Custom is one of the earliest sources of law. In the primitive society all disputes were decided in accordance with the prevailing social customs. In the beginning, when the social organisation was simple, customs were based on the general usage of the family, clan or tribe.
No one can say exactly when and how custom arose, “except that it was shaped by the cooperative action of the whole community and not by any kingly or legislative command.” But one thing is clear, that customs are accepted and followed as a matter of habit.
Their sanction is utility or the general desire of men for order and justice. Sometimes people choose to do a certain thing as a matter of convenience. When it is repeated, it becomes a habit and passes from one generation to another till its utility is lost to the community. Sometimes a custom may grow accidentally and people begin following it.
The various schools of jurisprudence are in substantial agreement upon the importance of customs as a source of law. Customs are not laws in the political sense of the term.
But when the State recognizes these customary rates as binding, they acquire the status of law. No State can afford to ignore the customs of the land, not even conquerors that impose new legal systems on defeated countries.
If it does, the people who follow these customs will revolt against the authority of the State. “In the great book of law”, says Maclver, “the State merely writes new sentences and here and there scratches out an old one.
Much of the book was never written by the State at all, and by all of it the State itself is bound, save as it modifies the code from generation to generation.
The State can no more reconstitute at any time the law as a whole than a man can remake his body.” The common law of England consists mainly of customs and the courts take due cognizance of it. Customary law is also an integral part of the legal framework in India.
In the primitive community custom was law and law was religion. Law and religion were so inextricably mixed up that the rules of life had a religious sanction.
The institution of, first, the magician and, then, the priest-king, in the early stages of the development of the State, is a clear illustration of the relation between religion and politics.
“Indeed,” as Woodrow Wilson points out, “the early law of Rome was little more than a body of technical religious rules, a system of means for obtaining religious rights through the proper carrying out of certain religious formulas.”
The most influential basis of the Hindu Law in India is the code of Manu. The Mohammedan Law derives itself from the Quran and the Shariat.
Islamic law now forms the basis of the legal system of the Islamic Republic of Pakistan replacing the prevailing laws by those ordained by the Quran and Shariat and evolving an Islamic Jurisprudence.
President Zia- ul-Haq, for instance, replaced the wealth tax and agriculture produce laws by Zakat and Usur. Religion, thus, is an important and in some the only source of law, as in the Arabian countries, Iran and Afghanistan.
3. Judicial Decisions:
Gettel says that the State “arose not as the creator of law, but as the interpreter and enforcer of customs.” When men live in society disputes are sure to arise. In primitive society disputed points were referred to the wisest men in the community and their decisions were accepted and made precedents for similar cases.
When social organisation became more complex and tribes intermixed either for the purpose of trade or matrimony, conflict of customs became more usual. At that time the necessity was felt to supplement custom by interpretation.
Whenever custom failed to give a just solution or was obviously not suited to the case, the dispute was decided according to commonsense. Such decisions became judicial precedents.
In the beginning they were oral and unwritten and passed from generation to generation by tradition. But in order to make them more definite they were later reduced to writing.
In Britain, before the rise of Parliament, judges went on circuit and were responsible for evolving uniformity in the law. By comparing decisions and by basing new decisions on preceding ones, they developed the Common Law.
This was not a characteristic only of early law. In our own times a judge, while applying the law, interprets it, and in doing so he modifies or explains it either subconsciously or deliberately. Customs, too, are to be fitted to dynamic conditions of society and their rigidity is lubricated by the progressive social forces.
Even a written law requires filling in the gaps. This is done by judges, and Justice Holmes, of the United States Supreme Court, gave us a bare truth when he said that judges do and must make laws. Thus, law in its most characteristic form is the case-law or judge-made law.
4. Scientific Commentaries:
Scientific discussions by eminent jurists also modify and develop law. In every country the greatest importance is attached by both judges and lawyers to the opinions of legal luminaries. The jurists collect and arrange in logical form past customs, decisions, and laws. They discuss and elaborate the existing law and make it clear where it is ambiguous.
In this process they express their opinions as to what the law ought to be and its effect on society. On the basis of the past and the present law, they are able to arrive at general principles which may guide future legislation and indicate in broad lines the gaps that need filling in. The opinions of the commentators are not decisions.
They are only arguments. When these arguments are repeatedly recognized, they amount to accepted decisions. To sum up: “The commentator, by collecting, comparing, and logically arranging principles, customs, decisions and laws, lays down guiding principles for possible cases. He shows the omissions and deduces principles to govern them.”
The term equity means equality or fairness. The function of a judge is to administer justice. But law can never fit in every case. At many points it may be silent and at others it may be ambiguous.
When the existing law does not provide any relief, principles of equity are applied and cases are decided according to commonsense or fairness. Moreover, positive law, with the lapse of time, becomes unsuitable for new and changed social conditions. To make it suitable, either the law should be changed by the law-making authority, or there should be some informal method of changing it.
Equity is an informal method of making new law or altering old law, depending on intrinsic fairness or equality of treatment. Thus, equity is intended to provide relief where the existing law affords none. It aims at securing equality or justice and it is based on what earlier writers used to describe as the law of nature, that is, law guided by reason.
The interference of equity with law, according to Sir Henry Maine, is open and avowed. Equity not only supplements law, but it also makes law flexible. It is an informal method of making new law and altering the old one.
Equity, too, is a kind of judge-made law. But there is one important difference between the two. In case-law, the judge interprets the existing law. In equity, he adds to the law what is missing therein and creates a new one in order to make it suitable for the changed conditions.
In addition to selecting customary usages for enforcement, Kings issued decrees concerning new matters. This practice was the source of legislation, which became the primary concern of the legislative assemblies with the emergence of a representative government. But the approval of the King or President is as much there now as it was in the past.
Legislation is, now, the most prolific and direct source of law. Law is regarded as the expression of the will of the people and the will of the people is expressed through legislative assemblies which are representative bodies. All other means of making laws have now been swallowed up by this modern method of legislation. Custom and equity are being replaced by definite legislative acts.
The codification of law has limited the scope of judicial decisions, and scientific commentaries are used simply to discuss cases. Legislation has, thus, tended to supplant other sources of law. But we cannot ignore the practical utility of customs, equity, religious practices and judicial decisions. Though all these forces have not remained direct sources of law, yet they constantly influence its formulation.
Woodrow Wilson has beautifully expressed his views on the process of the development of law. He says, “Custom is the earliest fountain of law but religion is a contemporary, an equally prolific, and in the same stages of national development, an almost identical source.
Adjudication comes almost as authority itself, and from a very antique time goes hand in hand with equity. Only legislation, the conscious and deliberate organisation of law, and scientific discussion, the development of its principles, await an advanced stage of its growth in the body-politic to assert their influence in law-making.”