Kinds of Customs in jurisprudence

Kinds of Customs in jurisprudence: Long-established practices or unwritten rules that have acquired binding or obligatory character are called custom. In ancient societies, the custom was considered one of the most important sources of law. In fact, it is considered the real source of law in almost all societies or countries. With the advent of modern civilization, the custom as a source of law diminished and other sources such as judicial precedents and legislation become important.

There is no doubt that custom is a basic and important source of law. Broadly, there are two views that prevail in this regard on whether custom is the law. Jurists like Savigny consider custom as the main source of law. Jurists such as Austin opposed custom as a law because it did not bind societies in law. According to Savigny, the basic and real source of law is the will of the people and not the will of the state. The will of the people has always been reflected in the custom and traditions of the society.

kinds of customs

Kinds of Customs in Jurisprudence

Customs are divided into two classes: Legal customs and Conventional customs.

Customs without sanction:
These are non-obligatory customs in nature and are adopted because of public opinion.
Customs with sanction:
These customs are enforced by the law/State. These customs may be further classified into the following two categories:

Legal Custom

A custom whose authority is absolute and enforceable by law is called legal custom. It is recognized and enforced by the law of courts. Legal custom may be divided into  two types:

    • General Customs:
      The customs that prevail throughout the territory of the State are called general customs.
    • Local Customs:
      The customs that are applicable to a particular region of the country are called local customs.

Conventional Customs

The customs that bind the parties to an agreement are called Conventional Customs. When persons enter into an agreement related to trade then it becomes conventional custom. For instance, an agreement between landlord and tenant regarding the payment of the rent will be governed by conventions prevailing in this regard.

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