have been acted upon for such a long time that it is by common consent submitted as a general rule of a particular area. If custom has not been followed continuously for a long time, it may have never existed.
3. Immemorial Antiquity:
For a custom to be valid, it should have been observed from time immemorial. Businesses had to possess a sufficient measure of antiquity. Good means that it should be so old that the memory of man can not trace its origin.
4. Not opposed to Public Policy:
A custom should not be opposed to morality or public policy principles. Recognition of a custom causes greater evil than the right being denied, which is against principles of morality or public policy.
5. Not contrary to any other Custom:
A valid custom is that which is consistent with the other businesses. It should not be contrary to different traditions.
6. Not opposed to Statute law:
A valid custom must not be opposed to the statute law of the country. Therefore, the general view is that no business is superior to any statute law and would stand invalid if business contradicts the statute law.
7. Peaceable enjoyment:
Custom must have been enjoyed peaceably. If a custom is in dispute for a long time in a law court or otherwise, it will not be considered a valid custom.
8. Compulsory observance:
For a custom to be valid, its observance is compulsory. It means that a business should be observed by all those concerned with it. An optional adherence is ineffective, absurd, idle, and has no custom.
9. Observance as of Right:
A valid custom is a source of law. It must have been observed as of right. It must have been followed openly. It must have an obligatory force and must have been supported by the public’s general opinion.
10. Positive Morality:
Valid custom is not against positive morality. An immoral business is considered flawed and unrecognisable by a court of law.
11. Universal or General:
A custom that is not universally or generally followed does not fall in the valid custom category.
12. Massive Support:
A valid custom should have the massive support of a group of people. If such happens, that business will attract legality and differ from a prescription attached to an individual.
13. Reflection of Justice:
The legal phenomenon cannot be isolated from society’s historical, political, social, and moral context except by drawing an arbitrary cut-off point.
14. Certain and Definite:
A valid custom must be specific. It should not change with changing times
15. Exist as a fact:
A custom must not be deduced but should exist independently as a fact. The business, which is supposed by analogy, is not considered valid. It should be known to everyone and universally practised in local areas.
KINDS OF CUSTOMS
A custom having the force of law has the following two kinds:
1. LEGAL CUSTOMS
It is a custom that operates as a binding rule of law, independently of any agreement on the part of those subject to it. It is of the following two kinds.
Particular Customs: These are customs that prevail in some defined locality only, such as a city or country, and constitute a law source for a place only.
General Customs: These are those customs that prevail throughout a country and constitute one of the sources of law for that land
2. CONVENTIONAL CUSTOMS
Conventional customs are established practices that are legally binding not because of any legal authority independently passed by it but because it has either expressly or impliedly been incorporated into a contract between parties. Conventional customs, like a custom, may be either local or general.
For example, merchant law is derived from the conventional customs of merchants, negotiable instruments, and the sale of goods. It is based on businesses under certain circumstances, i.e. usages.
WHY DO CUSTOMS HAVE BINDING FORCE?
There are many reasons why custom is given the force of law.
1. Embodiment Principles of Custom:
If custom embodies those principles which commanded the national conscience regarding the principles of justice, truth, and public utility.
2. Authority of Long Acceptance:
The fact that any rule has the sanction of custom raises a presumption that it deserves the sanction of law. Its reason is that judges are inclined to accept those rules which have, in their favour, the prestige and authority of long acceptance of custom۔
3. Sign of National Conscience:
The custom is the external and visible sign of national conscience and, as such, accepted by the courts of law as an authoritative guide۔
4. Bringing Stability:
Custom may not be ideally just and reasonable, but it is undeniable that it brings Stability and certainty to the legal rule
5. Continuance of an Established Usage:
The existence of an established usage is the basis of a rational expectation of its continuance in the future. Justice demands that this expectation should be fulfilled and not frustrated.
6. Safe Guide for the Future:
In the past, whenever authority becomes a safe guide for the future. It is easier to secure reverence for a code if it claims to be based on customs immorally observed.
7. Material for the new law:
Custom is helpful in the sense that it provides material direction.
8. Interests of Society:
Custom rests on the widespread conviction that it is in the interests of society. This conviction is so firm that it is not found desirable to go against society
9. Force of Law:
Sometimes, a custom is observed by a large number of individuals in society, and over time, the same comes to have to force of law
CONCLUSION
In early times, customs were the sole source of law. Undoubtedly, with the development of the judicial system, the importance of custom is constantly diminishing. So, the custom has played an essential role in the development of law.
FAQs
Explain the prerequisites of a valid Custom.
(2019-A 5 years, 2017-A, 2016-A, 2015-8)
Define Custom. Explain various kinds of customs.
(2017-S, 2016-S, 2015-A)
Define Custom. What are the prerequisites of valid custom?
(2007-S)
