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Valid Customs and Views On Custom

The document outlines the essential elements required for a custom to be considered legally valid, including antiquity, continuity, reasonableness, conformity with law, certainty, compulsory observance, and general acceptance. It also distinguishes between analytical and historical views on customs, with the analytical view emphasizing state recognition and the historical view focusing on the evolution of customs into law. Both perspectives highlight the importance of customs in shaping legal principles.

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Yadav G Manish
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138 views1 page

Valid Customs and Views On Custom

The document outlines the essential elements required for a custom to be considered legally valid, including antiquity, continuity, reasonableness, conformity with law, certainty, compulsory observance, and general acceptance. It also distinguishes between analytical and historical views on customs, with the analytical view emphasizing state recognition and the historical view focusing on the evolution of customs into law. Both perspectives highlight the importance of customs in shaping legal principles.

Uploaded by

Yadav G Manish
Copyright
© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
Available Formats
Download as DOCX, PDF, TXT or read online on Scribd

Essential Elements of Valid Customs & Distinction Between Analytical and

Historical Views

Essential Elements of a Valid Custom


A **custom** is a long-established practice or usage that has acquired legal force. For a
custom to be considered legally valid, it must fulfill the following essential elements:

 **Antiquity** – The custom must be ancient and followed for a long period.
 **Continuity** – It must have been followed consistently without interruption.
 **Reasonableness** – The custom should be reasonable and not arbitrary, oppressive,
or against public policy.
 **Conformity with Law** – It should not conflict with any existing law.
 **Certainty** – The custom must be clear, definite, and specific in its application.
 **Compulsory Observance** – The custom must be followed as a matter of right, not
merely as a voluntary practice.
 **General Acceptance** – The people who follow the custom must accept it as binding.

Distinction Between Analytical and Historical Views on Custom


Aspect Analytical View Historical View
Definition Custom is a subordinate Custom is the primary
source of law, and legal source of law, evolving
validity depends on naturally from society’s
recognition by the state. traditions.
Law and Custom Law is superior to custom, Law originates from
Relationship and customs must be customs and gradually
recognized by legislation or formalizes through
courts. codification.
Emphasis Emphasizes **state Focuses on **historical
recognition** and formal evolution** of customs into
acceptance of customs. law over time.
Key Theorists John Austin, H.L.A. Hart Friedrich Karl von Savigny,
Henry Maine
Example A religious practice Ancient social customs
becoming law only after influencing modern laws
judicial recognition. (e.g., marriage laws).

Conclusion
Customs play a crucial role in shaping legal principles. While the **analytical school**
emphasizes state recognition of customs, the **historical school** views customs as the
foundation of law. Both perspectives contribute to understanding how customs become
legally binding.

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