Q define custom and explain the difference between custom and law.
Q difference between custom and prescription or prescriptive that develops into a long practice that requires a practice of law.
Q short note on customary law
Traditional Legal practices or usual way of doing something by a group of a social community is called Custom. A study of ancient society shows that Law of the country had been found from the customs of the people which developed by people with need of the time. Custom is the legal source of law and customary law derived from general practices of the state followed by the people, they consider those customs as legal obligation.
In the early stages of a legal system custom hold sway. Undoubtley they gain their legal efficacy through imprimatur of acceptance by judges, but in point of existence they are prior to courts. In legal theory acceptance by the courts made them law proper. As the legal system grows so also custom diminishes in importance. It is so because as an instrument of development of law it gives way to legislation and precedent and as a law creating instrument stringent limitations are imposed by law on its acceptance. For example, in California the customs developed on the gold-fields for the regulation of the mining industry were given the authority of law by the legislature.
Kinds of customs: customs are divided into two classes:
a. Legal custom
b. Conventional custom
Legal custom: a legal custom is one whose legal authority is absolute- one which in itself and proprio vigore possesses the force of law. Legal custom is itself of two kinds, being either local or the general custom of the country. the local custom prevails in some defined locality only, General custom is the custom which prevail all over the country.
Conventional custom: it is one whose authority is conditional on its acceptance and incorporation in agreements between the parties to be bound by it. conventional custom is distinguished as usage. It is an established practice which is legally binding not because of any legal authority independently possessed by it, but because it has either expressly or impliedly been incorporated in a contract between the parties.
Reasons for the reception of customary law: there is more than one reason for thus attributing to custom the force of law.
1. Firstly the state power was so weak that it could scarcely create law; it could, however enforce customs which commanded respect and obedience, being a queer mixture of religion, practice and taboo.
2. Secondly, it seems said that custom is to society what law is to state. It is frequently the embodiment of those principles which have commended themselves to the national conscience as principles of justice and public utility. If law exists for making available to men social justice it seems but logical that law should accept customs
3. Lastly the existence of an established usage is the basis of a rational expectation of its continuance for the future unless there be very good reason for its discontinuance.
Validation of custom: In order to be valid custom must conform to certain requirement laid down by law:
1. Reasonableness: a custom must be reasonable. It does not mean that the courts will not recognize a custom if they are not satisfied of its absolute rectitude or wisdom or if they think better rule could be formulated by their own judgement.
2. Conformity with statute law: secondly, a custom must not be contrary to the statute. What is more, no length of contrary usage can modify the provision of statute.
3. Observance as of right: custom must have been observed as of right. It means is that the custom must have been followed openly, without the necessity for recourse to force and without the permission of those adversely affected
4. Immemorial antiquity: it relates to the length of time during which it has been established. Such custom to have the force of law must be immemorial. It must have existed for so long a time that, in the language of law, the memory of man runneth not to the contrary.
Difference between custom and law : explorer
Q what is sources of law and sources of right. Explain?
Custom is long practice operating as a source of law; prescription is long practice operating as a source of rights. Continue from pg 79
Custom and prescription write whole of it the mark from summary of salmond jurisprudence.
