In this article you will learn about the Classification of Customs in Political Science.
Kinds of Customs
Customs in its wider sense may be divided into two classes :
1. Customs without sanction : These are the customs which are non-obligatory. They are recognised due to the pressure of public opinion. They are social customs. Austin calls them ‘positive morality’.
2. Customs with sanction : These are the customs which are enforced by the State. It is with these customs that we are bothered here. According to Salmond, a custom which has the force of law is of two kinds : legal and conventional.
Legal Customs
Legal custom is the one which possesses in itself the force of law. It works as a binding rule of law. It is the custom whose legal authority is absolute - one which in itself and proprio vigore possesses the power/force of law. They have been recognised by the courts and are a part of the law of land. They have the power of law without the necessity of any kind of agreement. Legal Custom is again divided into two classes : general and local.
- The General Custom of the Realm or General Legal Custom : It is the custom prevailing throughout the entire realm and not limited to any locality of the State. The term ‘custom’ in common usage means ‘local custom’, in law, generally, the customs which are treated to be the part of the law of the land are general legal customs. The general custom of the land is known as the ‘Common Law’ in England. It appeared as the custom of the king’s courts and consists of judicial precedents.
- Local Customs : These are those customs which are applied only to a definite territory like the location of a region of the realm such as district, village, etc. At present, local customs consist for the most part of the customary rights vested in the inhabitants of a particular place to the use for several purposes of land held by others in private ownership. When the word custom is used simpliciter and it refers to local custom. A local custom is valid and operates as a source of law only if it is reasonable, of immemorial antiquity, capable of peaceful enjoyment, having a continuity, and not inconsistent with statute, and observed as of right.
Conventional Customs or Usages
It is a practice established by having been followed for a considerable period of time, and arising out of contract between the parties, it does not arise out of its own force. A conventional custom or usage is an established practice which is legally binding, not because of any legal authority independently possessed by it, but because it has been impliedly incorporated in an agreement. It is so called because it is rooted in agreement. Its authority depends upon prior acceptance by the parties sought to be bound by it. Generally, a conventional custom is referred to as ‘usage’ and legal custom is ‘custom simpliciter’.
This article on Kinds of Customs in Political Science is contributed by Dipshikha Anand. If you like LawStudyPoint.com do follow us on our Twitter handle.