Sources of law and custom: formal and material sources, the ancient sources, and the requisites of a valid custom

LUG-102 Jurisprudence — Legal Method, Indian Legal System and Basic Theory of Law, Unit III: Ancient: customs, etc. · LLB · 60 min

This lecture opens Unit III by asking what a "source" of law is (Salmond's formal and material, legal and historical sources; Keeton, Holland and Austin) and what sources national and international law recognise (Article 38 of the ICJ Statute). It then takes the oldest source, custom: its meaning, the Austin-Savigny debate on when custom becomes law, its kinds, the requisites of a valid custom, and the Indian law of custom (Article 13(3)(a), the Ramnad case, Gokal Chand, Narasu Appa Mali, the Hindu Marriage Act), closing with the other ancient sources - religion, equity, juristic opinion and agreement. Custom is asked in almost every paper of this course.

Objectives

Explain the meaning of a source of law and Salmond's classification into formal and material (legal and historical) sources, and compare it with Keeton, Holland and Austin
Describe the sources recognised under international law in Article 38 of the ICJ Statute and their place in Indian law
Distinguish the analytical (Austin) and historical (Savigny) theories on how custom becomes law and state the kinds of custom
Apply the requisites of a valid custom to a problem and cite the Indian authorities on proof of custom
Explain the role of religion, equity, professional opinion and agreement as sources, and how custom shaped the growth of legal rules

Slides

What is a "source" of law?
Salmond's classification: formal and material; legal and historical
Sources recognised under international law: Article 38 of the ICJ Statute
Custom: meaning and definitions
When does custom become law? Austin against Savigny
Kinds of custom
Requisites of a valid custom
Custom in India: Article 13(3), personal laws and the Hindu Marriage Act
Proving a custom: the Indian cases
The other ancient sources: religion, equity, juristic opinion, agreement
How custom shaped the law, and why it has declined

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