In this article we are going to define and explain Custom as a Source of Law in jurisprudence. Customs is a necessary part of the societal values and obligations. It is a habitual course of conduct having importance in social life as well as legal jurisprudence. Custom is great source of law because generally all custom make law to run a society. Custom as a source of law has been studied from many scholars. Custom is a habit that is adopt by a society to run their daily life.
Definitions of custom in Jurisprudence:
ohn Salmond says, “Custom is frequently an embodiment of those principles which have commended themselves to the national conscience as principles of justice and public utility.”
A general custom enjoys the force of law throughout state, just like the Common Law in England.
Local customs operates in a particular area and enjoy the force of law in specific society only. It has higher authority than the general custom.
Sir Henry Maine
Custom, according to Maine, played a crucial role in this transition. In societies based on status, legal rules were often derived from long-standing customs and traditions. As societies shifted toward contract-based systems, there was a move toward more formalized laws and written codes.
While Maine did not provide a specific definition of custom, his work highlighted the dynamic relationship between legal systems and societal evolution, with custom serving as a foundational element in the early stages of legal development.
He described the development in distinct steps. These are:
- Law by rulers under divine inspiration
- Developing of Customs
- Knowledge of law in the hands of priests
According to Allen “legal and social phenomenon growing up by forces inherent in society—forces partly of reason and necessity, and partly of suggestion and imitation.”
According to J.L. Sustin “Custom is a rule of conduct which the governed observe spontaneous and not in pursuance of law settled by a political superior.”