Define: Custom

In legal terms, “custom” refers to a long-standing practice or tradition that has acquired legal significance and is recognised as a source of law. Customary law derives from the collective habits, usages, or conventions of a particular community or group and is often considered as binding as statutory or written law. Customary law can be influential in various legal contexts, including contract law, property law, and international law. To be recognized as legally binding, a custom must meet certain criteria, such as consistency, universality, and general acceptance within the relevant community or jurisdiction. Courts may rely on customary law to resolve disputes when statutory law is silent or ambiguous, or when the parties have implicitly consented to be bound by custom. Customary law is an essential element of legal systems worldwide, reflecting the social norms, values, and traditions of diverse cultures and societies.

Custom is one of the most fruitful sources of law.  Custom is to society what law is to the state. Each is the expression and realisation of the measure of men’s insight and ability, or the principles of right and justice.  When the state takes up its function of administering justice, it accepts, as true and valid, the rules of right already accepted by society, which is itself a product, and it finds these principles already realised in the customs of the realm.

Another ground for the creative efficacy of custom is to be found in the fact that the existence of an established custom is the basis of a rational expectation of its continuance in the future.  Justice demands that, unless there is good reason to the contrary, man’s rational expectations shall be fulfiled rather than frustrated, even if the customs are not ideally just and reasonable.

As an instrument of the development of English law, in particular, it has now almost ceased to exist, partly because it has, to a large extent, been superseded by legislation and precedent and partly because of the stringent limitations imposed by law upon its law-creating efficiency.

Yes, the role played by custom even today is not totally insignificant.  Much of the statute  itself is subject to well-recognised customers.  Thus, the law relating to bundies is not governed by the Indian Negotiable Instruments Act but by local custom, unless such custom is expressly excluded by any provision of that Act.

This site contains general legal information but does not constitute professional legal advice for your particular situation. Persuing this glossary does not create an attorney-client or legal adviser relationship. If you have specific questions, please consult a qualified attorney licensed in your jurisdiction.

This glossary post was last updated: 11th April 2024.