QUESTIONS
AND NOTES ON CUSTOM AS A SOURCE OF LAW 1
1. Who said that the true sources of law are agencies
through which the rules of conduct acquire the character of law because of
their certainty, uniformity and binding force
Allen
2. Who said that the source of law includes the
material from which the judge obtains rules for deciding cases?
Fuller
3. Who said that law is not derived from any single
source and the real basis of law is public service?
Duguit
4. Who said that “At present as well as any other time,
the center of gravity of legal development lies not in legislation, not in
juristic science not in judicial decisions, but in society itself”?
Eherlich
5. Salmond division of sources of law
Legal Sources include: Legislation, Precedent,
Customary Law, and Conventional Law
Historical Sources include: unauthoritative writings
of jurists, foreign judgments
6. Who said “Legal Sources are the only gates through
which new principles can find entrance into the law”?
Salmond
7. Who divided sources of law into binding and persuasive?
Keeton
8. Who defined Custom as “A continuing course of
conduct which by the acquiescence or express approval of the community
observing it, has come to be regarding as fixing the norm of conduct for
members of society”?
Dias and Hughes
9. Who defines Custom as “Uniformity of habits or
conducts of people under like circumstances”?
Allen
10. Who said “before any definite agency of social
control is developed there exists a control arising partly from the public
opinion of the living and more largely from the public opinion of the dead”?
Spencer
11. Who said “Custom is the embodiment of those
principles which have commanded themselves to the national conscience as
principles of justice and public utility”?
Salmond
12. Who said “Custom is some kind of special rule which
is in actual existence or possibly followed from time immemorial and which has
acquired the force of law in specified territory, although it may be contrary
or inconsistent with the general law of the land”?
Halsbury
13. Who said “Custom is a generally observed course of
conduct”?
TE Holland
14. Who said that “Custom is a rule of conduct which the
governed observe spontaneously and not in pursuance of law settled by the
political superior”?
Austin
15. Who said “Custom are those rules of human action,
established by usage and regarded as legally binding by those to whom the rules
are applicable, which are adopted by court and applied as source of law because
they are generally followed by the political society as a whole or by some part
of it”?
Keeton
16. In which case the Privy Council held “The clear
proof of usage will outweigh the written text of the law”?
Collector of Madurai v Muttoramalinga
17. Who said “Law is a form of order and therefore, a
good law means a good order”?
Aristotle
18. Who said “Whenever and as soon as a line of
international conduct frequently adopted by States is legally considered as an
obligation or right, the rule which is abstracted from such conduct becomes a
rule of customary International Law”?
Oppenheim
19. In which case the King`s Bench held that “the
alleged custom is of such nature and has been so widely and generally accepted
that it can hardly be supposed that any civilized state will repudiate it”?
West Rand Central Gold Mining Company v R
20. What is conventional custom?
It is also called `usage`. The authority is
conditional on its acceptance and incorporation in the agreement between the
parties bound by it. A conventional custom is legally binding not because of
any legal authority independently possessed by it, but because it has been
expressly or impliedly incorporated in a contract between the parties
concerned.
A usage is binding only when they are not expressly
excluded by the terms of agreement. A custom is binding irrespective of the
consent of the parties. Unlike custom, usage need not be of immemorial
antiquity.
21. What are the requisites of a valid conventional
custom?
a.
Sufficiently old
enough to be in knowledge of people in general.
b.
It should not be
contrary to general law of the country.
c.
It should be
reasonable.
d.
It should not be
confined to a particular area.
e.
Should be in
conformity with morality and public policy.
22. What is a legal custom?
Those which are operative per se as binding rules of
law independent of any agreement between the parties. Its two types:
·
Local custom:
Halsbury- A particular rule which has existed actually or presumptively from
time immemorial, and has obtained the force of law in a particular locality,
although it is contrary to or not consistent with the common law of the realm”.
Practiced by people voluntarily and not out of fear of force of state.
·
General Custom-
Prevails throughout the realm and constitutes one of the sources of the common
law of the country. Erg: Karta
23. What are the requisites of a valid custom?
a.
Reasonableness:
must conform to the norms of justice and public utility.
b.
Consistency: It
must be in conformity with statute law, not be contrary to Act of Parliament.
Must yield to state law during conflict.
c.
Compulsory
observance: It must be observed as of right. It must be followed by all
concerned without recourse to force and without the necessity of permission of
those who are adversely affected by it. Not as an optional rule but as an
obligatory or binding rule of conduct.
d.
Should have been
continuously in existence from time immemorial.
e.
Certainty: Since
its existence from time immemorial it must be shown that it is being observed
continuously and uninturruptly with certainty.
f.
Some writers
also include alignment with public policy as one of the essential requisites of
a valid custom.
24. What is the difference between Custom and
Prescription?
a.
A course of
conduct practiced for a long rise gives rise to a custom, but if it gives rise
to a right, it is called prescription.
b.
Rule of time
immemorial applies to custom, however, in case of prescription the fiction of
lost grant operates and it is governed by statutory prescribed time.
c.
Custom
originates from a long usage, while prescription originates from a waiver of
right.
d.
Custom has a
wider territorial operation while prescription is of a personal nature.
e.
Custom has to be
in conformity with the principles of justice and public utility, while it is
not so in case of prescription.
25. Who said “Customary laws completely modify or repeal
a statute; it may create a new law and substitute it for statutory rule which
it has abolished”?
Savigny
26. Who said “What has governed the conduct of man from
the beginning of time will continue to govern to the end of time. Human nature
is not likely to undergo radical change and law will forever continue to be
custom”?
James Carter.
27. Who regarded custom as “posterior to that of
Themistes of Judgments and origin of custom lies in the decisions of
Themistes”?
Maine
28. Who believed in the above quote of Maine and said
that “Under the pretence of declaring custom, judges frequently give rise to it
and thus custom is posterior to judicial decision”?
Jethro Brown
29. Who said “custom did not originate from judicial
decisions instead it originated from household and relations of the clans and
its growth was steady. They possess the sanction of the people and Judges
recognize them only as an official formality”?
Vinogradoff
30. Who was the main exponent of Analytical theory of
custom and believed that a custom becomes law when it is adopted by an Act of
the Parliament or its validity has been established by judicial decision. A
customary rule may become a legal rule either by recognition through a statute
law or by a precedent?
Austin
31. Who said “Customary law is nothing but judicial law
founded upon anterior custom”?
Austin
32. Who said “Custom is firstly and essentially a law.
Custom is enforced by courts because it is already law and, it does not become
law only on enforcement by court”?
Allen
QUESTIONS
AND NOTES ON CUSTOM AS A SOURCE OF LAW 1
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