Sources of Law III: CustomOrigin and Importance of CustomThere are several theories concerning the origin of custom, and its relationship with the law. A discussion of those theories is not necessary for our purpose. However, a conclusion which emerges as a consensus of all the theories and is established by actual study of primitive communities is that custom is anterior to Kings and courts. The origin of custom may be traced to the very inception of the community itself. A community involves three essential elements: (i) the group; (ii) the existence of the divergent desires within the group; and (iii) the claims made by some members against others or against the group. Conflicting claims and desires within the group naturally generate problems. If the group is to remain a community, these problems must be resolved, for which certain norms are required. Even in a primitive community, a distinction must be made between what is actually done, and what ought to be done. It may also become necessary to reconcile the norms of the family, or the tribe with those of the community. When a problem arises, an answer must be found. Tact and sense of the merits and appreciation of the strength of each party, play a greater part than the desire to find a rule that is just and logically justifiable. Once a rule is adopted, practice generates conviction. Practice grows into convention. What makes convention a custom is the recognition that there is authority behind it. In other words, custom comes into existence when the community in some way backs a particular rule. In the modern state, the legally recognised custom is supported by the courts, and an apparatus of coercion.

Lecture #

Lecture 5Custom is not necessarily linked to any sense of justice. The existence of a custom may be justified by expediency or power relations in a community.The obvious example of a custom, which has no element of justice slavery.ltj18The importance of custom diminishes with the growth of a legal system since custom is superseded by legislation and precedent. Nevertheless custom is useful to the framers of law in two ways: (i) it provides the material out of which the law can be fashioned by saving the intellectual effort needed to create a law, de novo; and (ii) psychologically, it is easier to secure obedience to a law if it claims to be based on a custom immemorially observed. There is inevitably a tendency to adopt what has been followed in the past as safe guide for the future.The main reasons for the reception of Customary Law into the law of the modern state are:(i) Custom is frequently the embodiment of those principles, which have commended themselves to the national conscience as principles of justice and public utility, and are embodied in the maxim via trita via tuta, ie, frequented path is reliable path. The law embodies those principles that have been acknowledged and approved by the state in the exercise of its sovereign power. Custom embodies those principles that have been acknowledged and approved not by the power of the state, but by the public opinion of the society at large. It is, therefore, said that custom is to the society, what law is to the state.

Lectures in Jurisprudence

Lectures in Jurisprudence(ii) The existence of an established usage is the basis of a rational expectation of its continuance in the future. As far as possible the state tries to fulfill peoples rational expectations rather than frustrate them. Even in fully developed legal systems, customs are not totally replaced by positive law. Customs which are not contrary to the prevalent mores of the community are either recognised and incorporated into the law, or are merely tolerated. An early example of custom gaining statutory recognition is the Native Rights Act 1865 of New Zealand, which allowed the aboriginal Maoris to continue to be governed by their own tribal customs. In India, during the colonial period, there was an attempt to codify the civil law and criminal law, but the religious personal laws were left untouched by the British. Even after independence, the Hindu personal law alone was reformed and codified, leaving the personal laws of other major religious communities as they were before independence. The tribals in India are also mostly governed by their customary laws. It is, thus, clear that the influence of custom is still a factor to be reckoned with even in a modern legal system.

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65Kinds of CustomstCustom is usually divided into legal, and conventional. Legal custom is one whose authority is absolute, and which in itself and proprio vigorc possesses the force of law. It is operative per se as a binding rule of law, independent of any agreement on the part of those subject to it.Conventional custom, which is also called usage, operates only indirecdy through the medium of agreements, where it is accepted and adopted in individual instances as conventional law between the parties. It is an established practice which is legally binding not because of any legal authority independently possessed by it, but because it has been expressly or implicitly incorporated in a contract between the parties concerned. Most agreements consist of two partsnamely, expressed terms, and implied terms. It is for the law to supply implied terms supplementing the terms expressed by the parties. Courts deem conventions as implied terms of contract, when the following conditions are satisfied:(i) The usage must be so well established as to be notorious. No particular period of longevity, however, is necessary to satisfy the requirement of notoriety.(ii) The usage cannot alter the general law of the land, whether statutory or Common Law. Usage derives its force from its incorporation into an agreement and, therefore, can have no more power to alter the law than an express agreement.(iii) The usage should be a reasonable one.(iv) It need not have any particular scope. Usages may be, and usually are, limited to a trade or locality, but they may be common to the whole country or even the world.(v) The usage will not be enforced in a particular case if it purports to nullify or vary the express terms of a contract. Its sole function is to imply a term when the contract is silent. The parties cannot be understood to have contracted in the light of a usage, which they have expressly contradicted.Law originating in usage normally passes through three successive historical stages. First is the existence of the usage, which is a question of fact. Then the courts take judicial notice of it. Finally, it may be embodied in a statute, and then it assumes its ultimate form as enacted law.

Sources of Law III: Custom

Lectures in Jurisprudence

Sources of Law III: CustomOnce a general usage has received judicial or statutory recognition, it cannot be altered by the growth of any other later usage in conflict with it. As Buckland remarks, what is law is not usage, but the statement of the characteristics which it should possess.

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Custom has also been classified into local custom, and general custom of the realm. A local custom prevails in some defined locality only, and constitutes a source of law for that place only. In order that a local custom may be valid and operate as a source of law, certain requirements must be satisfied.Requisites of a CustomIn order to operate as a source of law, a custom must have the following attributes:ReasonablenessA custom must be reasonable. Malus usus abolendus est. The authority of usage is not absolute, but conditional upon its conformity with justice and public utility. It is not meant that the courts are at liberty to disregard a custom whenever they are not satisfied as to its absolute rectitude and wisdom, or whenever they think that a better rule could be formulated in the exercise of their own judgment. This would be to deprive custom of all authorityeither absolute or conditional. The true rule is, or should be, that a custom, in order to be deprived of legal efficacy, must be so obviously and seriously repugnant to right and reason that to enforce it as law would do more mischief than that which would result from overturning the expectations and arrangements based on its presumed continuance and legal validity.Conformity with Statute LawA custom must not be contrary to an Act of Parliament. In the words of Coke, No custom or prescription can take away the force of an Act of Parliament/Observance as of RightThe third requisite of the operation of custom as a source of law is that it must have been observed as of right. However, this does not mean that a custom must be acquiesced in as a matter of moral right.Immemorial AntiquityThe fourth and the last requirement of a legal custom relates to the length of time during which it has been established. A custom, to have the force

of law, most be immemorial. A custom is said to be immemorial when its origin is so ancient that the beginning of it is beyond human memory, and no testimony is available as to a time when it did not exist.In addition to the aforesaid requirements, continuity, peaceableness, certainty, and consistency with other customs, are also considered as requisites for a valid custom.General Custom of the RealmA custom prevailing throughout England since 1189 is considered as part of the Common Law. The expression general custom of the realm,* is, therefore, synonymous with Common Law. It is no longer a living and an operative source of English law. All the general customs of the realm have been transformed into case law, which has its immediate source in precedent.Custom and PrescriptionHistorically, the law of prescription has been regarded as a branch of the law of custom. A prescription was conceived as a custom limited to a particular person and his ancestors or predecessors. It may, therefore, be described as a personal custom, and may be distinguished from a local custom which was limited to a place.The difference between a local custom and prescription will be clear from the following example. If on the death of an owner intestate all lands belonging to him have, from time immemorial, descended to his youngest son, it is a custom, and is the source of a rule of special and Customary Law. Similarly, if the owner of a farm and all his predecessors in title from time immemorial have used a way over the adjoining farm, it is a prescription and is the source of a prescriptive right of way vested in the owner. Therefore, we can say that custom is a long practice operating as a source of law; while prescription is a long practice operating as a source of rights.Both prescription and custom are essentially governed by similar rules of law. The requisites of a valid prescription are in essence the same as those of a valid custom, namely, it must be reasonable, immemorial, and consistent with statute law. Gradually, other forms of prescription not known to the early law came to be recognised. The requirement of immemorial antiquity is not insisted on in the case of prescription. In cases of easements, enjoyment for 20 years confers a prescriptive right. Thus, when a person has been enjoying a right for 20 years, he now has an absolute title instead of a mere evidence of user.

Lecture 6

Lecture #

Approaches to Law I: Historical ApproachOverviewDifferent people have different ideas about law. Everyone tries to explain the meaning, nature, and function of law from his own perspective. This is the reason behind the existence of multiple theories of law, and different approaches to law. Legal philosophers who had devoted a lifetime of study and analysis to the fundamental issues of law, as distinct from any particular branch of law, have contributed much to our understanding of law. Textbooks on jurisprudence usually classify these contributions under theories of law, approaches to law or schools of jurisprudence. For analytical purposes, we may classify the theories under several broad titles. However, the truth is that under every category we find several varied versions and views. Each theory or approach has been accepted or rejected at various points in time. Each theory has been criticised, re-interpreted, or modified. Students of law generally feel that the most difficult part of jurisprudence is the one that deals with theories of law. While it is true that the task to grasp the intricacies of various theories of law is not easily accomplished, a preliminary understanding of the important aspects of these theories is intellectually well within the reach of an average student of law. Infact, the syllabus requires study only to that extent, leaving a deeper and more critical study for those who are really interested and motivated.The questions which arise are as to why we should study these abstract theories and approaches, and in what way does the study help us in understanding particular branches of law, or in solving practical problems or law? These are the questions frequently asked by the law students. It must be understood that no branch of law can stand in isolation, and no legal problem can be solved with the help of a readymade rule alone. Each legal rule and each branch of law must be conceived as part of a legalsystem. Various approaches to law, and theories of law help in understanding a legal system.A word of caution is necessary here. The approaches and theories, which we will discuss in this and the subsequent lectures, will help in understanding the nature and function of law and the legal system. Finally, one may feel that no single theory provides a totally satisfactory explanation. That is precisely the reason why it becomes necessary to undertake a study of all these theories. While each theory offers only a partial view and has many defects and limitations, an understanding of all the theories will certainly give a broad vision of law.Let us begin our discussion with the historical approach. It considers law in direct relationship with the life of the community. The central question that this approach raises is as to how did law evolve? The historical approach believes that law evolved, as did language, by a slow process, and law, like language, is a peculiar product of a nations genius. Later, when we discuss the positivist approaches to law, we will find that Austin defined law as the command of the sovereign. The historical approach rejects this definition, and states that the source of law is not the command of the sovereign, not even the habits of the community, but the instinctive sense of right possessed by every race. The real source of law lies deep in the mind of men.The historical approach comprises inquiries into the past and evolution, with the object of elucidating the position today. The inquiry is undertaken mainly to find out the extent to which the oughts of contemporary laws have been fashioned by the past. Inquiry into the past, especially into primitive and undeveloped communities, conducted to discover what law might appropriately be taken to mean, is known as the anthropological approach. It is a variant of the historical approach.

Lectures in Jurisprudence

Lectures in JurisprudenceThere are several factors which paved the way for the rise of the historical approach. First of all, it was a reaction against the non-historical assumption of the natural law theory, which we will examine later. The need for a realistic investigation into historical truths was recognised. The French revolution, with all its brutalities, was considered as the culmination of the attempt to establish a legal system based on reason, without reference to past or existing circumstances. It was French conquest by Napoleon that aroused the growth of nationalism in Europe. Since there was hostility towards everything associated with French, the idea of codification, which arose in France, was also treated with hostility, and the historical approach provided a theoretical foundation to the opponents of codification. The influence of thinkers like Montesquieu, who maintained that law was shaped by social, geographical and historical considerations, was anothersignificant factor. In England, Edmund Burke echoed this view, and referred to the importance of tradition as a guide to social change.The most influential and important jurist of the historical school was Savigny. He warned that reforms which went against the stream of a nations continuity were destined to fail. The essential prerequisite to the reform of law was a deep knowledge of history. Historical research was the indispensable means to the understanding and reform of the present. Savigny emphasised that the muddled and outmoded nature of a legal system was usually due to a failure to comprehend its history and evolution.The most important contribution of Savigny to the understanding of law was his theory that the nature of any particular system of law was . a reflection of the spirit of the people who evolved it. He called it 4 Volksgeist Puchta, a disciple of Savigny, asserted that law was the manifestation of a common conscience. Law grows with the growth and strengthens with the strength of the people and finally dies as the nation loses its nationality.The broad principles of the system are to be found in Volksgeist, which are manifest in customary rules. It follows that law is a matter of unconscious growth. Law making should, therefore, follow the course of historical development. Savigny considered custom as preceding and superior to legislation. Legislation should always conform to the popular consciousness. Law is, thus, not of universal application. It varies with people and ages. Volksgeist, according to Savigny, is the standard by which laws are to be justified.Savigny clearly admitted that Volksgeist only formulated the rudimentary principles of a legal system, and it did not provide all the necessary details. As society, and consequently law, becomes more complex, a special body of persons is called into being whose business is to give technical, detailed expression to Volksgeist. These are the lawyers whose task is to reflect accurately the prevailing geist. In the branches of law the Volksgeist manifests itself; it would be helpful if legislators took account of traditions when framing new laws. Even though Savigny maintained that legislation was subordinate to custom and should conform to Volksgeist, he did not oppose legislation or reform by way of codification at some appropriate time in the future. The only requirement is that codification should be preceded by an organic, progressive, scientific study of the law.Comments on Volksgeist

Approaches to Law I: Historical Approach

Approaches to Law I: Historical ApproachEven those who accept the idea of Volksgeist point at the difficulties in fixing it with precision. Savigny treated it as a discoverable thing. However,

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#our experience is that even in a small group, people hold different views on different subjects. This is all the more true for a nation. Some critics go to the extent of saying that the geist does not exist.

History is replete with examples of transplantation of law in alien lands. Roman Law was transplanted in Europe. Roman-Dutch Law was taken to distinct places, and it still survives in South Africa and Sri Lanka, long after it has disappeared from its homeland. The reception of English Law in so many parts of the world, including India, is also an evidence of supra-national adaptability and resilience. All this is inconsistent with Savingys idea of Volksgeist, and goes to show that there is some quality in law other than just popular consciousness.It has been pointed out that the influence of Volksgeist is only a limited one. Its influence seems to manifest itself more strictly in some branches of law than in others. For instance, inspite of the successful introduction of an alien system of law into India and Turkey, the indigenous family laws remained practically unaffected.Some commentators have drawn attention to the distinction between the creative influence of Volksgeist, and its adaptative and abrogative influence. In modern times, the function of Volksgeist is that of modifying and adapting, rather than creating. The fact that law is sometimes used deliberately to change existing ideas and may also be used to further interstate co-operation in many spheres, is not recognised by the historical school.Some other limitations of Volksgeist also need to be mentioned. Many institutions have originated, not in Volksgeist, but in the convenience of a ruling oligarchy. Slavery is a clear example of this. In India, the practice of untouchability was started by the dominant classes. It is pertinent to point out that many customs owe their origin to the force of imitation, and not to any innate conviction of their righteousness.Volksgeist does not adequately explain the existence of local custom. The question is if law is the product of Volksgeist, how is it that only some people and not all have evolved a special rule? Savigny tries to explain this by recognising the existence of inner circles within a society.In any modern state important rules of law very often develop as the result of conscious and violent struggle between conflicting interests, and not as a result of imperceptible growth. The laws protecting the rights of workers is a conspicuous example. In India, the conflict between the landless labourers and the landowners has seen violent agitation and intervention of law in the form of land reform legislation. Thus, at least in som cases, instead of being a reflection of Volksgeist, law has in effect shapedVolksgeist..

Lectures in Jurisprudence

Lectures in JurisprudenceRoscoe Pound was critical of Savigny s juristic pessimism in distrus

74IiIany deliberate attempt to reform the law, and in not recognising the creative work of judges and jurists. Dias observes that Savigny did grasp valuable truth about law, but ruined it by over emphasis.111sense of historical perspective in the outlook of lawyers. In England, theWq q ijinfluence of the historical approach can be seen in the writings of Maine,Inspite of its limitations, the historical approach has made many significant contributions to the legal theory. It provided a great stimulusVinogradoff, Pollock, Maitland, and Holdsworth. It clearly demonstrates the close connection between the Common Law, and the social and political history of England.By insisting that law cannot be understood without an appreciation of the social milieu in which it had developed, the historical school destroyed the idea of immutable rules of law discovered by abstract reason. In the place of moral authority behind law, the historical school substituted social pressure. This bridged the gap between historical, and sociological schools. Though the historical school challenges most of the assumptions of the natural law school, there is one point where both these theories concur. Both consider formal criteria of validity of law to be of subordinate importance. Thus, the growing influence of the historical school indirectly paved the way for the resurgence of natural law.In a period when the emphasis was shifting from custom to legislation and attempts for law reforms through legislations were in full swing, the historical school demonstrated its perils and taught the lesson that development should flow within the channels of tradition. It also demonstrated the connection between some parts of law and cultural evolution, and the need to delve into the past sometimes in order to obtain a full understanding of the law as it is at present.We have now seen the contribution and limitation of the historical approach. Now how do we conclude our discussion? We borrow from Paton who observed: The historical method in jurisprudence should be supplemented by a critical approach based on a philosophy of law, in order that true perspective may be maintained.IThere are some other approaches to law closely allied to the historical approach, which are also generally discussed along with the historical school. We will examine them briefly.Anthropological Approach

Approaches to Law I: Historical Approach

Approaches to Law I: Historical ApproachHenry Maine, who is considered to be the greatest representative of the historical school in England, inaugurated both the comparative and

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75anthropological approaches to the study of law. Instead of stressing the uniqueness of national institutions, he brought to bear a scientific urge to unify, classify, and generalise the evolution of different legal orders.Tracing the pattern of legal development, Maine identified four stages,(i) law-making by personal command believed to be of divine inspiration;(ii) commands crystallise into customs; (iii) the ruler is superseded by a minority who obtain control over the law; and (iv) revolt of the majority against oligarchic monopoly and publication of law in the form of a code. According to Maine, static societies do not progress beyond this point. However, progressive societies proceed to develop the law by three methods, viz legal fiction, equity, and legislation. By the use of fiction, law could be extended or changed to meet the changing needs of society, while it was pretended that law remained unchanged. Equity was a set of principles that were conceived to have a higher sanctity than the current rules of law, and, therefore, could supersede law. Legislation is the direct law making by the authority of the state. Maine recognised that the progress of civilisations demanded an increasing use of legislation. Codification is an advanced form of legislative development, and represents the stage at which all the preceding phases of development are woven into a coherent whole.According to Maine, in early societies the legal condition of the individual was determined by status. It means that his claims, duties, liberties etc, were determined by law. The march of progressive society witnessed the disintegration of status and the determination of the legal condition of the individual by free negotiation on his part. This is summarised in Maines famous observation: The movement of progressive societies has hitherto been a movement from status to contract.Maines status to contract theory may be illustrated with reference to the early Indian society. In the age of ancient codes, such as the Smritis, family was a unit of the society. Legal conditions of the individual, his rights, duties, privileges etc, depended on his status in the family. Subsequent social developments reduced the authority of the pater family or the karta of the joint family. The rigid dependency of the individual status gave way to a greater freedom of will and movement. The individual acquired the capacity to enter into contracts, and to involve himself in personal obligations. Another example is the position of slaves who were not recognised as persons by law. Gradually, they acquired freedom, eventually slavery evolved into contractual relation of employer an employee. Early history also reveals the denial of many legal rights, inC*uC^ the right to own property and the right to vote, to women. In society, a persons status determined his relation to land. However, all are now things of the past.Legal scholars have raised doubts about the relevance of Maines status to contract theory in modern times. Some trends now indicate even a return to status. Collective bargaining has reduced the worker to the status of mere member of a trade union, curtailing his individual freedom of contract. The growing power of employers and the standardised forms of contracts, which leave no choice to the employee, show the swing of the pendulum to the other extreme of making the worker a slave again. In other fields also a return to status from contract is becoming visible, eg, standardisation of landlord-tenant relations, debtor-creditor relations, insurance, supply of services etc. The terms and conditions of social relations in these fields are now fixed by law, and not by free contracts.Fieldwork carried out by anthropologists, notably Malinowski, brought to light several inadequacies of Maines theory. It revealed that primitive law was neither as rigid as Maine had thought, nor were people inflexibly bound by it. Primitive societies exhibited a wide range of institutions, and considerable latitude was inherent in the conduct of their customary practices. Even in primitive societies people controlled their destinies. They were by no means blindly subservient to customs.Maine was of the opinion that law and religion were indistinguishable in primitive societies. This assertion has been rejected by Diamond who says that it is a comparatively recent development. In primitive societies a phenomenon could be isolated from religion and other social observances, for which the term law would be convenient. This view emphasises the secular character of primitive law.Malinowski held the view that obedience to custom rested on the reciprocity of services. People did unto others what the law bade them to do, because they depended on some service in return or as part of this mutual co-existence. He underestimated the part played by sanction.Most anthropologists agree that what is called law should be described in terms of its functions and the attitude of the people towards it, rather than in terms of form or enforcement.Dialectical InterpretationThis theory, associated with the great thinker Hegel, distinguishes between laws of nature, and positive laws. Laws of nature are outside human consciousness, and can never be improved. They have to be accepted because they exist. Positive laws, on the other hand, are man-made and, as such, do not have to be accepted because they exist.Hegel considered evolution as a process of action and reaction between opposites, thesis and anti-thesis, which results in their synthesis. The idea is thesis and its anti-thesis is the idea outside itself, which is nature. The synthesis is spirit, of which the Volksgeist is possibly an aspect. The subjective spirit (thought and consciousness) and its anti-thesis, the objective spirit (legal and social institution) are synthesised in the absolute spirit. Law comes into the category of objective spirit. Law and other social institutions, according to the Hegelian theory, are the result of free subjective will endeavouring to realise freedom objectively.Biological InterpretationHerbert Spenzer advanced a theory of law, drawing parallels between the social organism, and the biological organism. According to him, the adaptation of the individual to social conditions is due to heredity. He inherits a social instinct from his ancestors, including ideas of morality, obligation, right, and justice. In this manner different sociological groups evolve differently, and so do their laws and institutions.Spencer identifies two stages in the process of evolution. In the first, which is primitive, war and compulsion figure prominently. In the second, which is advanced, peace and freedom are prominent. Spencer was a strong individual with a laissez faire approach to government. He denied the complete absorption of the individual in the state, and maintained that the duty of government was to secure individual to the greatest possible extent. With his strong belief in the evolution of law, Spencer naturally did not have much faith in legislative reform.Racial Theory of LawThis theory, which prevailed in National Socialist Germany under Hider, is based on the following two cardinal principles:Leadership PrincipleThe state is a group, and a group has no strength or unity without a leader. The leader, therefore, becomes the mystical personification of national unity. Law and the states become the same thing and since the leader is the embodiment of the state, law is what the leader commands. This implies the following: (i) unquestioning obedience; (ii) law should serve political ends; and (iii) nothing, not even reverence for statutes, should stand in the way of implementing the will of the leader.Racial PrincipleAccording to this theory, law was inherited by blood. It should (i) save the ends of the state and its policies; and (ii) help to preserve racial purity, for the state cannot be strong, unless it is racially pure.According to this theory, the only international system, which could be tolerated, was a nordic one, ie, one based on a blood tie. Every state has a natural privilege and power to prevail over other states, and to take their land for its own people.This theory derived inspiration from the historical school, biological interpretation, and the Hegelian theory, but in a perverted way. From the historical school, the idea that the roots of law lie deep in the past was adopted to lend a nationalist flavour to the racial theory. The biological theory was used to perpetuate the idea that law was inherited by blood. The Hegelian theory, which showed how the individual could be integrated into society, was utilised to suppress individual rights.Gierke: A Historian with a Sociological PerspectiveGierke, who carried on the survey of the historical school further, represented a collectivist rather than an individualist approach. To this extent, his work is closer to that of the sociologists, but his interpretation of this development on historical lines earns him a place among the front-runners of the historical schools.The distinct contribution of Gierke lies in his emphasis on the significance of associations. Gierke denied that the recognition of an association as a person depended on the state. According to him, the reality of social control lies in the way in which autonomous groups within society organise themselves. He then proceeded to trace the progress of social and legal development in the form of history of the law, and practice of associations.

Lectures in Jurisprudence

Approaches to Law I: Historical ApproachGierkes critics point out that he never quite succeeded in reconciling the independence of autonomous bodies with the supreme power of the state.

SOURCES OF LAWCUSTOM181

SOURCES OF LAWCUSTOM181

the Parliament or the courts for regulation of human conduct. The material source of law is that from where the matter of law is derived, e.g., custom which is the product of community practices and traditions. However, all jurists agree that there are three main sources of law, e.g., custom, legislation and judicial precedent. An effort is made herein to study custom in this chapter.Custom and Its Position in Indian LawIn all societies whether of the West or East, developed or undeveloping, primitive or modem, custom has enjoyed a respectable place in varying degree in the regulation of human conduct. It has been considered as the outward expression of latent principles of justice, social values and moral norms of each society which it cherished as fundamental in the governance and administration of justice. With the historical process and gradual evolution of societies the institution of custom also acquired great potency and came to be regarded as one of the important sources of law. In England the entire English law including the law of merchants ; in Germany the codification of German Civil Code in 1901 is based on German customs. In India the Hindu and Muslim personal laws have been mostly based on customs. In ancient India Manu declared that it is the duty of the king to decide all cases according to principles drawn from local[footnoteRef:2] usages. Narada also says 'custom decides everything and overrules the sacred law'. Likewise Asahayaone of earliest writers says 'immemorial usage of every country (or province) handed down from generation to generation can never be overruled on the strength of the Sastras'. Thus all the ancient Hindu jurists Manu, Narada, Brihaspati, Katyayana and Yajnavalkya gave to custom . a high place which even was obligatory on the monarch in administration of justice. The Muslim law equally recognised customs urfs which have accepted to suit the needs of different classes of people who embraced Islam. Hedaya says, 'custom does not command any spiritual authority like ijma of the learned, but a transaction sanctioned by custom is legally operative, even if it be in violation of a rule of law derived from analogy. It must not, however, be opposed[footnoteRef:3] to a clear test of Koran or of an authentic tradition. In modem India[footnoteRef:4] in the face of march of legislation over other sources custom has not altogether [2: Manu VIII, 3.] [3: See also Jowla v. Dlmrinu Singh, 101.A. 511.] [4: For critical evaluative study of Customsee Jain, M. P., Custom As a Source of Lmo, 3 Jaipur Lew Journal, 96-130 (1963).]

JURISPRUDENCEA STUDY OF INDIAN LEGAL THEORY182been abrogated by legislation. Articles 25, 26 and 28 of the Constitution indirectly guarantees the protection of such customary practices of a community which of course are not. contrary to the concept of secularism and democratic socialism. The existing enacted Hindu law concerning marriage, succession, adoption, divorce, etc., in essence retains the customary feature of old Hindu law which are still considered useful and necessary by our social reformers. The contemplated movement of a uniform civil code as envisaged in Article 44 of the Constitution too cannot altogether be shorn of principles, values and goals which have been cherished by the Indian people irrespective of their race, or, religion or language, etc.CustomMeaningJn Sanskrit there are three terms AchqrnJrules relating religious observances) Vyavahara jthe rules of civil law) and Sadachara (the) usage >of virtuous men). The word Sndachara[footnoteRef:5] therefore, has been used for custom which means The custom" "handed down in regular succession from times immemorial [5: Quoted by Mayne on his classic work on Hindu Law and Usage 61 (Ed. Aiyer (1953).]

a^II'I II SB. rv"..Vr-1

among the four chieT castes (Vama) and mixed races of the counlry\__Accordingly iJadachdra "or approved'usage only means that it shoulcTnot be contrary to Pharma. According to Webster^" 'Long established practice considerecT as unwritten law and resting for authority on long consent; a usage that has by long continuance acquired a legally binding force'. As such 'custom' is not to be understood in the sense of 'usage' which is also based on long practice but has not acquired binding or obligatory character. Nor a usage can be exercised as of right inhering in one individual and binding pn the other against whom such usage is claimed. Salmond says[footnoteRef:6] 'Customary law is that which is constituted by those customs which fulfil the requirements laid down by law as the condition of their recognition as obligatory rules of conduct'. Hence a legal custom can be easily distinguished from social customs and general user in the sense the former is obligatory, binding accompanied with sanction while the latter ones are merely the norms of social conduct without being legally binding or enforceable. [6: Jurisprudence, 136 (1957).]

any, tentatively, by the action of the legal profession". The high quality of the Roman system of private law is largely due to the existence of "an organ of government specially charged with the duty of watching, guiding and from time to time summing up in a concise form the results of the natural development of the law". The law more directly influenced by political changes is most successfully created "by the direct action of the sovereign power in the State, whether the monarch or the Legislative Assembly acting at the instance of the executive". The view of Dr. Friedmann is that the studies of Bryce serve as a corrective to Savigny's overemphasis on the law, influenced by the juristic profession, as compared with the "spontaneous and irregular" development of law due to economic and social phenomena.11Estimate of Historical SchoolThe one invaluable contribution which the Historical School has made to the problem of the boundaries of jurisprudence is that law cannot be understood without an appreciation of the social milieu in which it has developed. Historical jurisprudence is a movement for fact against fancy, a call for a return from myth to reality. In this sense it cannot be said to be a juristic school, independent of history, unless it furnishes a method of progress and evolution for interpreting and developing law. If law evolves, the Historical School must tell us how it evolves. If it is incapable of that or refuses to do that, it ceases to be a juristic school since it is powerless to furnish a creative method.The view of Paton is that the historical method in jurisprudence should be supplemented by a critical approach based on a philosophy of law in order that a true perspective may be obtained. Evolution is not necessarily progress and one of the best aids to our own shortsightedness in dealing with the familiar common law is an acquaintance with many systems. This is well recognised by those who pursue the historical method today.Saleilles gives his criticism of the Historical School of Law in these words: "The Historical School had opened the way; it remained as if glued to the spot, incapable of using the instrument of evolution and" Legal Theory, p. 172.JURISPRUDENCE AND LEGAL THEORY[Chap.506practice which it had just proclaimed. The reason was that it had in advance clipped its wings and disarmed itself by declaring that it could not scientifically exert an influence on the development of the phenomena of law; it could merely wait, register and observe. It refused to become a method either of creative legislation or interpretation. The Historical School had abdicated... . To note after all is not to create. History in its application to the social sciences must become a creative force. The Historical School had stopped halfway".Comparison of Historical and Analytical SchoolsAccording to Dias and Hughes: "The distinction between analytical and historical jurisprudence is not one of kind, but of emphasis. They are both analytical in method, the distinction between them being that in the one case attention is fixed on concepts as they are today, while in the other case account is taken of a process over a period of time. Not only does it seem misleading to indicate this distinction by affixing the term analytical to one, but the distinction itself breaks down in the case of some concepts, notably ownership, where it is not possible to understand their nature at the present time without reference to their history12".Analytical School1. Analytical School confines itself to mature legal systems.2. Law is an arbitrary command of the sovereign.It is the deliberate product of legislation.Historical School1. Historical School concentrates its attention on the primitive legal institutions of society.2. Law is found and not made.

Law is self-existent.3. Law is antecedent to the State and exists even before a State comes into existence.4. Law is independent of political authority and its enforcement. Law does not become law merely because of its enforcement by the7. New International Dictionary 650 (1957).