Requisites / Constituents of a valid Custom

            A general custom must satisfy certain conditions if it is to be a source of law . It must be reasonable . It must be  generally followed and accepted as binding . It must have existed from immemorial times. It must not conflict with the common law of the Country.


Requisites of a Valid Custom 

1 Reasonable

         A custom must be reasonable. Its authority is not absolute, but conditional on certain measure of conformity with the prevailing view of usefulness, justice and public policy. It is reasonable if found to be in consonance with reason and its origin and continuance are capable of being explained. Thus, the 'sati pratha' could not take the place of a legal Custom due to its being repugnant  to the logical sense of justice and goodness in man. A custom of burying or cremating the dead bodies of the people of the locality on an abandoned land is not unreasonable.  It is however, not necessary that in order to be reasonable, a custom must fulfill the test of absolute rectitude and wisdom. The true rule is, observes Salmond 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 result from the overturning of the expectations and arrangements based on its presumed continuance and legal validity.     


            

2 Conformity with statue law -

               No custom or prescription can take away the force of an Act of Parliament. Statutory law is Supreme and no length of desuetude can affect its efficacy.  The custom in order to be a source of law must not, therefore, conflict with statute law.

3 Observance as of right

                It must have been observed as of right. Mere practice of a voluntarily nature would not make a custom valid. It must have been followed openly not stealthily, and without the necessity for the recourse to force. To use the expression of Salmond, there must be opinio necessitatis , that is, the conviction on the part of those who use a custom that it is obligatory ands not merely optional.  Jessel , M.R. Observed that if the disturbance or interruption of an alleged custom has existed for any considerable period, a strong presumption arises that there never was any such custom at all.

4 Certainty 

A custom must be certain and the court must Satisfied by Clear and unambiguous proof that the custom exists as a matte of fact or legal presumption of fact. A custom, however ancient, must not be indefinite and uncertain, and as Willes C.J. observed in Broadbent vs. Wilkes(1742) Willes,360. " a custom custom must be certain because, if it be not certain it cannot be proved to have been time out of mind, for how can anything be said to have been time out of mind when it is not certain what is ?

5 Consistency

 Further, Custom must be consistence with each other that these may operate as a source of law. A custom to be valid must be such that , in the opinion of a trained lawyer, it is consistent, with those general principles which, quite apart from particular rules or maxims,lie at the root of our legal system.

 
6 Immemorial antiquity

                     Recent and modern custom custom is of no account. It must have been observed for such a long time that " the memory of man runneth not to contrary ". In other words, it must be immemorial antiquity, i.e., its origin is so ancient that to living man can testify its beginning. 

7 Continuity :

           Only that custom is valid which has been continuously observed without any interruption from time immemorial . If a custom has not been followed continuously and uninterruptedly for a long time, the presumption is that it never be exist. 

8) Must be a peaceable one

                     The enjoyment of a custom must be a peaceable one. If that is not so, consent is presumed to be wanting in it.

9) Must not be opposed to Public Policy : 

                  A valid custom must not be opposed to public policy or the principles of morality .

10 Must be General or Universal  

                The custom must be general or universal . According to 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. 
 


See also...

Kinds of Custom