Q. What are the characteristics of a valid Custom?

 

Note: this post is a part of our important question answer series on Jurisprudence and Family law.

  

Answer

Custom can be defined as; cultural practices which have become definite and backed by obligation or sanction, just by virtue of widespread practice and continue presence.

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The characteristics of customs can be discussed in following heads:

1.      Reasonability

A custom must be in conformity with basic morality, the prevailing understanding of justice, health and public policy. If it is not reasonable in its origin or practice, it cannot be considered a valid custom.

For example, Sati was an accepted custom once, but with the modern moral understanding, it is reprehensible, and therefore it cannot be considered a custom today.

 

2.      Conformity with Statute Law

No custom can be in contravention to the existing law of the land. Any practice, however widespread and accepted, if found in violation of any statute of a said territory cannot be considered a custom.

 

3.      Certainty

It must be clear and unambiguous as to what the custom is and how it is practiced. A custom can only hold up in a court of law when it is not indefinite or uncertain. It needs to be absolute and objective in theory and in action.

 

4.      Antiquity

It is necessary for the custom to have been followed for time immemorial. The practice must be so ingrained in society, that legislating it seems like the only natural step. Recent or modern practices cannot be considered as custom until they become firmly established in society.

 

5.       

A custom must not be interrupted or its practice must not be sparse. It needs to be continuing for time immemorial without any interruption.

 

6.      Must be peaceful in its practice

Any custom advocating or calling for violence, implicitly or explicitly, `cannot be considered a custom.

 

7.      Must not be opposed to Public Policy

Whatever the public policy may be of the state the custom is operating in, it has to be conformed with that policy. It cannot function in contrast of that.

 

8.      Must be General or Universal

According to Carter, “Custom is effectual only when it is universal or nearly so. In the absence of unanimity of opinion, custom becomes powerless, or rather does not exist.” 

 

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