The Elements of Custom

According to the law dictionary “A custom is the usage of practice of the people which, by common adoption and acquiescence and by long and unvarying habit, has become compulsory, and has acquired the force of a law with respect to the place or subject matter to which it relates.”Custom is said to be the the oldest source of a making law, imitation plays an important role in the growth of customs. In many legal systems custom has played an important role as a source of law. According to salmond “custom is the embodiment of these principles which have commanded themselves to the National conscience as principle of justice and unity”.

What are the elements of a custom?

1. Antiquity

A custom has to be in existence from ancient times. A custom has to be in existence before 1189, only in such situations can it produce the situation of antiquity. According to Jayaprakash “under Hindu law also immemorial customs are transcederial law: However in India it does fix any particular year to test the antiquity of a custom.”

2. Peaceful enjoymentIt is important for a custom to be peacefully enjoyed by a particular group of people.
3. There must be consistency

A custom must not be in conflict with other existing custom. The custom has to be in consistent with other customs. The difference in custom may cause a rule of condition in a given situation.

4. Conformity with statue law

Custom has to conform with statue law, a legislative passing can formally revoke a custom. In the case of a conflicting situation between a custom and a statuary law, the former has to give way to the latter.

5. Has to be a matter or right It is important to note that custom has to be enjoyed as a matter of right. These rights must be enforced. Custom has to be as a result of creating an obligatory force in one hand and a related claim at the other hand.
6. Continuity

Custom has to be practiced without any interference: continuity is an important part of custom. Continuity does not mean it has to be in continuous use it just means that there has to be a continuous availability of the terms of custom to deal with a situation of rule to which it deals.

Keep in mind:
This is only a sample.

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7. Certainty

A custom has to be certain. If a custom is not certain then it losses it’s validity. All customs originate from a general consent, and it makes it difficult to determine the existence of a consent on something which is not absolute