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superseded by legislation and precedent.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.
#
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.
#
68
67
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,
74
#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
76
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).