Transcript legal method and reasoning custom as a source of law

GIVEN BY ------Santhi narayana
Introduction
Customs have always been an important source of law. The two
bones of contention regarding customs in Hindu Law are however:
Its validity under the smriti law.
Its relevancy to castes and tribes which are not governed by the
smriti law.
Because of the working women belonging to the lower strata of the
society, the various castes and tribes had relatively more woman
oriented inheritance laws as opposed to the higher castes where
women mostly just maintained the household. This is the reason why
the efforts were at first made to make laws uniform across Hindu
Law.
Western Jurists
In the evolution of the human society, it appears to be beyond doubt that
custom arose first, law came later. Law denotes a more definitive
organisation of human society with some kind of power structure
established. Customs arise whenever a few human beings come together,
as no association of human beings can exist permanently without adopting
consciously or unconsciously, some definite rules governing reciprocal
rights and obligations. [Vinogradoff, Collected Papers 420. As Paton
observes, “Indeed custom is coeval with the very birth of the community
itself”. Jurisprudence 143 (2nd ed. 1951). Even a primitive tribe may have a
legal order long before it has developed a state (1941) 55 Harv. L.R.. 667]. It also looks to be axiomatic that, to start with, law was built upon
custom. One example which immediately comes to mind is that of the
English common law which in its origin was built upon custom and which
later absorbed into itself the customs of the mercantile community to give
to the common law world the modern Mercantile Law. [Paton,
Jurisprudence 148 (2nd ed.1961). "Mercantile Law, perhaps, provides one
of the most interesting examples of custom". Keeton, The Elementary
Principles of Jurisprudence 77, 81 (2nd ed. 1949)]. The Twelve Tables of
Rome were based upon customs of the people [Maine, Ancient Law
18(1946)].
Custom is regarded as a source of law by the
Western jurists, though they assign
importance to it to a varying degree
depending upon their approach and outlook.
Austin having defined 'law‘ as the command
of a political superior or definite human
authority addressed to political inferiors and
enforced by a penalty or sanction, held that
custom becomes a law only when it receives
judicial or legislative recognition.
Article 13(1) of India’s Constitution provides that when the Constitution entered
into force, all previous laws that were inconsistent with the Constitution were
considered void.
[1] The Constitution defines “law” to include “ custom or usage having in
the territory of India the force of law.”
[2] The Courts of India have recognized custom as law only if the custom is (1)
“ancient or immemorial” in origin, (2) “reasonable in nature and continuous in
use,” and (3) “certain.
”[3] The Courts have interpreted “ancient or immemorial” to mean that for a
custom to be binding it “must derive its force from the fact that by long usage it
has obtained the force of law.”
[4] A custom also “derives its validity from being reasonable at inception and
present exercise.”
[5] Lastly, a “certain” custom is one that is “certain in its extent and mode of
operation” and invariable.
According to Austin, nothing is entitled to the name ‘Law’
which does not possess all the attributes of state-created and stateenforced law and so, on this approach, logically, one shall have to say that
customary law is not law at all, or that it is 'imperfect' or 'inchoate' law.
Austin's definition of law, nevertheless, holds that courts do not
proprio motu for the time make custom a law, that they merely
decide as a fact that there exists a legal custom about which there
might have been some question up to that time, just as there might
be about the meaning and interpretation of an Act of Parliament, and
the observance of a custom is not the cause of law; but
is evidence of its existence
Hindu View of Custom
Custom has always been given a very important place as a source of law
by the Hindu Jurists. Two views have prevailed regarding the relative
value of custom vis-a-vis the sruti and smriti. The Dharmashastra
writers subordinated customs to sruti and smriti which were given a
higher authority. Thus, according to Gautam, dharmas (customs) of
countries, castes and families, which are not opposed to Vedic
scriptures, are authoritative and binding. Manu and Yajnavalkya declare
that sources of Dharma are sruti, smriti and sadachara in that order.
Apararka held the view that a custom repugnant to any 'clear' text of '
Vedas' is to be rejected. Mitakshara, Dayabhaga, Mayukha also place
custom as subordinate to sruti and smriti. This, however, was not the
unanimity of opinion. There were dissenting voices against the view of
subordinating custom. Visvarupa, Medhatithi favour the view that
prescriptions of smritis (and even of sruti) need not be observed when
they are vehemently condemned by the people (e.g. niyoga, though
sanctioned by the texts, are, nevertheless, abhorred by custom)
[Vrihaspati, Narada, Asahaya were in favour of unqualified acceptance of
custom even when they were in conflict with the
written laws.
Conclusion
As was observed, a system of property ownership by women seemed to
have been an integral and significant part of the ancient moral, ethical and
legal socio norms. Due weightage was granted to this subject in Sanskrit
scriptures as was evident from the Dharmasashtras and Dharmasutras. It
did appear that patriarchal collusions constantly undermined the
scriptural dictates of the dharma of stridhan. At each time the smritikars,
with great effort, brought the emphasis back to women's ownership of
property and in the process also expanded its scope. There seemed to be
a constant tussle between the smriti dictates and patriarchal subversions
within the family. The Hindu Succession Act of 1956 strove to remove this
discrimination as is evident from the fact that prior to the codification of
the Succession laws in the Hindu Succession Act in 1956, the womenfolk
in a family, held only two kinds of property - stridhan and woman's
estate. However after the codification, all the discrepancies in the laws of
various schools were abolished and the females were granted the right to
ownership of all property acquired or possessed under a will, gift, award,
document or a decree of a court prescribing limited estate before and
after signing of the Act, abolishing their “limited owner” status. Whatever
she has obtained or acquired legally before or after commencement of the
Act, became her absolute property and she became the absolute owner.