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Sources of Law

Sources of Law. CUSTOM LEGISLATION. PRECEDENT RATIO OBITER. CUSTOM. Custom is the oldest form of law making. In  law ,  custom  can be described as the established patterns of behavior that can be objectively verified within a particular social setting.

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Sources of Law

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  1. Sources of Law • CUSTOM • LEGISLATION • PRECEDENT • RATIO • OBITER

  2. CUSTOM • Custom is the oldest form of law making. • In law, custom can be described as the established patterns of behavior that can be objectively verified within a particular social setting. • A claim can be carried out in defense of "what has always been done and accepted by law.

  3.  Generally, customary law exists where: a certain legal practice is observed and the relevant actors consider it to be law (opinio juris). Related is the idea of prescription; a right enjoyed through long custom rather than positive law.

  4. Binding force of Customs • The very fact that any rule has the sanction of custom raises a presumption that it deserves the sanction of law. • Prestige and long acceptance. • It is external and visible sign of national conscience and as such is accepted by the courts of law as an authoritative guide. • 4. The existence of an established usage is the basis of a rational expectation of its continuance in the future. • 5. It rests on the popular conviction that it is in the interest of society.

  5. Theories regarding transformation of Custom into LAW

  6. Historical Theory • Custom is the derived from the common conscious of the people. • It does not depend upon the arbitrary will of a person. • Not upon any accident. • Springs from an inner sense of right.

  7. Criticism • Views of this theory are not balanced. • Not always by will or convenience of people. • Sometimes imposed by ruling class. • State has power to abrogate a custom. • Judges and legislations have creative role in modern times.

  8. Analytical Theory • Austin, Holland, Gray, Allen, Vinogradoff. • Austin : Custom is a source of law not law itself. • They are not positive laws until their existence is recognized by the decisions of the courts. • Customs become law when it is embodied in an Act of the Legislature. • When sovereign allows it to be so.

  9. Customs have only persuasive value. Holland : customs are not always laws when they arise but they are largely adopted into laws by state recognition. DEFECTS : Bulk of Customs is non litigious and it does not come before the Courts. Society regulates its customs according to those customs.

  10. KINDS OF CUSTOMS • LEGAL • Absolute legal right. • Possesses force of law properiovigore. • Parties may agree to a legal custom but are not bound by the same. • Kinds : • Local custom • General custom • CONVENTIONAL • Or USAGE • Conditional authority. • Legally binding because it has been expressly or impliedly incorporated in a contract between the parties concerned. • The customs of the locality or trade or profession are taken to be noticed in the contract.

  11. CUSTOMS • Custom is binding irrespective of the consent of the parties to be bound thereby. • Should exist from time immemorial. • A local custom can freely derogate from the general or common law of the realm but not from the statute law. • USAGE • It is binding only when it is not expressly excluded. • Recently originated usage can be given effect by the courts. • It can derogate from the general or common law to the extent to which it is possible to exclude the common law by specific contract.

  12. LEGAL CUSTOM • LOCAL CUSTOM • Prevailed in some Defined Locality. • May be valid and operative as a source of law. • Must be reasonable. • Must conform to statute law. • Must have been observed as obligatory. • Must be of immemorial antiquity. • GENERAL CUSTOM • Prevails throughout state. • It must not conflict with statute of the country. • Once recognized can not be changed.

  13. Requisites of a Valid Custom • Must be proved to be immemorial. • Must be reasonable. • Must be continuously observed. • Must be certain and definite. • Must be favoring public policy and morality. • Must not be in conflict with statute law of the country. • Must be general and universal.

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