Custom in jurisprudence

Custom can simply be explained as those long established practices or unwritten rules which have acquired binding or obligatory character. In ancient societies, custom was considered as one of the most important sources of law; In fact it was considered as the real source of law. With the passage of time and the advent of modern civilization, the importance of custom as a source of law diminished and other sources such as judicial precedents and legislation gained importance.

There is no doubt about the fact that custom is an important source of law. Broadly, there are two views which prevail in this regard on whether custom is law. Jurists such as Austin opposed custom as law because it did not originate from the will of the sovereign. Jurists like Savigny consider custom as the main source of law. According to him the real source of law is the will of the people and not the will of the sovereign. The will of the people has always been reflected in the custom and traditions of the society. Custom is hence a main source of law.

Kinds of Customs

Customs can be broadly divided into two classes:
Customs without sanction:
These kinds of customs are non-obligatory in nature and are followed because of public opinion.
Customs with sanction:
These customs are binding in nature and are enforced by the State. These customs may further be divided into the following categories:

  • Legal Custom:
    Legal custom is a custom whose authority is absolute; it possesses the force of law. It is recognized and enforced by the courts. Legal custom may be further classified into the following two types:
    • General Customs:
      These types of customs prevail throughout the territory of the State.
    • Local Customs:
      Local customs are applicable to a part of the State, or a particular region of the country.
  • Conventional Customs:
    Conventional customs are binding on the parties to an agreement. When two or more persons enter into an agreement related to a trade, it is presumed in law that they make the contract in accordance with established convention or usage of that trade. For instance an agreement between landlord and tenant regarding the payment of the rent will be governed by convention prevailing in this regard.

Essentials of a valid custom

All customs cannot be accepted as sources of law, nor can all customs be recognized and enforced by the courts. The jurists and courts have laid down some essential tests for customs to be recognized as valid sources of law. These tests are summarized as follows:
Antiquity:
In order to be legally valid customs should have been in existence for a long time, even beyond human memory. In England, the year 1189 i.e. the reign of Richard I King of England has been fixed for the determination of validity of customs.
Continuous:
A custom to be valid should have been in continuous practice. It must have been enjoyed without any kind of interruption. Long intervals and disrupted practice of a custom raise doubts about the validity of the same.
Exercised as a matter of right:
Custom must be enjoyed openly and with the knowledge of the community. It should not have been practised secretly. Acustom must be proved to be a matter of right. A mere doubtful exercise of a right is not sufficient to a claim as a valid custom.
Reasonableness:
A custom must conform to the norms of justice and public utility. A custom, to be valid, should be based on rationality and reason. If a custom is likely to cause more inconvenience and mischief than convenience, such a custom will not be valid.
Morality:
A custom which is immoral or opposed to public policy cannot be a valid custom. Courts have declared many customs as invalid as they were practised for immoral purpose or were opposed to public policy.
Status with regard to:
In any modern State, when a new legislation is enacted, it is generally preferred to the custom. Therefore, it is imperative that a custom must not be opposed or contrary to legislation. Many customs have been abrogated by laws enacted by the legislative bodies. For instance, the customary practice of child marriage has been declared as an offence.

Advertisements

Precedent in Jurisprudence

JUDICIAL PRECEDENT AS A SOURCE OF LAW

In simple words, judicial precedent refers to previously decided judgments of the superior courts, such as the High Courts and the Supreme Court, which judges are bound to follow. This binding character of the previously decided cases is important, considering the hierarchy of the courts established by the legal systems of a particular country. Judicial precedent is an important source of law, but it is neither as modern as legislation nor is it as old as custom. It is an important feature of the English legal system as well as of other common law countries which follow the English legal system. In most of the developed legal systems, judiciary is considered to be an important organ of the State. In modern societies, rights are generally conferred on the citizens by legislation and the main function of the judiciary is to adjudicate upon these rights. The judges decide those matters on the basis of the legislations and prevailing custom but while doing so, they also play a creative role by interpreting the law. By this exercise, they lay down new principles and rules which are generally binding on lower courts within a legal system. It is important to understand the extent to which the courts are guided by precedents. It is equally important to understand what really constitutes the judicial decision in a case and which part of the decision is actually binding on the lower courts.

Judicial decisions can be divided into following two parts:

Ratio decidendi (Reason of Decision):
Ratio decidendi’ refers to the binding part of a judgment. ‘Ratio decidendi’ literally means reasons for the decision. It is considered as the general principle which is deduced by the courts from the facts of a particular case. It becomes generally binding on the lower courts in future cases involving similar questions of law.
Obiter dicta (Said by the way):
An ‘obiter dictum’ refers to parts of judicial decisions which are general observations of the judge and do not have any binding authority. However, obiter of a higher judiciary is given due consideration by lower courts and has persuasive value.

Legislation in jurisprudence

In modern times, legislation is considered as the most important source of law. The term ‘legislation’ is derived from the Latin word legis which means ‘law’ and latum which means “to make” or “set”. Therefore, the word ‘legislation’ means the ‘making of law’.
The importance of legislation as a source of law can be measured from the fact that it is backed by the authority of the sovereign, and it is directly enacted and recognised by the State. The expression ‘legislation’ has been used in various senses. It includes every method of law-making. In the strict sense it means laws enacted by the sovereign or any other person or institution authorised by him.

Kinds of Legislation

The kinds of legislation can be explained as follows:

Supreme Legislation:

When the laws are directly enacted by the sovereign, it is considered as supreme legislation. One of the features of Supreme legislation is that, no other authority except the sovereign itself can control or check it. The laws enacted by the British Parliament fall in this category, as the British Parliament is considered as sovereign.

Subordinate Legislation:

Subordinate legislation is a legislation which is made by any authority which is subordinate to the supreme or sovereign authority. It is enacted under the delegated authority of the sovereign. The origin, validity, existence and continuance of such legislation totally depends on the will of the sovereign authority. Subordinate legislation further can be classified into the following types

Autonomous Law:
When a group of individuals recognized or incorporated under the law as an autonomous body, is conferred with the power to make rules and regulation, the laws made by such body fall under autonomous law. For instance, laws made by the bodies like Universities, incorporated companies etc. fall in this category of legislation.

Judicial Rules:
In some countries, judiciary is conferred with the power to make rules for their administrative procedures. The Supreme Court and High Courts have been conferred with such kinds of power to regulate procedure and administration.

Local laws:
In some countries, local bodies are recognized and conferred with the law-making powers. They are entitled to make bye-laws in their respective jurisdictions. The rules and bye-laws enacted by them are examples of local laws.

Colonial Law:
Laws made by colonial countries for their colonies or the countries controlled by them are known as colonial laws. For a long time, However, as most countries of the world have gained independence from the colonial powers, this legislation is losing its importance and may not be recognized as a kind of legislation.

Laws made by the Executive:
Laws are supposed to be enacted by the sovereign and the sovereignty may be vested in one authority or it may be distributed among the various organs of the State. In most of the modern States, sovereignty is generally divided among the three organs of the State. The three organs of the State namely legislature, executive and judiciary are vested with three different functions. The prime responsibility of law-making vests with the legislature, while the executive is vested with the responsibility to implement the laws enacted by the legislature. However, the legislature delegates some of its law-making powers to executive organs which are also termed delegated legislation. Delegated legislation is also a class of subordinate legislation. In welfare and modern states, the amount of legislation has increased manifold and it is not possible for legislative bodies to go through all the details of law. Therefore, it deals with only a fundamental part of the legislation and wide discretion has been given to the executive to fill the gaps. This increasing tendency of delegated legislation has been criticized. However, delegated legislation is resorted to, on account of reasons like paucity of time, technicalities of law and emergency. Therefore, delegated legislation is sometimes considered as a necessary evil.

The Source of Law in jurisprudence

Sources of law mean the sources from where law or the binding rules of human conduct originate. In other words, law is derived from sources. Jurists have different views on the origin and sources of law, as they have regarding the definition of law. As the term ‘law’has several meanings, legal experts approach the sources of law from various angles.For instance, Austin considers sovereign as the source of law while Savigny and Henry Maine consider custom as the most important source of law. Natural law school considers nature and human reason as the source of law, while theologians consider the religious scripts as sources of law. Although there are various claims and counter claims regarding the sources of law, it is true that in almost all societies, law has been derived from similar sources.

CLASSIFICATION OF SOURCESOF LAW

Salmond, an English Jurist, has classified sources of law into the following categories:
Formal Sources of Law:
These are the sources from which law derives its force and validity. Alaw enacted by the State or Sovereign falls into this category.
Material Sources of Law:
It refers to the material of law. In simple words, it is all about the matter from where the laws are derived. Customs fall in this category of law.
However, if we look around and examine the contemporary legal systems, it may be seen that most legal systems are based on legislations. At the same time, it is equally true that sometimes customs play a significant role in the legal system of a country. In some of the legal systems, court decisions are binding as law.
There are three major sources of law can be identified in any modern society are as follows:

  • Custom
  • Judicial precedent
  • Legislation

CUSTOM AS ASOURCE OF LAW

Custom can simply be explained as those long established practices or unwritten rules which have acquired binding or obligatory character. In ancient societies, custom was considered as one of the most important sources of law; In fact it was considered as the real source of law. With the passage of time and the advent of modern civilization, the importance of custom as a source of law diminished and other sources such as judicial precedents and legislation gained importance.

There is no doubt about the fact that custom is an important source of law. Broadly, there are two views which prevail in this regard on whether custom is law. Jurists such as Austin opposed custom as law because it did not originate from the will of the sovereign. Jurists like Savigny consider custom as the main source of law. According to him the real source of law is the will of the people and not the will of the sovereign. The will of the people has always been reflected in the custom and traditions of the society. Custom is hence a main source of law.

Kinds of Customs

Customs can be broadly divided into two classes:
Customs without sanction:
These kinds of customs are non-obligatory in nature and are followed because of public opinion.
Customs with sanction:
These customs are binding in nature and are enforced by the State. These customs may further be divided into the following categories:

  • Legal Custom:
    Legal custom is a custom whose authority is absolute; it possesses the force of law. It is recognized and enforced by the courts. Legal custom may be further classified into the following two types:
    • General Customs:
      These types of customs prevail throughout the territory of the State.
    • Local Customs:
      Local customs are applicable to a part of the State, or a particular region of the country.
  • Conventional Customs:
    Conventional customs are binding on the parties to an agreement. When two or more persons enter into an agreement related to a trade, it is presumed in law that they make the contract in accordance with established convention or usage of that trade. For instance an agreement between landlord and tenant regarding the payment of the rent will be governed by convention prevailing in this regard.

Essentials of a valid custom

All customs cannot be accepted as sources of law, nor can all customs be recognized and enforced by the courts. The jurists and courts have laid down some essential tests for customs to be recognized as valid sources of law. These tests are summarized as follows:
Antiquity:
In order to be legally valid customs should have been in existence for a long time, even beyond human memory. In England, the year 1189 i.e. the reign of Richard I King of England has been fixed for the determination of validity of customs.
Continuous:
A custom to be valid should have been in continuous practice. It must have been enjoyed without any kind of interruption. Long intervals and disrupted practice of a custom raise doubts about the validity of the same.
Exercised as a matter of right:
Custom must be enjoyed openly and with the knowledge of the community. It should not have been practised secretly. Acustom must be proved to be a matter of right. A mere doubtful exercise of a right is not sufficient to a claim as a valid custom.
Reasonableness:
A custom must conform to the norms of justice and public utility. A custom, to be valid, should be based on rationality and reason. If a custom is likely to cause more inconvenience and mischief than convenience, such a custom will not be valid.
Morality:
A custom which is immoral or opposed to public policy cannot be a valid custom. Courts have declared many customs as invalid as they were practised for immoral purpose or were opposed to public policy.
Status with regard to:
In any modern State, when a new legislation is enacted, it is generally preferred to the custom. Therefore, it is imperative that a custom must not be opposed or contrary to legislation. Many customs have been abrogated by laws enacted by the legislative bodies. For instance, the customary practice of child marriage has been declared as an offence.

JUDICIAL PRECEDENT AS A SOURCE OF LAW

In simple words, judicial precedent refers to previously decided judgments of the superior courts, such as the High Courts and the Supreme Court, which judges are bound to follow. This binding character of the previously decided cases is important, considering the hierarchy of the courts established by the legal systems of a particular country. Judicial precedent is an important source of law, but it is neither as modern as legislation nor is it as old as custom. It is an important feature of the English legal system as well as of other common law countries which follow the English legal system. In most of the developed legal systems, judiciary is considered to be an important organ of the State. In modern societies, rights are generally conferred on the citizens by legislation and the main function of the judiciary is to adjudicate upon these rights. The judges decide those matters on the basis of the legislations and prevailing custom but while doing so, they also play a creative role by interpreting the law. By this exercise, they lay down new principles and rules which are generally binding on lower courts within a legal system. It is important to understand the extent to which the courts are guided by precedents. It is equally important to understand what really constitutes the judicial decision in a case and which part of the decision is actually binding on the lower courts.

Judicial decisions can be divided into following two parts:

Ratio decidendi (Reason of Decision):
Ratio decidendi’ refers to the binding part of a judgment. ‘Ratio decidendi’ literally means reasons for the decision. It is considered as the general principle which is deduced by the courts from the facts of a particular case. It becomes generally binding on the lower courts in future cases involving similar questions of law.
Obiter dicta (Said by the way):
An ‘obiter dictum’ refers to parts of judicial decisions which are general observations of the judge and do not have any binding authority. However, obiter of a higher judiciary is given due consideration by lower courts and has persuasive value.

LEGISLATION AS ASOURCE OF LAW

In modern times, legislation is considered as the most important source of law. The term ‘legislation’ is derived from the Latin word legis which means ‘law’ and latum which means “to make” or “set”. Therefore, the word ‘legislation’ means the ‘making of law’.
The importance of legislation as a source of law can be measured from the fact that it is backed by the authority of the sovereign, and it is directly enacted and recognised by the State. The expression ‘legislation’ has been used in various senses. It includes every method of law-making. In the strict sense it means laws enacted by the sovereign or any other person or institution authorised by him.

Kinds of Legislation

The kinds of legislation can be explained as follows:

Supreme Legislation:

When the laws are directly enacted by the sovereign, it is considered as supreme legislation. One of the features of Supreme legislation is that, no other authority except the sovereign itself can control or check it. The laws enacted by the British Parliament fall in this category, as the British Parliament is considered as sovereign.

Subordinate Legislation:

Subordinate legislation is a legislation which is made by any authority which is subordinate to the supreme or sovereign authority. It is enacted under the delegated authority of the sovereign. The origin, validity, existence and continuance of such legislation totally depends on the will of the sovereign authority. Subordinate legislation further can be classified into the following types
Autonomous Law:
When a group of individuals recognized or incorporated under the law as an autonomous body, is conferred with the power to make rules and regulation, the laws made by such body fall under autonomous law. For instance, laws made by the bodies like Universities, incorporated companies etc. fall in this category of legislation.

Judicial Rules:
In some countries, judiciary is conferred with the power to make rules for their administrative procedures. The Supreme Court and High Courts have been conferred with such kinds of power to regulate procedure and administration.

Local laws:
In some countries, local bodies are recognized and conferred with the law-making powers. They are entitled to make bye-laws in their respective jurisdictions. The rules and bye-laws enacted by them are examples of local laws.

Colonial Law:
Laws made by colonial countries for their colonies or the countries controlled by them are known as colonial laws. For a long time, However, as most countries of the world have gained independence from the colonial powers, this legislation is losing its importance and may not be recognized as a kind of legislation.

Laws made by the Executive:
Laws are supposed to be enacted by the sovereign and the sovereignty may be vested in one authority or it may be distributed among the various organs of the State. In most of the modern States, sovereignty is generally divided among the three organs of the State. The three organs of the State namely legislature, executive and judiciary are vested with three different functions. The prime responsibility of law-making vests with the legislature, while the executive is vested with the responsibility to implement the laws enacted by the legislature. However, the legislature delegates some of its law-making powers to executive organs which are also termed delegated legislation. Delegated legislation is also a class of subordinate legislation. In welfare and modern states, the amount of legislation has increased manifold and it is not possible for legislative bodies to go through all the details of law. Therefore, it deals with only a fundamental part of the legislation and wide discretion has been given to the executive to fill the gaps. This increasing tendency of delegated legislation has been criticized. However, delegated legislation is resorted to, on account of reasons like paucity of time, technicalities of law and emergency. Therefore, delegated legislation is sometimes considered as a necessary evil.

The Administration of Justices

War and administration of justice are two most essential functions of a state. If the state is not incapable of performing these two functions. It cannot be called a state. Administration of justice implies the maintenance of peace and order within a political community by means of physical force of the state.

MEANING OF JUSTICE
Justice means the proper administration of law.

DEFINITIONS OF ADMINISTRATION OF JUSTICE
Administration of justice is the protection of individual form the unjust unlawful deeds of other

ACCORDING TO SALMOND
Maintenance of right within the political community by means of physical force of state

ACCORDING TO LOARD BRYCE
There is no better test of excellence of a Government than the Efficiency of its judicial system

ORIGIN AND GROWTH OF ADMINISTRATION OF JUSTICE.

The origin and growth of administration of justice may be divided in to three stages.
FIRST STAGE
First of all the concept of private system of punishment and violent self-help.
SECOND STAGE
When the rise of political states, the private system started to be regulated by the state. The state provided rules like “an eye for eye” and a “tooth for tooth”. Thus the system of self-help was very much prevalent.
THIRD STAGE
At that stage, the state enacted its own rules and laws and has sub situated the concept of private punishment by the administration of civil and criminal justice.

NECESSITY OF ADMINISTRATION OF JUSTICE

Administration of justice is important for the following reasons.

  • Necessary for uniformity.
  • Necessary for protection of rights.
  • Necessary for peace and stability.
  • Necessary for integration of society.
  • Necessary to check injustice.
  • Necessary to educate people.
  • To promote welfare.
  • To promote equity.

KINDS OF JUSTICE

Justice is divided into following kinds
PUBLIC JUSTICE
Public Justice is that which is administrated by the state using its own tribunals and courts. It is the relation between court and an individual. When a person turns to courts for restitution, he said to demand public justice. It is granted when a right of an individual, which he has as a member of society, is infringed.
PRIVATE JUSTICE
Private Justice is Justice between individuals. It is the end for which the courts exist and public justice is the means through which this end is fulfilled.
CIVIL JUSTICE
Civil justice results from the infringement of a private right. If a right of a person is violated and it only concerns or directly affects him, it will be death with civil justice.
CRIMINAL JUSTICE
Criminal Justice results from the infringement of a public right. Even if the offence is committed against one person but the nature of the offence is such that the state steps in and considers it to be an infringement of a public right.

ADVANTAGES OF ADMINISTRATION OF JUSTICE

  • Cohesive factor of society.
  • Provides stability.
  • Provides certainty.
  • Provides uniformity.
  • Impartiality.
  • Represent collective wisdom.
  • Security.
  • Provides justice.

DISADVANTAGES OF ADMINISTRATION OF JUSTICE

  • Rigidity.
  • Complexity.
  • Formalities.
  • Justice according to law.

CONCLUSION

In the end we can say that administration of justice is the firmest pillar of the Government. The modern administration of justice is a natural corollary to the growth in power of political state, which began to act as a judge to assess liability and impose penalty.

The Nature of Law jurisprudence notes

According to BlackstoneLaw in its most general and comprehensive sense signifies a rule of action and is applied uudiscriminately to all kinds of actions whether animate, rational or irrational. Thus we say the Laws of Motion, of Gravitation, of optic or mechanics, as well as the Laws of Nature and of Nation.” The term ‘law’ in this sense is applied to observe uniformities of action.

There is great diversity in the use of the term ‘law’. The same name is employed to denote altogether different things, e.g., Laws of Nature, Laws of God, Laws of Honour, and Laws of Morality, positive Law. A line was accordingly drawn between laws relating to external nature and those dealing with the actions of men.

Professor Holland Professor Holland observes that “a law in the proper sense of the term is a general rule of action, talkig cognizance only of external acts, enforced by a determinate authority, which authority is human, and among human authorities, is that which is paramount in a political society.

Hobbes defined laws “as the commands of him or them that have coercive power. Austin followed him a law is a rule of conduct imposed and enforced by the sovereign.” Salmond substituted the definition by observing that “Law is the body of principle recognised and applied by the State in the administration of Justice.” lt consists of the rules recognised and acted on by Courts of Justice.

According to Salmond, all law, however made, is Recognised and administered by the Courts and no rules are recognised and administered by the Courts which are not rules of law. lt is, therefore, to the Courts and not to the legislature that we must go in order to ascertain the true nature of the law. on the other hand, Blackstone maintained that a rule of law made on a pre-existing custom exists as positive law apart from the legislature or Judge and Maine pointed out that there is law in primitive societies.

Savigny recorded law as itself subject to evclution and as no arbitrary expression of will of the law-giver.
The above is not the definition of ‘a law’ but of the law. In fact the term ‘law’ is’ used in two senses, whicn May be characterised as the concrete and the abstract. In the concrete sense we speak of “a law” or “laws”. “A law” means a statute, ordinance, decree or an Act cf a Parliament. In this sense we say that Parliamenthas enacted or repealed a law. It is a source of law in the abstract sense. In the abstract sense we speak of “law” or “the law”, e.g., the law of England, the law of libel, criminal law, etc. Law here denotes the entire body of legal principles prevailing in a particular system.

This ambiguity is a peculiar feature of English speech. In Continental languages there are distinct words for the two meanings found in the Eng1ish term ‘law’. Law in the concrete is lex loci, and law in the abstract jus, droit; recht. Lex meaning a statute is a source of jus.

The following are a few other concepts of law as given by enunent writers, which will enable us to Have a clear perspective of the different hotions of law.

  • Every law is a gift of God and decision of sages Demostheries.
  • Law is not right alone or might alone, but a perfect combination between the two.”salmond”.
  • A law is a command which obliges a person or persons to a course of conduct.”Austin”.

Relation of Jurisprudence with other social sciences

Jurisprudence is studying law, law is regulating the conduct of individuals and individuals are living and forming societies. Therefore, law is an important social phenomenon which is making jurisprudence as a Social Science.
However, there are several other Social Science, like Ethics, Political Science, Sociology, Psychology etc. Now, it is logical that these social science should be interlinked with each other at some point.
Moreover, these social sciences could not studied in isolation. In other words, none of these sciences can be understand with having a fair knowledge of others. Jurisprudence, being a social science is, in fact, related with other social sciences.

Jurisprudence and Sociology

Jurisprudence is the study of law and sociology is the study of society and it is also discusses law but from a different stand-point. Therefore there is a link between jurisprudence and sociology.
Jurisprudence is concerned with legal rules that actually exists, however, sociology is studying the effectiveness of those legal rules and their impacts on society.

Jurisprudence and Politics

Politics studies the principles responsible for the governmental organization. Whereas, jurisprudence is analyzing those principles.
Moreover, in a political society there exist rules for the regulation of human being conduct which are the subject-matter of jurisprudence. Hence, there is a close connection between the two.

Jurisprudence and Ethics

Ethics is the science of human conduct. It projects an ideal human behavior, in the light of which it suggests a course of conduct for individuals living in societies. Whereas, jurisprudence is discussing the imperative rules, actually existing in the societies. However, those rules are also connected with the behavior of human beings in societies.
Therefore, both of the science are interrelated.
Due to the close relationship and interdependency of these sciences, there emerged a branch of jurisprudence known as Ethical Jurisprudence, discussing the ideal human behavior or which is the study of law as it ought to be.

Jurisprudence and Psychology

Psychology is the ‘science of mind and behavior’, whereas, jurisprudence is discussing law.
Law is aimed to be followed by individuals, and individuals can only follow law if they intend to follow.
Therefore, intention is the very basic element behind every law, and particularly in criminal law the concept of mens rea is having immense importance. Therefore, jurisprudence and psychology both are closely inter-related human sciences.

Jurisprudence and Economics

Economics is the science of wealth and jurisprudence is the science of law.
Economics studies the production and distribution of wealth and law is responsible for establishing a fair distribution of wealth through rules.
Moreover, studies show that economic factors are responsible for the increasing rate of criminal activities, which again brings the two in close relation with each other.
Furthermore, economics aims at improvement of the standards of human lives whereas, this could not possible if a peaceful environment is not available which is possible through the application of laws.
Therefore, there is a close relationship between the two.

Jurisprudence and History

History is the scientific narration of the past events, whereas, jurisprudence is the science of law.
Law has not come into existence overnight, as a matter of fact, it has developed through ages.
History helps jurisprudence in digging out the origin and evolution of different legal rules.
Owing to its importance, there developed a separate branch of jurisprudence, known as Historical Jurisprudence.
Therefore, it may concluded that there is a close relation between jurisprudence and history.