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Jurisprudence Essay

According to the analytical school, custom is not an authoritative source of law at all. Austin points out that as far as English law is concerned the so-called English customary law is purely on invention of the English judges.

Because they were afraid of offending the conservative instincts of the English people, that is why they started the fiction that they were not introducing our new law but they were giving to the English people merely their own customary laws.

Customs are of two kinds 1 legal and 2 conventional. The first kind consists of custom which is operative per se as a binding rule of law, independently of any agreement on the part of those subject to it. The second kind consists of custom which operates only indirectly through the medium of agreement, express or implied, whereby it is accepted and adopted in individual instances as conventional law between the parties.

The legal custom is one whose legal authority is absolute. The parties, affected may agree to a legal custom or not but they are bound by the same. Legal customs are of two kinds 1 local and 2 general. Local customs apply only to a locality and a general custom applies to the whole country. Local custom is one which prevails in some definite locality and constitutes a source of law for that place only.

Every local custom must satisfy certain conditions. It must be reasonable. It must conform to the statue law. It must have been observed as obligatory. It must be of immemorial antiquity. A General custom is that custom which prevails throughout the country and constitutes one of the sources of the law of the land. There was a time when common law was considered to be the same as the general custom of the realm followed from ancient times. There is no unanimity of opinion on the point whether the general custom must be immemorial or not.

A conventional custom is one whose authority is conditional on its acceptance and incorporation in the agreement between the parties to be bound by it. A conventional custom is an established practice, which is legally binding because it had been expressly or impliedly incorporated in a contract between the parties concerned.

According to Austin one of the main priests of analytical school, custom is a source of law and not law in itself. Custom are not positive laws until their existence is recognized by the decisions of the courts.

A custom becomes law when it is enforced by the state. It is not every custom that is binding. Only those customs are valid which satisfy the judicial test. The sovereign can abolish a custom. A custom is law only because the sovereign allows it to be so. According to Austin, a custom is a rule of conduct which the governed observe spontaneously and not in pursuance of law settled by a political superior. A custom when so recognized are only social customs or merely rules of positive morality.

A central puzzle in jurisprudence has been the role of custom in law. And, assuming that custom is a source of law, what are its constituent elements? Is proof of a consistent and long-standing practice sufficient, or must there be an extra ingredient - that the usage is pursued out of a sense of legal obligation, or, at least, that the custom is reasonable and efficacious?

And, most tantalizing of all, is custom a source of law that we should embrace in modern, sophisticated legal systems, or is the notion of law from below outdated, or even dangerous, today? This volume answers these questions through a rigorous multidisciplinary, historical, and comparative approach, offering a fresh perspective on custom's enduring place in both domestic and international law. Selected pages Title Page. Contents Custom in Preliterate Societies.

The Western Legal Tradition of Positivism. The Common Law and Custom. How and Why Custom Endures. Bederman No preview available - Custom as a Source of Law David J.

The Handout Notes for BA-LLB student.

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According to Austin one of the main priests of analytical school, custom is a source of law and not law in itself. Custom are not positive laws until their existence is recognized by the decisions of the courts. A custom becomes law when it is enforced by the state. It is not every custom that is binding.

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Oct 24,  · Custom can simply be explained as those long established practices or unwritten rules which have acquired binding or obligatory character. In ancient societies, custom was considered as one of the most important sources of law; In fact it was considered as the real source of law.

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Oct 24,  · Custom in jurisprudence Custom can simply be explained as those long established practices or unwritten rules which have acquired binding or obligatory character. In ancient societies, custom was considered as one of the most important sources of law; In fact it was considered as the real source of law. Salmond- Custom is to society what law is to the state. Each is the expression and realization of Each is the expression and realization of the measure of man’s insight and ability of the principles of right and justice.

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Custom In Jurisprudence custom in jurisprudence Can you improve the answer?Oct 24, Custom can simply be explained as those long established practices or unwritten rules which have acquired binding or obligatory character. Custom, in English law, an ancient rule of law for a particular locality, as opposed to the common law of the country. It has its origin in the Anglo-Saxon period, when local customs formed most laws affecting family rights, ownership and inheritance, contracts, and personal violence.