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.
With the passage of time and the advent of modern civilization, the importance of custom as a
source of law diminished and other sources such as judicial precedents and legislation gained
importance. There is no doubt about the fact that custom is an important source of law. Broadly,
there are two views which prevail in this regard on whether custom is law. Jurists such as Austin
opposed custom as law because it did not originate from the will of the sovereign. Jurists like
Savigny consider custom as the main source of law. According to him the real source of law is
the will of the people and not the will of the sovereign. The will of the people has always been
reflected in the custom and traditions of the society. Custom is hence a main source of law.

Kinds of Customs

Customs can be broadly divided into two classes:

Customs without sanction:
These kinds of customs are non-obligatory in nature and are followed because of public
opinion.
Customs with sanction:
These customs are binding in nature and are enforced by the State. These customs may
further be divided into the following categories:

 Legal Custom:
Legal custom is a custom whose authority is absolute; it possesses the force of law. It is
recognized and enforced by the courts. Legal custom may be further classified into the
following two types:
 General Customs:
These types of customs prevail throughout the territory of the State.
 Local Customs:
Local customs are applicable to a part of the State, or a particular region of the country.
 Conventional Customs:
Conventional customs are binding on the parties to an agreement. When two or more
persons enter into an agreement related to a trade, it is presumed in law that they make the
contract in accordance with established convention or usage of that trade. For instance an
agreement between landlord and tenant regarding the payment of the rent will be governed
by convention prevailing in this regard.

Essentials of a valid custom

All customs cannot be accepted as sources of law, nor can all customs be recognized and
enforced by the courts. The jurists and courts have laid down some essential tests for
customs to be recognized as valid sources of law. These tests are summarized as follows:
Antiquity:
In order to be legally valid customs should have been in existence for a long time, even
beyond human memory. In England, the year 1189 i.e. the reign of Richard I King of
England has been fixed for the determination of validity of customs.
Continuous:
A custom to be valid should have been in continuous practice. It must have been enjoyed
without any kind of interruption. Long intervals and disrupted practice of a custom raise
doubts about the validity of the same.
Exercised as a matter of right:
Custom must be enjoyed openly and with the knowledge of the community. It should not
have been practiced secretly. A custom must be proved to be a matter of right. A mere
doubtful exercise of a right is not sufficient to a claim as a valid custom.
Reasonableness:
A custom must conform to the norms of justice and public utility. A custom, to be valid,
should be based on rationality and reason. If a custom is likely to cause more
inconvenience and mischief than convenience, such a custom will not be valid.
Morality:
A custom which is immoral or opposed to public policy cannot be a valid custom. Courts
have declared many customs as invalid as they were practiced for immoral purpose or were
opposed to public policy.
Status with regard to:
In any modern State, when a new legislation is enacted, it is generally preferred to the
custom. Therefore, it is imperative that a custom must not be opposed or contrary to
legislation. Many customs have been abrogated by laws enacted by the legislative bodies.
For instance, the customary practice of child marriage has been declared as an offence.

Administration of Justice

The administration of justice is the process by which the legal system of a government is
executed. The presumed goal of such administration is to provide justice for all those
accessing the legal system.

INTRODUCTION.

War and administration of justice are two most essential functions of a state. If the state is
not incapable of performing these two functions. It cannot be called a state. Administration
of justice implies the maintenance of peace and order within a political community by means
of physical force of the state.

MEANING OF JUSTICE:

Justice means the proper administration of law.

DEFINITIONS OF ADMINISTRATION OF JUSTICE. “Administration of justice is the

protections of individual form the unjust unlawful deeds of other”.

ACCORDING TO SALMOND: “Maintenance of right within the political community by

means Of physical force of state”.

Origin and Growth of Administration of Justice: The origin and growth of

administration of Justice is identical with the origin and growth of man. In modern
civilized societies, it has evolved through stages.
First Stage -

In early stage when society was primitive and private vengeance and self-help
were the only remedies available to the wronged person against the wrongdoer. He
could get his wrong addressed with the help of his friends or relatives.

Second Stage -

The second stage of development of the society was characterized by the state
coming into existence in its rudimentary form when its functions where only persuasive
in nature. It did not have enforcing power by which it could punish the wrongdoer.

Third Stage -

In the third Stage of development of society, wrongs could be redressed by

payment of compensation by the wrongdoer to the wronged (victim) who was affected
by the wrongful act.

Thus up to this time, the justice remained private in nature without the compulsive force
of the State.

Advantages of Administration of Justice -

Advantages of Administration of Justice are as follows -

Uniformity and certainty - Legal Justice ensures uniformity and certainty. Everybody knows what the
law is and there is no scope for arbitrary action. Even Judges have to give decisions according to the
declared law of the Country. As the law is certain, citizens can shape their conduct accordingly.

Impartiality - Another Advantage of Administration of Justice, there is impartiality in the

administration of justice. Judges are required to give their decisions according to the pre-determined legal
principles and the cannot go beyond them.

Disadvantages of Justice -

Despite the aforesaid advantages there are certain disadvantages of Legal Justice which are as follows -

Rigidity - One Disadvantage of Legal Justice is that it is Rigid. Law has already been laid down
in precedents. It is not always possible to adjust it to the changing needs of society. Society may change
more rapidly than legal justice and may result in hardship and injustice in certain cases. Judges act upon the
principle that "hard cases should not make bad law".

Technicalities - Another disadvantage of legal justice is its technicalities (formalism). Judges attach
more importance to legal technicalities than they deserve. They give importance to form than to substance.

Complexity - Modern society is becoming more and more complicated and if made from time to time to
codify or simplify the legal system but very soon law becomes complicated.
KINDS OF ADMINISTRATION OF JUSTICE

The administrative of justice may be divided into two parts:-

1) Civil 2) Criminal

1- Administration of Civil Justice: The wrongs which are the subject-matter of civil
proceedings are called civil wrongs. The rights enforced by civil proceedings are of two
kinds (1) Primary and (2) Sanctioning or remedial rights. Primary right are those rights
which exists as such and do not have their source in some wrong. Sanctioning or remedial
rights are those which come in to existence after the violation of the primary rights. The
object of the civil administration of justice is to ascertain the rights of the parties and the
party who suffers from the breach of such rights is to be helped by way of paying damages
or getting injunction, restitution and specific performance of contract etc.

2- Administration of Criminal Justice: The object of the criminal justice is to determine

the crime of a person who is charged with the doing of an offence. The criminal court after
proving that the offender is guilty of the offence charged awards him the punishment of fine,
imprisonment as prescribed by criminal law. A convicted person is awarded physical pain.
Thus the main purpose of the criminal justice is to punish the wrongdoer.

DIFFERENCE BETWEEN CIVIL AND CRIMINAL ADMINISTRATION OF JUSTICE

 In the civil case the suit is filed in the civil court. In the criminal cases the
proceedings is filed in the criminal court.

 The main remedy in civil Cases is damages. The main remedy in criminal cases is to
punish the offender.

 In the civil cases, the court follows the procedure Prescribed in Civil Procedure
Code. In the criminal cases, the court follows the procedure laid down in criminal
Procedure Code.

 In civil cases the action is taken by the injured party and the Suit is established by
himself by giving evidence. In criminal cases the proceeding is taken by the state
and the injured party is called out as a witness by the state.

Theories of Punishment

Deterrent Theory: Salmond said that the deterrent aspect of punishment is extremely important.
The object of punishment is not only to prevent the wrongdoer from committing the crime again but
also to make him an example in front of the other such persons who have similar criminal
tendencies. The aim of this theory is not to seek revenge but terrorize people. As per this theory, an
exemplary punishment should be given to the criminal so that others may take a lesson from his
experience.

Preventive Theory: This theory believes that the object of punishment is to prevent or disable the
wrongdoer from committing the crime again. Deterrent theory aims at giving a warning to the society
at large whereas under Preventive Theory, the main aim is to disable the wrongdoer from repeating
the criminal activity by disabling his physical power to commit crime.

Reformative Theory: This theory believes that Punishment should exist to reform the criminal. Even
if an offender commits a crime, he does not cease to be a human being. He might have committed
the crime under circumstances which might never occur again. Thus, the main object of Punishment
under Reformative theory is to bring about a moral reform in the offender. Certain guidelines have
been prescribed under this theory.

i. While awarding punishment, the judge should study the characteristics and the age of the offender,
his early breeding, the circumstances under which he has committed the offence and the object with
which he has committed the offence.

ii. The object of the above mentioned exercise is to acquaint the judge with the exact nature of the
circumstances so that he may give a punishment which suits those circumstances.

iii. Advocates of this theory say that by sympathetic, tactful and loving treatment of the offenders, a
revolutionary change may be brought about in their character. However, the Critics say that
Reformative Theory alone is not sufficient; there must be a mix of Deterrent Theory and Reformative
Theory in order to be successful. Critics believe that in a situation of deadlock between the two
theories, the Deterrent Theory must prevail.

Retributive Theory: In primitive societies, the punishment was mostly retributive in nature and the
person wronged was allowed to have his revenge against the wrongdoer. The principle was “an eye
for an eye”. This principle was recognized and followed for a long time. Retributive theory believes
that it is an end in itself, apart from a gain to the society and the victim, the criminal should meet his
reward in equivalent suffering.

Theory of Compensation: This theory believes that punishment should not only be to prevent
further crime but it should also exist to compensate the victim who has suffered at the hands of the
wrongdoer. However, critics say that this theory is not effective in checking the rate of crime. This is
because the purpose behind committing a crime is always economic in nature. Asking the
wrongdoer to compensate the victim will not always lower the rate of crime though it might prove
beneficial to the victim. Under this theory, the compensation is also paid to the persons who have
suffered from the wrongdoing of the government.

Kinds of Punishment

Capital Punishment: This is one of the oldest forms of punishments. Even our IPC prescribes this
punishment for certain crimes. A lot of countries have either abolished this punishment or are on
their way to abolish it. Indian Judiciary has vacillating and indecisive stand on this punishment.
There have been plethora of cases where heinous and treacherous crime was committed yet Capital
Punishment was not awarded to the criminal.

Deportation or Transportation: This is also a very old form of punishment. It was practiced in India
during the British Rule. The criminal is put in a secluded place or in a different society. Critics of this
punishment believe that the person will still cause trouble in the society where he is being deported.
Corporal Punishment: Corporal punishment is a form of physical punishment that involves the
deliberate infliction of pain on the wrongdoer. This punishment is abolished in our country but it
exists in some Middle Eastern Countries. Critics say that it is highly inhuman and ineffective.

Imprisonment: This type of punishment serves the purpose of three theories, Deterrent, Preventive
and Reformative.

i. Under Deterrent Theory, it helps in setting an example.

ii. It disables the offender from moving outside, thus serving the purpose of Preventive Theory.
iii. If the government wishes to reform the prisoner, it can do so while the person is serving his
imprisonment, thus serving the purpose of Reformative Theory.

Solitary Confinement: Solitary confinement is a form of imprisonment in which a prisoner is isolated

from any human contact. It is an aggravated form of punishment. It is said that it fully exploits and
destroys the sociable nature of men. Critics say that it is inhuman too.

Indeterminate Sentence: In such a sentence, the accused is not sentenced for any fixed period.
The period is left indeterminate while awarding and when the accused shows improvement, the
sentence may be terminated. It is also reformative in nature.

Question of fact Vs. Question of law

In law, a question of fact (also known as a point of fact) is a question which must be answered by
reference to facts and evidence, and inferences arising from those facts. Such a question is distinct
from a question of law, which must be answered by applying relevant legal principles. The answer to
a question of fact (a "finding of fact") is usually dependent on particular circumstances or factual
situations.

In jurisprudence, a question of law (also known as a point of law) is a question which must be
answered by applying relevant legal principles, by an interpretation of the law. Such a question is
distinct from a question of fact, which must be answered by reference to facts and evidence, and
inferences arising from those facts. To illustrate the difference:

Question of fact: Did Mr. and Mrs. Jones leave their 10-year-old child home alone with their baby
for 4 days?
Question of law: Does leaving a baby with a 10-year old child for 4 days fit the legal definition of
child neglect?

Difference Between Question Of Law And Fact in a nutshell:

(i) Relation
Question of law is purely related with the law.
Question of fact is not related with the law.

(ii)As to Proof:
There is no need to prove question of law.
Question of fact is needed to prove.
(iii)As to conversion:
Question of law cannot be converted into question of fact.
Question of fact may be converted into question of law.

(iv) Duty of Judge:

In a question of law, is the duty of the Court to ascertain the law and decide to case accordingly.
In a question of fact, it is the duty of the Court to weigh the evidence and then come to its
conclusion.

(v) As to Authoritatively Answered:

Every question which has been authoritatively answered by the law is a question of law.
Every question which has not been determined before and authoritatively answered by the law is a
question of fact.

(vi) Example:
In case of filing an appeal, delay explained is question of fact. On the other hand, whether such a
fact is entertain able or not is a question of law.

Conclusion:
The sum up, I can say, that all matters and questions which come before a Court of justice are either of
law or fact or judicial discretion. As the legal system grows, there is a tendency to transform question of
fact, into those of questions of law.

Law and Equity:

Equity was developed in UK and in its colonies. Common law was legal system associated with
King, as justice. Before King’s justice, Lords, in different localities, provided the justice. All the
cases were decided on the base of customs and usage’s of that particular locality. In order to
administer justice, king started to send judges in the different parts of the country. They were
learned and having good reputation. They traveled place to place. They were mobile courts.
King was accompanied with them. His judges surrounded King. This king justice became very
popular in UK. This type of justice brought the different localities under the one type of justice.
There were differences in the decisions of cases earlier. Case in one locality was different than
of others. Same case in different localities had different decisions. There were variations in
decisions. Mobile courts removed these anomalies and started to give similar decisions in
identical cases. This sort of justice discovered the common customs. All decisions became
based on common customs, and applied in judgement. Identical cases in different localities had
same judgement. A new system evolved named Common Law System, means same decision
in same case at all places. Out of the king Court, drew a department, Exchequer, a Finance
Department. Its responsibility was to collect royal revenues. Later on another Court drew with
the name of Common Law Court. This was responsible for the jurisdiction on common pleas
matter. In these courts king was not a party, but both parties were common people. Court of
common pleas was still mobile Court. Where there was king, there was Court. Under the
Magnacarta, 1215, courts were stationed at West-minister. Remaining portion of Court became
King’s Bench. It was responsible in criminal matters. In these courts king was the party. Later
on, too, made it stationary at one place.

In the time of Henry II and Edward I, Common Law became in shape of codified form.
In the 14th century Equity Courts were established. Chancery courts were at work on the bases
of natural justice. It does mean fair and equitable. If someone feels un-satisfaction in the courts,
and found no relief, he comes in equity courts for relief. Later on equity and chancery courts
merged into a Court, responsible for both, natural justice system and common law system. In
1875 High Court, Supreme Court, and Appeal Courts founded. Now law divided into three
categories, i.e., Statute Law, Common Law, and Natural Justice Law. Now these principles
evolved and adopted in UK that inferior courts will follow the jurisdiction of superior courts.
Decision of superior Court became binding authority for lower courts. This principle was not only
adopted in UK, but in all of its colonies, i.e., Canada, Australia, and Sub-Continent etc.

Brief summary of the law and equity arises as follows:

1. King’s Courts – Mobile from locality to locality.

2. Exchequer – Finance Department to collect royal revenues.

3. Court of Common Pleas – Both private parties.

4. King’s Bench – Criminal cases in which King was a party.

5. Court of equity – Natural Justice Principal.

6. 1873 – 1875: High Court, Supreme Court, and Court of Appeal.