Custom

Custom is one of the most fruitful sources of law.  Custom is to society what law is to the state. Each is the expression and realization, to the measure of men’s insight and ability, or the principles of right and justice.  When the state takes up its function of administering justice, it accepts, as true and valid, the rules of right already accepted by the society of which is itself a product, and it finds these principles already realized in the customs of the realm.

Another ground of the law creative efficacy of custom is to be found in the fact that the existence of an established custom is the basis of a rational expectation of its continuance in the future.  Justice demands that, unless there is good reason to the contrary, man’s rational expectations shall be fulfilled rather than frustrated, even if the customs are not ideally just and reasonable.

As an instrument of the development of English law, in particular, it has now almost ceased to exist, partly because it has, to a large extent, been superseded by legislation and precedent, and partly because of the stringent limitations imposed by law upon its law creating efficiency.

Yes, the role played by custom even today is not totally insignificant.  Much of statute law itself is subjected to well recognize customers to the contrary.  Thus, the law relating to bundies is not governed by the Indian Negotiable Instruments Act, but by local custom, unless such custom is expressly excluded by any provision of that Act.

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