INTRODUCTION

Custom in law is the established pattern of

behaviour that can be objectively verified

within a particular social seting.A claim can be
carried out in defense of what has always
been always been done and accepted by law.

WHAT IS A CUSTOM?
Custom is a habitual course of conduct observed

uniformly and voluntarily by the people concerned.

Custom is one of the oldest forms of law making.
In earlier times what was generally accepted by the
people and embodied in their customs was deemed to
be right and which was disapproved by them or not
embodied in their customs was deemed to be wrong.
A certain rule or practice is followed by some one for
reasons into convenience, others without being
obliged to do so follow the same rule.Eventually that
rule or practices becomes a habitual course of conduct
in the society giving rule to a custom.

POSITIONS OF CUTOMS IN VARIOUS

ANCIENT LEGAL SYSTEMS.

Custom has been the most important

source of law in the legal systems.

Custom have been most important source
in moulding ancient Hindu Law.
The smritis have strongly recommended
that customs be followed.
Some of the smritis underlined
significance of customs by saying that
suppression of customs would give rise to
resentment and rebellion.

Kinds Of Custom
There are two kinds of custom:
(i) Legal Custom-A legal custom is one whose legal
authority is absolute, one which in itself possesses
forces of law. Such customs are not only recognized
but also enforced by law. The rule of per-emption in
Mohammedan law is an example of legal custom.
(ii)Conventional Custom-A conventional custom is
one whose authority is conditional on its acceptance
and incorporation in agreements between the
parties to be bound by it.

When does a custom become a

law?
An important controversy is whether a custom

is already law and can be regarded as such

independently of judicial recognition? Or
When does it become a law?
There are two schools of thought on this
controversy which are as follows

Analytical Schools
view
Austin, one of the main priests of analytical

school, defined law as a command of

soveriegn.Thus, according to Austin law
property so-called is that which comes directly
from the soveriegn or from an agency which
has been permitted by the sovereign to lay
down a rule of law.

Historical Schools
View
The writer believes that custom is law per se,It

does not requires state recognition to become

law.
Custom carries its own justification in itself
because it would not exists at all unless some
deep seated need of the people or some quality
of temperament gave rise to it. According to
Savigny,one of the main exponents of historical
school, custom is the badge and not a ground of
origin of positive law.

Essential of Valid Legal Custom

A custom is a rule which in a particularly family

or in a particular district or state becomes

established by long usage. It is that each and
every custom can be legally enforced if it fulfills
certain essential pre-requisites.These prerequisites are:
(i) Custom must be ancient i.e., must have an
immemorial antiquity.
(ii)It must be continuous.
(iii)It must not be immoral.
(iv)It must be contrary to justice, equity and
public policy,
(v)It must not be contrary to justice, equity
and public policy.
(vi)It must not be contrary to statutory law.

Conclusion
Therefore, Hindu thinkers, held the customs

and usages of the people living in different

climes. In doing so they created a favorable
climate for the evolution of customary law.
Thus customs give birth to the law!

THANK YOU !