"All customs cannot be accepted as sources of law, nor can all customs be recognized and enforced by the courts." Discuss the essential tests for customs to be recognized as valid sources of law.

CS Executive · Jurisprudence, Interpretation and General Laws · PYQS · December 2021
"All customs cannot be accepted as sources of law, nor can all customs be recognized and enforced by the courts." Discuss the essential tests for customs to be recognized as valid sources of law.

Answer & Explanation:

A custom will be valid as a law and will have a binding force only if it fulfills the following essential conditions, namely: Immemorial (Antiquity): A custom to be valid must be proved to be immemorial; it must be ancient. According to Blackstone, "A custom, in order that it may be legal and binding must have been used so long that the memory of man runs not to the contrary, so that, if anyone can show the beginning of it, it is no good custom". All that is required to be proved is that the alleged custom is ancient. Certainty: The custom must be certain and definite, and must not be vague and ambiguous. Reasonableness: A custom must be reasonable. It must be useful and convenient to the society. A custom is unreasonable if it is opposed to the principles of justice, equity and good conscience. Compulsory Observance: A custom to be valid must have been continuously observed without any interruption from times immemorial and it must have been regarded by those affected by it as an obligatory or binding rule of conduct. Conformity with Law and Public Morality: A custom must not be opposed to morality or public policy nor must it conflict with statute law. If a custom is expressly forbidden by legislation and abrogated by a statute, it is inapplicable. Unanimity of Opinion: The custom must be general or universal. If practice is left to individual choice, it cannot be termed as custom. Peaceable Enjoyment: The custom must have been enjoyed peaceably without any dispute in a law court or otherwise. Consistency: There must be consistency among the customs. Custom must not come into conflict with the other established customs.

Topics: Jurisprudence

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