Author: Nikitha Parasi, Jain School of Law University

Before the emergence of codified or judicial precedents the societies relied mainly upon the customs to regulate conduct and resolve disputes. Earlier in societies, customs formed the foundation upon which legal systems evolved, reflecting the community’s moral and social values. Hence, a custom may be defined as a rule of conduct observed by the community and accepted as binding in practice over time. 

According to sir henry maine, law has evolved “ from status to contract,” giving importance to the historical transformation of customs into binding legal norms.and understanding the interplay between the customs and law remains essential, as many modern legal systems continue to draw legitimacy from customary practices that predate written legislation.

Historically, customs have served as the earliest source of law. In earlier societies such as Greece, Rome and India, the primary means of governance was the unwritten customs. In England the common law system originated from the customs of local communities, which were gradually unified under the royal courts. Likewise, in India, the Dharma Shastra recognized customary practices (achara) as binding sources of law, provided they were not contrary to morality or established texts.  Over the time these customs were systematized and refined, eventually forming the core of codified law. Even today, many tribal and rural communities in India rely on customary disputes resolution mechanisms that coexist with formal legal institutions.

In both common law and civil law jurisdiction, customs remain as a recognized source of law. In the Indian legal system, under article 13(3)(a) of the constitution customs are recognized, which includes “customs or usage having the force of law” within the definition of law. This ensures that customs that have attained the force of law continue to operate unless they contravene constitutional provisions. 

in the landmark case of Collector of Madura v. Mootoo Ramalinga Sethupathi, (1868) 12 M.I.A. 397 (P.C.), where the Privy Council held that a custom, to be valid, must be ancient, certain, and reasonable, And laid down certain conditions for a costumes to be considered legally valid.:

1. Antiquity- it has existed since time immemorial.

2. Continuity-should be practiced without any interruption.

3. Certainty- it should be clear and unambiguous in its application

4. Reasonableness- it should not be arbitrary or opposed to public policy.

5. Conformity with law and morality- customs inconsistent with statutory law or moral principles are not valid.

The Indian judiciary has consistently acknowledged customs as a valid source of law, provided they meet judicial standards. Like under section 7, explicitly recognizes marriages performed according to customary rites and ceremonies. 

Likewise, in Thakur gokal chand v. pravin kumari, AIR 1952, S.C.C. 1, the supreme court affirmed that customs, when proved, has the force of law and can override general law. 

However, courts also play an important role in striking down regressive or discriminatory customs. In Sharya Bano V. Union Of India, (2017)9 S.C.C. 1, the supreme court invalidated the practice of triple talaq, holding it unconstitutional as it violated women’s fundamental rights. This demonstrated that while customs can be a source of law, it cannot supersede constitutional guarantees of equality and dignity. 

The coexistence of customs and codified law often leads to conflict, especially when customs contravene statutory provisions or fundamental rights. Such as, customs permitting child marriage, untouchability, or gender-based discrimination have been invalidated through legislative and judicial intervention.

The Abolition of sati act, 1829 and the prohibition of child marriage act, 2006, are examples where statutory law has overridden oppressive customs in the interest of justice and equality. 

The judiciary has repeatedly given importance to the customs, but also such customs must yield to the supremacy of constitutional law. In the case of State of Bombay V. Narasu Appa Mali, A.I.R. 1952 Bom. 84, the high court observed that personal laws and customs could not violate fundamental rights under part III of the constitution. This step to balance by judiciary ensures that the law evolves in accordance with societal progress and human rights standards.

In this modern era, customs continue to have an impact on various branches of law, including family law, property law, and environmental law. The recognition of customary land rights in tribal areas and community- based environmental practice highlights their importance. And however , globalization and constitutionalism have introduced new challenges. Customs which are rooted in caste hierarchies, or exclusion often clash with democratic values and international human rights norms. 

The future of customs in law lies in selective preservation like retaining those that promote social harmony while discarding those which contravene constitutional morality.

The judiciary and legislature have to work in collaboration to harmonize customary practices with contemporary legal and ethical standards. The judicial innovations like in the case of Indian Young Lawyers Association V. State of Kerala,(2019) 11 S.C.C. 1 which adopted the doctrine of constitutional morality, reflects this progressive reconciliation.

Customs form the living roots of the legal system, embodying the traditions, beliefs, and practices of society. While modern law seeks uniformity through codification, customs preserve the diversity and adaptability of justice. The interaction between custom and law is thus not one of conflict but of coexistence — where tradition informs the law, and law refines tradition. As Roscoe Pound aptly stated, “Law must be stable, yet it cannot stand still.” The enduring relationship between custom and law exemplifies this balance between continuity and change, ensuring that justice remains both rooted in culture and responsive to progress.

While modern law seeks uniformity through codification, customs preserve the diversity and adaptability of justice.