Custom — KSLU Jurisprudence Notes
Custom
Custom is the oldest source — conduct so long and uniformly observed that the community treats it as binding. Kinds: legal custom (general or local, binding proprio vigore [by its own force]) and conventional custom (usage binding through incorporation into contracts).
| Essential of a valid custom | Meaning |
|---|---|
| Antiquity | observed from time immemorial |
| Continuity & uniformity | unbroken, consistent observance |
| Certainty | definite in scope |
| Reasonableness | not absurd or oppressive |
| Conformity with statute & public policy | a custom contrary to law fails |
| Opinio necessitatis | followed as of right, not by mere convenience |
The schools quarrel over its rank: for Savigny custom is the primary source (legislation only declares the Volksgeist); for Austin custom is law only when the sovereign adopts it. Indian law follows the middle path — custom binds, but a statute always overrides it.