Custom is the oldest form of law making. So it is the oldest and traditional source of law.
Custom is the foundation of modern law. Normally, law found in society is custom.
It is unwritten law created by human beings. Law based on custom is known as customary laws.
In fact custom is one of the most fruitful sources of law law. Customary rules fill the gap of law while dispensing justice by the court.
A study of ancient law shows that in primitive society, the lives of people were regulated by custom which is developed spontaneously according to circumstances.
When the same thing was done again and again in a particular way, it assumed the form of custom.
According to Carter, “Custom is the uniformity of conduct of all persons under like circumstances.”
According to Salmond, “Custom is the embodiment of those principles which have commended themselves to the national conscience as principle of justice and public utility.”
Holland illustrates, Custom by giving a suitable example that it grows just a track is formed across a grassy land by constant passing of people over it ally or by mere accident. Once it is formed, other follow the same track and thus, a path is made. In the same manner, a custom started to become a cource of conduct in a given society.
Nepalese law has accepted some customs which have legal authority.
According to Muluki Criminal Code, no one shall be punished for a marriage or sexual intercourse in keen relation and such marriage shall consider being valid in accordance with their tradition followed by their caste(race) or ancestry(kul). There are various such legal provisions regarding the legal authority of custom.
Finally, we can conclude that custom is a practice that has followed in a particular locality in such circumstance that is to be accepted as part of the law of that locality.
Validity of Local Customs :
The following criteria are necessary for being a valid and enforcebale custom :
Local custom must not be contradictory with the statutory law. In other words, a local custom should not be inconsistent with the provision of Act of parliament. Any local custom contradictory with legislation is not valid custom and has no binding force as a source of law.
Local custom, to have the force of law, must be ancient and immemorial. The custom must have existed since so long time that memory of man should not be contrary. The time of legal memory became distinguished from the time of human memory. The date of legal memory was fixed at 1189, therefore, any local custom existed before that date id considererd as antique.
Local custom, to be valid and binding as source of law, must be practiced continuously; should not be discontinued at any time. Local custom must have been exercised without any interruption.
Custom must have been enjoyed peaceably by public not by force for getting validity and to be source of law.
Custom must be regarded as mandatory but not merely as selective for its validity as binding source of law.
The custom must be certain and definite. It must not be vague and ambiguous. The existence of custom must be proved as a matter of fact for its validity.
Custom must be consistent with each other. Therefore, one custom should not be contradict to another.
A custom to be reasonable, it must be useful and convenient to the society. It is said unreasonable if it is opposed to the principle of justice, equity and good conscience.
Types of custom
There are two kinds of custom :
1. Legal custom
A legal custom is one which possesses in itself the force of law. These customs operate as a binding rule of law. A legal custom is one whose legal authority is absolute. Legal customs may be divided into two classes:
i. General custom
A rule or tradition recognized and obeyed by the society throughout the country is general custom. All general customs shall be absorbed by society as law. The general custom is general, uniform, and certain and of such long standing that the courts will take judicial notice of its existence.
ii. Local custom
A rule or tradition regularly obeyed by the particular locality is a local custom. Such custom may be recognized and enforced by the courts. In other words, local custom prevails in some defined locality only. A custom, to be enforced by the courts as a source of law, must follow certain criteria.
2. Conventional Custom
A conventional custom or usage is an established practice which is legally binding. It is a practice established by having been followed for a considerable period of time, and arising out of contract between parties, it does not arise out of its own force. Conventional customs are those customs which govern parties an agreement because they have been agreed to be bound by it.
Importance of custom as source of Law
In primitive society, there was no written law, the society was governed by customs, religion, theology, traditional norms and values.
With the advance of civilization and emergence of the state, the customary rules have been incorporated by court in their decisions. In this way, custom had played the significant role in the evolution of the law.
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In this context, we have prepared above material for the frequently asked question in the subjective examination like – (What is Custom ? Describe the types and importance of it.) We have prepared it on the basis of various study materials. – Editor)
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