SOURCE OF LAW

Table of Contents

• Meaning of Sources of Law
• Types of Sources
• Custom as a Source of Law
• Types of Custom
• Essentials of a Valid Custom
• Case Law Reference

Meaning of Sources of Law

The term ‘Sources of Law’ has been interpreted differently by various jurists. In simple terms, it refers to the origins from where laws or the binding rules of human conduct derive their authority.

In the Indian context, the phrase is used in two primary senses:

1. 1. As the sovereign authority from where law emanates.
   2. As a means to find the law, i.e., the materials one must consult to determine legal rules.

Types of Sources of Law

As per Salmond, sources of law can be categorized into:

1. Material Source of Law

This refers to the substance from which law originates. It answers the question — “Where did the content of the law come from?” There are two types of material sources of law:

➤ Legal Sources

Legal sources of law refers to the source of law which are authoritative, creates legal rules and recognized as such by the law itself through the mouth of the court. These sources include the following:

1. 1. • Legislation
      • Precedent (Case law)
      • Customary law
      • Conventional law

➤ Historical Sources

Historical source of law refers to the source of law which are unauthoritative in nature. These include historical documents, juristic writings, and customs that may not be enforceable but influence legal development.

2. Formal Sources of Law

These are the sources from which the law derives its authority and enforceability. They make the law binding.

Custom as a Source of Law

Customs play a vital role in regulating human behavior and are considered one of the oldest sources of law.

Definition: According to Webster’s Dictionary, a custom is “the uniformity of habits or conduct of people in like circumstances.”

For a custom to become law, it must be recognized and enforced by courts upon meeting certain legal conditions.

Types of Customs

1. Conventional Customs (Usage)

These are customs based on established practices between parties, and their authority depends on mutual agreement. They become binding when parties expressly or implicitly agree to them. Example: A rental agreement between landlord and tenant concerning payment norms.

Conditions for a valid conventional custom:

1. 1. • Must be reasonable
      • Should be old enough to be generally known
      • Not contrary to general law
      • Must not oppose public policy or morality

2. Legal Customs

These customs are legally enforceable and do not depend on the consent of the parties involved. Courts must recognize them.

Sub-types:

1. 1. • Local Custom: Local custom refers to the custom which are prevalent in a specific locality
      • General Custom: General custom refers to the custom which are practiced universally throughout a country or region

Essentials of a Valid Custom

1. 1. 1. Antiquity(valuable)- A custom to be valid should have been in existence for a long time. In English law the year 1189 A.D. has been fixed for the determination of a valid custom.
      2. Continuous- A custom should have been in a continuous practice. It should be without any kind of interruption. It should be continuously observed and peacefully enjoyed. A valid custom should not have long intervals because it raises doubt about the validity of the custom.
      3. Reasonableness- A custom should be reasonable. A custom shall not be valid if it is unreasonable and repugnant to right and reason and likely to do more mischief than good.
      4. Consistency- A custom to be valid, must be in conformity with statute law. In simple words, it should not be contrary to an act of parliament. A custom should necessarily yield where it conflicts with a statutory law.
      5. Morality- A custom which is immoral or opposed to public policy cannot be a valid custom. Court have declared many custom invalid on the basis of immorality as they were practice for immoral purpose as they were opposed to public policy.

Landmark Case

Baba Narayan vs Saboosa[(1943) 2 MLJ 186]- In this case it was held that for a custom to be valid, it must have been followed for a sufficiently long time. Long-standing usage is essential for legal recognition.

References:

1. Studies in Jurisprudence and Legal Theory by Dr. N.V. Pranjape