Essentials of a valid custom in jurisprudence
Essentials of a valid custom: In the earlier ages the customs were the most important, and in some times/cases, the entire source of law. In every legal system custome is considred a basic source of law or main source for the developement of law, but in modern and stabled societies they are more rationalizes, and are certain and definite. Custom, as a source of law, involves the study of a variety of its aspects: its origin, and nature, its importance, reasons for its recognition, its classification and the necessity of a valid custom.
Requisites of a Valid Custom
We explain all requirement that must be full for a vaild custom. Custom must be reasonable, not contradectory with the sate rules and regulation, it must be certain, It must be according to public benifite, it must be consistance, genral public must accept. All the essentials of valid custom are given below in detail and also showen below in the picture.
A custom must be according to basic morality, the prevailing understanding of justice, health and best for public policy. If it is not reasonable in practise or origin, it cannot be considered a valid custom. As for example, Sati was an accepted custom once, but with the modern moral understanding, it is not reasonable therefore it cannot be considered a custom today.
However it does not mean that every custom must be perfect in its morality or ethical concerns, or contain eternal wisdom, it just needs to be relevant to contemporary times, useful and capable of being legislated on.
Conformity with Statute Law
The custom that is contravention to the existing law of the land not accepted as vailid custom. Any practise, however widespread and accepted, if found in violation of any statute of a said territory cannot be considered as a vaild custom. Here it must be cleared that in many areas in the world there are severial customs that are not valid but a specific adopted yet now.
A custom must be clear and unambiguous as to what the custom is and how it is practised. A custom can not acceptable for court of law when it is uncertain or indefinite. It needs to be objective and absolute in theory and in action.
A custom must be consistent with the general principles of Law that a state exist. These principles form the basis of ideas like, fairness and liberty, and every custom must be in consonance with these.
It is necessary requirement for the custom that it should followed for time immemorial. The practise must be so interrelated in society. A practises cannot be custom until they become firmly established in society or fully aacceptable in society.
The customs not come in conflict with other established customs its also very important requirement of a valid custom. All vaild customs should maintain consistency among the other customs. Therefore, it is said that a custom cannot be established in opposition to other customs.
Must be peaceful in its practise
Any custom must be beacefull and its practice shold always in the betterness of society. If a practice of any socitey is against the peace of any other socitey or genral public it can not be a custom.
Must not be opposed to Public Policy
A custom must not be opposed the public policy becuase vaild cutom alwyas protect individuls and society.
Must be General or Universal
According to defination of Carter,“Custom is effectual only when it is universal or nearly so. In the absence of unanimity of opinion, custom becomes powerless, or rather does not exist.”