It is crucial to comprehend the sources of legislation in order to have a thorough comprehension of it. The sources from which the law or the legally binding standards of human behavior come are known as the sources of law. Stated differently, the law is a product of sources. Just as they differ on the meaning of law, jurists also dispute on the genesis and sources of law. Legal scholars approach the sources of law from different perspectives since the term "law" has multiple meanings.

For example, Savigny and Henry Maine view custom as the primary source of law, but Austin views the sovereign as the source of law. While theologians view religious texts as sources of law, natural law school views nature and human reason as the sources of law. It is true that laws have been developed from comparable sources in practically all cultures, notwithstanding the many claims and counterclaims surrounding their origins. Grouping of Sources:

Austin states that there are three interpretations of the origin of law:

Sovereign Direct Authority

• Archival records (codes).
• Factors that give society's laws legal authority (laws, traditions, etc.).

The English Jurist Salmond's Classification

• Law's Formal Sources: These are the sources that give laws their authority and power. This includes laws passed by the Sovereign or the State.
• Material Sources of Law: This phrase describes the legal content. Put succinctly, the subject matter pertains to the origin of the laws. Customs are covered by this type of law.

On the other hand, it is evident from a survey of modern legal systems that the majority of them are founded on laws. However, it is also true that customs can occasionally have a big impact on a nation's legal system.

Legal and Historical Sources

• Legal Sources:
  • Law (enacted legislation)
  • Previous rulings (case law)
  • Customs
  • Conventional law (derived from treaties, local laws, and other agreements)
     
• Historical Sources: These are the sources that are, in reality, exclusive and unapproved.
  • Examples include legal texts, judicial rulings, foreign court decisions, the Constitution, etc.

Common Sources of Law

• Custom
• Judicial precedent
• Legislation

Custom as a Source of Law
For a custom to be considered legitimate, it must be upheld without fail for an extended period of time. In addition, a practice needs to be upheld not just for a very long period but also by morals and the general public's view. But not every custom has to be made official. For instance, weddings within the forbidden relationship degrees are forbidden by the Hindu weddings Act, 1955. However, if there is a documented custom within a particular group, the Act still authorizes weddings within the prohibited degree of the relationship. Custom can be defined as long-standing customs or unwritten laws that have come to be considered binding or mandatory.

The custom was regarded as one of the primary sources of law in ancient societies-in fact, it was thought to be the true source of law. Custom as a source of law became less significant with the passage of time and the rise of modern civilization, while other sources like legislation and court decisions became more significant.

Can Custom be the law
Without a question, custom serves as a significant source of law. Regarding whether custom is the law, there are essentially two schools of thought that are prevalent. Austin was among the jurists who condemned custom as law because they believed it to be secondary to the sovereign's desire. Savigny and other jurists believe that custom is the primary basis of law. He holds that the will of the people, not the will of the sovereign, is the true basis of law. The customs and traditions of the community have always represented the will of the people. Thus, custom is a primary source of law.

For instance, Saptapadi is an example of how customs can serve as a source of legislation in India. It is the most significant Hindu marriage wedding ritual. "Seven steps" is what the word Saptapadi denotes. Following the Mangalsutra ceremony, the newlyweds circumambulate the sacred fire, known as Saptapadi, seven times. The Hindu Marriage Act of 1955 has included the ritual of Saptapadi in its Section 7.

Kinds of Customs
Customs can be broadly divided into two classes:

1. Customs without sanction: These kinds of customs are non-obligatory in nature and are followed because of public opinion.
2. 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:
   1. 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.
         
   2. 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
Not all customs can be recognized and upheld by the courts, nor can all customs be regarded as sources of law. In order for customs to be accepted as legitimate sources of law, jurists and courts have established a few prerequisites.

The following is a summary of these tests:

1. Antiquity: Customs must have been in place for a very long period-longer than human memory-in order to be legally recognized. In England, the year 1189-that is, the reign of King Richard I-is used to determine if a custom is legitimate. Nevertheless, there is no such time limit in India for determining how old a ritual is. The sole requirement is that they ought to have been in use from the beginning of time.
    
2. Constant: For a tradition to be considered legitimate, it must be consistently followed. It had to have been thoroughly enjoyed without any disruptions. Long stretches of time and irregular practice of a custom cast doubt on its legitimacy.
    
3. Practiced as a matter of right: Customs should be freely enjoyed and with community awareness. It wasn't appropriate to practice it in secret. It must be demonstrated that a custom is legitimate. A privilege exercised in doubtfully is insufficient to support a claim to be a legitimate custom.
    
4. Reasonability: A custom needs to follow the rules of fairness and public benefit. For a custom to hold validity, it must be grounded in logic and reason.
    
5. 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 practised for immoral purposes or were opposed to public policy. Bombay High Court in the case of Mathura Naikon v. Esu Naekin, held that the custom of adopting a girl for immoral purposes is illegal.
    
6. 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 in India. For instance, the customary practice of child marriage has been declared as an offence. Similarly, adoption laws have been changed by legislation in India.

Written By: Akanksha