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.
Continuity
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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