Customs and Precedent as a source of the law under Jurisprudence7 min read

BY- DEEPAK KUMAR JHA

Introduction

The term “sources of law” has been interpreted by different writers in various ways and it has been used in different senses. It is, therefore, necessary to distinguish between its various meanings and determine the premises of each. According to John Austin, the term “sources of law” have three different meanings. Firstly, the authority from whence the law emanates, namely, the sovereign. Secondly, historical material from which the existence of rules of law may be known, e.g., the Code of Manu, Commentaries of Yajnavalkya, Code of Justinian. Thirdly, the causes which give the rules of society the force of law, e.g., legislation, custom, equity, law, etc. Prof. Fuller, in his “Anatomy of the Law”, states that a judge interprets and applies certain rules to decide upon a case. Such rules are obtained from various places which are known as “sources”. According to Allen, sources of law are those agencies by which rules of human conduct acquire the character of law by becoming objectivity definite, uniform, and above all, compulsory. Salmond preferred to emphasize two main sources of law.

  • material source
  • Legal Sources
  • Legislation
  • Precedent
  • Customary Law
  • Conventional law
  • Historical Sources of Law (writings of eminent jurists, foreign judgments, etc.)

Custom as a Source of Law

The custom involves a significant spot in the guideline of human lead in practically every one of the social orders. Truth be told, it is perhaps the most established wellspring of law production. A custom might be characterized as a proceeding with a course of lead which by the passive consent or express endorsement of the local area noticing it, has come to be viewed as fixing the standard of direct for the citizenry. In any case, the significance of custom as a wellspring of law consistently decreases as the general set of laws develops. The explanation being that with the rise and developing force of the State, the custom is generally supplanted by enactment as a wellspring of law.

According to Manu, the roots of custom as a source of law in ancient India may be enumerated under four distinct stages, namely –

  1. Revelation, or the utterances and thoughts or inspired seers (Rishi-Munis);
  2. The utterances of revered sages, handed down by words of mouth from generation to generation (shruti);
  3. The approved and immemorial usages of the people; and
  4. That satisfies the sense of equity and a good conscience and acceptable to reason.

As rightly observed by Salmond “custom is to society what law is to the State”. Each one of them is the expression and realization, to the measure of men’s insight and ability, of the principles of rights and justice. The influence of custom on society is similar to that of law on the State.

Origin of Customs

Anthropological studies show that in early societies human conduct was regulated and controlled by customs which the people in general usually followed as a matter of habit. According to Savigny, the main founder of the German historical school, the custom is essentially a product of natural forces associated with the popular spirit of acceptance by the people. When people repeat the same action again and again, it assumes the form of “habit” and when habit continues to be in practice for a long time, it becomes custom.

According to Markby “nothing more is necessary for the growth of custom than that people should have some tradition of what their forefathers did before him, that they should repeat the same conduct on similar occasions, and that they should be convinced that what they do is right.

Custom exists as law in every country, though it tends to lose its importance relative to other sources of law with the changes in society. Customs are not laws when they arise, but that they are largely adopted into the law by the State recognition. Customary law assumes a binding authority provided it fulfills certain requirements and provided it is not suspended by law by a higher authority.

Kinds of Custom

  1. Conventional Custom
  2. Legal Custom – Legal customs are those which are operative per se as binding rules of law independent of any agreement between the parties.
  3. Local Custom
  4. General Custom

Essentials of a valid Custom

  1. Reasonableness – The Judicial Committee of the Privy Council delivering its judgment through Sir James Colvile in Raja Verma Vs Ravi Varma, observed that a custom permitting not merely the transfer of the trusteeship but sale of trusteeship of a religious endowment for pecuniary advantage of the trustee, was clearly unreasonable and bad in law, hence it was held to be invalid. In Ram Dhan Lal Vs Radhey Shyam, SC held that the custom of recognizing the channel of the river or stream as the boundary between two or more villages irrespective of its change in path cannot be said to be unreasonable and hence it was a valid custom.
  2. Consistency
  3. Customary observance – Hamperton Vs Hono, “If the observance of a custom is suspended for a long time, it would be assumed that such a custom was never in existence.
  4. Continuity and Immemorial Antiquity – Justice Rankin in Baba Narayan Vs Sabrosa, decided that though the existence of a custom from unknown (immemorial) time is not deemed necessary to give a legal validity, it should be continued in existence for a long time. He observed that the long existence of a custom gives it the force of a right to make it legally recognizable.
  5. Certainty

Theories Regarding Transformation of Custom into Law

  1. Historical Theory
  2. Analytical Theory

Judicial Precedent as a Source of law

Judicial precedent is another important source of law. It is a distinguishing feature of the English legal system because most of the common law is unwritten and owes its origin to judicial precedents. According to Salmond, the doctrine of precedent has two meanings namely, (1) in a loose sense precedent includes merely reported case-law which may be cited and followed by the courts, (2) in its strict sense, precedent means that case-law which not only has a great binding authority but must also be followed. According to Jeremy Bentham, precedent is a judge-made law while Austin calls it judiciary’s law, Keeton holds precedents as those judicial pronouncements of the court which carry with them certain authority having a binding force. Precedent has a binding force and therefore it is an important source of English law. Expressing his vies on precedents Blackstone pointed out that it is an established rule to abide by the former precedents where the same points come again in litigation. Justice Cardozo also supports the view that adherence to precedent should be the rule and not an exception.

Binding force of Precedents

The weight which judicial precedents carry to the decision of a case widely varies depending on the system of the country concerned. In England and the USA, a reported case may be cited with almost as much authority as an Act of the Parliament, but in continental countries, it does not carry the same. In India, the decisions of the SC have an authoritative and binding force so long as they are not overruled by the Supreme Court itself.

The Supreme Court in Union of India Vs Raghubir Singh highlighted the importance of binding nature of precedent in the development of law in the following words – “Taking note of the hierarchical character of the judicial system in India, it is of paramount importance that the law declared by this court should be certain, clear and consistent. It is common knowledge that most decisions of the courts are significant not merely because they constitute an adjudication on the rights of the parties and resolve the dispute between them, but also because in doing so they embody a declaration of law operating as a binding principle in future cases.

Kinds of Precedents

  1. Authoritative Precedent – An authoritative precedent is one that has a binding force and the Judge must follow it whether he approves it or not. Authoritative precedents are the decisions of the superior court of justice that are binding on subordinate courts.
  2. Persuasive Precedent – It is one which the Judges are under no obligation to follow but which they may take into consideration. It may be various kinds, –
  3. Foreign Judgements;
  4. The decision of Superior Courts to other parts
  5. Judicial dicta
  6. Authoritative textbooks and commentaries

In India, the decisions of the House of Lords, Privy Council, and SC of USA or Canada have only persuasive value. Article 141 of the Indian Constitution gives constitutional status to the doctrine of precedent in respect of law declared by the SC of India. The decisions of various HCs are binding on the courts below them within their State limits. The SC held that it is not bound by its own decision.

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